Evidence Flashcards

Question

Lay Witness Opinion

Answer 1

Regarding opinion testimony by non-experts (lay witnesses), FRE 701 states that "[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Under the Federal Rules of Evidence (FRE), opinion testimony by lay witnesses is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge (if so based, the witness’s testimony would need to meet the requirements for expert testimony in FRE 702). Fed. R. Evid. 701. Lay opinion is permissible and often essential to identifying handwriting, although a foundation must first be laid to establish familiarity with the handwriting. Moreover, the witness's familiarity with the handwriting must have not been acquired for purposes of the litigation. Specifically, under FRE 901(b)(2), a non-expert may express an opinion that "handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation." An expert witness or the trier of fact (e.g., jury) may also determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine. Fed. R. Evid. 901(b)(3). FRE allows lay opinion testimony when it is rationally based on the perception of the witness and is helpful to the jury. Here the teller knew the signature of the bank customer on whose account the check was drawn. This knowledge made it possible for her to recognize the signature on the check as a forgery. Her testimony that the signature was a forgery is evidence that the signature on the check presented was different from the signature of the owner of the account (a signature she knows). Obviously the owner of the account would be a stronger prosecution witness than the teller in establishing that the signature was forged, but this doesn't mean that the teller would not be allowed to testify. C is correct. Although a lay witness is allowed to offer an opinion to identify and authenticate handwriting, to do so, the witness's familiarity with the handwriting must have not been acquired for purposes of the litigation. A non-expert who familiarized himself with the defendant's writing for the purpose of authenticating it at trial is not allowed to authenticate the letter.

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay, waste of time, or needless presentation of cumulative evidence.

Answer 3

Federal Rule of Evidence (FRE) 104 says that preliminary questions concerning the admissibility of evidence shall be determined by the court. In making an admissibility determination, the court is not bound by the rules of evidence except those with respect to privileges.

Answer 4

In a prosecution for homicide or a civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. Fed. R. Evid. 804(b)(2). The declarant need not actually die, but he must be unavailable at the time the statement is offered. Under the traditional view, only followed by some states, the statement was admissible only in homicide prosecutions (not civil actions) and then only if the declarant had died.

Answer 5

When a witness tells a story at trial, the opposing lawyer will often confront him with a previous out-of-court statement, in which the witness told a different story. Such an impeachment use of an out-of-court statement is not hearsay, because the out-of-court statement is introduced not for the purpose of showing that it contains the truth, but rather, to suggest that a witness who changes his story is not credible.

Answer 6

Under FRE, regarding a witness's character for truthfulness or untruthfulness, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, ***on cross-examination***, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (i) the witness; or (ii) another witness whose character the witness being cross-examined has testified about" C is correct. The witness's testimony is inadmissible because it is improper to impeach the witness's character for truthfulness by extrinsic evidence of specific instances of conduct ("prior bad acts") under FRE 608(b). The Rule only allows inquiry into specific instances of conduct on cross-examination, if the court determines the evidence is probative of truthfulness or untruthfulness of the witness.

Answer 7

The concept of “relevance” is the cornerstone of the law of admissibility of evidence. Federal Rule of Evidence (FRE) 401 lays out the test for whether evidence is relevant as a preliminary determination of admissibility: "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. FRE 401 A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. FRE 403 A is correct. This evidence has some probative value because it links the knife in the defendant’s possession to the type of knife that could have caused the victim’s wound. The evidence is not very strong, because other knives could also have caused the wound. But how much weight to give to the evidence is a decision for the jury. Rule 401 of the Federal Rules of Evidence (FRE) requires only that evidence have any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Thus, to be relevant, evidence need only have some probative value in establishing a fact.

Answer 8

An expert may state an opinion or conclusion, provided that: 1. it is relevant and reliable; 2. the witness is qualified as an expert; 3. the expert possesses reasonable probability regarding his opinion; and 4. the opinion is supported by a proper factual basis. The expert’s opinion may be based upon the evidence introduced at the trial. Experts may rely on hearsay in reaching conclusions, as long as other experts in the field would reasonably rely on such information. However, the Rule states that "if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect." Fed. R. Evid. 703. It cannot be admitted on the basis that experts are permitted to rely on hearsay in reaching a conclusion because the Rule will not allow admission when its probative value does not substantially outweigh the risks of prejudice and confusion for the jury. That strict balancing test is not met in this case. There is no other applicable exception, so the letter is inadmissible hearsay.

Answer 9

Demonstrations and experiments will generally be admissible if the trial judge concludes that their relevance outweighs any prejudice, waste of time, confusion, etc. that might result. If a plaintiff wants to perform actions or undergo manipulation to show the practical impact of an injury, courts are more hesitant. Courts insist that the demonstration be relevant in the sense that the matters demonstrated are similar to the matter in issue. A party will often want to conduct an experiment to determine whether an event is possible or determine the causes of a prior event. This experiment may take place either in court or out-of-court prior to trial. In-Court Experiment When a court proposes an IN-court experiment, the trial judge has the same broad discretion as in determining whether to allow a demonstration. The court will pay special attention to whether there is a sufficient similarity of conditions between the original event and the in-court experiment. Out-of-Court Experiment OUT-of-court experiments may also be admissible if the probative value is not substantially outweighed by the danger of unfair prejudice, confusion, undue delay, etc. The similarity of conditions is especially important with out-of-court experiments as well.

Answer 10

Witnesses are permitted to refresh their memories by looking at almost anything – either before or while testifying. However, if a witness’s memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the writing to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the memorandum may be introduced into evidence under the past recollection recorded exception to the hearsay rule. FRE 803(5). Normally, the “record” under the past recollected recorded exception will be a writing. However, this is not a formal requirement. If a witness makes a tape recording of the facts known to him, the tape recording is probably admissible under the exception. A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless by the opposing party. The witness once had knowledge but now has insufficient recollection to testify fully and accurately. The witness made a recording when the matter was fresh in their memory, and they testified that the recording was an accurate reflection of their memory. Note that if the recording is on a tape, the tape itself cannot be submitted to the jury, but the contents may be played out loud and entered into evidence as a substitute for oral testimony. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business; and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6). The notes are hearsay because they were made out-of-court and they are being offered into evidence for the truth of the matter asserted: what happened at the meetings. The notes also do not fall within any applicable exception to the hearsay rule. They are not business records under FRE 803(6) because the witness did not make the notes during the regular course of business. She made them to specifically help her remember what happened at the meetings. The notes do also not qualify as a past recollection recorded under FRE 803(5) because the proper foundation has not been laid. First, the witness has not testified that she has insufficient recollection to testify fully and accurately without the notes, nor has she testified that the notes are an accurate reflection of her knowledge when the matter was fresh in her memory. Moreover, even if the hearsay exception were satisfied, the notes themselves are not admissible. Under FRE 803(5), a record of recorded recollection "may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Therefore, no hearsay exception applies and the notes are inadmissible.

Answer 11

Records, reports, statements, or data compilations, in any form, of a public office or agency, are admissible to the extent that they set forth: 1. the activities of the office or agency; 2. matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or 3. in civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law. FRE 803(8)

Answer 12

Before a writing or any secondary evidence of its content may be received into evidence, the writing must be authenticated by proof showing that the writing is what the proponent claims it is. The writing usually needs a testimonial sponsor to prove that the writing was made, signed, or adopted by the particular relevant person. Contrary to the general rule, however, there are certain writings that are said to "prove themselves" or to be "self-identifying" on their face. Extrinsic evidence of authenticity is therefore not required for: 1. printed materials purporting to be newspapers or periodicals; 2. trade inspections, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin; or 3. official publications (ie, books, pamphlets, or other publications purporting to be issued by a public authority).

Answer 13

A presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut, where "proof" of the presumed fact is rendered unnecessary once evidence has been introduced to the basic fact that gives rise to the presumption. Under FRE 301, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut the presumption. However, this rule does not shift the burden of persuasion, which remains throughout the trial upon the party who had it originally. A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. In other words, the presumption is of no force or effect when sufficient contrary evidence is admitted. FRE 301 The “bursting bubble” view, followed by the majority of civil courts, is that once the party opposing a presumption comes up with some evidence showing the non-existence of the presumed fact, the opponent has discharged his burden of production, the presumption disappears from the case, and the jury will decide the issue as if the presumption had never existed. In civil actions and proceedings, whether a presumption should be applied is determined in accordance with the state law whose substantive law is applied to the case. A letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. The presumption is said to be based upon the probability that officers of the government will perform their duty. The rule is that the jury may, but is not required to, find that the notice was received by the defendant. The plaintiff's presumption under the mailbox rule that the properly addressed, stamped, and mailed notice reached its destination (the defendant's receipt) then imposes on the party against whom it is directed (here, the defendant) the new burden of presenting evidence to rebut or meet the presumption. In response to the presumption under the mailbox rule, the defendant testified that she never received the notice. The jury is thus empowered to judge the credibility of both sides and may, but is not required to, find that the notice was received.

Answer 14

Jurors are incompetent to testify before the jury in which they are sitting. During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying as to: 1. anything that occurred during the jury’s deliberations; 2. the effect of anything on that juror’s or another juror’s vote; or 3. any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. A juror may, however, testify to: 1. whether any extraneous prejudicial information was improperly brought to the juror’s attention; 2. whether any outside influence was improperly brought to bear on any juror; 3. whether there is a mistake on the verdict form; or 4. whether any juror made it clear that he relied on racial stereotypes or animus to convict a criminal defendant.

Answer 15

The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that she is more likely to have committed the crime of which she is accused. Under certain circumstances, a witness may be impeached by proof of conviction of a crime. The fact that the witness (including a defendant who testifies in a criminal case) has been convicted of a crime may usually be proved by either eliciting an admission on direct or cross-examination or by the record of conviction. A witness’s character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged. While acknowledging that prior acts or crimes are not admissible to show conformity or to imply bad character, FRE 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (eg, to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant in either a criminal or a civil case. Under FRE 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as: (i) there is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of FRE 104); and (ii) its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403; Huddleston v. United States, 485 U.S. 681 (1988). B is correct. The defendant claimed that the tag was switched by someone else, not by her. However, she has prior convictions for engaging in the same illegal behavior. These prior convictions would be admissible for the two purposes, both substantively and for impeachment. First, under FRE 404(b), these convictions can be used to establish identity - that it wasn't someone else, but the defendant, who likely switched the tag. Second, the convictions are automatically admissible to impeach the defendant’s character for truthfulness; fraud convictions involve dishonesty or false statement, and so the court must admit the convictions under FRE 609(a)(2). D is correct. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of an accused person in order to show action in conformity therewith. Here, the prosecutor is seeking to introduce evidence that the defendant robbed two other stores in order to prove that the defendant robbed this particular store. This evidence is inadmissible because it is attempting to prove bad character. The probative value of the other robberies is substantially outweighed by the danger of unfair prejudice to the defendant. At this point in the trial, the evidence is not admissible for any other purpose.

Answer 16

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, is admissible if the declarant is unavailable.

Answer 17

In response to the orthopedist’s inquiry about how the plaintiff had injured his back, the plaintiff had told him, “I was standing near the top of a 15-foot ladder when I abruptly fell, landing hard on my back, after which the ladder toppled onto my neck.” Should the statement be admitted? Yes, because it was made for the purpose of medical diagnosis or treatment. The plaintiff's statement fits within FRE 803(4) as a statement made for the purpose of medical diagnosis. This rule allows not only statements made to treating physicians, but also statements made to other doctors for evaluation or diagnosis - including doctors consulted for diagnoses for purposes of litigation. While it is true that the plaintiff is present and presumably could be cross-examined about the statement, the rule does not require his presence. The statement would be admissible even if the plaintiff were not present for cross-examination.

Answer 18

The defendant, by not correcting the witness, by accepting the introduction, and by shaking hands with the witness, manifested an agreement with the seller's statement that the defendant was the seller's "partner in this." These actions will suffice for a finding that the defendant adopted the seller's statement, and the seller's statement that the defendant was his partner will be admissible as an adopted admission by a party-opponent. The defendant does not need to verbally acknowledge the statement; the mere acceptance and some action on the part of the defendant will act as an adoption of the statement.

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Evidence Flashcards

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