Evidence

Question 1

What is Logical Relevance?

Answer 1

Evidence that has any tendency to make a
material fact more or less probable than it would be without the
evidence.

Question 2

What are the Warning Signals that Evidence may not be logically relevant (i.e., may be too remote)?

Answer 2

Evidence involves some other
1) Time
2) Event
3) Person
than the one involved directly in litigation.

Question 3

Pl. eats at Def. restaurant and gets sick. Pl. offers evidence that others who ate “the same type of food” at same time at restaurant also got sick. Admissible. Why or why not?

Answer 3

Admissible, even though involves some other persons and events, it proves cause and effect.

Question 4

Pl. drives into bridge abutment and sues City that built and maintained bridge. Def. City seeks to show Pl. has on four other occasions driven into stationary objects and
sued. Admissible, why or why not?

Answer 4

No, as a General Rule: Pl.’s prior accidents or claims not admissible.

Question 5

When are Pl.’s prior accidents or claims admissible?

Answer 5

1. To show a common plan and scheme of fraud.

2. To show that damage to P was from another, prior accident.

Question 6

Pl. seeks to show that in the last year six other drivers drove into the same bridge abutment involved in this case. Admissible, why or why not?

Answer 6

Admissible to show that D had knowledge of a dangerous instrumentality.

The general rule is that other accidents involving the same instrumentality which occurred under the same or similar
circumstances are admissible.

Question 7

Pl. sues claiming pattern of gender discrimination in hiring. Def. employer denies intent to discriminate and claims that absence of women employees is because no women applicants were qualified. Pl. offers to show that other well-qualified women were denied employment. Admissible?

Answer 7

Yes, evidence of other people’s experience and events is relevant to infer D’s intent from this prior conduct.

Question 8

Pl. ingests mouse while drinking Cola and sues Def. Bottler. Bottler defends on ground that it is impossible for mouse to get into Cola. Pl. offers evidence of another recent incident in which a mouse was found in Cola.
Admissible, why or why not?

Answer 8

Even though involves another event, it’s admissible to rebut a defense of impossibility.

Question 9

When is the sale price of other chattels or parcels of real property admissible?

Answer 9

Even though involves another event and therefore generally not relevant, it’s admissible if the property is of the same general:

1. description
2. time period
3. geographic area

Question 10

When is habit evidence admissible?

Answer 10

Evidence of a person’s habit (but not general disposition or person’s prior acts not forming a habit) is admissible to prove that on a particular occasion (which is the subject of the litigated event) the person acted in accordance with the habit.

Question 11

What is habit? How different from disposition or prior act evidence?

Answer 11

A habit is

1. specific and
2. recurs sufficiently to be habitual

Question 12

What can business routine be used to prove?

Answer 12

Evidence of an organization’s routine practice is admissible to prove that on a particular occasion the organization acted in accordance with the routine practice.

The routine practice of an organization is
admissible just like habit.

Question 13

What is an industrial or trade custom admissible to prove?

Answer 13

admissible as non-conclusive evidence of standard of care.

Question 14

Is evidence that D carries liability insurance admissible?

Answer 14

Depends on what’s the purpose for it?

Not admissible to show
(a) person acted negligently or wrongfully or (b) ability to pay.

Admissible when relevant to:

(a) show ownership or control
(b) impeach credibility of witness by showing interest or bias.

Question 15

Def. denies ownership of building where Pl. was injured. Pl. offers to show that Def. made repairs to the building. Admissible, why or why not?

Answer 15

The general rule is that measures taken
that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction.

Here, though, the evidence is admissible because it shows ownership and control that’s disputed.

Question 16

Pl. walks into a glass door that was practically invisible. Def. contends there was and is no way to avoid such an accident. Pl. offers to show that, after the accident, Def. put red stickers on the door to make them more visible. Admissible, why or why not?

Answer 16

The general rule is that measures taken
that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction.

Here, though, the evidence is admissible because it shows feasibility of precautionary measures,. which is disputed.

Question 17

For what purposes are evidence of settlements allowed or not allowed?

Answer 17

compromises (actual or offers), offers to plead guilty in a criminal case, withdrawn pleas of guilty, pleas of nolo contendere are all not admissible to prove fault, liability or amount of damage.

Question 18

Without prior contact, neighbor approaches Pl.-to-be and says “Are you the fellow who was bitten by my dog? Let’s settle.” In later lawsuit Pl. offers to testify to neighbor’s admission of dog ownership. Admissible?

Answer 18

Yes, because there must be “a claim” before there can be a settlement. Here there’s no claim because there are insufficient facts in the hypo to show that the claim has matured.

Question 19

Def. says to Pl. “I admit that I owe you the full
amount of $10,000 on the promissory note, but if you want your money you’ll have to sue me for it. On the other hand, if you want to settle now, I’ll pay you $5,000 for a full release.” Can Pl. show that Def. admitted liability on the note?

Answer 19

Yes, because there must be “a claim” before there can be a settlement. Here there’s no claim because there’s no dispute as to either
liability or amount.

Question 20

Def. says “It was all my fault. Let me pay your

hospital bill.” Admissible?

Answer 20

Yes. An offer to pay medical expenses is not
admissible even though it is not a
settlement offer. But if an admission of
fact accompanies a naked offer to pay
hospital or medical expenses, the
admission may be admitted.

Question 21

When whether character evidence or prior acts is relevant and admissible is an issue, what are the five preliminary questions that I should ask?

Answer 21

(1) What type of case is it civil or criminal? If criminal, what type and is P or D offering and at what point in the trial?
(2) Whom is the evidence about: Pl, Def, victim?
(3) What trait of character or prior act is involved?
(4) What is the purpose of offer of evidence?
(5) If admissible, what method is allowed to prove that character or prior acts?

Question 22

Pl. sues Dan for personal injury damages
alleging negligence arising out of an automobile accident. Pl. offers a witness to testify that Dan has a reputation in the
community for recklessness. Admissible?

Answer 22

Rule: In civil cases, character evidence is not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.

Application:
1. Civil case.
2. Recklessness
3. To show that because D has a reputation for reckless conduct, he must have acted in the same reckless way here.
Therefore, not admissible.

Question 23

Pl. seeks to testify that he has been driving for 40 years without ever being previously involved in an accident. Admissible?

Answer 23

Rule: In civil cases, character evidence is not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.

Application:
1. Civil case.
2. Cautiousness 
3. To show that because D has been cautious in the past he must have been cautious here.
Therefore, not admissible.

Question 24

Grutz calls Yuckl “a crook.” Pl. Yuckl sues Def. Grutz for defamation seeking $1,000,000 for damages to Yuckl’s reputation. Def. Grutz seeks to show that Pl. Yuckl has on three prior occasions stolen money from his employer. Def. Grutz also seeks to show that, even before the alleged defamation, Pl. Yuckl had a reputation for being dishonest. Admissible?

Answer 24

Rule: Character evidence is admissible in a civil case when the character of a person (party) is itself a material issue in the case.

Application:
1. Civil case.
2. Dishonesty
3. To show that because P is in fact dishonest, D has a defense (truth of the defamatory statement), a material issue in the case.
Therefore, admissible.
4. May be shown by specific acts, opinion, or reputation evidence.

Question 25

Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecutor, however, has his rap sheet which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury. May the prosecution as part of its case-in-chief show Spano’s criminal background?

Answer 25

Rule: Bad character (whether in the form of
specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation) is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to
infer guilt from disposition.

Application:
1. Crim case; Pros offering on direct C-I-C
2. Criminal propensity
3. To show that because D has a criminal background, D has committed the crime here.
Therefore, not admissible.

Question 26

Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecutor, however, has his rap sheet which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury. May the prosecution on cross use Spano’s background to impeach his credibility?

Answer 26

Rule: Bad character (whether in the form of
specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation) is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to
infer guilt from disposition.

Application:
1. Crim case; Pros offering on direct C-I-C
2. Lack of truthfulness
3. To show that because D has lied before, he’s lying here.
Perjury convictions admissible because not offered to show criminal conduct in accord with disposition; just that not credible.

Question 27

Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. May Spano offer evidence of his good character?

Answer 27

The accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the prosecution respond by showing the bad character of the accused.

Application:
1. Crim case; D offering
2. Good character
3. To show that because D has good character, he didn’t commit the offense here.
Admissible.
4. May be shown by opinion and reputation evidence (but not specific acts).

Question 28

Spano is arrested and is on trial for assault of an elderly woman. Spano calls a witness to offer evidence of his good character. May the prosecutor ask the witness in cross-examination, have you heard that Spano was arrested six times for robbery?

Answer 28

Rule: After D offers evidence of good character, the P may respond on cross-examination of D’s good character witness about any specific acts which would tarnish D’s reputation or which would affect the opinion of the witness.

Application:
1. Crim case; P offering on cross
2. Bad character
3. To show that D has bad character, affect witnesses' opinion.
Admissible.
4. May be shown by specific acts.

Question 29

Spano is arrested and is on trial for assault of an elderly woman. Spano calls a witness to offer evidence of his good character. May the prosecutor call a witness to testify that Spano has a bad reputation for violence and that in the opinion of the witness Spano is a violent person?

Answer 29

Rule: After D offers evidence of
good character, P may also respond by calling P witnesses to testify to bad opinions or bad reputation in regard to the character
of the accused.

Application:
1. Crim case; P offering on rebuttal
2. Bad character
3. To show that D has bad character.
Admissible.
4. May be shown by opinion or reputation.

Question 30

Harvey shot and killed Victor during a tavern
brawl. Harvey is charged with murder and pleas self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor. H also offers witness testimony that V has a reputation for aggression. Admissible?
What if H’s witness says he saw V use a broken beer bottle to attack bar patrons in fights last year?

Answer 30

Rule: In homicide or assault, as part of a self-defense plea, D may show the character of the victim as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor. Method of showing: reputation or opinion.

Application:

1. Crim homicide case; D offering
2. Evidence about victim.
3. Aggressive character
4. To show that V was first aggressor. Admissible.
5. May be shown by opinion or reputation, but can’t use specific instances

Question 31

Harvey shot and killed Victor during a tavern
brawl. Harvey is charged with murder and pleas self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, therefore, had to shoot Victor. H also offers witness testimony that V has a reputation for aggression. May the prosecution now offer evidence of Victor’s trait of peacefulness to rebut evidence that Victor was the first aggressor?

Answer 31

Rule: In homicide or assault, if as part of a self-defense plea, D shows character of victim to infer that on the occasion in question victim was the first aggressor. P could show good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion regarding the accused himself.

Application:

1. Crim homicide case; P offering in rebuttal
2. Evidence about victim.
3. Peaceful character
4. To show that V was first aggressor. Admissible.
5. May be shown by opinion or reputation.

Question 32

Harvey shot and killed Victor during a tavern
brawl. Harvey is charged with murder and pleas self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor. H also offers witness testimony that witness told H last week about V using a broken beer bottle to attack bar patrons in fights last year. Admissible?

Answer 32

Application:
1. Crim homicide case; D offering
2. Evidence about victim.
3. Prior acts of victim.
4. To show H's state of mind
Admissible.

Question 33

What is the rule regarding D’s use of victim’s character in criminal Sexual Misconduct Cases?

Answer 33

Victim's sexual history or sexual predisposition to prove consent is limited as follows: (a) No opinion or reputation; (b) Specific instances of sexual behavior of the alleged victim are admissible only (i) if offered to prove that third party was source of semen, injury or other physical evidence, (ii) to show prior acts of consensual intercourse between alleged victim and the
accused or (iii) if exclusion would violate constitutional rights of the accused

Question 34

What is the rule regarding D’s use of victim’s character in civil Sexual Misconduct Cases?

Answer 34

evidence of the sexual disposition or behavior of the alleged victim is admissible only if probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 35

D is the VP of Bank. He gambles illegally and loses $500,000. In order to pay this debt, he embezzles from his employer, Bank. Then he falsifies the books to cover up the embezzlement. He discovers that auditors are coming to check the books on Monday. D steals key to get into the bank on Sunday and he burns the bank in order to destroy the books. Assume D is charged only with the crime of arson. Assume also that D offers no good character evidence and that he does not testify. May the Prosecution, as part of its case-in-chief, show the illegal gambling, the embezzlement, the falsification of books, and the theft of the key?

Answer 35

Rule: In a civil or criminal case, prior accused misconduct is not admissible to show criminal disposition (unless the accused first offers good character evidence), it would be admissible if relevant to show Motive, Intent, absence of Mistake, Identity, Common plan or scheme (MIMIC), knowledge, or lack of accident.
Application:
1. Crim non-homicide case; P offering in C-i-C
2. Evidence about D.
3. Other crimes
4. To show D’s motive for arson.
Admissible.
5. May be shown by specific crimes, not reputation or opinion.

Question 36

Def. is charged with murder of Detective.

Prosecution offers evidence that Def. killed Def.=s wife three years ago. Admissible?

Answer 36

Rule:In a civil or criminal case, Prior accused misconduct is not admissible to show criminal disposition (unless the accused first offers good character evidence), it would be admissible if relevant to show motive, opportunity, intent, reparation, plan, knowledge, identity, absence of mistake or lack of accident.
Application:
1. Crim homicide case; P offering in C-i-C
2. Evidence about D.
3. Other crimes
4. To show D’s criminal character.
Not Admissible because trying to show D acted in conformity with his criminal character.

Question 37

D is charged with murder of Detective.
Detective was killed because Detective was about to arrest D for the murder of D’s wife. Prosecution offers evidence that D killed D ‘s wife three years ago. Admissible?

Answer 37

Rule: In a civil or criminal case, Prior accused misconduct is not admissible to show criminal disposition (unless the accused first offers good character evidence), it would be admissible if relevant to show motive, opportunity, intent, reparation, plan, knowledge, identity, absence of mistake or lack of accident.
Application:
1. Crim homicide case; P offering in C-i-C
2. Evidence about D.
3. Other crimes
4. To show D’s possible motive for killing Detective.
Admissible.

Question 38

Def., who is charged with receiving stolen goods, claims he was unaware the goods were stolen. Prosecutor offers evidence that Def. has received stolen goods on 5 prior occasions from the same thief involved in this case. Admissible?

Answer 38

Rule: P’s offer of prior accused misconduct admissible to show motive, opportunity, intent, reparation, plan, knowledge, identity, absence of mistake or lack of accident.

Application:
Intent is an element of a crime is to show criminal intent. Here, to rebut D’s claim of mistake and prove D’s criminal intent, other misconduct is offered. Therefore, admissible.

Question 39

Murdered Victim is found with .45 caliber pistol, the murder weapon, next to the body. The pistol was owned by Mayor but was stolen in a burglary three years ago. May the prosecution show that Def. who is charged with murder of Victim burglarized Mayor’s house three years ago and stole the gun?

Answer 39

Yes. P’s offer of prior accused misconduct admissible to show identity of criminal or modus operandi.

Here, the prior misconduct is used to connect D with the instrumentality of the murder, the gun.

Question 40

Pat is charged with bank robbery. Prosecution offers to show motive by evidence that Def. “was recently released from prison for sexual abuse of a child and needed money to support his heroin addiction.” Admissible? [Good essay ?]

Answer 40

Rule: P’s offer of prior accused misconduct admissible to show MIMIC. However, MIMIC evidence may be excluded if the trial judge believes that probative value is substantially outweighed by the danger of unfair prejudice. Here, the probative value of showing a possible motive is not very strong while the danger of unfair prejudice is high.

Question 41

Can, in a civil or criminal case charging D with sexual assault or child molestation, D’s prior acts of sexual assault or child molestation be shown by the prosecution or plaintiff?

Answer 41

Yes, even though it’s propensity E, even if D was merely accused but not convicted, and even where D didn’t open the door first

Question 42

What is the General Rule of Authentication?

Answer 42

A writing is not admissible until it has been authenticated by laying a foundation that it’s genuine.

Question 43

Pl. Yuckl sues Def. Grutz for breach of a written contract. Def. Grutz denies he ever executed the contract. Pl. Yuckl offers the original contract in evidence arguing that
Grutz signature on it is plainly visible to the court. Admissible?

Answer 43

No. A writing is not admissible until it has been authenticated by laying a foundation that it’s genuine. G’s signature must be authenticated.

Question 44

To authenticate using handwriting, what three methods can be used to lay a foundation?

Answer 44

Lay witness: doesn’t need to be familiar with he signature, just the handwriting; can’t compare

Expert witness: compares a genuine sample with the current sample.

Jury comparison:

Question 45

What are the two types of circumstantial evidence that can be used to authenticate and what are their requirements?

Answer 45

Ancient Document Rule: (1) 20 or more years, (2) regular on its face, (3) found in a place of natural custody.

Solicited Reply Doctrine: Proof that disputed document came in response to prior communication.

Question 46

Pl. Yuckl testifies he saw Def. Grutz sign the

contract. Def. Grutz testifies that he did not sign. Is contract admissible if evidence is contradictory?

Answer 46

The contract can be admissible. Evidence sufficient to justify a jury finding of genuineness lays a proper foundation.

Question 47

Which writings are self-authenticating?

Answer 47

The general rule is that documents are not self-authenticating. But certain writings may be admitted without a foundation or testimonial sponsorship. Self-authenticating
documents are:
Certified Copies of Public or Business Records
Official Publications
Newspapers and Periodicals
Trade Inscriptions or Labels
Acknowledged Documents
Signatures on Certain Commercial Documents as provided by U.C.C.

Question 48

Mrs. Grutz witnesses an intersection accident on Main and State on Jan. 2nd. Litigation ensues. Pl.’s attorney wants to get into evidence a photograph of the intersection. But Pl.’s attorney has no idea who took the photograph or when it was taken. How can the photograph be authenticated?

Answer 48

Any witness to testify that the photo is a fair representation of the scene.

Question 49

Harvey breaks into a grocery store after hours and steals money and goods. No one saw Harvey do it. But the store surveillance camera provides a clear picture of Harvey burglarizing the store. At Harvey’s trial, the
prosecution offers the picture. How can it be authenticated?

Answer 49

Show that operating properly, when operating, and how film handled from time taken until trial.

Question 50

What is the Best Evidence Rule?

Answer 50

A party seeking to prove the content of a writing (includes films, photos, X-rays and recordings) must either (1) produce the original document or (2) account for the absence of the original. If the explanation for absence of the original is reasonable,
then a foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the content of the original.

Question 51

What does the Best Evidence Rule apply to?

Answer 51

1. Legally operative documents - documents that by their existence create or destroy a legal relationship that is in dispute. (E.g., deed, divorce decree, will, written contract.)
2. Witness’s knowledge comes from a document. Witness wants to recite orally what he read.

Question 52

Issue is - Did Spano make payment? Witness

testifies that Witness saw Spano pay $10,000 and get back a receipt. Does the receipt have to be produced?

Answer 52

No. Best Evidence Does Not Apply to
Facts independent of the writing i.e. witness has personal knowledge of a fact that just happens to be described in a
writing. No need to produce the writing or explain its absence.

Question 53

Madge happens to testify that she is divorced in a personal injury damage claim. Her treating physician testifies he is licensed to practice medicine preliminary to
giving his opinion. Need to produce divorce decree or license?

Answer 53

No. These are Collateral Documents. The best evidence rule does not apply to writings of minor importance.

Question 54

Age discrimination suit. Pl. reviews ten years of personnel records of Def. company and finds that every employee over 50 has been fired for “insufficient initiative.” Through a personnel expert, plaintiff offers a summary of these findings. Admissible?

Answer 54

Yes. If originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as (a) originals would be admissible if offered and (b) originals are made accessible to opposing party.

Question 55

Can a photocopy be admitted in place of the original?

Answer 55

A duplicate which avoids casual errors and
accurately reproduces the original is
admissible to the same extent as the original (i.e., no need to explain absence of the original) unless:
1) a genuine question is raised about authenticity of the original
or
2) The circumstances make it unfair to admit the duplicate in lieu of the original.

Question 56

Harvey is charged with murder of wife, Madge. At the time of his arrest, officer found in Harvey’s possession an
anonymous letter. It said “Dear Harvey, Your wife Madge has been having sexual relations with Mr. Gigilo.” In order to prove that Harvey had a motive for killing Madge, the prosecution wants to get the content of this letter into evidence. Officer takes the stand and testifies to finding the letter in Harvey’s possession. Then, instead of producing the letter, officer seeks to testify orally about what it said. What ruling on the following defense objections: Improper authentication, Hearsay, and Best Evidence Rule ?

Answer 56

Improper authentication: overruled: it’s irrelevant where it came from. All that matters is that H had in possession and read it.

Hearsay: overruled: not being offered for truth; just for effect on H

Best evidence: sustained unless PO has good excuse for not having original because PO’s sole knowledge of the facts are from the writing.

Question 57

What are the elements of a Dead Man Act statute?

Answer 57

Civil case
No waiver
W on stand has a direct stake in the outcome
W testifying in favor of W’s interest
W testifying against decedent
W testifying about communications or transactions with the decedent

Question 58

Yuckl sues Grutz for breach of oral contract. Def. Grutz admits he received an offer but denies he ever accepted it. Def. Grutz
dies before trial. The state whose contract law applies has a Dead Man Statute. At trial, Pl. Yuckl testifies that “Grutz said to me, I accept your offer.” What is the most likely ground to exclude Yuckl’s testimony? Hearsay, best evidence rule, parol evidence rule, dead man statute?

Answer 58

DMS

Question 59

When are leading questions permitted?

Answer 59

On cross
W is old, feeble, or a child
It’s a preliminary matter
W is adverse or hostile

Question 60

What are the two ways that a witness can use a writing previously prepared during oral testimony? What is the difference between these two methods?

Answer 60

Refreshing recollection and recorded recollection.

Refreshing recollection: anything can be used to drive the memory of the witness.

Recorded recollection: writing in place of oral testimony about which witness once had personal knowledge is admitted by being read into evidence once the requisite foundation is laid

Question 61

Mrs. Garibaldi’s house was burglarized. Def. is charged. Prosecutor calls Mrs. Garibaldi to testify to the things that were taken from her house by the burglar. She cannot remember some of the items. The prosecutor has a
copy of a tabloid newspaper that reports details of the burglary. Can show her the article to refresh her recollection?

Answer 61

Yes because the writing is not being offered as evidence. Therefore it doesn’t need authentication. It’s not hearsay because it’s not being offered as evidence and witness is not testifying with regards to out of court statement. Not admissible unless offered by opposing party.

Question 62

What is the foundation for recorded recollection?

Answer 62

1. At one time W had personal knowledge
2. Writing made by W or adopted by W
3. Writing made timely following events at issue.
4. The writing is reliable and accurate.
5. The writing is necessary.

Question 63

When is a lay opinion admissible?

Answer 63

Rationally based on the perception of the witness and Helpful to the trier of fact

Question 64

What are the four basic requirements for expert testimony?

Answer 64

1. Subject matter appropriate for expert
2. Witness is qualified as expert (based upon experience)
3. Witness has reasonable certainty or probability of opinion (more than speculation or possibility)
4. Opinion supported by facts

Question 65

What are the requirements to show that the subject matter is appropriate for the expert?

Answer 65

proponent convinces judge by a preponderance of the evidence that:

1. methodology is reliable and
2. the opinion is relevant if

Question 66

When are an expert’s opinion is supported by a proper factual basis?

Answer 66

Either:

1. Within expert’s personal knowledge; or
2. Presented in court in hypothetical questions; or
3. Type of facts expert would rely upon in making out of court opinions

Question 67

Doctor hired to testify for P in a PI action bases his opinion in part on a radiologist’s report of what P’s X-rays reveal. The witness doctor had never seen the X-rays. Neither the X-Rays nor the radiologist’s report are in evidence. May the doctor give his opinion?

Answer 67

Yes, an expert’s opinion is supported by a proper factual basis when the expert would rely on such facts in the making out of court opinions. Here, doctors rely on radiologists reports every day in the normal course of their practice.

Question 68

P sues D for damages claiming serious
injury resulting from negligence of D. Injury is that P has extra hole in his head. Gray’s Anatomy on page 22 states that such a hole is bad news.
May Pl. start out by reading text to jury?
May text be used to impeach contrary opinion by defense expert?

Answer 68

No.
Not until established that the treatise is authoritative.

Admissible by being read into record (not given to jury) hearsay exception if established by (a) reliance by expert on direct examination, (b) admission on cross-examination of opposing expert, (c) testimony of any expert or (d) judicial
notice.

Question 69

Eyewitness testifies for P and describes an
accident which occurred at Main and State at 2 AM. There is no question that the witness was present at the scene and
was in a position to observe the accident. On cross examination, the witness says that he was present at Main and State at 2 AM because he was coming from his sick
grandmother’s house. In fact, he was coming from a house of ill repute. May defendant call witnesses to show that the witness lied about where he was coming from?

Answer 69

Rule: No extrinsic evidence is allowed to contradict a witness as to a collateral matter.

Here, where witness was coming from is a collateral matter. Extrinsic evidence is inadmissible as to collateral matters.

Question 70

Yuckl testifies to material facts. There is no
impeachment. Grutz then takes stand to tell jury that Yuckl has an excellent reputation for truth. Admissible? What if Grutz takes the stand to testify that Yuckl told him the same thing some months earlier?

Answer 70

Rule:No bolstering own witness unless there has first been an appropriate impeachment.
Here, because there’s been no impeachment of Y, G’s testimony as to Y’s reputation for truth is inadmissible. Same result in later case because it’s bolstering and hearsay.

Question 71

When is testimony concerning a prior out of court statement consistent with in court testimony admissible?

Answer 71

Prior consistent statement admissible if the statement is one of identification as a hearsay exclusion.

Question 72

Victor Victim is mugged. Shortly thereafter,
Victor, in the presence of Cop, picks Def. out of a properly conducted lineup and identifies Def. as the mugger. Six months later at the trial of Def., Victor makes an in-court identification of Def. as the mugger. Victor does not testify as a witness at trial. Now may Cop testify to Victor’s lineup
identification?

Answer 72

Prior consistent statement admissible if the statement is one of identification as a hearsay exclusion. Here, D has no right of confrontation because Victor is not a witness. Therefore it’s hearsay.

Question 73

What are the five methods available to impeach an adversary’s witness?

Answer 73

1. Prior inconsistent statement
2. Bias, interest, or motive
3. Prior conviction of crime
4. Specific acts of lying
5. Bad reputation for truth and veracity

Question 74

P calls witness to implicate D in the crime. Witness, however, exonerates D. May P use a prior inconsistent written signed statement of the witness to impeach? Does such a statement come in for its truth?

Answer 74

Rule: extrinsic evidence is admissible to prove a prior inconsistent statement of a nonparty provided a foundation of affording the witness an opportunity to explain or deny the inconsistent statement.

Here, the prior inconsistent statement is admissible for its truth because it was made under oath.

Question 75

P sues Dan for damages alleging that Dan
was speeding at the time of the accident. At trial, Dan testifies that at the time of the collision he was only going 15 mph. P in rebuttal, then calls the investigating officer who testifies that Dan told the officer at the scene that he, Dan, was going 70 mph at the time of the collision. Is the officer’s testimony admissible? If so, does it come in for its truth or only to impeach? Is a foundation required?

Answer 75

The officer’s testimony is admissible for its truth and no foundation is needed. Prior inconsistent statement of a party qualifies as an admission, an exception to the hearsay rule.

Question 76

A witness testifies for the prosecutor against
your client who is on trial for robbery. May you show that this witness was arrested for drug dealing and is awaiting trial?

Answer 76

Yes, Bias, Interest, Motive be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness.

Question 77

Are prior Convictions usable to impeach?

Answer 77

Yes, if less than 10 years have elapsed from later of date of conviction or date of release from confinement and the crime is either:

a) Felony or misdemeanor fraud, larceny by trick,embezzlement, perjury (but not robbery or ordinary larceny because no deceit or false statement); or
b) A felony (i.e., a crime punishable by more than one year) not involving dishonesty (i.e., deceit) or false statement is admissible to impeach in the discretion of the Court.

Extrinsic evidence; no need for foundation

Question 78

Can specific acts of deceit or lying be asked about in cross examination to impeach the credibility of a W?

Answer 78

Yes, if lawyer believes in good faith that acts were done; no extrinsic evidence permitted.

Question 79

Can bad reputation or opinion for truth and veracity be used to impeach the credibility of a W?

Answer 79

Yes, provided specific acts aren’t used.

Question 80

Can good reputation (opinion) for truth be shown to rehabilitate after impeachment?

Answer 80

Yes, but only for prior conviction, act of deceit or lying, bad reputation for truth but not for prior inconsistent statement or to rebut a charge of bias, interest, or motive.

Question 81

You call a witness who testifies for your client. On cross-examination, opposing counsel implies that you unduly influenced the trial testimony of this witness when
you spent four days with him in May. You now offer to show that in January, four months before you met this witness, the
witness gave a statement to the police which was perfectly consistent with his present in-court testimony. Admissible?

Answer 81

Yes, a prior consistent statement can rebut an express or implied charge of recent fabrication or improper influence or motive. Admissible for its truth.

Question 82

What are the elements of Atty. client privilege?

Answer 82

1. Atty. and client have a
2. Confidential communication (but not physical evidence or pre-existing documents)
3. Within the scope of their existing or contemplated professional legal relationship

Question 83

What are the exceptions to Atty. client privilege?

Answer 83

1. Facilitation of future crime or fraud
2. Client affirmatively puts the communication in issue as part of a claim or defense in litigation.
3. Disputes between the parties to the professional relationship
4. No privilege between 2 or more parties who communicate with attorney about a matter of common interest (still have privilege as to third party).

Question 84

Harvey kills Victor in public in front of hundreds. Included among eyewitnesses is wife Madge. Can Madge be forced to testify against Harvey when he is charged with
murder?

Answer 84

Rule: Provided it’s not an intra-family injury case (assault of spouse or child, incest, child abuse), under the Spousal Immunity Privilege

1. the witness spouse
2. can’t be forced to give adverse testimony (but can choose to testify)
3. against the other
4. in a criminal case
5. if there’s a valid marriage at time of trial.

Here, all elements met.

Question 85

Wife Madge wants to testify against husband Harvey in his murder trial. Can he keep her off the stand? Can he keep her from revealing confidences made during their marriage? Can he make her reveal during marriage confidences if she objects?

Answer 85

Rule: under the Confidential Marital Communications Privilege, in a civil or criminal case
1) a husband or a wife shall not be required or, without the consent of the other, shall not be allowed to (privilege holder is both spouses, not just witness spouse)
2) disclose a confidential communication (not all testimony) if
3) the spouses were married not necessarily at time of trial but at time of protected communication (this privilege outlasts the
marriage).
Can’t keep her off stand. But can keep her from revealing confidences. And she can refuse to reveal any confidences.

Question 86

When will state evidence law will apply in

federal court and what areas of evidence law?

Answer 86

Where state substantive law applies (as in the typical diversity jurisdiction case).

Presumptions and burdens of proof
Competency of witnesses
Privileges

Question 87

What is hearsay?

Answer 87

an out-of-court statement offered for the purpose of establishing the truth of the matter asserted in the statement.

Question 88

W seeks to testify that D (the

declarant) said “I accept your offer.” Evidence is offered to prove an oral contract. Hearsay?

Answer 88

No. Words spoken or written have relevant legal significance in the case by virtue of being spoken or written. (Words of offer,
acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.)

Question 89

P sues for injuries caused by fall on stairs of
store. P calls witness who testifies that two days before P’s fall, witness heard D tell store manager “Your stairs are defective, someone is bound to fall there.” Offered to
show notice to store. Hearsay?

Answer 89

No. Statement offered to show its effect on the person who heard or read the statement.
(E.g., to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the out-of-court
statement.)

Question 90

Spano is charged with murder. Defense is

insanity. Defense witness testifies that on the day before the killing, he heard Spano say “I am the Pope.” Hearsay?

Answer 90

Out-of-Court Statement offered not for its truth but as circumstantial evidence of declarant’s relevant state of mind.

Question 91

D in a criminal case takes the stand to testify.
D’s lawyer asks on direct examination “When you were arrested, what did you tell the police?” D answers “I told
them the truth; that I was innocent.” Hearsay? Is it an admission?

Answer 91

Hearsay, even though it’s W’s own statement because it’s offered for the truth. It’s not an admission because it’s not being offered against the party.

Question 92

What are the prior statements of a Witness Which Are Not Hearsay?

Answer 92

a. Prior Inconsistent Statements given under oath at a trial, hearing, other proceeding or deposition.
b. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive.
c. Prior Statement of Identification made by a witness.

Question 93

Negligence action against Trucking Co. Truck
Driver crashed through P’s living room window and states “My brakes failed again; they failed three times last week. I told my boss about it but he does nothing. Now I am going to miss my last delivery for my employer.” Does this statement come in against the Trucking Co.?

Answer 93

Yes, this is a vicarious Party Admission which is an exception to hearsay.
Rule: Statement of a party offered against the party admissible. Need not be against interest that time of making statement. Need not be made on personal knowledge. Can be in the form of legal conclusion.

Question 94

In a one vehicle accident, a bus leaves the highway and crashes injuring passengers A and B. In Action 1, A sues the Bus Co. and W testifies live. In Action 2, B sues the Bus. Co. but W is no longer available. May passenger B use W’s former testimony against Bus Co.? May Bus Co. use W’s former testimony against passenger B?

Answer 94

Rule: “Former Testimony” given in earlier proceeding is admissible non-hearsay if
1) person who testified is now unavailable (privilege,
declarant refuses to testify or memory fails, dead or sick, or can’t serve process;
2) offered against a party; and
3) who had (or in a civil case, whose predecessor in interest had) an opportunity and similar motive to develop it by direct, cross or redirect examination.

B may use W’s former testimony against Bus because W is unavailable, offered against Bus who had opportunity to cross on the same issue. But B didn’t have the opportunity to cross into Action 1. So Bus can’t use against B.

Question 95

State v. Spano for murder of Victor Victim. W testifies for the defense that W heard Garibaldi say “I, not Spano, killed Victor.” Is Garibaldi’s out-of-court statement
admissible as a statement against penal interest?

Answer 95

No. While Declaration of a person, now unavailable as a W, against that person’s pecuniary, proprietary or penal interest at the time the statement was made is admissible; if (1) tends to expose declarant to criminal liability and (2) is offered in a criminal case, must be supported by “corroborating circumstances that clearly indicate its trustworthiness.”

Question 96

Harvey and Dan collide. Harvey confides to Neighbor that “It was all my fault.” Harvey dies as a result of
his injuries. Harvey’s next of kin bring a wrongful death
action against Dan. Dan calls Neighbor to testify that Harvey said “All my fault.” Admissible?

Answer 96

Rule for statement against interest: Declaration of a person,

1) now unavailable as a witness,
2) against that person’s pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or which would tend to defeat a civil claim by
declarant) at the time the statement was made.

Here, admissible as a statement against interest but not as an admission because not made by a party.

Question 97

Grutz is shot 12 times and is lying in the gutter. Grutz looks up at police officer and says “I’m dying, I know
I’m dying. Too bad for me. My will was the
product of undue influence. Don’t let it be probated.”
Admissible as a dying declaration in the will probate
proceeding?

Answer 97

No.
Rule: dying declaration: In a prosecution for homicide or in any civil case, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.
Here, while G is unavailable and possibly made the declaration while believing his death was imminent, the probate proceeding won’t concern the cause or circumstances of his death.

Question 98

Spano is on trial for murder. Defense Insanity.
Defense Witness testifies that on the eve of the killing,
witness heard Spano say “I believe I am the Pope.”
Admissible?

Answer 98

Yes, as a declaration of existing state of mind relevant to D’s insanity defense and admissible as a non hearsay spontaneous statement.

Question 99

Decla announces “On Monday of next week I am

going to meet with Spano” offered to prove that Decla did meet Spano on Monday. Admissible?

Answer 99

Yes, as a declaration of intent to do something in the future relevant to prove that D did meet Spano on Monday and therefore admissible as a non hearsay spontaneous statement.

Question 100

What are the requirements for the excited utterance type non hearsay spontaneous statement?

Answer 100

1. Startling event (look for language of excitement)
2. Made under stress of excitement (watch for time lapse and what is going on during time lapse)
3. Concerns the facts of the startling event

Question 101

Victor is killed in his apartment on Sunday night. Spano is charged with his murder. Prosecution witness testifies that on Sunday night Witness called Victor and Victor said “Spano is here.” Offered to show that Spano was
present at about the time of the killing. Admissible?

Answer 101

It’s not a dying declaration because not said upon belief of imminent death. Not excited utterance because no language of excitement present. However this is a present sense impression, admissible as a spontaneous statement exception to hearsay.

A present sense impression is a statement

1) describing or explaining an event or condition
2) made while declarant was perceiving the event or condition or immediately thereafter.

Question 102

What are the different types of spontaneous statement admissible as non hearsay?

Answer 102

Declaration of existing state of mind
Declaration of intent to do something in the future
Excited utterance
Present sense impression
Declaration of Present Pain, Suffering or Physical
Condition.
Declaration of Past Physical Condition.

Question 103

What’s the difference between the two spontaneous statement hearsay exceptions: declaration of past physical condition declaration of present pain, suffering, or physical condition and

Answer 103

Declaration of Present Pain, Suffering or Physical
Condition:
1) A declaration (“It hurts!”) of then existing physical (or mental) condition is
2) admissible to show the condition.

Declaration of Past Physical Condition:

1) Statement made for medical diagnosis or treatment and
2) describing medical history or past symptoms or sensations, their inception or their general cause
3) insofar as reasonably pertinent to diagnosis or treatment.

Question 104

Pl. in personal injury case hires doctor to diagnose solely for the purpose of giving testimony. Doctor testifies and gives his opinion. Part of the basis of his opinion is the medical history given to him by Pl. May Doctor recite the medical history given him by Pl.? Is it admissible for its truth?

Answer 104

Yes, it has a declaration of past physical condition, an exception to hearsay as a spontaneous statement. Even though the statement was made for medical diagnosis purely for litigation, it’s admissible for its truth.

Question 105

May preliminary questions concerning witness qualification, privilege, or disability made by the court consider evidence that may not be admissible?

Answer 105

Yes

Question 106

Victor is stabbed, goes to hospital and tells police
officer “I am dying, Spano did it.” Two days later, Victor is
feeling much better and he tells Nurse “Grutz stabbed me. Now it looks like I will survive.” Alas, Victor dies a week later. Spano is prosecuted for the murder of Victor. Officer is allowed to testify to Victor’s dying declaration which implicates Spano. In rebuttal, the defense calls Nurse. May she testify to Victor’s statement to her that “Grutz stabbed me?” Why or why not? If your answer is yes, what happens to the foundation requirement? Isn’t the declarant, Victor, supposed to be given an opportunity to deny or explain the inconsistent statement?

Answer 106

Victor’s statement to the Nurse is not a dying declaration because Victor thought he would live when he made the statement. But it is admissible as a prior inconsistent statement to impeach Victor’s credibility. Admissibility of
the inconsistent statement is not subject to the usual foundation requirement.

Question 107

Victor is found shot dead in his business office with a dictaphone in his hand. He was apparently dictating business correspondence when an intruder entered and shot him. Police officer at the scene rewinds and plays back the dictaphone tape. Officer hears Victor dictating business letters but then hears Victor say “Spano, what are you doing here?” There is then the sound of a shot and the tape is silent. At Spano’s trial, Officer is called by the prosecution. Officer seeks to testify to what he heard on the dictaphone tape. Admissible? Why or why not? Is it hearsay? Is it admissible because it qualifies as a present sense impression? Any other problem beyond hearsay?

Answer 107

The officer’s testimony is hearsay but qualifies under the present sense impression exception to the rule against hearsay. So hearsay is not the problem. But the best
evidence rule applies. The officer’s testimony is not admissible unless the absence of the recording is explained.

Question 108

Grutz is involved in an automobile accident and is taken to the hospital emergency room where he tells Nurse “This accident was all my fault. I was grossly negligent.” Nurse records Grutz’s words in the hospital record. Plaintiff, who was also injured, sues Grutz for negligence. At trial, can Nurse testify to Grutz’s statements if called to the stand by Plaintiff? May the hospital record be admitted if offered by Plaintiff to prove Grutz’s statement?

Answer 108

Nurse may testify but record may not be admitted because entry was not germane to the business.
The business record exception to hearsay says
1) records of a regularly conducted business activity
2) kept in the regular course of the business
3) made at or near the time
4) by, or from information transmitted by, a person with knowledge
are admissible to substitute for in-court testimony of the employees unless the source of information or circumstances of preparation indicate a lack of trustworthiness.

Question 109

X, an outsider, not under a business duty to observe or report, perceives an event and reports it to the ABC Company. Company realizes that X’s statement is germane to its business and includes X’s statement in its
record. Is the entry admissible under the business record
exception to prove the truth of X’s statement?

Answer 109

While the company’s record would qualify under the business record exception to hearsay, X’s statement is also hearsay, and if not a present sense impression won’t be admissible.

Question 110

Accident at a traffic light controlled intersection.
Investigating officer arrives at the scene 30 minutes later.
He measures the skidmarks leading to Dan’s car. He
speaks to Schultz, an eyewitness, and also talks to Dan. He promptly prepares a police report which contains three entries as follows: (1) “Observations - 150’ of skidmarks leading to Dan’s car,” (2) “Statement of witness: Schultz, an eyewitness, reports that Dan had the red light,” (3) “Statement of Driver. Dan states that he, Dan, ran the red light. Plaintiff sues Dan for personal injuries resulting from the accident. At trial, Plaintiff offers the three entries as business records. Admissible?

Answer 110

Entry one is admissible as a business record.

Entry two contains double hearsay: the Pleas officer report is a business record however the eyewitness statement is hearsay and probably not a presence test impression because officer arrived 30 minutes later. If Dan had testified that light was green, plaintiff could have Entry two admissible to impeach to Dan.

Entry three is a double hearsay however the business record exception and party admission exception apply.

Question 111

When might a statement that otherwise would be an exception to hearsay violate the accused’s sixth amendment right of confrontation?

Answer 111

The out-of court-statement is
1) offered against the accused in a criminal case
2) the declarant is unavailable at the trial
3) the out-of-court statement was “testimonial” (statement anticipated to be used in prosecution or investigation of crime); and
4) the accused had no opportunity to cross-examine the
declarant’s “testimonial” statement when it was made;
unless
5) the prosecution demonstrates that the defendant has
forfeited his Confrontation Clause objection by procuring the unavailability of the declarant by wrongdoing with intent of keeping the witness from testifying