Evidence Flashcards
A woman was hit by a pizza delivery driver and suffered serious injury. The woman sued the driver for negligence, arguing that he was far exceeding the speed limit in a residential area. She also sued the driver’s employer under a respondeat superior theory. At trial, the woman sought to introduce against the employer evidence that the driver had received five traffic violations during the previous year. Is the evidence of the driver’s traffic tickets admissible against the employer?
Answers:
- Correct Answer: No, because the woman may not introduce evidence of the driver’s character trait of bad driving.
- You Selected: No, because character may not be proved by evidence of prior bad acts in a civil case.
- Yes, because character evidence is generally admissible in civil cases.
- Yes, because the driver’s character is an essential element of the woman’s claim.
Evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. In this case, the woman seeks to introduce evidence of the driver’s character trait of bad driving to prove that he was negligent on the occasion in question. Such evidence is inadmissible.
A defendant was charged with battery following a bar fight with his neighbor. At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense. In addition to testifying about the event in question, he also sought to testify that the preceding night, he and a co-worker had gone out for a drink at the same bar, and that the evening passed peacefully. Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak. After his testimony, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person. Following testimony introduced by the prosecution that impeached the defendant’s truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual. Which of the proffered testimony is most likely to be successfully challenged by the prosecution?
The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
A criminal defendant may not introduce specific instances of his behavior to prove a relevant character trait when that character trait is being used to prove that the defendant acted in conformity with it on the night in question. Although a defendant’s character for peacefulness is relevant with regard to the defendant’s contention that he acted in self-defense, this character trait cannot be established by specific events.
A defendant was charged with burglary. One of the key pieces of evidence in the case was a note left by the burglar that read, “It’s just 2 easy.” At trial, the defendant testified in his defense, asserting that he did not commit the crime. On cross-examination, the prosecutor, having a proper factual basis, asked the defendant if he had been convicted of felony burglary five years ago after having left a note at the crime scene that read, “It’s just 2 easy.” The defendant’s attorney, having received proper notice from the prosecutor regarding use of the prior conviction, objected to the prosecutor’s question as seeking to elicit improper criminal propensity evidence. The court, after determining that the probative value of this evidence and its prejudicial effects were equal, overruled the objection and instructed the defendant to answer the question.
Has the court acted properly?
A. No, because evidence of the defendant’s prior conviction constitutes improper criminal propensity evidence.
B. No, because the court did not find that the probative value of the conviction outweighed its prejudicial effects.
C. You Selected: Yes, because the defendant may be impeached by a prior conviction of burglary within the last ten years.
D. Correct Answer: Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.
Although a defendant’s crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (“MIMIC”). In this case, the specifics of the prior burglary conviction are being used for “MIMIC” purposes, to establish the identity of the perpetrator based on the presence of an identically worded note left at both crime scenes. Because the court did not conclude that that the prejudicial effects of the prior conviction substantially outweighed its probative value, the court acted properly in overruling the objection raised by the defendant’s attorney.
The prosecutor called a witness to the stand at a trial for armed robbery. The prosecutor sought to question the witness about the defendant’s statements during the armed robbery. The witness was present at the scene of the crime and had video recorded the entire incident on his cellular phone, although the video and audio quality was poor. The prosecutor did not introduce the witness’s video recording into evidence.
Is the witness’s testimony admissible?
Yes, because the witness had personal knowledge of the defendant’s statements.
A defendant was charged with embezzlement. The prosecution called the defendant’s former employer to testify against the defendant. The defense sought to introduce evidence of the employer’s conviction for felony battery nine years prior. The prosecution filed a motion to exclude the conviction. At a hearing on the motion, the parties presented evidence that the employer had served one month in prison after testifying against his co-defendant regarding their plan to lure a mutual enemy to a dark alley in order to beat him up. At the conclusion of the hearing, the judge noted that the conviction was probative and would have little prejudicial effect. Is the judge likely to allow the conviction to be admitted to impeach the employer?
Yes, because the probative value of the conviction is not substantially outweighed by its prejudicial effect.
A witness may be impeached with evidence of a conviction for a felony that is less than 10 years old. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect. In this case, the judge noted that the conviction was probative and would have little prejudicial effect. Thus, it is likely to be admitted.
At a trial for armed robbery, the prosecutor called a witness to testify as to her knowledge of the robbery. Unexpectedly, the witness froze on the stand and stated that she was unable to recall the event. The prosecutor then showed the witness a photocopy of the handwritten notes the witness had made immediately after the armed robbery occurred. After looking at the photocopy of her notes, the witness indicated that she remembered the event and could testify. The prosecutor then provided the defense with another photocopy of the notes. Following the witness’s testimony, the prosecutor sought to introduce the photocopy of the witness’s notes into evidence. The defendant objected to the prosecutor’s introduction of the notes into evidence.
Should the photocopy of the witness’s handwritten notes be admitted?
No, because the prosecutor cannot introduce the notes into evidence.
A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. When the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. In this case, only the defendant is entitled to introduce a relevant portion of the handwritten notes into evidence. Although the prosecutor was permitted to show the photocopy to the defendant, he cannot admit it into evidence unless it is otherwise admissible.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements. In fact, the defendant had no medical training. The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician. The sole issue in dispute is whether the defendant made such representations. At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant. The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the grounds that the prosecution was required to introduce an original contract under the best evidence rule. The court sustained the defendant’s objection. Did the court err in making its ruling?
Yes, because the best evidence rule is not implicated in this case.
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying. In this case, the contents of the document are not at issue because the sole issue is whether the defendant made verbal representations that he was a physician. Accordingly, the best evidence rule is not implicated in this case.
During a defendant’s civil trial for assault, a witness for the plaintiff testified that, shortly after the assault took place, the defendant had admitted to her that he did assault the plaintiff. On cross-examination, the defendant’s counsel asked the witness whether she had testified in the defendant’s prior criminal prosecution for assault that she had never spoken to the defendant before. The plaintiff objected to the defendant’s question. May the court allow the question over the plaintiff’s objection?
Yes, both to prove that the defendant did not commit the assault and to impeach the credibility of the witness.
A witness’s prior inconsistent statement is always admissible to impeach the witness. Such a statement is also admissible substantively as non-hearsay if the statement was made under oath, as this one was at the prior criminal proceeding.
In a pre-trial hearing, a judge determined that a defendant’s confession was given voluntarily to a police detective after the detective had given Miranda warnings to the defendant. At this hearing, the defendant testified. At trial, the defense did not contest the defendant’s receipt of Miranda warnings, but sought to question the police detective about the manner in which the defendant was interrogated after receiving the warnings in order to call into question whether the confession was voluntary. The defense does not plan to call the defendant to the witness stand. Should the court permit this line of questioning?
Yes, because a party may introduce evidence that is relevant to the weight and credibility of other evidence.
Even though a judge has decided that evidence, such as a confession, is admissible, a party may nevertheless introduce other evidence that is relevant to the weight and credibility of the admitted evidence. Here, the defense seeks to discredit the confession by introducing evidence that it was not given voluntarily.
A defendant in a federal securities case introduced the testimony of a witness who had claimed on direct examination that the defendant had no prior knowledge of a change within a corporation’s executive board; the defendant’s knowledge of this fact was a central issue in the case. The prosecutor did not cross-examine the witness. On rebuttal, the prosecutor called a witness who claimed to have been with both the defendant’s witness and the defendant when the defendant learned of the change in question, and had heard the defendant’s witness say, on more than one occasion, that the defendant knew of the change. Further, the prosecutor introduced a properly authenticated email that the defendant’s witness had sent to the witness containing the same information. The defendant’s attorney objects on the grounds that the testimony of the prosecutor’s witness and the email are inadmissible.
Should the court admit the testimony of the prosecutor’s witness and the email?
Yes, because the defendant’s witness may be properly impeached with them.
A witness may be impeached by showing that the witness has made statements that are inconsistent with some material part of the witness’s testimony. Note that because these statements are being used to impeach the witness and not to prove the truth of the matter asserted, they are not hearsay. Note also that because the statements were not made under oath in a prior proceeding, they may not be considered as substantive evidence. Unlike the common law, the Federal Rules do not require that the witness have the opportunity to explain or deny the evidence before introducing a prior inconsistent statement, and there is no evidence that the witness cannot be recalled to address the comment now that it has been entered into evidence.
A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. In the investigating officer’s report, the only witness is quoted saying, “I saw the whole thing. The car had the green light.” At trial, the witness testified that he clearly remembered that the car’s traffic light had been red, and that the car ran the light. The defendant did not cross-examine the witness and the witness was dismissed and left the jurisdiction. After the plaintiff had presented his case, the defendant moved to introduce the witness’s statement from the investigating officer’s report solely to impeach the witness’s testimony. The plaintiff objected.
How should the court rule?
Sustain the objection, because extrinsic evidence may not be used to impeach a witness under the circumstances.
A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness. However, extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. In this case, because the witness was not given an opportunity to explain or deny the statement, the evidence should be excluded.
During a trial for insurance fraud, the prosecution would like to introduce the testimony of an insurance claims processor. The claims processor received an insurance claim that he knew contained a forgery of a doctor’s signature, because he was familiar with the doctor’s signature and handwriting, having processed many claims from the doctor’s office before. The prosecutor wants to call the claims processor at the alleged forger’s trial to testify that the signature was forged.
Is the claims processor’s testimony admissible?
Yes, because it is based on the processor’s own perception and is helpful to the jury.
Lay witnesses may testify as to their own opinions when such opinions concern the witness’s common sense impressions. The opinions must be rationally based on the witness’s own perceptions and must be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Here, the witness’s opinion that the signature is not genuine is based on his own perceptions of it compared to a signature with which he is familiar. His familiarity with the doctor’s signature and the differences between the doctor’s signature and the allegedly forged signature are helpful to the jury in determining whether the signature is genuine, which is a material fact in issue.
In a trial for medical malpractice, the plaintiff claimed the defendant’s failure to follow a well-accepted procedure resulted in a disfiguring injury to the plaintiff. The plaintiff called an expert in the medical field to testify regarding the alternate procedure used by the defendant. The expert testified that the use of the alternate procedure, rather than the well-accepted one, caused the plaintiff’s injury. On cross-examination, the defendant asked the expert what information she relied upon in reaching her conclusion. The expert testified that she based her opinion, after reviewing all of the relevant facts, on her extensive knowledge in the area, as well as statements from a well-known surgeon with whom she had briefly discussed the facts. The surgeon is available to testify, but neither party plans to call the surgeon as a witness.
Is the expert permitted to rely on the surgeon’s statements?
Yes, if other experts in the particular field would reasonably rely on it.
An expert’s opinion may be based on facts and data that the expert has personally observed or about which the expert has been made aware. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject. In this case, the expert based her opinion in part on the statement of the surgeon with whom she had briefly discussed the facts of the case. Although the surgeon’s statements are hearsay and thus inadmissible, the expert may still rely on the statements so long as other experts in the field would reasonably rely on those statements.
As in previous years, a band director and an event organizer entered into a written agreement for the director’s band to play at a New Year’s Eve party. Two identical copies of the agreement were prepared, with both the director and organizer signing each copy. The director retained one copy and the organizer retained the other. Prior to the party, the band director threw away his copy of the contract for the upcoming party, mistakenly thinking that it was a contract for a prior year’s party. After the party, the organizer contacted the director and informed him that, since she believed the band had failed to adhere to the terms of the contract, she planned to pay the director only half of the contract amount. The director filed suit to recover the full contractual amount. At trial, the director testified as to why he discarded the contract, and to the terms of the contract. The organizer objected to the testimony regarding the terms of the contract, offering to produce his copy, which the organizer had provided to the director during discovery. Should the court permit the director to testify as to the terms of the contract?
No, because the organizer has a copy of the original contract.
A written contract, as a document with legal effect, is subject to the best evidence rule. Under this rule, the original must be introduced to prove the terms of the contract unless the unavailability of the original is appropriately explained. Because there were two signed originals, both must be unavailable before the terms of the contract can be proved by other evidence. Since the organizer’s original contract is available, the director cannot prove the terms of the contract through his testimony.
A lawyer represented a sole proprietor in a federal income tax refund case in U.S. district court in which the sole proprietor was claiming certain additional business expense deductions based on sales expenses that had inadvertently been left off of his tax return for the year. In this case, which of the following is most likely protected from admission into evidence under the attorney-client privilege?
A letter sent to the lawyer by the sole proprietor detailing business expenses.
The letter is a communication by a client to his attorney about a matter under litigation. (Note that, while the letter itself is protected by the attorney-client privilege, the information contained in the letter, i.e., the sole proprietor’s business expenses, is not protected by this privilege.)
