Evidence Flashcards
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B drove into another tree, bridge, and wall. Admissible?
No. Shows nothing more than plaintiff is accident prone.
Irrelevant; relates to other time, place, event
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B injured his arm when he crashed last year. Admissible?
Yes. Admissible, exception to rule that plaintiff’s history is inadmissible.
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B crashed multiple times over the last year. City is seeking to show B was drunk and careless. Admissible?
No. Showing conduct conforms with prior accident history.
B and A are in an auto accident. Issue is whether A stopped at a light. B offers testimony of witness who claims to see A was careless sometimes over the past the three months. Is the evidence admissible?
No. Character evidence.
B sues A for negligence. B claims that after accident, A added a safety control. B wants to admit the evidence. A objects. How should court rule?
Sustained, grant A’s strike of evidence. Defendant did not put the issue of safety at issue.
B sues A. During settlement, A admits certain facts. In state court, B seeks to introduce evidence. Admissible?
No, not in Virginia. Allowed to be excluded in federal court.
D is charged with murder. The prosecution has evidence that D previously been convicted for assault. Admissible.
Character evidence not admissible.
Violence is not an essential element.
Evidence is relevant.
D is charged with murder. D seeks to have a witness testify that D is known for his peacefulness. Admissible.
Yes. Criminal - defendant can offer character trait of a good trait.
Opens door to rebuttal by prosecution.
D is charged with murder. D seeks to have a witness testify that in their opinion D is peaceful. Admissible.
Yes. Character evidence limited to reputation or opinion.
Opinion needs to be relevant.
In Va opinion is not allowed for character.
Can prosecutor introduce evidence of prior acts of defendant’s character?
Only if defendant opened door with good character either opinion or reputation
Can do it in cross examine or rebuttal case.
D is charged with murder. D seeks to have a witness testify that in their opinion D is honest. Admissible.
Inadmissible. Not relevant character trait.
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Admissible?
Yes, character of victim is allowed if self defense is raised.
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Can the prosecution offer evidence of the victim’s good character?
Yes. Character evidence for victim allowed once defendant raises the issue.
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Can the prosecution offer evidence of the D’s bad character?
Yes. Can offer bad character of defendant or good character of victim.
D is charged with assault. D seeks to have a witness testify that the victim previously attacked another person. D claims to have acted in self-defense based on hearing these previous act. Can D present evidence?
Yes, offer to prove defendant’s state of mind.
Not character evidence of victim.
Defendant can rely on rumors or hearsay, even if mistakenly.
D is sued by C for assault. D seeks to have a witness testify that C has a reputation for violence and C always is starting fights. D claims to have acted in self-defense. Admissible?
No. Character evidence not allowed in civil cases.
B sues A for defamation. A defends on the ground of truth and offers evidence of prior acts to show plaintiff was dishonest. Admissible in civil case?
Yes, exception to general rule that character evidence is not allowed in civil cases.
Goes to essential element of the claim.
B sues A for defamation. A defends on the ground of truth and offers evidence of prior acts to show A was honest. Admissible in civil case?
No. Not admissible, because only character of plaintiff is an essential element of the case.
D sues C for injuries in auto accident. D calls witness who saw the accident. Witness is shown a photograph and testifies that it is accurate representation. Does witness need to be the photographer?
No. Witness does need to take photo.
Personal knowledge is needed.
Plaintiff calls witness A who testified about an accident. Defendant has no question. Plaintiff calls witness B who testifies that witness A has a good reputation. Defendant objects. Ruling?
Yes. Cannot bolster a witness until attacked.
Plaintiff calls witness A who testified about an accident and told other people that defendant caused the accident. Defendant objects. Ruling?
Yes. Prior consistent statement. Not an identification exception.
Witness testifies that defendant is recognized as the perpetrator. In addition, witness said she picked him out of a line up two weeks earlier. Defendant objects. Ruling?
Overruled. Allowed as an exception to hearsay rule
Prior consistent statement exception for identification
Ways to impeach a witness.
Prior inconsistent statement Bias, interest, motivation Sensory deficiency Bad reputation or opinion for truthfulness Criminal convictions Bad acts Contradiction
Can extrinsic evidence be used to impeach a witness for bad acts?
No. Not allowed.
Can extrinsic evidence be used to impeach a witness for contradiction?
No. Not allowed.
Defendant is sued for negligence in an accident in which he was driving a car. Plaintiff called a witness to testify about the accident. Defendant crosses and asks witness about a statement to police that witness saw a truck. Objectable?
No. Comes in to impeach, not substantive evidence.
Defendant is sued for negligence in an accident in which he was driving a car. Plaintiff called a witness to testify about the accident. Defendant crosses and asks witness about a statement during a deposition that witness saw a truck. Defendant seeks to introduce it as substantive evidence. Objectable?
No. Comes into evidence for impeachment and substantive evidence.
Plaintiff testifies about an accident. Defendant does not cross. Defendant calls a witness who testifies that plaintiff gave another account of the accident. Defendant seeks to introduce evidence as substantive evidence. Allowed?
Yes. Statement of party opponent is allowed for impeachment and substantive evidence.
Witness testifies that defendant committed a crime. Defendant called another witness who says the first witness has a bad reputation for truthfulness. Admissible?
Yes.
Reputation or opinion is allowed to impeach first witness. Specific acts are not allowed on direct examination.
Witness testifies that defendant committed a crime. Defendant called another witness who says in their opinion that the first witness is untruthful and on six times he had lied. Admissible?
Opinion is allowed. Specific acts are not allowed on direct examination.
Which is admissible on cross:
1) conviction 8 years ago regarding misdemeanor for tax fraud?
2) conviction 8 years ago regarding misdemeanor for drug possession?
3) conviction 2 years ago regarding misdemeanor thief?
1) yes
2) no
3) no
Criminal convictions are allowed for impeachment of witness.
Which is admissible on cross:
1) conviction 11 years ago regarding misdemeanor for perjury?
2) released from jail for a conviction for misdemeanor drug possession?
3) conviction 2 years ago regarding felon larceny?
1) may be in discretion, not automatic.
2) no
3) yes - felony conviction - in court’s discretion
Must a defendant confront witness prior to introduction of conviction?
No. Can ask or introduce.
Witness testifies for defendant. On cross plaintiff ask witness about the witness assaulted a neighbor and was not charged. Objection?
Sustained. Not allowed. Does not reflect on truthfulness.
Bad acts require a good faith basis
Witness testifies for defendant. On cross plaintiff ask witness about the witness made false statements on federal benefit application 12 years ago. Objection?
Overruled. Proper question, within discretion of court
Reflects bad on truthfulness of witness
Conviction does not apply.
Witness testifies for defendant. On cross plaintiff ask witness about the witness made false statements on federal benefit application 12 years ago. Witness denies. Plaintiff seeks to have another witness testify about the application. Objection?
Sustained, not allowed
No extrinsic evidence.
Witness testifies for defendant. On cross plaintiff ask witness about the witness about an arrest for fraud. Objection?
Yes. Arrest is not allowed for bad acts.
On redirect can a party use a prior consistent statement for rehabilitation?
Only when creditability of witness is attacked.
Statement must be made before motive to lie.
Come in as substantive evidence.
In a federal court in a case under a federal question, which law applies?
Modern common law.
In a federal court in a diversity of citizenship, which law applies?
State law.
Defendant is sued for negligence. Defendant tells attorney about the accident. Plaintiff asks defendant to what his was doing at the accident. Defendant seeks to raise a privilege. Allowed?
Not allowed. Not a privileged.
Who can waive an attorney client privilege?
Only client.
Who can waive an attorney client privilege after the client’s death?
Only client’s estate. Continues after death.
If a defendant raises privilege regarding a statement regarding a medical condition in a diversity action. Allowed?
Yes, because state law applies.
Virginia follows doctor-patient applies in a civil case.
Can a spouse be compelled to testify about the defendant spouse in criminal case? Who is the holder of privilege?
No. Spousal immunity.
Witness spouse.
Can a spouse be compelled to testify about the defendant spouse in civil case? Who is the holder of privilege?
Yes. No spousal immunity in civil case. No holder of privilege.
A witness was married to defendant five years ago. While testifying, defendant objects on spousal immunity. Ruling?
Overruled. No privilege, need to be married while testifying at trial. Only applies to criminal case. Witness spouse has privilege.
B’s estate sues A for an auto accident. Witness testifies that B said “A ran the light.” Admissible?
Yes to prove that B was alive after accident to show pain and suffering.
Not hearsay for this purpose.
B sues A for breach of an oral contract. Witness testifies that he heard A say to B that I accept your offer. Inadmissible hearsay?
No. Legally operative words.
Plaintiff sues store for slip and fall. Before accident, witness testifies that they heard another tell the store manager about a wet floor. Admissible?
Yes. Not hearsay. Gives defendant notice and makes defendant aware of dangerous condition.
D is charged with robbery. D testifies that he told the police that he did not do it. Admissible?
No. Hearsay unless an exception applies.
D is charged with fraud. Prosecution offers an loan application. Objection by D. Ruling?
Sustained. Non-hearsay. Will be admitted party admission.
A, B, and C conspire to rob a bank. Before the robbery B tells C that A also intends to pick up a shipment of drugs whiling robbing the bank. A is on trial on prosecution seeks have to have C testify as to what B said. A objects on hearsay. Ruling?
Overruled non-hearsay. Statements of conspirator are allowed.
Prosecution cannot use a hearsay statement against criminal defendant when:
Need all three
1) Statement is testimonial
2) Declarant is unavailable; and
3) Defendant had no opportunity for cross examination.
B is charged with murder. Witness made statement during a grand jury makes a statement she heard against B. During trial, witness asserts a fifth amendment privilege. Can the prosecution use the statement?
No. Violation of sixth amendment confrontation. Not admissible.
Grand jury is testimonial.
In what cases can dying declaration be used?
Criminal cases for charges of homicide and all civil cases.
When declarant is unavailable.
Need to have no hope of survival.
The court takes judicial notice of a fact that the prosecution alleged at trial. The effect of judicial notice is that?
The prosecution burden of producing evidence for the alleged fact is satisfied. Fact is not conclusively established.
The court takes judicial notice of a fact that the prosecution alleged at trial. Does this shift the burden to the defendant?
No. Judicial notice does not shift the burden. The prosecution’s burden of producing the alleged fact is satisfied.
In a property dispute, a daughter claims that the dad gave her the deed to the house. The son claims he is entitled to it but virtue of a will. At trial, the daughter testifies about the deed. The son objects. Ruling?
Admissible if there is a foundation under the best evidence that the judge is satisfied that the deed could not be found after a reasonable search.
The prosecution calls a witness to establish that the voice on the tape was the victim. The witness testifies that he heard the same voice on another recording and another person told him that it was the victim’s voice. The witness never met the victim. Defense objects. Ruling?
Sustained. Inadmissible. No personal knowledge of witness with victim’s voice.
D is on trial for murder. D calls witness to testify that D has worked with the witness for 20 years and his business associates regard him to be an honest person. Prosecution objects. Ruling?
Sustained. Evidence is inadmissible because it is not relevant to any character trait on trial.
Prosecution calls a juror from a previous trial to testify that the defendant in the previous trial made statements in the previous trail that are now inconsistent. Current defense counsel objects. Ruling?
Overruled, comes in to impeach and substantive evidence. Prior inconsistent statements made under oath is admissible for impeachment and substantive evidence.
B’s estate is suing XYZ company alleging that an employee was drunk and caused the accident. During trial the employee testifies that he had 2 drinks. B’s attorney seeks to introduce a deposition statement that the employee stated he add 4 drinks. Permissible?
Yes for impeachment and substantive evidence. Prior inconsistent statements made under oath (deposition) can be used. Exception to hearsay rule.
A witness helps a police artist to make a sketch of the defendant. During trial the witness is unavailable. Can the prosecution enter the sketch into evidence?
No. inadmissible not an exception to the hearsay rule. Not a public record because it does not contain knowledge of the employee.
A witness helps a police artist to make a sketch of the defendant. During trial the witness is unavailable. Can the prosecution enter the sketch into evidence under the public records exception to hearsay?
No. not an exception to hearsay because public records does not contain the personal knowledge of the public official who made the statement.
B is suing A for serious injuries from an accident. At trial B testifies and is not crossed by A. B calls another witness who helped B and heard B state after regaining consciousness, “I’m dying! Why did A cross over the median?” A objects as hearsay. Ruling?
Overruled. Admissible as an exception to hearsay. Excited utterance because it was made once the plaintiff regained consciousness and relates to a startling event.
Not dying declaration, because the declarant is not unavailable.
B is suing a company for dumping waste. B testifies that an driver of the company’s trucks told her that he was following the bosses orders and that “she should not go anywhere near the debris.” Does B need to show that the driver was authorized to speak to admit the evidence?
No. Statement of employee is admissible as admission of party opponent. Vicarious admission made during course of employment does not need to show that driver was authorized to speak.
Husband and wife are charged with transporting stolen goods. While in the lawyer’s office, the husband said to the wife “We really knew that those TVs were hot.” The secretary was present. Can the husband assert an attorney client privilege in a later trial?
Yes, this is an attorney client relationship. The present of the wife and secretary does not destroy privilege.
Husband and wife are charged with transporting stolen goods. While in the lawyer’s office, the husband said to the wife “We really knew that those TVs were hot.” The secretary was present. Can the wife assert a martial privilege in a later trial?
No. Not a private conversation between the husband and wife. Present of attorney and secretary destroys martial privilege.
It would be an attorney client privilege.
In a civil case over embezzlement, plaintiff calls defendant and ask “Isn’t true that you embezzled funds?” Defendant refuses and claims privilege against self-incrimination. Criminal charges are being investigated against the defendant. Should the trial court allow defendant to refuse to answer?
Yes. No witness can be compelled to testify to answer questions that may incriminate themselves.
