Evidence Flashcards
Civil action by P against D. During the direct examination of one of P’s witnesses who claims to have seen the crucial event, D’s attorney raises a specific objection to a question asking the witness to relate what she saw. After extensive argument on the evidentiary point, the court sustains the objection.
Which of the following best reflects what P’s lawyer should do next?
(A) P’s lawyer should move on to the next question.
(B) P’s lawyer should ask the court to have the record reflect P’s disagreement with the court’s ruling, and move on to the next question.
(C) P’s lawyer should cease his examination of the witness because continuing with the examination will create a risk that an appellate court would find that P impliedly waived his right to appeal the court’s ruling.
(D) P’s lawyer should place in the trial record a statement of what the witness would have testified if permitted to answer the question.
(D) When the court sustains an objection to evidence a party wishes to offer, the party must place on the record an indication of what the evidence would have been. Sometimes a reviewing court will need to know what the evidence would have been in order to determine whether the trial court erred. And almost always, a court will have to know what the evidence would have been in order to determine whether any error “affects a substantial right of the party” (FRE 103(a)). In this case, the evidence would have consisted of a witness’s oral testimony, so the lawyer should make sure the record reflects the answer the witness would have given.
P, who was injured in a boiler explosion, offers into evidence an out-of-court statement by an employee of D. The employee (who is not himself a party) stated that the boiler had not been serviced for years. The statement is offered as an admission of a party-opponent. Is the Statement admissible on this theory?
(a) Yes
(b) No
(c) Need more Information
(c) Need more information
P, who was injured in a boiler explosion, offers into evidence an out-of-court statement by an employee of D. The employee (who is not himself a party) stated that the boiler had not been serviced for years. The employee was not authorized by the employer to make a statement on the subject. Is the utterance admissible as the admission of a party?
(a) Yes
(b) No
(c) Need More Information
(c) Further information is needed. Although some common-law states excluded utterances that were not authorized, the Federal Rules of Evidence allow unauthorized statements to be admitted so long as they relate to matters within the scope of the agent’s employment. See Fed. R. Evid. 801(d)(2)(D) and advisory committee’s note thereto.
P, who was injured in a boiler explosion, offers into evidence an out-of-court statement by an employee of D. The employee (who is not himself a party) stated that the boiler had not been serviced for years. The statement is offered as an admission of a party-opponent. In order to determine whether the statement aboutthe boiler is admissible as an admission, it is necessary to know:
(answer as many choices as are appropriate)
(a) whether the employee had personal knowledge
(b) whether the statement was made beforer or after the accident.
(c) whether the employee intended the statement to be restricted to internal company use.
(d) whether boiler maintenance was matter within the scope of the declarant’s employment.
(d) FRE provides that statements by employees are admissible as admissions if the employee was authorized to make the statement OR the statement concerned a matter “within the scope of the agency or employment.” Since this employee was not authorized, it is necessary to know whether the statement concerned a matter within the scope of his employment. If, for example, he was a truck driver who had nothing to do with the servicing of boilers, then the utterance should be held as inadmissible. On the other hand, if boiler maintenance was part of his job then the fact that he was not authorized to make statements about it would not bar admission.
________ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence
“Relevant Evidence”
