Evidence

Question 1

When is evidence relevant?

Answer 1

When it has probative value (makes a fact more or less likely) + materiality (the fact could have a bearing on the outcome).

Relevant facts are admissible unless they are not due to some other rule or Rule 403 applies, which states that court makes a discretionary determination that the probative value is substantially outweighed by either:

1) Danger of unfair prejudice.
2) Confusion of the issues.
3) Misleading the jury.
4) Undue delay.
5) Waste of Time.
6) Unduly cumulative.

Question 2

If evidence concerns some time, event, or person other than that involved in the case at hand, the evidence is in admissible subject to which exceptions?

Answer 2

1. Plaintiff’s accident history can be admissible if the event that caused P’s injury is at issue.
2. Similar accidents caused by the same instrumentality or condition can be admissible if the other accident occurred under substantially similar conditions and it is for one of these purposes (existance of dangerous condition, causation, prior notice).
3. Intent in issue can be admissible to raise an inference of the person’s intent on a later occassion (e.g. discriminatory hiring practices).
4. Comparable sale of value can be admissible to prove the value of property at issue.
5. Habit can be admissible if it is regular response (often an automatic/instinctive repetitive response) to a particular set of circumstances (weigh frequency and particularity). Look for words like “every”, “always”, and “never”.
   Note - MA only allows for business routines or against a P suing D’s estate. To rebut a claim by P, estate can introduce “habits of dealing” if they disprove P’s claim.
6. Industry custom as standard of care can be admissible to try to establish that standard as appropriate.

Question 3

What are the policy based exceptions to relevancy?

Answer 3

1. Liability insurance - inadmissible to prove fault or absence of fault, but admissible for other purpose such asmto establish proof of ownership/control or location, but only if those are disputed by D. Can also be used for impeachment purposes (e.g. bias). This only applies to liability insurance not any other kind.
2. SRM - inadmissible to prove negligence, culpability, defect, need for warning, etc. Admissible for other relevant purpose such as ownership/control or feasibility of safer conditions if either is disputed by D.
3. Settlements of disputed claims - Settlements, offers to settle, or statements of fact during negotiations are inadmissible for the purpose of showing liability or impeaching a witness for prior incons. stmnt. May be admissible for the purpose of impeaching a witness for bias or the ENRON example (see page 9 of handout). Though MA does not acknowledge the ENRON example.

To apply this policy exception there must be a claim (filed or not), and that claim must be disputed either as to validity or amount of damages.

Similarly plea bargaining in criminal cases is inadmissible to show the following:
1) Offer to plead guilty cannot be used against D in the case or in subsequent civil litigation.
2) Withdrawn guilty plea cannot be used just like above.
3) Plea of Nolo Contendere - Cannot be used in subsequent civil litigation based on the same facts.
4) Statements of fact during plea discussions is inadmissible.
BUT a guilty plea not withdrawn is admissible in subsequent civil litigation on the issue.

4. Offer to pay hospital or medical expenses is inadmissible to prove liability. This does not extend to accompanying statements with that offer to pay medical bills.
5. MA ONLY - Excludes expressions of sympathy to accident victim or victim’s family if offered in a civil action as an implied admission of liability. Also inadmissible, in med mal actions, expressions of mistake or error by health care provide to patient, rep of patient, or the patient’s family relating to an unanticipated outcome, that is, unless, the declarant makes an inconsistent statement about the error or mistake.

Question 4

When is evidence of D’s character admissible in criminal cases?

Answer 4

Evidence of D’s character is inadmissible during Prosecution’s case in chief. However, during D’s case, D may introduce evidence of D’s relevant character trait (e.g. peacefulness in a murder case, or honesty in a larceny case).

However, if D introduces:

1) Must do so only with reputation or opinion evidence, but not specific acts (reputation only in MA); and
2) Once D does so, he has opened the door for Pros. to rebut.

Note*** - Character witness may say that “D is law abiding” but that only goes to the relevant trait. Can’t rebut with something irrelevant.

Pros can rebut by:

1) Directly impeaching witness (“Did you know” or “Have you heard”) but must live with the answer, can’t prove up a denial by showing witness did know or had heard.
2) Can call its own character witness to give reputation or opinion evidence about D (reputation only in MA).

Question 5

When is the victim’s character admissible?

Answer 5

If D is claiming self-defense, he may introduce evidence of the victim’s violent character as evidence that the victim was the first aggressor.

1) Must do this with reputation or opinion evidence, not specific acts.
2) This allows prosecution to rebut with:
(a) Rep or opinion evidence of victim’s good character for peacefulness; and/or
(b) Rep or opinion evidence of D’s bad character for violence.
3) D may also offer evidence of his own prior knowledge of victim’s bad character for violence/bad acts to show his state of mind.
4) MA demands that evidence of the victim’s character be specific acts and go only to D’s state of mind (not to prove victim was aggressor), but this opens the door to D’s specific acts in rebuttal to show D was the aggressor.

Question 6

What is “rape shield”?

Answer 6

In a criminal sexual misconduct case, no offering evidence that the victim is a slut (sexual propensity) or specific sexual behavior of the victim.

Except:

1) Can prove someone else was the source of semen or injury to victim.
2) Can offer D’s sexual history with victim as part of consent defense.
3) Love Triangle Defense is available to show victim’s motive for crying rape.

In a civil case, the court may admit the sexual propensity or sexual behavior of the victim if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

In MA:

1) Can put forth corroborated evidence of prior or subsequent false accusations of rape by complaintant
2) Can put forth evidence that complaintant had a motive to lie such as, her parents did not know that she was sexually active.

Question 7

When is evidence of D’s character admissible in a civil case?

Answer 7

Character evidence is generally inadmissible to prove a person’s conduct on a particular occasion, unless it is an essential element of a claim or defense.

1) Could be offered in
(a) Negligent entrustment/hiring
(b) Defamation
(c) Child custody dispute (character traits of potential custodial parents).
2) Provable by reputation, opinion, and specific acts.

Question 8

When can P introduce D’s past crimes for non-character purposes?

Answer 8

Criminal Cases -
Never for propensity, but yes for another purpose.

The most common purposes are:
M - Motive
I - Intent
M - Absence of Mistake
M - Modus Operandi (must be distinctive) - I know barbri does not include this M since it is encompassed in others, but I like to break it out.
I - Identity
C - Common Scheme of Plan (motivated by one specific goal)

Method of proof:

1) conviction
2) conditional relevancy standard - a reasonable juror could conclude that D committed the other crime.

Civil Cases -
If relevant for a non-character purpose, MIMMIC evidence can also be used in civil cases, such as tort action for fraud, assault, etc.

Question 9

What rules specifically govern admissibility of past sexual assault crimes?

Answer 9

In a case alleging sexual assault (criminal or civil), prior specific acts of sexual assault are admissible for any purpose including propensity (NO REP OR OPINION).

MA DOES NOT RECOGNIZE. MIMMIC MUST BE SATISFIED.

Question 10

When I see a writing, what three issues should I look for?

Answer 10

1) Hearsay
2) BE Rule
3) Authentication

Question 11

How do you authenticate documents?

Answer 11

1. Witness with personal knowledge.
2. Proof of handwriting with lay person who knows author’s writing well, an expert who compares a sample, or the jury compares a sample.
3. Proof by Circumstantial Evidence - something connecting author to doc like appearance, contents, substance, internal patterns, or info only author would know.
4. Ancient document rule. Authentic if 20 years old, facially free of suspicion, and found in a place of natural custody.
5. Solicited Reply Doctrine - Received in response to a prior communication to the author.

Conditional Relevancy Standard applies - reasonable juror could find that the document is genuine (not the judge).

Some docs are self-authenticating:

1) Official pubs
2) Certified copies on file with pub office
3) Newspaper or periodical
4) Trade inscriptions and labels
5) Acknowledged document certified by notary public
6) Commercial paper.

Question 12

How do you authenticate photographs?

Answer 12

Witness with personal knowledge that photo is a fair and accurate representation of the people or objects portrayed.

Question 13

What is the BE Rule?

Answer 13

A party who wants to use the contents of a writing must produce the original (includes counterpart docs, negatives, prints from negatives, printouts of ESI, and mechanical duplicates like photocopies unless unfair)
or
an acceptable excuse for why you didn’t produce the original. If acceptable, oral testimony or a handwritten copy is ok. Acceptable excuses include lost or inability to find with due diligence, destroyed without bad faith, and cannot be obtained with legal process.

FRE says this includes sound recordings, x-rays, and film.
MA does not include photos, videos, etc. (e.g. in MA, an enlarged photo does not create a BE problem.)

Applies if:
1. The writing is a legally operative document in the present case, that is, the writing itself creates rights and obligations at issue (e.g. a patent, deed, mortgage, divorce, contract, etc.)
OR
2. Witness is testifying to facts that she learned solely from reading about them in a writing.

Does not apply to:

1) Voluminous records can be summarized or charted provided that the original records would be admissible and they are available for inspection.
2) Certified copies of public records
3) Docs of collateral significance (e.g. a witness’ professional license).

Question 14

What must a witness have to be competent?

Answer 14

1) Personal knowledge

2) Oath or affirmation to tell the truth

Question 15

What is the standard dead man’s statute?

Answer 15

1) In a civil action;
2) an interested witness;
3) is incompetent to testify
4) against the estate of a decedent;
5) concerning a personal transaction or communication between the interested witness and the decedent.

Remember, on the MBE, this only applies if the fact pattern tells you that the state in question has a dead man’s statute.

MA DOES NOT HAVE A DEAD MAN’s STATUTE, but there is a special hearsay exception for statements made by decedents. see page 72 of the lecture handout.

Question 16

Are leading questions allowed?

Answer 16

Always on cross.

May only be allowed on direct if:

1) It’s a preliminary intro matter.
2) The witness is youthful or forgetful.
3) Hostile witness
4) It is the opposing party or a person under the opposing party’s control.

Question 17

What is the difference between refreshing recollection and past recollection recorded?

Answer 17

1. Refresh recollection when witness says that he can’t remember and you give her something/anything to refresh it. Witness reads it to herself and that hopefully jogs her memory. Have to show whatever you use to refresh to the other side, there’s no need to authenticate, it does not get entered into evidence, and it does not get read out loud.

Opposing party may inspect it, use it on cross, and introduce it into evidence if they want.

2. Past recollection recorded. If witness can’t remember and the writing does not refresh her memory, you can lay the foundation for reading the doc out loud and entering it into evidence in lieu of the witness’ testimony. Must show:
   1) The writing fails to jog the witness’ memory.
   2) Witness had personal knowledge at one time.
   3) Writing was either made or adopted by witness.
   4) It was made or adopted when the event was fresh in the witness’ mind.
   5) Witness can vouch for the accuracy of the writing when made or adopted.

In Federal court this only allows the proponent to read the doc out loud in front of the jury, but the opposing party may enter it as an exhibit.

In MA, you can admit it into evidence yourself, but original should be produced if possible.

Question 18

When may a lay witness testify to her opinion?

Answer 18

1) The opinion is based on the witness’ own perception (pers. knowl.) AND
2) It is helpful to the jury.

e. g.
1) drunk/sober
2) speed of the vehicle
3) handwriting
4) emotions of another person
5) odors
6) sane/insane (MBE only, not in MA. In MA may only describe conduct and speech. There is an exception for a witness to a will’s observations concerning the testator).
7) character (when permitted)

Question 19

When may an expert testify as to her opinion?

Answer 19

1) Qualified based on education and/or experience.
2) The subject matter is scientific, technical, or otherwise specialized knowledge that will be helpful to the jury in deciding a fact.

3) Proper Basis - The opinion must be based on a reasonable degree of probability or reasonable certainty from one or all of three data sources.
(a) Personal knowledge.
(b) Other evidence in the trial record.
(c) Facts not in evidence if they are of a type reasonably relied on by other experts in this field in forming their opinions. (Usually not disclosed to the jury, except sometimes for the limited purpose of evaluating the expert’s opinion.)

4) Relevant and Sufficiently Reliable
(a) Expert uses reliable methods and principles.
(b) Expert reliably applies them to the facts of the case.
(c) Uses Daubert Factors to determine the reliability of principles and methodology.
(i) T - Testing of principles or methodology
(ii) R - Rate of error
(iii) A - Acceptace by other experts in same discipline.
(iv) P - Peer review and publication.

In MA, expert may base his opinion on facts or data not in evidence, if it would be admissible. Cannot based his opinion on inadmissible facts.

Question 20

When may a learned treatise be used during trial?

Answer 20

1) On direct of a party’s own expert may read relevant portions into evidence as substantive evidence if established as a reliable authority.
2) On cross of opponent’s expert it can be read into evidence to impeach and contradict opponent’s expert, and it comes in as substantive evidence. Remember, you may impeach an expert on his lack of knowledge in the field in which he is testifying

In MA,

1) Used only on cross
2) Exception: Med Mal allows you to use it on your direct case, and you can even read it into evidence without the need for live expert testimony as long as you give 30 days pre-trial notice of intent to use as substantive evidence. The reason is because it is hard to find a doctor willing to testify against another doctor.

Question 21

Is opinion testimony a problem if it embrace an ultimate issue?

Answer 21

Not necessarily.

Regular elements for opinion testimony must be satisfied, such as and including, the helpfulness to the jury element.

Therefore, having a witness say something that tracks the elements of the crime isn’t helpful.

Even expert cannot testify that D did or did not have the right mental state (mens rea). However, she can say something like, “D has schizophrenia; therefore, he cannot distinguish fact from fantasy.” That’s ok.

e.g.
“Defendant is guilty” doesn’t help.
“Defendant was engaged in conduct constituting a reckless disregard for the safety of others” doesn’t help.

In MA, expert cannot testify that a sexual assault had in fact occurred.

Question 22

What are proper subjects for cross-examination?

Answer 22

1) Matters within the scope of direct.
2) Matters that test the witness’ credibility.
3) In MA, not limited to scope of direct. Relevancy and other rules of evidence are your only restriction.

Question 23

How do you bolster a witness’ credibility?

Answer 23

1. Party cannot bolster/rehabilitate her witness until after it has been attacked/impeached.
2. However, during the in court ID, witness can say that she picked D out of a line up after the crime.
3. In MA, in sex assault cases, in its direct case, the P may introduce evidence of victim’s report of the assault through the testimony of the first person to whom the assault was reported (first complaint witness whether it be police, doctor, family member, etc.) so that the jury may evaluate the victim’s credibility. First complaint need not be prompt. This testimony may only be offered to bolster victim’s credibility not as substantive evidence.

Question 24

May you impeach your own witness?

Answer 24

Yes.

In fed court, can do it with any method.

In MA, cannot impeach the witness for bad reputation for truthfulness or prior convictions, but may for other things like prior inconsistent statements.

Question 25

What are the methods by which you impeach a witness?

Answer 25

1) Prior inconsistent statements
2) Bias/Interest/Motive to misrep
3) Sensory Deficiency
4) Bad rep or opinion about witness’ character for truthfulness.
5) Criminal Convictions
6) Bad Acts (not in MA)
7) Contradiction

You can either

(a) Ask/Confront
(b) Prove with extrinsic evidence unless we’re dealing with bad acts or collateral contradictions.

Note* You must only confront the witness before using extrinsic evidence if it’s dealing with bias in Fed Rules, no confront required in MA.

Question 26

How do you impeach for a prior inconsistent statement?

Answer 26

1) It may be any witness.
2) Always admissible for impeachment, but not usually admissible for substantive evidence unless the prior inconsistent statement was made orally, under oath at a prior proceeding or the witness is an opposing party confronted with her own statement.

In Federal Rules - You do not have to confront the witness, but if you just use extrinsic evidence, the witness must be given the opp to return and explain/deny.

In MA, same as FRE, except if you impeach your own witness, you must confront while witness on stand.

Exception to both - no need to give opportunity to explain if the witness is an opposing party.

Question 27

How do you impeach with bias?

Answer 27

Bias is never collateral.

1) Must confront the witness with bias in fed, not in MA.
2) If in Fed, and confrontation met, bias may be proven with extrinsic. In MA, may go straight to extrinsic.

Question 28

How do you impeach for sensory deficiencies?

Answer 28

Go after memory, senses, mental infirmity, alcohol or drug use, etc.

No confrontation required, extrinsic evidence allowed.

Question 29

How may you attack a witness’ bad character for truthfulness?

Answer 29

1) Bad rep or opinion about witness’ character for truthfulness.
2) Bad Acts (Not in MA)
3) Criminal Convictions

Question 30

How do you impeach for bad rep or opinion about witness’ character for truthfulness?

Answer 30

1) Any witness.
2) No confrontation required.
3) Extrinsic evidence allowed (it’s really the only way).
4) Call a witness to testify that another witness has bad rep for truth or in new witness’ opinion, other witness is not a truthful person. No specific acts. Rep only in MA.

Question 31

How do you introduce a witness’ past criminal convictions for impeachment purposes in Federal Rule?

Answer 31

1) Conviction must be less than 10 years old.
2) Whether it is a felony or misdemeanor, if the crime involves a false statement as an essential element (e.g. perjury, fraud, but NOT theft), it is coming in.
3) If it is a felony, it can come in at the court’s discretion, weighing the probative value with danger of unfair prejudice.
4) Proved by asking the witness to admit his prior conviction or introduce a record of conviction. No requirement to confront.

Question 32

How do you introduce a witness’ past criminal convictions for impeachment purposes in MA?

Answer 32

Generally, any conviction whether felony or misdemeanor may be used to impeach, subject to the following:

Felonies: Generally, 10 year expiration rule, which runs from:

(a) the expiration of the minimum # of years of the prison sentence, if imposed, unless D was convicted of something else within that 10 years, which revives everything.
(b) the date of conviction if sentenced to probation, unless D was convicted of something else within that 10 years, which revives everything.
(c) the date of sentencing for a suspended sentence, fine, or confinement in jail rather than prison, unless D was convicted of something else within that 10 years, which revives everything.

Misdemeanors: Cannot use after 5 years from the date in which the sentence was imposed, unless there is a subsequent conviction of another crime within that 5 years, which revives everything.

In all cases, court has discretion and can exclude if probative value is outweighed by prejudice.

Court should hesitate to allow impeachment of D as a witness with a previous crime, if the crime used for impeachment is similar to the crime for which he is now being tried because it has a high risk of being misused by the jury as propensity evidence.

Question 33

How do you impeach with previous bad acts that did not result in a conviction?

Answer 33

1) Must relate to deceit and dishonesty.
2) You must ask the witness, and you must live with his answer. NO EXTRINSIC EVIDENCE.
3) Must have good faith basis for inquiry.
4) Subject to court’s discretion.
5) Limited to the act of untruthfulness itself, not the consequences like arrest, firing, civil judgment, etc.

MA DOES NOT ALLOW IMPEACHMENT FOR BAD ACTS W/O A CONVICTION.
BUT
On Fed and MA, a prior bad act may be allowed if it is relevant to bias or some other purpose besides just being a bad act. (e.g. witness has his own criminal proceedings going on so he is testifying here to get in the state’s good graces.)

Question 34

How do you impeach with a contradiction?

Answer 34

1) Confront the witness to try to get her to admit that she lied or was mistaken about what she said earlier in her testimony.
2) If she admits it, that’s impeachment by contradiction. 3) If she stands by her story, extrinsic evidence may only be used if the issue is not collateral. (not collateral if it actually bears on the outcome.)

Question 35

If your witness has been impeached, how do you rehab?

Answer 35

1) If suggested that your witness was lying, put on your own character witness to bolster the witness’ by giving reputation or opinion for good character for truthfulness.

2) You may give evidence of a prior consistent statement only if:
(a) You need to rebut a charge of recent fabrication, and the prior consistent statement was made before the motive to lie arose.
(b) To rebut a contention of inconsistency.
(c) To rebut a contention of sensory deficiency.

(a) is most likely on exam. See 51-52 of lecture handout for more on (b) and (c).

In MA, (c) is only available to rehab, not for substantive purposes.

Question 36

What privileges do I need to be concerned with for the bar?

Answer 36

1) A-C privilege
2) Dr.-Patient
3) Spousal Immunity
4) Marital Communications

Question 37

Frank Underwood has a matter pending in US District Court for the District of South Carolina. Under federal question. Some information is sought at trial, which Frank and his lawyer believe is covered by a privilege. Under SC state law, it would not be covered. Frank wants to argue that federal law applies. Is he correct?

Answer 37

Yes, privilege will be governed by common law as interpreted by federal courts in light of reason and experience when in federal court for fed question,

If he were in court for diversity, federal court would have to apply substantive law from SC to the privilege situation and Frank would be overruled on his objection.

See Erie doctrine in civ pro.
Competency, dead man’s statutes, burdens of proof, and presumptions are also substantive law issues.

Question 38

What is required to invoke A-C privilege?

Answer 38

1) Confidential communications (client has reas. exp. of conf.);
2) between attorney (or rep of attorney) and client (including prospective clients and agents of client);
3) made during professional, legal consultation (primary purpose of comms is legal advice, not business or social visits);

4) unless the privilege is waived by the client;
(a) Client voluntarily waives
(b) Subject matter waiver for intentionally partial disclosures, where the other comms sought concern the same subject matter, and it is fair to disclose it all.
(c) Inadvertent waiver will not waive privilege if privilege-holder took reasonable steps to prevent disclosure, and reasonable steps to correct errors.

5) or an exception is applicable.
(a) Future crime or fraud
(b) Client puts legal advice at issue (i.e. “I was relying on my attorney’s advice.”
(c) A-C dispute.

Does not apply to client’s knowledge of the underlying information, pre-existing docs, or physical evidence.

In MA, if attorney’s act of producing physical evidence would expose client to criminal liability, the client’s privilege against self-inc. and the a-c privilege would supercede any subpoena.

Question 39

What is the physician-patient privilege?

Answer 39

Majority rule for MBE

1) Confid. comms or info acquired by physician from patient;
2) for the purpose of diagnosis or treatment of a med. condition.
3) Exception - Privilege is lost if patient expressly or impliedly puts his physical or mental condition in issue like if he is suing for personal injury, mental suffering, or if he is using insanity as a defense.

Note - This applies to psychotherapists and other mental health professionals like social workers as well.

However, if the MBE question tell you that you are in Fed Ct. under FQ so fed sub. law applies (Erie), the privilege exists ONLY FOR PSYCHOTHERAPY, NOT FOR COMMS w/ NORMAL DOC FOR PHYSICAL CONDITIONS.

MA, is the same as FQ above.

Question 40

What is spousal immunity; what is confidential communication between spouses?

Answer 40

1) Spousal immunity
(a) Criminal cases only
(b) Marriage exists at the time of trial
(c) Only non-D spouse can claim privilege
In MA, it is the same except there is no spousal immunity for grand jury proceedings, just at trial. Does not apply to nonsupport, desertion, child abuse, or incest cases.

2) Confidential communication between spouses
(a) Any case
(b) Only comms during the marriage are protected, but privilege lives beyond the marriage.
(c) Either D or his non-D spouse may invoke.
In MA, living spouses are prohibited from testifying against one another regarding private, oral conversations. No disqualification for written qualifications. If a spouse dies, the surviving spouse may testify about what the dead spouse said during his/her life, even if private (subject to evidentiary objections like hearsay).

Exceptions to both privileges in FRE and MA

1) Comms or acts in furtherance of a jointly perpetuated future crime or fraud.
2) Comms or acts destructive of family unit like spousal or child abuse.
3) No privilege in civil litigation between the spouses themselves (e.g. divorce or breach of K).

Question 41

May a child testify against a parent?

Answer 41

Under FRE, there is no such privilege.

In MA, in criminal cases, an unemancipated minor child is prohibited from testifying against a natural or adoptive parent with whom the child RESIDES. Exception: child must testify when the victim of the crime also lives in the same household and is a member of the parent’s family.

Question 42

What is hearsay?

Answer 42

An out of court statement by a person offered to prove the truth of the matter asserted.

Animal’s (drug sniffing dog) and machine’s (clocks, etc.) statements cannot be hearsay.

Question 43

What are the most common ways in which an out of court statement can be offered for a purpose besides its truth?

Answer 43

1) Proof of life.
2) Verbal act (legally operative words) - K formation, patent, copyright, words accompanying ambiguous acts, etc.
3) The show the effect on a person who heard or read the statement - notice, motive, fear, etc.
4) Speaker’s state of mind - e.g. evidence of insanity, false alibi shows consciousness of guilt, asking a question displays lack of knowledge, etc.

Question 44

What are examples of exclusions/non-hearsay?

Answer 44

1) Prior statements of a trial witness if the witness is currently subject to cross examination and:
(a) The witness’ prior statement IDing a person the witness perceived earlier.
(b) Witness’ prior inconsistent statement if oral, under oath, and made during formal trial, hearing, proceeding, or depo.
(c) Witness’ prior consistent statement to rebut charge of recent fabrication, contention of inconsistency or sensory deficiency. MA only allows this as rehab to impeachment, not substantively.

2) Party admissions/Statements made by opposing party
(a) Adoption of Statement counts - party remains silent after another says something that the person heard and understood, was capable of denying, and a reasonable person would object to if it was false.
(b) Vicarious Party Admission counts - Statement by an agent/employee against the principal/employer if statement concerns matters within the scope of employment and is made during the existence of an agency/employment relationship. Need not be on the job at the time so long as the employee/employer relationship still exists.
(c) The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made during and in furtherance of the conspiracy.

In MA, (c) applies, but there must be sufficient independent evidence to establish that the criminal joint venture existed between D and declarant.

Question 45

What are the hearsay exceptions which I need to be concerned with for the bar?

Answer 45

Witness Unavailable

1) Procuring the witness’ unavailability
2) Former testimony
3) Statement against interest
4) Dying declaration

Available or Unavailable

1) Excited Utterance
2) Present Sense Impression (not in MA)
3) Present State of Mind
4) Declaration of Intent
5) Present Physical Condition
6) Statement for the Purpose of Obtaining Medical Treatment or Diagnosis
7) Business Records
8) Public Records
9) Refreshed Recollection
10) Past Recollection Recorded

MA ONLY

1) Statements of decedent in civil actions
2) Sworn medical report of a medical examination of an injured person, and statements by child victims of sexual acts.

Question 46

What right does a D have under the confrontation clause?

Answer 46

Even though something might qualify for a hearsay exception, the confrontation clause as interpreted in Crawford might prevent it from being used against D if:

1) The statement is testimonial (serves to develop testimony rather than exist as a business record or sid with the intent to meet an ongoing emergency);
2) Declarant is unavailable; and
3) D has had no opp to cross.

NOTE - Forensic reports to test a particular individual are testimonial, but a DNA report is non-testimonial if no particular person is suspected. If it is testimonial, the report can come in with an expert who refers to the report to show the basis for his opinion.

Question 47

Explain each hearsay exception possible when the witness is unavailable.

Answer 47

1) Procuring the witness’ unavailability attaches when witness cannot testify because it can be shown by a preponderance of the evidence that D’s wrongdoing was specifically designed to prevent witness from testifying.

2) Former Testimony can be used when the witness is now unavailable, if the former testimony was given at a former proceeding or depo, and the non-favoring party had the opp and motive to cross or develop the testimony of the witness. The issue in both proceedings must be essentially the same.
Note***Grand jury proceedings do not count because there is no opp to cross.

3) Statement against interest can be used when declarant is unavailable and she made a statement against her pecuniary, proprietary, or penal interest. Differs from party admission - see page 70 of lecture handout.

4) Dying declaration is used in criminal homicide cases or a civil case and allows the unavailable declarant’s statement if it was made under the belief of certain impending death, and the statement concerns the cause or surrounding circumstances of the declarant’s death. Declarant must have given up all hope of survival.
Note***A dying dec. to a police officer does not count as testimonial for Crawford purposes.
MA allows in criminal homicide only and declarant must actually die.

Question 48

What are proper grounds to consider a witness unavailable?

Answer 48

1) Privilege asserted
2) Absent from the jurisdiction (can’t be found or beyond reach of subpoena)
3) Illness or death
4) Lack of memory - Not unavailable in MA
5) Stubborn refusal to testify - Not available in MA

Question 49

What is the MA Hearsay Exception for Statements of Decedents in Civil Actions?

Answer 49

In a civil action, any statement by a deceased person may come in for its truth if it decedent made it in good faith and the statement is based on the declarant’s personal knowledge. Cross reference with Dead Man’s Statute.

Question 50

What is the excited utterance hearsay exception?

Answer 50

Statement made concerning a startling event, made while still under the stress/excitement of that event.

Look at:

1) The nature of the event;
2) The passage of time;
3) Visual cues such as:
(a) Exclamatory phrases
(b) Excitement oriented verbs
(c) “!”

Question 51

What is the present sense impression hearsay exception?

Answer 51

Not available in MA

Description of an event made while the event is occurring or immediately thereafter (a play by play of the event). No excitement necessary but must be within seconds before the declarant would be able to formulate a fabrication.

Question 52

What is the present state of mind hearsay exception?

Answer 52

Contemporaneous statement/reflection concerning declarant’s present state of mind, feelings, or emotions.

Question 53

What is the declaration of intent hearsay exception?

Answer 53

Statement of declarant’s intent to do something in the future including the intent to engage in conduct with another person.

Question 54

What is the present physical condition hearsay exception?

Answer 54

Statement made to anyone about declarant’s current physical condition. Cannot look backward.

Question 55

What is the statement made for the purpose of obtaining medical treatment of diagnosis hearsay exception?

Answer 55

Statement made to anyone (though usually to medical personnel) for the purpose of obtaining medical treatment or diagnosis, including a diagnosis for expert testimony if it concerns the declarant’s

1) Present symptoms;
2) Past symptoms; or
3) General cause of the condition (does not extend to details about liability or identity of a tortfeasor, unless it is the identity of the abuser in a domestic abuse or child abuse case.
4) Only goes to declarant’s statements, not the oral statements from physician to patient.

In MA, the domestic abuser identity portion of the rule is not generally recognized, but MA has an exception called the Statement of a Child-Victim of Sexual Act (“Tender Years Statute), which says:

1. In a criminal case;
2. A child under the age of 10’s statement;
3. Describing a sexual act performed upon or with the child or identifying the perpetrator of the sexual act is admissible if:
   (a) the child is unavailable;
   (b) the statement has adequate reliability;
   (c) the statement is corroborated by other admissible evidence; and
   (d) the person who heard the child make the statement testifies at trial.

Might be a problem under Crawford if made to a police officer, but prolly not if made to a family member, health care provider, teacher, or in an emergency situation.

Question 56

What is the business records hearsay exception?

Answer 56

1) Record of a business of any type (including gov’t actions like police reports in civil actions);
2) made in the regular course of business
3) the business routinely keeps such records;
4) contents consist of:
(a) info observed by employees of the business; or
(b) statement falling within an independent hearsay objection applies.

In MA, no opinions are allowed in business records. Factual observations in police reports may be admissible even in criminal cases, subject to Crawford.

In MA, Sworn Medical Reports of the Medical Examination of an Injured Person - that is - all of the following qualify as an exception to hearsay:
1) Routine hospital records and Physician’s office records come in under normal business records exception; and
2) A physician’s written report or hospital report describing medical examination of an injured person is admissible to prove diagnosis, prognosis, or opinion as to the cause of the condition. Also admissible to show opinion as to disability or incapacity proximately resulting condition. REPORT MUST BE SIGNED AND SWORN TO BY THE PHYSICIAN OR HOSPITAL.
This helps P prove her case without live expert medical testimony.

Question 57

What is the public records hearsay exception?

Answer 57

1) Records of a public office or agency setting forth
(a) the activities of the office or agency
(b) matters observed pursuant to a duty imposed by law
(c) findings of fact or opinion resulting from an investigation authorized by law. Agency’s fact findings and opinions are ok even if by outsiders.
Note***MA does not agree with (c).

2) Exclusion from public records exception: Police reports prepared for prosecutorial purposes are not admissible against a D in a criminal case.

Question 58

What is double hearsay?

Answer 58

A hearsay statement within another hearsay statement.

Both must meet an exception or exemption to come in.

Question 59

What if you want to attack the credibility of a hearsay declarant whose out of court statement comes in under an exception?

Answer 59

Use any impeachment means available. The requirement that the declarant be available to explain or deny his inconsistent statement is waived.

Question 60

What special rules does MA have about hospital releases, settlements, or statements by patients?

Answer 60

Inadmissible in a subsequent personal injury case if made within hospital within 15 days of the injury unless declared willingness 5 days before signing. This does not apply to releases obtained by police officers, motor vehicle inspectors, or the injured person’s family members or attorneys.

Question 61

What special rules does MA have regarding witness’ with intellectual disabilities?

Answer 61

They can testify with alternative procedures if testifying in open court may result in severe trauma or the witness’ ability to testify may be significantly impaired.

Question 62

Are the results of a polygraph test admissible evidence in MA?

Answer 62

No

Question 63

Is evidence that D refused to take a chemical or field sobriety test admissible?

Answer 63

No.

Question 64

Is there an accountant-client privilege in MA?

Answer 64

No.

Question 65

What is the years requirement for an ancient doc in MA?

Answer 65

30

Question 66

Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious admission (i.e., a statement attributable to the opposing party). Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission?

A Partners
B Joint tenants
C Co-parties
D Spouses

Answer 66

A Partners

A principal-agent relationship, which includes every partner with every other partner in a partnership, is a relationship that may give rise to a vicarious admission. Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal.

Question 67

Character evidence is admissible in a civil case if:

A character is directly in issue
B the defendant “opens the door” by introducing evidence of his good character
C the evidence is in the form of reputation or opinion only
D it is offered to show a good character trait only

Answer 67

A character is directly in issue

Where character is directly in issue in a civil case, character evidence is admissible. A defendant in a criminal case may “open the door” by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.

Question 68

In a criminal case, the prosecution can call witnesses to testify about the defendant’s character for a particular trait to establish the defendant acted in conformity with that trait:

A Whenever the evidence makes it more likely that the defendant committed the crime in question
B Only if the defendant has already put that particular character trait in issue
C During its rebuttal case, as long as the defendant testified during her case-in-chief
D Only if the testimony concerns specific bad acts by the defendant

Answer 68

B Only if the defendant has already put that particular character trait in issue

In a criminal case, if the defendant puts her character in issue by calling a witness to provide reputation or opinion testimony regarding that trait of the defendant, the prosecution can then call witnesses to testify about the defendant’s character for that particular trait. This can be in the form of reputation or opinion testimony; testimony concerning the defendant’s specific bad acts is not allowed. The prosecution cannot initiate evidence of the bad character of the defendant merely to show that she is more likely to have committed the crime of which she is accused. However, if the accused introduces evidence of her good character to show her innocence of the alleged crime, the prosecution may rebut that evidence. If the defendant puts her character in issue, the prosecution can rebut that evidence regardless of whether the defendant testified.

Question 69

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:

A Reputation and opinion only
B Opinion only
C Reputation, opinion, or specific acts
D Specific acts only

Answer 69

C Reputation, opinion, or specific acts

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is “directly in issue.” Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances (e.g., defamation actions). Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue

Question 70

Which statement concerning impeachment by evidence of bias is true?

A A witness’s bias may be shown only by cross-examination, not by extrinsic evidence.
B The evidence of bias must be substantively admissible in the case (not just offered for impeachment purposes).
C A party is not permitted to show that a witness’s bias is justified.
D A party may introduce extrinsic evidence of a witness’s bias prior to the witness’s testimony.

Answer 70

C A party is not permitted to show that a witness’s bias is justified.

Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness’s bias prior to the witness’s testimony would not be allowed because of foundational requirements. The party must ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.

Question 71

Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes used to rehabilitate a witness who has been impeached. A party may rehabilitate his witness by introducing a prior consistent statement EXCEPT when:

A the witness has been impeached by evidence of her prior inconsistent statement on the same subject
B the witness has been impeached with evidence of a prior criminal conviction
C the witness’s sensory deficiencies have been impeached
D the witness has been impeached by a charge that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed

Answer 71

B the witness has been impeached with evidence of a prior criminal conviction

A prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. On the other hand, prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some non-character ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility.

Question 72

In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence. Which statement regarding the permissibility of extrinsic evidence is FALSE?

A The prior inconsistent statement must be relevant to the case.
B Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.
C A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.
D The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.

Answer 72

D The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.

Question 73

Which of the following statements about offers to settle or pay medical expenses is false?

A Evidence that a party offered to pay the injured party’s medical expenses is inadmissible to prove liability for the injury.
B An admission of fact made during compromise negotiations is generally inadmissible to prove or disprove the validity or amount of a disputed claim.
C In compromise negotiations, if a party admits liability and the amount of liability, every statement made in connection with that offer is admissible.
D Any admission of fact accompanying an offer to pay medical expenses is inadmissible.

Answer 73

D Any admission of fact accompanying an offer to pay medical expenses is inadmissible.

An admission of fact accompanying an offer to pay medical expenses is admissible. This differs from the rule regarding compromise negotiations, where such admissions are inadmissible if certain requirements are met. Evidence that a party offered to pay (or paid) the injured party’s medical expenses is not admissible to prove liability for the injury. When there is a claim disputed as to validity or amount, an admission of fact made during compromise negotiations is inadmissible. If a party admits liability and the amount of liability in compromise negotiations, the claim is not disputed as to validity or amount. Thus, admissions of fact in such compromise negotiations are admissible.

Question 74

Which of the following are protected under the attorney-client privilege?

A Statements made to the attorney by a corporate employee who was authorized by the corporation to make the statements.
B Communications relevant to an issue between parties, all of whom are claiming through the same deceased client.
C Documents prepared by an attorney for his own use in prosecuting his client’s case.
D Communications relevant to an issue of breach of duty by the client to her attorney.

Answer 74

A Statements made to the attorney by a corporate employee who was authorized by the corporation to make the statements.

A corporation can be a “client” within the meaning of the attorney-client privilege. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation. There is no privilege regarding a communication relevant to an issue between parties, all of whom claim through the same deceased client —regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by the attorney-client privilege. However, they may be protected by the attorney’s “work product” rule. There is no privilege for a communication that is relevant to an issue of breach of duty by the attorney to his client (malpractice) or by the client to her attorney (e.g., client’s failure to pay her attorney’s fee for professional services).

Question 75

Which of the following statements regarding the basis of expert testimony is NOT true?

A An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.
B An expert’s opinion may be based on his previous examination of a person about whom he is testifying.
C An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.
D An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel.

Answer 75

A An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.

Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. An expert’s opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. An expert’s opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.

Question 76

Which of the following statements regarding authentication is true?

A Authentication of real evidence requires that the proponent establish its genuineness by a preponderance of the evidence.
B A writing may be authenticated by evidence that the party against whom the writing is offered has acted upon the writing as authentic.
C A writing may not be authenticated by circumstantial evidence.
D A photograph is admissible only if it is authenticated by the photographer.

Answer 76

B A writing may be authenticated by evidence that the party against whom the writing is offered has acted upon the writing as authentic.

A writing may be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon the writing as authentic. Authentication of real evidence requires only enough evidence to support a finding that the matter is what its proponent claims it is. It is not required that the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility. All that is necessary under the Federal Rules of Evidence is proof sufficient to support a jury finding of genuineness. A writing may be authenticated by circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient. In general, it is not necessary to call the photographer to authenticate a photograph. As a general rule, photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. It suffices if the witness who identifies the photograph is familiar with the scene or object that is depicted.

Question 77

The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant’s spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant’s spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver’s seat until the police arrived.

Is the testimony admissible?

A Yes, for impeachment purposes only.
B Yes, to show bias.
C No, because a witness who is available to testify can be impeached only through cross-examination.
D No, because the witness must be given an opportunity to explain or deny the statement.

Answer 77

A Yes, for impeachment purposes only.

The testimony is admissible to impeach the testimony of the defendant’s spouse. The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony. Here, the friend is prepared to testify that the defendant’s spouse stated that she had not been driving the car at the time of the incident, a fact that would be material to the allegations in the lawsuit and inconsistent with the spouse’s trial testimony. Thus, the friend’s testimony is admissible for impeachment purposes. (B) is incorrect. Extrinsic evidence of bias is not admissible unless a foundation has been laid–the witness must first be questioned about the facts that show bias on cross-examination. If the witness, on cross-examination, admits to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced. Here, nothing suggests that the spouse was cross-examined as to the facts tending to show bias; thus, this is an incorrect ground for admitting the testimony. (C) is incorrect because a witness ordinarily may be impeached by either cross-examination or extrinsic evidence. Here, the prosecution is seeking to impeach the defendant’s spouse by extrinsic evidence of her prior inconsistent statement, and the evidence will be admissible for that purpose. (D) is incorrect because the opportunity to explain or deny the statement can be given subsequent to the friend’s testimony; it does not need to be given prior to her testimony.

Question 78

At the defendant’s trial for rape, he calls a witness who testifies that she was on her patio barbecuing some hamburgers at the time of the charged rape and saw the assailant run from the victim’s apartment. She further testifies that the person who ran from the victim’s apartment was not the defendant.

On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained?

A “Weren’t you convicted of perjury 11 years ago?”
B “Weren’t you under the influence of heroin at the time you were barbecuing those hamburgers?”
C “Haven’t you and the defendant known each other since grammar school?”
D “Didn’t you embezzle funds from your most recent employer?”

Answer 78

A “Weren’t you convicted of perjury 11 years ago?”

The objection to the perjury question is most likely to be sustained. Federal Rule 609 permits the prosecution to inquire into prior convictions of crimes requiring proof or admission of dishonesty or false statement unless over 10 years have passed since the date of conviction or date of release from confinement (whichever is later). While the facts do not indicate the latter date (or even whether a confinement occurred), (A) remains the best of the four choices. The conviction in (A) is more than 10 years old, so it probably would be subject to objection as being too remote. (B) relates to the witness’s ability to perceive and would be a legitimate question on cross-examination. (C) shows a possible bias on the part of the witness, which is an acceptable method of impeachment. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

Question 79

A defendant was on trial for burglary, and he took the stand in his own defense. On direct examination, the defendant vigorously denied having committed the burglary. Also on direct examination, the defense attorney asked the defendant questions about his employment history in an attempt to portray him to the jury as a “solid citizen” who would not commit a burglary. The defendant stated that his last regular employment was as a bookkeeper for a corporation. On cross-examination, the prosecutor asked the defendant if he had embezzled funds from the corporation. The defendant denied that he had embezzled from the corporation or from anyone else. The prosecutor then wanted to call a police officer to the stand to testify that when she arrested the defendant for embezzlement, the defendant admitted to the officer that he had embezzled money from the corporation.

Assuming that the defendant has not yet been tried on the embezzlement charges, may the prosecutor call the officer to the stand?

A Yes, but only for purposes of impeachment.
B Yes, both for impeachment of the defendant and as substantive evidence.
C No, because the defendant has not yet been convicted of embezzlement.
D No, because the evidence would be extrinsic.

Answer 79

D No, because the evidence would be extrinsic.

The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify. (A) is wrong because extrinsic evidence, such as the officer’s testimony, of an instance of misconduct is not admissible. (B) is wrong because when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible to establish criminal disposition. Because nothing in the facts indicates that such evidence is being offered to prove something other than disposition (e.g., motive, identity, common plan or scheme), the officer’s testimony is not admissible as substantive evidence. As discussed above, for impeachment, the prosecutor is limited to inquiry on cross-examination regarding the embezzlement. (C) is wrong because, even if the defendant had been convicted of the embezzlement, the officer’s testimony would not be the proper way to introduce it. The fact that a witness has been convicted of a crime usually is proved by eliciting an admission on direct or cross-examination or by the record of conviction. A judge is less likely to allow proof of conviction by testimony because it may be too timeconsuming and more prejudicial than other means of proof. Furthermore, this answer choice implies that evidence of a prior act of misconduct may be introduced only if the act resulted in a conviction, and this is not the case.

Question 80

A resident being interviewed live by a television reporter stated that, “The biggest problem in this city is corruption in city government, particularly the mayor.” The mayor has now brought an action for defamation against the resident. At trial, the mayor has produced testimony as to his honesty and good character. As part of his defense, the defendant seeks to offer into evidence the fact that the mayor was convicted two years ago of taking a bribe to award a city contract for solid waste disposal.

Is the evidence admissible?

A No, because character evidence is not admissible in civil cases.
B No, because character can be proved only by opinion or reputation testimony.
C Yes, because the mayor’s character is directly in issue.
D Yes, because there was an actual conviction for the crime.

Answer 80

C Yes, because the mayor’s character is directly in issue.

The evidence is admissible because the mayor’s character is directly in issue. The general rule is that evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when a person’s character itself is one of the issues in the case, character evidence is not only admissible, but in fact is the best method of proving the issue. Where the plaintiff brings a defamation action for injury to reputation and the defendant pleads as an affirmative defense that his statements were true, the plaintiff’s character is directly at issue in the case. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue. [Fed. R. Evid. 405(b)] Here, the mayor’s character is at issue and the resident is offering character evidence to show that his assertion that the mayor is corrupt is a true statement. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because, as stated above, any of the types of evidence can be used to prove character when it is directly in issue. (D) is incorrect because an actual conviction is required for impeachment purposes, but not for the purpose of establishing character—evidence of an arrest or indictment would have been equally admissible.

Question 81

A defendant is charged with trafficking in firearms, in violation of federal firearms control laws, as well as receiving stolen property. The charges arise from the defendant’s having attempted to sell a semi-automatic weapon identified as one of dozens that were stolen from a warehouse a year ago. The defendant denies intending to sell the gun or knowing that it had been stolen.

At trial, which of the following would the court be LEAST likely to allow the prosecution to introduce as evidence against the defendant?

A Evidence that the defendant was once convicted of armed robbery with a semi-automatic weapon.
B The testimony of a witness that, the day before the defendant’s arrest, he asked the witness how much she would be willing to pay for a semi-automatic weapon.
C The testimony of a member of a secret paramilitary group that the defendant had been supplying the group with weapons for several months.
D Evidence that the defendant had been previously convicted of receipt of stolen weapons.

Answer 81

A Evidence that the defendant was once convicted of armed robbery with a semi-automatic weapon.

The defendant’s armed robbery conviction is least likely to be admitted. In a criminal case, evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged. Such evidence may be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Here, (A) is least likely to be admitted because evidence of the defendant’s previous conviction for armed robbery does not come within any permissible use of evidence of other crimes or bad acts. Because the defendant apparently is not contesting the issue of whether he possessed the semi-automatic weapon, it is irrelevant that the robbery conviction shows possession of such a weapon at some earlier time. The only use to which evidence of this conviction can be put is to show the defendant’s bad character and disposition to commit the crimes with which he is presently charged. (B) is likely to be admitted because testimony that the defendant apparently tried to interest the witness in buying a semi-automatic weapon tends to show that the defendant had the intent to engage in selling the weapon. For the same reason, (C) is also likely to be admitted. Supplying guns to a paramilitary group is certainly evidence of involvement in a plan of firearms trafficking. (D) is likely to be admitted as evidence of intent or knowledge. Because the defendant has denied knowing that the weapon was stolen, evidence of his prior convictions for receipt of stolen weapons can be introduced to show the likelihood that he knew the weapon was stolen in the present case, negating his claim of good faith.

Question 82

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state.

Is the testimony of the witness admissible?

A Yes, because the witness testified under oath at another hearing related to the same subject matter.
B Yes, because the defendant is a party to both proceedings.
C No, because the plaintiffs were not parties to the criminal proceeding.
D No, because the witness can be subpoenaed to testify.

Answer 82

C No, because the plaintiffs were not parties to the criminal proceeding.

The witness’s testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is “unavailable” for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant’s attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of “unavailability” in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish “unavailability.” In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

Question 83

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim’s car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, “I don’t think I’m going to make it. I tried to slow down, but my brakes didn’t work. My former partner must have tampered with them to get back at me.” With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant.

At trial, can the motorist testify as to the statement made by the victim?

A No, because the victim did not know that the defendant tampered with the brakes.
B No, because the victim is still alive.
C Yes, because the victim thought he was about to die.
D Yes, because this is a civil case.

Answer 83

A No, because the victim did not know that the defendant tampered with the brakes.

As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception.

Question 84

A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff’s attorney calls a witness who testifies that, at the time of the incident, the defendant stated, “It was my fault.” The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest.

Are the grounds for the judge’s decision correct?

A Yes, because the statement subjected the defendant to tort liability.
B Yes, because the defendant is a party to the litigation.
C No, because the statement is not against an important interest.
D No, because the defendant is available to testify.

Answer 84

D No, because the defendant is available to testify.

The ground for the judge’s decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable. Also, this choice implies that this exception would be available only if she were subjected to tort liability, not criminal liability. Although some courts so limit the exception, the Federal Rules include statements against penal interest within the parameters of the statement against interest. (B) is incorrect because the defendant need not be a party to the litigation for her statement to qualify as a statement against interest. Thus, her status as a party would not be a basis for deciding that the statement against interest exception applies here. Of course, this choice is also incorrect because her availability to testify precludes application of this exception. (C) is incorrect because the defendant’s statement, which effectively acknowledges liability for the plaintiff’s injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the possibility of being held financially liable for the plaintiff’s damages. Note that the judge correctly overruled the objection by the defendant’s attorney, but for the wrong reason. The defendant’s statement constitutes a statement by a party-opponent (commonly called an admission), which is an act done or statement made by a party and offered against that party and is nonhearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the declarant need not be unavailable. (Don’t be confused by the fact that, although the judge was correct in allowing the testimony as to the defendant’s statement, the call of the question pertains to the grounds for the ruling, which were incorrect.)

Question 85

A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion threatening to “end it all.”

Is the testimony admissible?

A Yes, because the statement was made in “contemplation” of death.
B Yes, because it tends to show that the husband intended to commit suicide.
C No, because it violates the psychiatrist-patient privilege.
D No, because no phone calls were made to the clinic by the husband on the day he died.

Answer 85

B Yes, because it tends to show that the husband intended to commit suicide.

The court should rule that the testimony is admissible. Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. Here, the husband’s statement to the operator tends to show that the husband intended to commit suicide, so it is admissible to prove that he did so. (A) is incorrect because a “dying declaration” must concern the cause or circumstances of what the declarant believed to be his “impending” death. Although the husband made threats to end his life, there is no indication he believed his death was impending, and he did not discuss the cause or circumstances of his impending death. (C) is incorrect because the operator is not a psychiatrist, and there is no evidence that the husband assumed her to be one. (D) is wrong because the state of mind need not be as of the time of the incident to be relevant.

Question 86

A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm’s pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a “proposed witness list” from his case file at the firm. After the name of the doctor is the notation, “the plaintiff wants us to check this guy out before trial.” The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff’s case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation.

Is the proposed witness list and notation admissible?

A Yes, as past recollection recorded.
B Yes, as a record of a regularly conducted activity.
C No, as hearsay not within any recognized exception.
D No, as hearsay within hearsay, and one level is not within an exception.

Answer 86

B Yes, as a record of a regularly conducted activity.

(D) is incorrect because the facts do not present any problem of “levels” of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., “the doctor says that he will be available to testify on the date of the trial”) and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor’s availability.

Question 87

A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate.

Is the foreman’s proposed testimony hearsay?

A No, because the declarant is testifying as a witness at the hearing.
B No, because the statement is not offered for its truth.
C Yes, but it should be admitted under the hearsay exception for present sense impressions.
D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

Answer 87

B No, because the statement is not offered for its truth.

The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement’s effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener.

Question 88

A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years’ imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident.

Upon proper objection, should the court rule that the witness’s statement before the grand jury is admissible?

A Yes, for impeachment only.
B Yes, as substantive evidence only.
C Yes, for impeachment and as substantive evidence.
D No, because it is hearsay not within any exception.

Answer 88

C Yes, for impeachment and as substantive evidence.

The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)]

Question 89

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence.

How should the court rule?

A Admissible, because the affidavit satisfies the best evidence rule.
B Admissible, because the affidavit is a business record.
C Admissible, because the affidavit was prepared pursuant to statute.
D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.

Answer 89

D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.

Question 90

A defendant is on trial for the murder of the victim, who was found beaten to death in his home. Evidence already presented has shown that the victim was killed when no one was at home except for the victim and his dog. The prosecution wishes to call a neighbor to the stand who is prepared to testify that she went to the victim’s home the day after his murder and that when the defendant came by, the dog ran to a corner, where he cringed and whimpered. The neighbor is also prepared to testify that the dog is normally a very friendly dog, usually greeting visitors to the house, including the defendant, by approaching them with his tail wagging. The defense objects to the neighbor’s proposed testimony.

How should the court rule on the neighbor’s testimony regarding the dog’s behavior?

Answer 90

Admissible circumstantial evidence.

Question 91

A well-known actor sued a resort hotel for damages to his new limited edition sports car caused by the hotel’s parking valet while the actor was a guest at the hotel. His lawsuit, based on theories of respondeat superior and negligent hiring, alleged that after he gave the valet the keys, the valet, who had been working for the hotel for nine months, took the car for a drive without permission and negligently drove it into a tree, causing extensive damage to the car. At trial, the actor’s counsel offers evidence that six months before the accident, but three months after the valet was hired, the hotel instituted new hiring procedures for all potential employees, including parking valets. Included in the new rules was a requirement that all persons must pass a thorough background check before being hired. The valet had been required only to have a valid driver’s license when he was hired. In fact, he had an extensive record of traffic offenses at the time he was hired.

Is the evidence regarding the new employment requirements admissible?

A No, because it is irrelevant.
B No, because it is evidence of remedial measures.
C Yes, because it is evidence of the hotel’s negligence.
D Yes, because it is evidence that the valet was incompetent.

Answer 91

C Yes, because it is evidence of the hotel’s negligence.

The evidence is admissible because it tends to show that the hotel was not acting prudently when it hired the valet, an employee who damaged a guest’s car; thus (C) is correct and (A) is incorrect. (B) is not a good answer because only subsequent remedial measures (i.e., those taken after the injury to the plaintiff occurred) may not be proven as evidence of negligence; here the change in hiring procedures took place before the car was damaged, and so would be allowed. (D) is not accurate—the evidence does not show that the valet was incompetent, but rather that the hotel did not investigate his competence when he was hired, an issue related to the actor’s negligent hiring claim.

Question 92

During the trial of her personal injury action against a chemical company, the plaintiff testifies in response to a question by her own counsel that, shortly after she and her family were forced to leave their home because of fumes from its plant, the president of the chemical company telephoned her motel room and said, “If you or any member of your family requires medical treatment, our company will pay all medical expenses in full. We will not have it said that our company’s negligence resulted in the illness of a local family.” The company’s counsel makes a motion to strike all of the plaintiff’s testimony, and the court does so.

Was the court’s action correct?

A Yes, because the testimony relates to inadmissible hearsay.
B Yes, because the statement was made in connection with an offer to pay medical expenses.
C No, because the statement includes an opposing party’s admission that it was negligent.
D No, because the statement is a factual admission made in connection with an offer to compromise.

Answer 92

B Yes, because the statement was made in connection with an offer to pay medical expenses.

The court’s action was not correct. Federal Rule 409 excludes offers to pay medical expenses, but not statements made in connection with such offers. Thus, (B) is wrong. (A) is wrong because the statement constitutes an admission by a party-opponent (i.e., statement made by or attributable to a party and offered against that party), and admissions are nonhearsay under the Federal Rules. The president of the company, obviously authorized to speak for that entity, has made an admission of negligence, and that admission is admissible against the company as a vicarious admission. (D) is wrong because there was no offer to compromise—the company merely said that it would pay medical expenses, without bargaining for anything in return. In addition, if it were an offer to compromise, a statement made in connection with the offer would not be admissible.

Question 93

During the course of their marriage, a husband told his wife that he stole a famous painting from a federal museum. Six months after the admission, the couple divorced. Shortly after the divorce, the husband was killed in an automobile accident. Later, the wife read in the paper that a man had been charged with the theft of the painting her husband admitted to stealing and was about to be tried in federal district court. She told her friend that the man was probably innocent because the husband told her that he had stolen the painting himself. The friend told several other people what the wife had told her, and eventually the story got back to the defense attorney. The attorney now wants the wife to testify in court to the husband’s statement.

Can the wife be compelled to testify?

Answer 93

Yes, but only because the husband is dead and cannot invoke his privilege.

Question 94

A defendant’s attorney calls a witness to testify as to the events in the case. To the attorney’s surprise, the witness’s testimony is completely different than expected. Under Massachusetts law, the attorney:

A Is strictly prohibited from impeaching his own witness.
B May impeach the witness with evidence of the witness’s bias against the defendant.
C May call a character witness to testify as to the witness’s bad reputation for truthfulness.
D May impeach the witness with evidence of the witness’s prior criminal conviction.

Answer 94

B May impeach the witness with evidence of the witness’s bias against the defendant.

In Massachusetts, a party who calls a witness is not permitted to impeach that witness by evidence of bad character (i.e., reputation for untruthfulness, prior convictions). However, other methods of impeachment, such as bias, prior inconsistent statements, and sensory deficiencies, are allowed.

Question 95

Defendant is charged with murder after getting into a bar fight. Claiming self-defense, Defendant alleges that Victim was the first aggressor and that he reasonably feared Victim. To support these allegations, Defendant plans to introduce character testimony about Victim’s character for violence. Under Massachusetts law, testimony as to which of the following facts will probably NOT be admitted?

A That Victim had taken part in several previous bar fights, which Defendant found out about while preparing for trial.
B That Victim once beat his neighbor so badly he had to go to the hospital, which Defendant knew about before the bar fight.
C That the character witness considered Victim to be a very violent person, which Defendant found out about while preparing for trial.
D That Victim had a general reputation in the community for violence, which Defendant knew about before the bar fight.

Answer 95

C That the character witness considered Victim to be a very violent person, which Defendant found out about while preparing for trial.

The testimony described in the correct answer is inadmissible for two reasons. First, because opinion testimony as to a person’s character is inadmissible in Massachusetts, the character witness’s opinion that Victim was a violent person will not be admitted. Second, even if the testimony concerned Victim’s reputation for violence, it is inadmissible because Defendant did not know about it during the bar fight. Evidence of a victim’s general reputation for violence is inadmissible unless the defendant knew about it before the incident and is offering it to prove her state of mind during the incident (contrary to the Federal Rules, such evidence is not admissible to show that the victim was a violent person and more likely to be the first aggressor).

May show state of mind and prior specific acts of victim.

Question 96

In Massachusetts, before impeaching a witness with extrinsic evidence of the witness’s prior inconsistent statement, must counsel ask the witness to explain or deny the prior statement?

A No, never.
B Yes, always.
C Yes, but only when impeaching one’s own witness.
D Yes, but only when impeaching an opposing party’s witness.

Answer 96

C Yes, but only when impeaching one’s own witness.

Massachusetts does not require that a foundation be laid for extrinsic evidence of prior inconsistent statements, except when impeaching one’s own witness.

Question 97

Under Massachusetts law, which statement is true regarding the substantive admissibility of prior consistent statements of a testifying witness?

A Prior consistent statements are hearsay and generally inadmissible, other than for the limited purpose of rehabilitating the witness.
B Prior consistent statements are considered admissible “nonhearsay” if made under oath at a prior proceeding.
C Prior consistent statements are considered an exception to the hearsay rule and are admissible.
D Prior consistent statements are considered admissible “nonhearsay” if offered to rebut a charge that the witness is lying or exaggerating because of some recent motive (e.g., bias), as long as the statement was made before the motive arose.

Answer 97

A Prior consistent statements are hearsay and generally inadmissible, other than for the limited purpose of rehabilitating the witness.

In Massachusetts, prior consistent statements may be introduced if the court makes a preliminary finding that the witness’s in-court testimony is the result of recent contrivance or bias, and the prior consistent statement was made before the witness had a motive to lie or became biased. However, the consistent statements are hearsay and admissible for the limited purpose of rehabilitating the witness (compare with prior inconsistent statements, which are considered nonhearsay if made under oath). Prior consistent statements are not admissible as substantive evidence (unless, of course, they fall within some independent exception to the hearsay rule).

Question 98

In Massachusetts, hospital records are admissible as an exception to the hearsay rule if certain requirements are met. Which of the following is NOT a requirement of this hearsay exception?

A The information is recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of persons under a medical obligation to transmit the information.
B The record is certified as true and complete by the custodian of the records.
C The record directly addresses a party’s liability for the patient’s injuries.
D The record relates to treatment and medical history.

Answer 98

C The record directly addresses a party’s liability for the patient’s injuries.

In Massachusetts, a hospital record is admissible if: (i) it is certified by a records custodian to be true and complete; (ii) it relates to treatment and medical history; and (iii) the information is recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those under a medical obligation to transmit such information (statements from third persons must fall within an independent exception). Nothing in the record relating to liability is admissible under this exception.

Question 99

Under what basis may a judge exclude otherwise relevant evidence?

Answer 99

Unfair prejudice
Cumulative
Waste of Time
Confuses the issues/misleads the jury

NOT SURPRISE. That is not one of the reasons.

Question 100

What is judicial notice?

Answer 100

Courts may take JN of fact that are capable of accurate and ready determination. (info you can find in almanac, etc.)
This includes info that is common knowledge within the jurisdiction of the court.
In a civil case, JN is binding on the jury.
In a criminal case, JN relieves the prosecution of the the burden to produce evidence on that topic (i.e. their burden is satisfied on that fact.)

Question 101

How do you establish the contents of a writing?

Answer 101

1) Produce original
OR
2) Show original is unavailable after reasonable search and use another method.

Note - This is the BE rule, but BE Rule is almost always the wrong answer on the bar exam. You might get one Q, but be careful with it.

Question 102

What is the difference between voice and handwriting authentication?

Answer 102

Each may be authenticated by an expert or the trier of fact, but…

(a) voice can be authenticated by someone with familiarity of the voice in question if they have familiarity of that voice before trial or if they gain familiarity with the voice for trial purposes.
(b) handwriting, must have familiarity with handwriting before the trial.

Question 103

What are the 5 important rules for character evidence in a criminal case?

Answer 103

1. Pros. cannot intro any rep./op. evidence of D’s bad character for propensity.
2. D is allowed to present rep./op. evidence of relevant good character traits.
3. If D intros evidence of his good character, he opens the door for pros. to rebut w/ rep./op.
4. Evidence of D’s prior crimes or bad acts are not admissible for propensity, but are admissible for MIMMIC.
5. If D testifies, he may be impeached like any other witness.

Question 104

What are the 3 important rules for character evidence in a civil case?

Answer 104

1. It’s inadmissible unless it is directly in issue or is an essential element of the crime or defense (defamation, child custody, fraud, negligent entrustment, or self-defense.
2. If litigant has some other purpose than propensity, and it’s relevant, then it can come in.
3. If a party testifies, then you can impeach her like any other witness.

Question 105

What are the 5 most important methods of impeachment for the bar?

Answer 105

1. Prior Inconsistent Statements - don’t come in as substantive evidence unless made under oath as part of a legal proceeding.
2. Bias or motive to misrepresent - always admissible, and can use extrinsic evidence if witness denies it.
3. Prior convictions - always if involves dishonesty (less than 10 years old) and with judge’s discretion if felony less than 10 years old. Measured from date of release from confinement.
4. Specific bad acts bearing on truthfulness - only on cross, no extrinsic evidence. Court has discretion.
5. Bad rep./op. for truth - may use extrinsic evidence.

Question 106

When are jurors incompetent to testify?

Answer 106

When asked to testify before the jury on which they are empaneled; OR
In post verdict proceedings regarding certain matters involving deliberations.

Question 107

What are barbri’s steps to a hearsay problem?

Answer 107

1) Isolate the statement (look for “ “)
2) Find the declarant.
3) Is the declarant a party?
4) Is the statement offered for its truth?
5) Is there an exemption/exception?

Question 108

T or F: If you introduce part of a statement, the adverse party may admit any other part of the statement that should be fairly considered.

Answer 108

True

Question 109

T or F: A statement by an agent within the scope of his agency s admissible against the principal as an admission.

Answer 109

True

Question 110

Statements made with an offer to settle are admissible or inadmissible?

Answer 110

Inadmissible.

Question 111

Statements made with an offer to pay medical expenses are admissible or inadmissible?

Answer 111

Admissible.

Question 112

True or False: The spousal privilege applies even when others are in the room and overhearing.

Answer 112

False. Marital privilege protects private communications.

Question 113

Re-Do Evidence Set 1 in MPQ

Answer 113

See Answers