Evidence

Question 1

A witness may have their memory refreshed BUT they can NOT…..

Answer 1

CANNOT read from it while testifying and the adverse party may inspect the document used to refresh the witness‚memory, cross-examine the witness about it, and introduce parts of it into evidence(e.g. if a testifying witness cannot recall an event about which the witness is being questioned, the examining attorney may present a police report to the witness to refresh the witness’s recollection).[2019]

Question 2

If the witness can’t remember something, what can the attorney do?

Answer 2

Rule 929: Under the FRE, if a testifying witness cannot clearly remember something, the examining attorney may present any type of item (e.g. documents, tangible objects, sounds/smells) to the witness to refresh the witness’s recollection [2019]

Question 3

Rule 930: In a criminal case, judges are liberal in permitting the admission of circumstantial evidence to prove guilt, so long as……

Answer 3

1) the evidence points logically to the defendant’s guilt

and

2) excludes to a moral certainty, every other reasonable hypothesis it is not necessary for each piece of circumstantial evidence to point to no other hypothesis but guilt, but the totality must ‘(e.g. circumstantial evidence such as a defendant’s use of an alias/nickname is allowed if backed up with other testimony and evidence). [2019]

Question 4

Cross Exam should be limited to what?

Answer 4

Rule 931: Cross-examination should be limited to

(1) the subject matter of the direct examination and
(2) matters affecting the credibility of the witness.

Thus, questions that address the witness’s credibility (e.g. bias, interest, capacity, etc.) may be asked on cross-examination even if they were never mentioned on direct.[2019]

Question 5

When can a lay witness identify drugs in court?

Answer 5

Lay witness can speak from experience and observation if the lay witness can demonstrate a knowledge of the narcotic, he is competent to testify, BUT the weight to be given to the testimony is for the jury to determine

(e.g. although a drug user may not qualify as an expert, he or she may still be competent, based on past experience and personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine).[2019]

Question 6

When can a court take judicial notice?

Answer 6

Rule 933: A court must take judicial notice of a fact when

(1) it has been requested by a party and
(2) the requirements of judicial notice have been fulfilled (i.e., the fact is one that is not subject to reasonable dispute, and is generally known in the jurisdiction of the trial court, or it is capable of accurate determination through reliable sources),

Question 7

What is the effect of Judicial Notice in Civil AND Criminal Cases?

Answer 7

Rule 933: the effect of judicial notice of adjudicative facts is different in a civil and a criminal case

Civil Case: The judicially noticed fact is conclusive and the jury must take it as such

Criminal Case: Jury is allowed to, but is not required to take the judicially noticed fact as conclusive

—Rule 939: In a criminal case, a judge can instruct the jury that it may, but is not required to, accept as conclusive any facts judicially noticed by the court because the facts are not subject to reasonable dispute (i.e. the court can instruct on a permissible inference, but it is not binding on the jury). [2006]

(e.g. if a defendant sets fire to trees in a national park and is charged with the malicious destruction of federal property, if a prosecutor asks the judge to take judicial notice of the fact that the trees are owned by the federal government, the court must take notice of the fact since it can be accurately and readily determined from sources whose accuracy cannot be questioned, BUT the court must also instruct the jury that it may, but is not required to do so, accept the noticed facts as conclusive since this is a criminal case where the defendant has a right to a jury trial). [2013]

Question 8

What can be used to jog a witness’s memory?

Answer 8

Rule 934: Anything can be used to jog a witness memory because at times witnesses forget (you can also jog a witness memory by using a writing, but the witness cannot read directly from it) [2011]

Question 9

When refreshing a witness’s memory, the opposing party has the right to do what?

Answer 9

Rule 934: the opposing party has an automatic right to inspect the writing if it was used while the witness was on the stand, BUT if the witness used a writing to refresh her memory before testifying, the court has the discretion to allow the opposing party to examine the writing.[2011]

Question 10

May a judge presiding be a witness?

Answer 10

Rule 935: A judge presiding at a trial may not testify as a witness in that trial (e.g. a judge who hears D‚spontaneous admission during a recess cannot be called to testify against D). [2008]

Question 11

What persumption can be made to evidence intentionally destroyed?

Answer 11

Rule 936: In cases where evidence has been intentionally destroyed, it may be presumed that the evidence was relevant, and it is proper for a jury to draw an inference that the evidence was adverse to that party(e.g. D cannot preclude P from asking D whether D destroyed an accident report relevant to P‚claim, and if D asserts the privilege against self-incrimination when asked, the jury is permitted to draw inferences that the evidence and assertion of the privilege were adverse to D). [2008]

Question 12

Who can testify towards the familiarity of a signature?

Answer 12

Rule 937: A person who is familiar with a signature may testify as to the validity of that signature(e.g. in a trial for attempting to cash a forged check, testimony from the bank teller that she recognized the signature as a forgery b/c she was familiar with the customer‚signature is admissible because it is rationally based on the bank teller‚perception and it is helpful to the jury).[2008]

Question 13

A copy of a transcript of testimony can be used to do what? What can it not be used to do?

Answer 13

Rule 938: Under the FRE, a copy of a transcript of testimony can be used to refresh a witness’ memory but it cannot be admitted to prove the contents of the transcript. [2006]

Question 14

In an embezzlement action, testimony of a large deposit into a bank account is admissable as ______?

Answer 14

Rule 940: In an embezzlement action, a witness‚testimony of a large deposit into the defendant‚bank account is admissible as circumstantial evidence of the defendant guilt [1998]

Question 15

In deciding preliminary questions concerning the admissibility of evidence, what rules are the court bound by?

Answer 15

Rule 941: In deciding preliminary questions concerning the admissibility of evidence, a court is not bound by the rules of evidence, except those with respect to privileges, and a court can properly consider affidavits even though they are hearsay.[1998]

Question 16

In order for a court to take judicialnoticeof a conviction, it cannot be based on

Answer 16

Rule 942: In order for a court to take judicial notice of a conviction, it cannot be based on the judge‚personal knowledge of the conviction. unless it occurred in the judge‚own court,[1998]

Question 17

When can a child testify as a witness?

Answer 17

Rule 943: A child can testify as a witness if

(1) the child has personal knowledge of the matter and
(2) the child understands what it means to tell the truth and declares that he will testify truthfully.[1998]

Question 18

What is the doctrine of present recollection refreshed?

Answer 18

Rule 944: Under the doctrine of present recollection refreshed, if a witness memory on a subject is hazy, any item may be shown to the witness to refresh his recollection. [1992]

Question 19

An ordinary(non-expert) witness must limit his testimony to facts of which he has

Answer 19

Rule 945:

(1) first-hand knowledge and
(2) a party seeking to offer such evidence must lay a foundation to show that the witness was in a position to have first-hand knowledge.[1992]

Question 20

Is showing notes the witness made permissable to refresh recollection?

Answer 20

Rule 946: Showing a witness prior notes that the witness made is a permissible method of refreshing the witness’s recollection. [1992]

Question 21

What is required to be competent to testify?

Answer 21

Rule 947: To be competent, a witness must have

(1) Personal knowledge of the matter and
(2) The capacity to perceive, remember and relate the facts of the matter. [1991]

Question 22

what is the common knowledge rule?

Answer 22

Rule 948: Under the Common Knowledge Rule, where the matter is within the common knowledge of a layman, such as where a surgeon saws off the wrong leg, then the jury may infer negligence without the aid of experts. [1991]

Question 23

What is the Dead Man’s Statute?

Answer 23

Rule 949: Under the Dead Man’s Statute, in a civil action, an interested party may not testify against a dead party or his representative about communications or transactions with the dead party. [1991]

Question 24

What type of information can be accepted as judicial notice?

Answer 24

Rule 953: Judicial notice can be taken of a fact that is common knowledge in the community. [1991]

Question 25

Can a newspaper be taken as judicial notice?

Answer 25

Rule 955: Courts can take judicial notice of the existence of a newspaper, but not of the contents in the newspaper. [1991]

Question 26

What requirments must an interpreter meet?

Answer 26

Rule 956: An interpreter must meet the qualifications of an expert witness and must take an oath to make a true translation. [1991]

Question 27

What persumption is made of properly addressed/stamped mailed letters?

Answer 27

Rule 957: Receipt by the addressee is presumed (this presumption is founded on the belief that officers of the government will competently perform their duties),and once proof of mailing is established, the presumption can be rebutted by proof to the contrary, such as evidence that the regular office procedure was not followed or was carelessly executed by the sender, or that the recipient has an office procedure for receiving, opening and indexing mail or conducted a systematic and thorough search for the mail(e.g. if a plaintiff, in a jury trial, sues an insurance company when it refuses to cover her heart attack, claiming that the insurance policy lapsed when no premium was paid before her illness, the plaintiff testifies that she placed in a mailbox a properly stamped and addressed envelope containing payment, and the defendant‚witness (a payment processor) testifies that he did not receive the payment, the court must reject both the plaintiff‚and the defendant‚motions for a directed verdict, because, under these circumstances the jury is responsible for determining whether the payment was received since a presumption that is successfully rebutted no longer binds the jury). [2013]

Question 28

When does a judge in a criminal trial violate due process? (persumptions)

Answer 28

Rule 958: if he allows the prosecution to use a mandatory presumption to shift the burden of proof on an essential element of a crime(e.g. if D is on trial for murder because his wife has been missing for 7 years, a judge cannot instruct the jury that ‚A person missing for more than 5 years must be presumed dead‚ because a jury instruction using the phrase ‚must could be interpreted by the jury as shifting the burden of proof to the defendant, which is unconstitutional).[2011]

Question 29

When can the presumption of a stamped and mailed letter be rebutted?

Answer 29

Rule 959: A letter properly addressed, stamped, and mailed is presumed to have been delivered.This presumption is rebuttable by sufficient evidence contradicting the presumed fact, however there is no burden shift to the defendant the judge would then instruct the jury that there is no presumption of receipt. [1991]

Question 30

A party may move the court to EXCLUDE a witness from the courtroom, UNLESS that party is…..

Answer 30

Rule 960:
(1) a party who is a natural person
(2) an officer or employee of a party that is not a natural person, after being designated as the party‚representative by its attorney
(3) a person whose presence a party shows to be essential to presenting the party‚claim or defense (e.g. an agent who handled the transaction being litigated, an expert who advises counsel in the management of the litigation, or a guardian)
or
(4) a person authorized by statute to be present (e.g. a statute may permit the victim to be present at trial).(e.g. an agent who handled the transaction being litigated, an expert who advises counsel in the management of the litigation, or a guardian)[2017]

Question 31

Hearings on the admissibility of evidence must be done when?

Answer 31

Rule 963: Hearings on the admissibility of evidence must be done outside the presence of a jury (e.g. if a defendant seeks to throw out his confession on the ground that no Miranda warnings were given, the defendant is entitled to a hearing outside the presence of the jury to hear evidence on that issue).[2008]

Question 32

Allowing a witness to remain in the courtroom after testifying, when the witness is expected to be recalled for further cross-examination is what?

Answer 32

Rule 964: Allowing a witness to remain in the courtroom after testifying, when the witness is expected to be recalled for further cross- examination, is reversible error if opposing counsel properly objects at trial. [1998]

Question 33

What is the purpose of redirect?

Answer 33

Rule 967: Redirect is permitted to reply to any significant new matter raised in cross-examination.

Question 34

After a witness’s character for truthfulness has been attacked, the opposing party may do what?

Answer 34

Rule 969: After a witness‚character for truthfulness has been attacked,the opposing party may then rehabilitate the witness by regarding the witness‚good character for truthfulness through reputation or opinion testimony. The testimony must be reputation/opinion testimony only (specific instances are not allowed), and only regarding the witness’s character for veracity (can’t be about character generally), and such testimony about the witness‚good character for truthfulness is not admissible until the witness‚character has been attacked.[2019]

Question 35

When are prior statements of identification admissable?

Answer 35

Rule 970: Prior statements of identification (e.g. prior out-of-court identifications based on lineups, mug book photo arrays, sketches, photographs, etc.)are admissible for substantive purposes if the declarant is

(1) Testifying at trial and
(2) is subject to cross-examination

(e.g. if a police officer testifies that on a prior occasion W was given a photo array and said, That’s the man who robbed me., while pointing to the defendant’s photograph, the testimony, even though it is hearsay, would be admissible as a prior identification if W is present in court and available for cross-examination, even if W no longer agrees with the identification).[2019]

Question 36

When is evidence of a prior conviction NOT admissible?

Answer 36

Rule 971: Evidence of a prior conviction (involving dishonesty or a felony) is generally not admissible for purposes of impeachment of a witnessIf a period of more than 10 years has elapsed since the date of the conviction or the release of the witness from confinement, whichever is the later date

(e.g. if a witness was convicted of robbery in 2009 and was confined for two years for the offense, the prior conviction is admissible until 2021 unless the probative value is substantially outweighed by a Rule 403 danger, BUT after 2021, the more exclusionary balancing test of Rule 609 applies and evidence of the conviction is admissible only if its probative value substantially outweighs its prejudicial effect). [2019]

Question 37

When is character evidence admissable?

Answer 37

Rule 972: Evidence that is relevant to some issue or issues at trial other than the defendant‚character is admissible if the evidence probative value is not substantially outweighed by the risk of unfair prejudice (e.g. evidence which completes the story of a crime or helps establish D‚motive is admissible). It is also permissible to impeach a witness for bias by showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case. A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury because it suggests the testimony is false, slanted, or mistaken in one party’s favor.

Question 38

What is prior inconsistent statement?

Answer 38

Rule 973: The most common method of impeachment is the use of prior inconsistent statement, action, or omission to show that the witness has made contradictory statements. Any witness testimony may be impeached as long as the witness is given a chance to explain or deny it

(e.g. if W testifies that P was going 55 mph, D can call a witness to testify that W told her friend that P was going 75 mph this statement is admissible to impeach as a prior inconsistent statement). Typically, a prior inconsistent statement is not admissible as substantive evidence because it is hearsay.[2019]

Question 39

When does the FRE bar evidence of religious beliefs?

Answer 39

Rule 974: The FRE bars evidence of religious beliefs (or lacks thereof) only when offered to attack or buttress a witness’s credibility (i.e. it cannot be used to impeach or rehabilitate a witness),BUT the FRE does not preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages, or motive (e.g. if D threatens the president, and D’s religious beliefs establish motive, the evidence is admissible).[2019]

Question 40

When is evidence of religious beliefs (or lack thereof) NOT barred?

Answer 40

Rule 974:FREdoes not preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages, or motive

(e.g. if D threatens the president, and D’s religious beliefs establish motive, the evidence is admissible).[2019]

Question 41

When can a prior inconsistent statement be used as substantive evidence?

Answer 41

Rule 975:

(1) if the prior inconsistent statement was given under oath, AND
(2) as part of a formal trial, hearing, proceeding, deposition

(e.g. if a witness makes a statement in a grand jury proceeding, but denies that statement at trial, the prior inconsistent statement of the witness is admissible against the witness for impeachment purposes and as substantive evidence). [2017]

Question 42

When a character witness is cross-examined, the court may allow a party to inquire into ________?

Answer 42

Rule 976: When a character witness is cross- examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying

(e.g. if a defendant in a criminal trial for embezzlement calls a witness who testifies to the defendant‚reputation for honesty, if the prosecution asks the witness on cross-examination, Did you hear that three years ago he was arrested for forgery?‚ this question is a permissible impeachment of the witness‚credibility since the prosecution is allowed to bring up a relevant bad act such as a conviction or arrest to test the witness‚knowledge of the defendant‚reputation or the nature of his community as to what it regards as being honest).[2013]

Question 43

When a witness is unavailable, prior inconsistent statements are not admissible as substantive evidence of its truthUNLESS

Answer 43

Rule 978: If a witness is unavailable, a prior inconsistent statement is not admissible as substantive evidence of its truth UNLESS the statement was made under oath at a prior hearing, trial or deposition, BUT it is always admissible for impeachment purposes

(e.g. at defendant‚trial for robbery, if a police officer testifies that a woman came up to him and exclaimed: ‚The defendant is robbing a gas station! Stop him, this statement is admissible under the excited utterance hearsay exception even though the woman is unavailable to testify, and if the woman made a statement to her sister a day later stating: ‚I wanted to punish the defendant for cheating on you, but I made a mistake, this statement is also admissible as a prior inconsistent statement to impeach her credibility, even though the woman is unavailable to testify b/c a hearsay declarant may be impeached with a prior inconsistent statement without being given a fair opportunity to explain or deny the prior inconsistent statement).[2013]

Question 44

Evidence that directly contradicts the previous witness on an noncollateral matter demonstrating that some particular part of what a witness has testified is false, is admissible as an ____?

Answer 44

Rule 979: Evidence that directly contradicts the previous witness on a noncollateral matter, demonstrating that some particular part of what a witness has testified is false, is admissible as an impeachment by contradiction

(e.g. In a trial for battery on his wife, the defendant‚in-court testimony that he was in a loving relationship and would never hurt his wife can be impeached by a neighbor‚testimony that he saw the defendant choke his wife 4 years ago because it is a proper contradiction). [2011]

Question 45

A prior inconsistent statement is admissible only to impeach unless WHAT ?

Answer 45

Rule 980: A prior inconsistent statement is admissible only to impeach unless the statement meets the conditions of another hearsay exception

(e.g. in a negligence suit against an amusement park, the park owner‚offer in evidence of a bystander‚statement to another bystander shortly before the accident that a crazy boy is standing up in the roller coaster‚ is admissible to prove substantively the plaintiff‚contributory negligence because it falls under the hearsay exceptions of present sense impression and excited utterance, BUT the same bystander‚statement to her friend a day after the accident that ‚the coaster suddenly stopped and threw the guy out of his seat‚ is admissible only to impeach the bystander‚credibility as a prior inconsistent statement since it contradicts his earlier statement, but it cannot be used substantively because it does not fall into any hearsay exceptions). [2011]

Question 46

The credibility of the hearsay declarant may be attacked by what?

Answer 46

Rule 981: Under the FRE, the credibility of the hearsay declarant may be attacked by any evidence that would be admissible if the declarant had testified as a witness, such as evidence of bias or poor perception. [2006]

Question 47

In a civil trial, a witness can be cross- examined regarding specific instances of conduct to attack the witness’s __________?

Answer 47

Rule 982: In a civil trial, a witness can be cross- examined regarding specific instances of conduct to attack the witness’s character for truthfulness attacking the witness’s character for other traits, such as carelessness, is not admissible. [2006]

Question 48

When you call a second witness to impeach, what is admissible?

Answer 48

Rule 983: A party can call W2 to impeach their own W1, but statements from W1 to W2 are admissible only to impeach W1 and not for the truth of the matter. [2006]

Rule 992: Even if the testimony is of no consequence to the lawsuit, a witness‚testimony may be impeached at the judge‚discretion by presenting a second witness who contradicts the first witness, whether or not there was an objection to the first witness‚testimony. [1992]

Question 49

When can specific instances of conduct be inquired into on cross?

Answer 49

Rule 984: Specific instances of the conduct of a witness can be inquired into on cross-examination at the discretion of the trial court if it is probative of the truthfulness or untruthfulness of the witness, although such specific instances cannot be proven by extrinsic evidence. [1998]

Question 50

If a hearsay statement is admitted into evidence, the credibility of the declarant is subject

Answer 50

Rule 985: If a hearsay statement is admitted into evidence, the credibility of the declarant is subject to impeachment in the same manner as if the declarant was an actual witness. [1998]

Question 51

What is one way a plantiff can impeach his own witness’ testimony?

Answer 51

Rule 986: A plaintiff can impeach his own witness testimony with a tape recording of the witness where the witness was recorded making statements contrary to the witness‚statements made at trial. [1998]

Question 52

Specific instances of the conduct of a witness cannot be proven by ____?

Answer 52

Rule 987: Except for conviction of a crime, specific instances of the conduct of a witness, for the purpose of attacking the witness’ credibility, cannot be proven by extrinsic evidence. [1998]

Question 53

How can you impeach a dying declaration?

Answer 53

Rule 988: Impeachment of a dying declaration by showing a prior inconsistent statement by the declarant is admissible to impeach the dead declarant. [1992]

Question 54

When is impeachment on a collateral issue with extrinsic evidence admissable?

Answer 54

Rule 989: Impeachment on a collateral issue (i.e. an issue which has no bearing on the case) with extrinsic evidence such as the testimony of another witness is inadmissible. [1992]aka-never.

Question 55

When are judgments of felony convictions admissible?

Answer 55

Rule 990: Judgments of felony convictions (i.e. crimes punishable by death or imprisonment for more than one year) are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. [1992]

Question 56

Specific instances of misconduct by a witness, for the purpose of attacking the witness’s credibility, may not be proved by ______?

Answer 56

Rule 991: Specific instances of misconduct by a witness, for the purpose of attacking the witness credibility, may not be proved by extrinsic evidence. [1992]

Question 57

A witness prior inconsistent statements made in a deposition are admissible as wha tunder the hearsay exception?What type of evidence can it be used as?

Answer 57

Rule 994: A witness prior inconsistent statements made in a deposition are admissible as former testimony under the hearsay exception and can be used for impeachment of the witness and as substantive evidence. [1992]

Question 58

Evidence that the defendant’s primary witness is a partner of the defendant is admissible as _____?

Answer 58

Rule 995: Extrinsic evidence that the defendant’s primary witness is a partner of the defendant is admissible as evidence of possible bias. [1992]

Question 59

A prior inconsistent statement is admissible for ______and as ______evidence.

Answer 59

Rule 996: A prior inconsistent statement is admissible for impeachment and as substantive evidence. [1992]

Question 60

A cross-examiner is permitted to bring out the fact that the witness has committed prior bad acts, but only prior bad acts that are what?

Answer 60

Rule 997: A cross-examiner is permitted to bring out the fact that the witness has committed prior bad acts, but only prior bad acts that are probative of truthfulness may be asked about. [1992]

Question 61

A judgment against another plaintiff to prove an issue is what?

Answer 61

Rule 998: A judgment against another plaintiff to prove an issue is generally not admissible. [1991]

Question 62

Can you impair credibility on matters of religion?

Answer 62

Rule 999: Evidence of beliefs or opinions of witnesses on matters of religion are NOT admissible to impair credibility. [1991]

Question 63

When must a court use federal common law rules for privilege?

Answer 63

Rule 1001: If a case will use federal substantive law, the court must use federal common law rules for privilege. [1991]

Question 64

What is the primary function of a grand jury?

Answer 64

Rule 1002: The primary function of a grand jury is to determine probable cause, not guilt, and they may consider hearsay evidence and other evidence that would be otherwise inadmissible at trial. [1991]

Question 65

What is the Settlement Privilege?

Answer 65

Rule 1003: The Settlement Privilege prohibits the use of settlement offers or statements made in furtherance of negotiating settlements to prove liability.

Under this privilege, statements made by a defendant to the prosecutor during plea negotiations in criminal cases are generally inadmissible,BUT admissions made during police questioning are usually admissible and regarded as a straightforward admission by a party opponent.[2019]

Question 66

Admissions by parties are treated as ___________?

Answer 66

Rule 1004: Admissions by parties are treated as nonhearsay and the admission of an employee may be admissible as a vicarious admission of the party in certain instances

(e.g. a statement made by an employee concerning a matter within the scope of agency/employment is admissible against the employer if made during the agency/employment relationship)

.However, if an out of court statement quotes another out of court statement, each statement must be analyzed independently, and the statement is admissible only if both hearsay statements fall within exceptions to the hearsay rule. [2019]

Question 67

Settlement discussions or offers of compromise are NOT admissible as any kind of indication of fault,liability,or damage (IF) these two requirements are met.

Answer 67

Rule 1005:
(1) there must be a claim
AND
(2) there must be a dispute as to liability or the amount/share of liability

(e.g. if a child suffers from a goat bite at a defendant‚petting zoo and the defendant does not dispute his liability and instead says, i’d like to give you this check for $200 because I don’t feel good about it his statement is admissible in a personal injury trial against him as the statement of a party- opponent since it is relevant to his liability and was not made in the course of settlement of a disputed claim). [2013]

Question 68

Hearsay included within hearsay is not excluded under the hearsay rule if _______

Answer 68

Rule 1006: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined out-of-court statements conforms with an exception to the hearsay rule

(e.g. if P and D get into a car accident and a police officer prepares a police report after interviewing an eyewitness two days after the accident, the hearsay police report is admissible under a business or public record exception to the hearsay rule, but the eyewitness statements contained in the report are inadmissible because they do not qualify under the business record exception since the witness did not have a business or public duty to report the information accurately, and there is no other applicable hearsay exception such as Present Sense Impression or Excited Utterance).[2013]

Question 69

An out-of-court statement is admissible as non-hearsay if the statement was

Answer 69

Rule 1007:Not intended to demonstrate the truth of the matter asserted, but rather, intended to demonstrate the effect upon the listener

(e.g. if a defendant is charged with the knowing possession of stolen property after receiving a stolen car from a friend, the defendant‚testimony about the friend‚out-of- court statement where the friend tells a neighbor that the car was a gift from his mother is admissible as nonhearsay since the defendant‚state of mind is relevant to the crime charged and the statement is being offered to show the reason for the defendant‚belief that the car in question was not stolen). [2013]

Question 70

Under the doctrine of limited admissibility, a statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted to show __________?

Answer 70

Rule 1008: effect on the hearer or reader

in a negligence case where knowledge of a danger is the issue, a third person‚statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener

(e.g. in an action for negligent failure to warn, if a plaintiff introduces letters from previous users to the manufacturer about serious burns they sustained when using the microwave oven with stainless containers, the judge will exclude the letters as hearsay if they are offered to prove the matter asserted (that other customers were injured or that the oven was dangerous), but the judge will admit the letters if offered for the limited purpose of showing notice to the manufacturer of a possible defect). [2011]

Question 71

Requirements for Party Admission?

Answer 71

Rule 1009: A statement is not hearsay if it is

(1) Offered against a party and
(2) is a statement by the party‚agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship(e.g. if a truck driver tells a hospitalized plaintiff, Sorry that I ran you over his statement is admissible against the driver‚employer as a statement by a party- opponent since the driver is an employee of the defendant, the communicated matter was within the scope of his employment, and it was uttered during the existence of the employment relationship).[2011]

Question 72

At trial, if a D denies making an admission, a witness can testify as to D‚prior admission, and the witness‚testimony is admissible to ____ AND ____

Answer 72

Rule 1010: At trial, if a D denies making an admission, a witness can testify as to D‚prior admission, and the witness‚testimony is admissible both to impeach the defendant‚testimony as a prior inconsistent statement and as substantive evidence (because it is an admission of a party- opponent). [2008]

Question 73

Statements that constitute legally operative words are not hearsay because

Answer 73

Rule 1011: because they are not offered for the truth.(e.g. in an action to determine rights under a will, a witness testimony that the decedent said ‚”i’m dying” is admissible b/c it is relevant on the issue of whether the wife survived the husband it is not hearsay because it is not being offered to prove the truth of the matter asserted it is being offered to prove the woman was alive at the time she made the statement). [2008]

Question 74

A statement by a party that implies fault or an admission of negligence is admissible under the _______________?

Answer 74

Rule 1012: A statement by a party that implies fault or an admission of negligence is admissible under the party admission exception to the hearsay rule, although statements specific to settlement negotiations or offers to pay medical expenses are not admissible. [2006]

Question 75

Out of court statements are admissible if the statements are _____?

Answer 75

Rule 1014: Out of court statements are admissible if the statements are offered to show the effect of the statements on the defendant rather than for the truth of the matter asserted (this is not hearsay). [1998]

Question 76

An admission by an employee of a party-opponent is inadmissible hearsay if the admission was

Answer 76

Rule 1015: An admission by an employee of a party-opponent is inadmissible hearsay if the admission was made after the declarant stopped working for the party-opponent(i.e. the employee‚statement must be made when the employee was still working for the employer). [1998]

Question 77

Testimony CANNOT be offered concerning a witness’s prior identification of the defendant if the

Answer 77

Rule 1016: Testimony CANNOT be offered concerning a witness’s prior identification of the defendant if the witness refuses to testify at trial it is hearsay not within any exception. [1998]

Question 78

What is an adoptive admission?

Answer 78

Rule 1017: A witness’s testimony that the defendant silently acknowledged a statement is admissible as an adoption of the statement and may be offered into evidence as an admission of a party-opponent and will not constitute hearsay. –1998

Question 79

When a party uses information supplied from an outside source, this evidence may be admissible as an __________

Answer 79

Rule 1018: When a party uses information supplied from an outside source, this evidence may be admissible as an adoptive admission. [1992]

Question 80

An incriminating statement made by a defendant to police is admissible if it was

Answer 80

Rule 1019: An incriminating statement made by a defendant to police is admissible if it was volunteered and was not a product of a custodial interrogation. [1992]

Question 81

A defendant silence when a cohort confesses is inadmissible as evidence if

Answer 81

Rule 1020: A defendant‚silence when a cohort confesses is inadmissible as evidence if the defendant had no reason to respond to the statement. [1992]

Question 82

A person’s silence is inadmissible as evidence if the person had

Answer 82

Rule 1024: A person’s silence is inadmissible as evidence if the person had no reason to respond to the statement. Silence is treated as a statement, and thus possibly hearsay, only if it is intended by the person as an assertion. [1992]

Question 83

A sketch of the perpetrator by a witness is inadmissible as hearsay and not within any exception if the

Answer 83

Rule 1025: A sketch of the perpetrator by a witness is inadmissible as hearsay and not within any exception if the witness is not available to testify to authenticate it. [1992]

Question 84

A statement after an accident that this may be my fault is admissible as an ______________?

Answer 84

Rule 1026: A statement after an accident that this may be my fault is admissible as an admission of a party. [1992]

Question 85

When can a statement made by the party’s agent or servant be admitted as vicarious admission?

Answer 85

Rule 1028: A statement made by the party‚agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship can be offered against the party as a vicarious admission. [1992]

Question 86

When is a statement made to a medical professional admissable?

Answer 86

Rule 1030:

(1) Statements made for purposes of medical diagnosis or treatment (i.e. describing medical history, or past or present symptoms, pain, or sensations, or the cause or external source of the injury) or
(2) Statements made to a qualified expert for the purposes of medical diagnosis or treatment are admissible(e.g. if a husband who saw his wife get hit by a car tells the emergency room doctor, Two hours ago, I saw the defendant‚car speeding past red light and running over my wife, the doctor‚testimony about the husband‚statement would be inadmissible hearsay not within any exception, since it is not a statement made for purposes of diagnosis or treatment, nor is it an excited utterance b/c the passage of two hours since the startling event makes the declarant unlikely to be in a continuous state of excitement). [2013]

Question 87

When is a statement a present sense impression?

Answer 87

Rule 1031:

(1) describes or explains an event, and
(2) was made while the declarant observed the event or immediately thereafter(e.g. if a witness makes an audio recording on his iPhone of a license plate number immediately after a hit-and- run accident occurs, this audio recording is a valid PSI, but if the statement is made 5 minutes after the event, this is too late).[2008]

Question 88

What are the requirements for past-recollection recorded?

Answer 88

A recorded out-of-court statement is admissible as a past recollection recorded if

(1) concerns a matter the witness once knew about
(2) as to which the witness now cannot recall well enough to testify fully and accurately
(3) which was made when the matter was fresh in the witness’s memory, and
(4) which accurately reflects the witness’s knowledge2008

Question 89

What type of statements fall under excited utterance exception to hearsay?

Answer 89

Rule 1032: Spontaneous statements by accident and crime victims describing what has happened to them (such as identifying the perpetrator) are admissible under the excited utterance exception to the hearsay rule. [2006]

Question 90

What is a present sense impression?

Answer 90

Rule 1033: A statement describing or explaining an event or condition made while the declarant perceived the event or condition, or immediately thereafter is admissible as a statement of present sense impression. [1992]

Rule 1034: A statement that someone was drunk the night of a car accident is admissible as a statement regarding a condition that person observed,made while the person was observing it. [1992]

Question 91

Can a voice recording be played for the jury?

Answer 91

Rule 1035: A present sense voice recording of a witness can be played for the jury under the present sense impression hearsay exception. [1991]

Question 92

Statements of a declarant’s then-existing state of mind are admissible to prove what?

Answer 92

Rule 1036: prove past, present and future conduct of the declarant.Thus, a declarant‚statements about then-existing intentions to do something in the future falls under state-of-mind exemption, and are not hearsay(e.g. at D’s trial for larceny, to negate the intent required for the crime, a witness can testify that D told the witness I’m going to return this purse after he picked it up). The self-serving nature of such statements does not affect their admissibility (the jury will decide the weight to give). [2019]

Question 93

A declaration of present mental state is admissible because ?

Answer 93

Rule 1038: A declaration of present mental state is admissible because that mental state is circumstantial evidence that the subsequent event actually took place. [1992]

Question 94

The present bodily condition hearsay exception must be a spontaneous remark about

Answer 94

Rule 1039: The present bodily condition hearsay exception must be a spontaneous remark about a present condition (e.g. ‚My back has really hurt more this week‚is not admissible). [1991]

Question 95

The state of mind hearsay excepiton requires what type of statement?

Answer 95

FORWARD looking statements.When the state of mind of the declarant is at issue, statements indicating intent and offered for the forward-looking purpose of showing conduct in conformity with that intent are admissible (e.g. hearsay that ‚I love him and would never hurt him‚ falls under the existing state of mind hearsay exception). [1991]

Question 96

Why are medical diagnosis statements not hearsay?

Answer 96

Rule 1044: A statement by a declarant that is reasonably pertinent to medical diagnosis or treatment is admissible, as most people are careful and accurate when describing conditions to medical personnel. [1992]

Question 97

What is the requirements for past-recorded recollection?

Answer 97

Rule 1045: If a witness cannot completely remember something, the witness can read statements from his diary to the jury under the past recorded recollection exception to the hearsay rule. To be allowed to read the diary into evidence, the witness must show:(1) that he wrote it(2) at a time when he had a clear memory(3) he had personal knowledge of the matter and(4) he wrote the material in a reliable way.in addition, the diary must also be authenticated which requires the witness to testify it is his diary. [2019]

Question 98

A tape recording of a witness comments used in preparing a written report is admissible under __________ if the witness ______?

Answer 98

Rule 1046: A tape recording of a witness comments used in preparing a written report is admissible under the past recollection recorded exception to the hearsay rule if the witness appears at trial but cannot remember the details on the stand and testifies that the tape recording was accurate when made. [2008]

Question 99

A witness recorded recollection may be read into evidence if ?

Answer 99

Rule 1047: A witness‚recorded recollection may be read into evidence if

(1) the witness once had knowledge but now has insufficient recollection to testify fully and accurately, and
(2) the recollection is shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and reflects that knowledge correctly.1998

Question 100

When can a voice recording of a witness be played for the jury?

Answer 100

Rule 1048: A voice recording of witness can be played for the jury under the recorded recollection exception if the witness cannot remember the contents of the recording. [1991]

Question 101

What can business record be admitted to show?

Answer 101

Rule 1049: All courts allow evidence of the routine practices of an organization, to show that the practices were followed on a particular occasion. Thus, business policies, rules, or regulations may be admitted as habit of the business if it can be shown that they consistently adhered to those practices(e.g. a business may prove that a particular letter was mailed by showing that it was the organization‚routine practice to mail all letters placed in any worker‚outgoing mailbox, and that the letter in question was placed in such a box). [2019]

Question 102

What are the requirements for the business records exception?

Answer 102

Rule 1050: Under the business records exception to the hearsay rule, the business record must be

(1) maintained as a regular practice of a business (not the regular practice of an individual employee) and
(2) must be kept in the course of regularly conducted business activity

(e.g. if a corporate executive kept notes of a business meeting to aid his memory of the meeting, these notes do not qualify as business records because they were prepared on the executive‚own initiative to help him remember what had happened at the meeting). [2011]

Question 103

An absence of an entry in business records is admissible if?

Answer 103

Rule 1051:An absence of an entry in business records is admissible as an exception to the hearsay rule if the judge finds that it was the regular course of that business to contemporaneously make such records and preserve them, but it was not done in this instance

(e.g. a hospital patient can offer into evidence a medical chart to show that a nurse failed to administer a scheduled medication since such an activity is normally recorded in the chart if it occurred). [2011]

Question 104

if a medical expert testifies that his opinion was based on information in a letter from the plaintiff’s physician, what will result from the letter?

Answer 104

Rule 1052: At a trial, if a medical expert testifies that his opinion was based on information in a letter from the plaintiff’s physician, the letter is inadmissible hearsay if the letter was not made pursuant to any systematic routine office procedure. [2006]

Question 105

Is a hospital record admissable?

Answer 105

Rule 1053: An entry on a hospital record reporting a doctor’s diagnosis is admissible as a record of regularly conducted business activity.

Question 106

When will business records be inadmissable?

Answer 106

Rule 1054: Although business records are generally admissible as hearsay exceptions, if the surrounding circumstances make the record seem untrustworthy, such as when the facts indicate the business that made the record had a strong motive to create a self-serving record, the court has discretion to exclude it. [1992]

Question 107

Under the business record exception,the source must be what?

Answer 107

Rule 1055: Under the business record exception, the source must be trustworthy if the source or custodian is not trustworthy, the record is inadmissible hearsay. [1991]

Question 108

A notation made by a medical resident on a chart at the direction of an unknown physician falls within what?

Answer 108

Rule 1056: A notation made by a medical resident on a chart at the direction of an unknown physician falls within the business record exception. [1991]

Question 109

A report prepared by a firemarshal of a fire inspection is admissible as?

Answer 109

Rule 1058: In a civil litigation, a report prepared by a fire marshal of a fire inspection is admissible as a public record under Rule 803(8) of the FRE. [2008]

Question 110

Public records used to prove evidence of absence of an entry from a public record are considered what?

Answer 110

Rule 1059: Public records such as jail records that are used to prove evidence of absence of an entry from a public record are an exception to the hearsay rule and therefore admissible. [1998]

Question 111

A medical opinion of a test is admissible, provided that ?

Answer 111

Rule 1060: A medical opinion of a test is admissible, provided that

(1) accepted medical practices were followed in arriving at the opinion and
(2) any test is scientifically valid or scientifically reliable. [1992]

Question 112

What does the witness have to provide to have testimony that refers to a collateral document such as a newspaper

Answer 112

Rule 1061: NOTHING.A witness‚testimony that refers to a collateral document such as a newspaper is admissible without the witness having to provide the document itself. [1992]

Question 113

What foundation is required for a learned treatise?

Answer 113

Rule 1062: the foundation for a learned treatise normally consists of testimony by a qualified expert that the item is recognized in the relevant discipline as authority[2019]

Question 114

How must a learned treatise be introduced?

Answer 114

Rule 1062: The FRE requires that a learned treatise be introduced through an expert witness [2019]

Question 115

Once a qualified expert authenticates the authority of a treatise on an expert subject what can be done?

Answer 115

Rule 1062:Excerpts from the learned treatise may be read into evidence, but are not themselves admitted as exhibits.At the time the treatise is read into evidence, the expert must be on the stand to interpret it before the lay jury relies on it. [2019]

Question 116

Can a learned treatise be admitted as an exhibit?

Answer 116

No. Rule 1063: If a court finds a publication to be a reliable authority, statements germane to the case can be read into evidence, but the publication itself cannot be entered into evidence as an exhibit. [2006]

Question 117

Requirements for the former testimony exception?

Answer 117

Rule 1064: Under the FRE, the former testimony exception to the hearsay rule allows former testimony of a witness in one proceeding to be admissible in a second proceeding, provided that:

(1) the prior testimony/statement was given in a proceeding or deposition under oath
(2) it is being offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop the testimony and
(3) the declarant is unavailable to testify in the second proceeding (e.g. the witness cannot be found or is beyond where the court can subpoena the witness, such as in another country).2019

Question 118

What results if declarant is unavialble for trial or refuses to testify, but has testifed before?

Answer 118

Rule 1065: If the witness is unavailable for trial or refuses to testify, there is a hearsay exception for former testimony that is, testimony given by that person in an earlier proceeding. [1992]

Question 119

Can an affidavit from a person who has subsequently died be admitted?

Answer 119

Rule 1066: An affidavit from a person who has subsequently died is inadmissible in court, because it is hearsay, not within any exception. [1992]

Question 120

Testimony from a police officer that a witness told him he saw the defendant drinking before the accident is what?

Answer 120

Rule 1067: Testimony from a police officer that a witness told him he saw the defendant drinking before the accident is inadmissible hearsay, not within any exception. [1992]

Question 121

Testimony from a police officer that a witness told him he saw the defendant drive recklessly before the accident is what?

Answer 121

Rule 1068: Testimony from a police officer that a witness told him he saw the defendant drive recklessly before the accident is inadmissible hearsay, not within any exception. [1992]

Question 122

Will a written affidavit or recording made under oath be admissable?

Answer 122

Rule 1069: NO. A written affidavit or recording, although made under oath, is still inadmissible hearsay, that is not within any exception. [1992]

Question 123

When is former testimony from a prior trial inadmissable?

Answer 123

Rule 1071/1070: Former testimony from a prior trial is NOT admissible if

(1) there is the same Plaintiff but a different Defendant because the Defendant did not have a prior chance to interrogate the witness at the first trial. [1991]
(2) there is a different Plaintiff but the same Defendant because the Defendant had a prior chance to interrogate the witness. [1991]

Question 124

A declaration against interest is not excluded by the hearsay rule if the declarant is what?

Answer 124

Rule 1072: declarant is unavailable as a witness

(e.g. a decedent‚statement to his wife that he purposely set fire to his friend vehicle to split the insurance proceeds is admissible against the defendant because the hearsay declarant is unavailable and is a statement against interest). [2011]

Question 125

An out-of-court certification from a public official attesting to the absence of a public record is what?

Answer 125

Rule 1073: An out-of-court certification from a public official attesting to the absence of a public record (such as a license) after a diligent search of the records of a public office or agency is admissible as an exception to the hearsay rule. [2006]

Question 126

What type of statement will NOT qualify under dying declaration?

Answer 126

Rule 1074: A statement uttered prior to death will not qualify as a dying declaration exception to the hearsay rule if the statement does not pertain to the cause or circumstance of what the declarant believed to be his impending death. [1998]

Question 127

What type of records would be a family recrod?

Answer 127

Rule 1075: A list of family births, marriages, and deaths in a Bible is admissible as a family record.1992

Question 128

Dying declaration testimony by a witness must be based on what?

Answer 128

Rule 1076: Dying declaration testimony by a witness must be based on first-hand knowledge (i.e. competency) to be admissible. [1991]

Question 129

What hearsay exception REQUIRES unavailability?

Answer 129

Rule 1079: The declarant must be unavailable to admit hearsay regarding former testimony,

(1) dying declarations,
(2) statements against interest, or
(3) statements of pedigree (concerning birth, marriage, divorce, or ancestry). [1991]

Question 130

A dying declaration is limited to what type of statements?

Answer 130

Rule 1080: A dying declaration is limited to statements regarding the causes and circumstances of what the declarant believed to be his impending death (e.g. stating, I‚m dying, and Bill owes me $10,000, is not a dying declaration). [1991]

Question 131

If the declarant is unavailable and he has made a material out-of-court statement against his penal interest

Answer 131

Rule 1082: The statement may be admitted if it is NOT testimonial under the confrontation clause. [2019]

Question 132

When is a statement against penal interest testimonal?

Answer 132

if it was made to the police,but if the statement was made in general conversation (to a cellmate or family member),then the statement is not testimonial and can be admitted without any further analysis. [2019]

Question 133

An out-of-court statement identifying a person is admissible as non-hearsay under FRE 801(d) and does not violate the confrontation clause of the 6th amendment so long AS WHAT?

Answer 133

Rule 1083: The declarant is subject to cross- examination at trial, even if that declarant suffers from memory loss

(e.g. if a victim, who suffered bruises to his arm while trying to defend against a knife-wielding perpetrator, wishes to testify in court and says “Although I currently do not remember the perpetrator‚identity, I do remember revealing his identity to an unknown rescuer before I passed out” his testimony is admissible b/c his inability to recall does not violate the defendant‚6th Amendment right to confront his accuser and since his defensive wounds serve as a sufficient basis for his personal knowledge, this hearsay statement comes under the exception for prior identifications).[2013]

Question 134

Testimonial hearsay that might otherwise be admissible as an exception to the hearsay rule may not be used at trial if what?

Answer 134

Rule 1084: Testimonial hearsay that might otherwise be admissible as an exception to the hearsay rule may not be used at trial if the hearsay declarant is unavailable and has not previously been subject to cross-examination - the use of such hearsay without the opportunity for meaningful cross examination violates the confrontation clause of the 6th Amendment, BUT business records are admissible because they are not testimonial by nature (e.g. if an eyewitness to a bank robbery dies in an unrelated accident before the trial, the witness’s statements (e.g. his videotaped testimony, transcript of his grand jury testimony, and an officer’s testimony that the eyewitness has identified the defendant in a lineup)) are not admissible against the defendant since these statements are testimonial, the witness is unavailable, and the defendant lacked a prior chance to cross-examine the witness on the testimonial statements, BUT any evidence of a non- testimonial nature (e.g. a business-record in the form of a transaction record from a bank) is admissible without violating the defendant’s confrontation right under the Constitution). [2011]

Question 135

When does a statement of one co-defendeant incriminating a second co-defendant violates the Confrontation Clause?

Answer 135

Rule 1085: An extrajudicial statement of one co- defendant incriminating a second co-defendant violates the Confrontation Clause and is deemed to be inadmissible hearsay this rule only applies when the confessing defendant refuses to take the stand if he does take the stand, there is no 6th Amendment issue. [1991]

Question 136

What are the requirements to admit evidence as habit evidence?

Answer 136

Rule 1086: In order to be admissible as evidence of habit (i.e. evidence of a routine practice), the proffered testimony must generally meet the three elements of

(1) regularity,
(2) specificity, and
(3) an involuntary or semiautomatic response

(e.g. evidence that a railroad had a habit of blowing a warning whistle at a particular crossing is admissible in a grade-crossing collision case). [2017]

Question 137

When are gory pictures admissable?

Answer 137

Rule 1087: if the photos offer some evidence of the victim’s identity or establish relevant details about the accident

(e.g. if plaintiff‚car suddenly accelerates and fails to brake before hitting a tree, killing the plaintiff‚daughter, and the plaintiff alleges a design defect in a product liability action against the car manufacturer, but the time of the daughter‚death is disputed, the court may admit the photographs taken at the crash site and at the daughter‚autopsy so that they may be used by the medical expert to explain to the jury his basis in concluding that the daughter did not die immediately after the crash, because the court can instruct the jury to limit the use of evidence to illustrate the expert‚testimony, and the probative value of this evidence is not substantially outweighed by its prejudicial effect and risk of jury confusion)

NOTE: In contrast, a video depicting the same car being driven by a professional driver on a test track without any trees or obstacles is NOT admissible because the conditions depicted are not substantially the same as on the date of the accident in addition, a video of a TV news program about certain cars that suddenly accelerate and crash is NOT admissible if it is only about cars in general, and not the make and model in question, since this would confuse the jury

and lastly, in a product liability action regarding a suddenly accelerating car, evidence that the plaintiff had three speeding tickets in the past two years is NOT admissible because it is prohibited character evidence. [2013]

Question 138

In order to testify, a witness must have what?

Answer 138

Rule 1088: A witness must have personal knowledge of a matter in order to testify about that matter

(e.g. if P is injured in a car accident and sues the driver claiming a neck injury, P‚testimony that she never had any problem with her neck prior to the accident is admissible because it is based on her personal knowledge and it is relevant, being probative on the issue of whether the accident was the cause of her injury). [2011]

Question 139

Potentially gruesome photographs may be admitted into evidence when the photographs are what?

Answer 139

Rule 1089: are not so gruesome that their prejudicial potential absolutely requires their exclusion

(e.g. in wrongful death actions, relevant post-death pictures of a decedent showing extensive injuries may properly be admitted as evidence of decedent’s physical pain and suffering before death),[2011]

Question 140

When are Gruesome photographs NOT admissible?

Answer 140

Rule 1089 such photographs are not admissible in evidence where they can be of no help to the jury in determining the issues submitted, but will only serve to prejudice the jury in favor of the plaintiff

(e.g. if a defendant in a personal injury trial denies negligence and the severity of a plaintiff‚injury, the plaintiff can offer in evidence a photograph extracted from a TV news footage that graphically depicts plaintiff‚gruesome injuries since the evidence relates directly to a disputed fact of the extent of plaintiff‚injury and the appropriate amount of damages).2011

Question 141

testimony that the weapon in the defendant‚possession was consistent with the victim wound is admissible even if _____ and WHY would it be admissible?

Answer 141

Rule 1090: In a criminal prosecution, testimony that the weapon in the defendant possession was consistent with the victim‚wound is admissible even if a number of other weapons could have caused the wound, because the probative value of this evidence is for the jury to assess. [2008]

Question 142

What type of evidence can be admitted?

Answer 142

Rule 1091: Evidence need only have any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, meaning evidence that has only the slightest probative value can be admitted

(e.g. if a D is charged with the arson of his home, although not conclusive, evidence that the D fully insured his house is admissible to prove motive).2008

Question 143

When is evidence admissable as relevant?

Answer 143

Rule 1092: Under the FRE, evidence is admissible as relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence..

Question 144

Testimony of a driver’s intoxication is admissible to provide what?

Answer 144

Rule 1093: Testimony of a driver’s intoxication is admissible to provide an alternate explanation of the accident’s cause and it is not substantially more prejudicial than probative. [1998]

Question 145

When may relevant evidence be excluded?

Answer 145

Rule 1095: Relevant evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury. [1992]

Question 146

A defendant is allowed to show due care or the absence of a defect by showing

Answer 146

Rule 1096: A defendant is allowed to show due care or the absence of a defect by showing

(1) that there have not been similar accidents in the past, so long as the conditions were the same in the past as when the accident occurred and
(2) if there were any injuries in the past, they would have been reported to the defendant. [1992]

Question 147

When is evidence legally relevant?

Answer 147

Rule 1097: Evidence is legally relevant if its probative value is not substantially outweighed by the possibility of unfair prejudice because the evidence is inflammatory or misleading. [1992]

Question 148

Extrinsic evidence of a collateral matter is inadmissible because?

Answer 148

Rule 1099: Extrinsic evidence of a collateral matter is inadmissible since it does not relate to a material issue in the case. [1992]

Question 149

Polygraph evidence is inadmissible because it is considered

Answer 149

Rule 1101: Polygraph evidence is inadmissible because it is considered unreliable and potentially confusing to jurors. [1991]

Question 150

If the offered evidence lacks unique characteristics (e.g. a bag of drugs), then chain of custody must be established from

Answer 150

Rule 1102: the time it was seized until the time of trial and sufficiently identified that it remains in an unaltered condition

(i.e. every person who handled or possessed the object since it was first recognized as being relevant must explain what he did with it).

No chain of custody is required when the item is readily or uniquely identifiable (e.g. a pearl handled gun with specific engraved initials).

The chain of custody requirement is not absolute it merely must be sufficiently complete to render it reasonably probable that the offered item is the original item at issue. [2019]

Question 151

How do you authenticate a voice?

Answer 151

Rule 1104: To authenticate a voice, the proponent of the evidence is merely required to introduce enough evidence for a reasonable juror to find that the item is what it purports to be, and it is up to the jury to determine how much weight to give the evidence. [1998]

Question 152

An incoming telephone call in which the caller identifies himself is insufficient to authenticate that the person was the caller there must be what?

Answer 152

Rule 1105: An incoming telephone call in which the caller identifies himself is insufficient to authenticate that the person was the caller there must be additional evidence that the caller is who he said he was, such as recognition of the voice. 1992

Question 153

How can a witness authenticate an outgoing telephone call?

Answer 153

Rule 1106: A witness can authenticate an outgoing telephone call by

(1) showing that the witness made a call to the number assigned by the phone company to a particular person and
(2) the circumstances show that the person who talked on the other end was in fact the person the caller was trying to reach. [1992]

Question 154

A laypersons identification of handwriting is admissible if

Answer 154

Rule 1107: A layperson‚identification of handwriting is admissible if

(1) the layperson had seen the person‚handwriting at some time before the litigation began, and
(2) that he recognizes the signature or handwriting in question to be that of the person. [1992]

Question 155

A photograph is admissible if a witness testifies that it _____?

Answer 155

Rule 1109: A photograph is admissible if a witness testifies that it fairly and accurately represents what it is claimed to represent. [1992]

Question 156

vehicle registration is admissible without authentication or certification to prove

Answer 156

Rule 1110: A vehicle registration is admissible without authentication or certification to prove the connection between the defendant and ownership of the car. [1991]

Question 157

When is a statement of prior identification admissable?

Answer 157

Rule 1108: A statement of prior identification of a person made after perceiving him is substantively admissible, if the declarant testifies at the trial and is available for cross-examination. [1992]

Question 158

When is a photograph admissible?

Answer 158

Rule 1109: A photograph is admissible if a witness testifies that it fairly and accurately represents what it is claimed to represent. [1992]

Question 159

When is a vehicle registration admissible?

Answer 159

Rule 1110: A vehicle registration is admissible without authentication or certification to prove the connection between the defendant and ownership of the car. [1991]

Question 160

When is a prior identification admissible?

Answer 160

Rule 1111: A prior identification is only admissible if the declarant testifies and is subject to cross-examination. [1991]

Question 161

When is character evidence inadmissable?

Answer 161

Rule 1112: Under FRE 404, evidence of the character of a party (who was not also a witness) in a civil case that is offered for the circumstantial purpose of establishing that the individual acted consistently with that character trait is inadmissible, regardless of whether it is offered in the form of opinion, reputation, or specific prior acts. [2019]

Question 162

What is an exception to allow inadmissable character evidence to be admissable?

Answer 162

Rule 1113: Generally, character evidence is inadmissible in civil and criminal actions. One exception to this rule is that specific instances of prior bad conduct may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

Thus, specific instances of prior conduct can be introduced to show that something was not an accident or mistake (e.g. if a young man marries a wealthy older woman who drowns in the bathtub and it is discovered that this has happened with three different women, the prosecution may introduce the prior deaths to prove absence of mistake). [2019]

Question 163

What type of character evidence can a defendant introduce?

Answer 163

Rule 1114: A defendant may introduce evidence of his good character as inconsistent with the type of crime charged, BUT proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony

(e.g. if D is charged with theft, a witness can testify that D has a reputation for being honest). However, specific instances of the defendant’s good conduct are not admissible (e.g. D’s character witness cannot testify that he is aware D turned down prior opportunities to steal). [2019]

Question 164

When may character evidence be admissible?

Answer 164

Rule 1115: Generally, character evidence may not be offered to prove that a person acted in conformity with their character on a particular occasion,BUT character evidence may be admissible when:

(1) character is an essential element of the crime
(2) it is offered to show motive, intent, identity, lack of absence/mistake, knowledge, plan or preparation (MIMIC) OR
(3) under the Mercy Rule where a defendant can offer good character (pertinent character traits) about himself and testimony about the victim’s character.

Question 165

How can character evidence be introduced if admissable?

Answer 165

When character evidence is admissible, it may be offered through reputation and opinion testimony on defense and through specific instances on cross (unless character is an essential element of the crime/defense whereby specific instances of good conduct are admissible on defense). [2011]

Question 166

What type of character evidence may a defendant introduce?

Answer 166

A defendant is permitted to introduce evidence of pertinent character traits relevant to the case, meaning if D is charged with theft, fraud or some other offense involving dishonesty, D is permitted to introduce evidence of his honest character, or if D is charged with a violent crime, D can introduce evidence of his peaceful character(e.g. if D is accused of a violent crime such as assault or battery, D can call a witness to testify that D is of good reputation for peacefulness, but the witness cannot testify to D‚character for truthfulness b/c D‚character for truthfulness is not pertinent unless the D‚truthfulness was attacked while he was testifying). [2008]

Question 167

When can a witness be cross-examined about knowledge of past conduct by another witness?

Answer 167

Rule 1117: If W2 supports the credibility of W1, W2 can be cross-examined about knowledge of past conduct by W1 if there is good faith basis for believing that the past conduct did occur and if the past conduct would contradict or change W2’s description of W1’s reputation for honesty. [2006]

Question 168

In a criminal fraud case, prior convictions for fraud will be admissable to ________?

Answer 168

Rule 1118: In a criminal fraud case, prior convictions for fraud are admissible to both impeach the defendant and to prove that the defendant committed the crime. [2006]

Question 169

In defamation cases, where the plaintiff’s character or reputation is considered an issue, character evidence regarding the plaintiff’s reputation in the community is _____ to determine ______?

Answer 169

Rule 1119: In defamation cases, where the plaintiff’s character or reputation is considered in issue, character evidence regarding the plaintiff’s reputation in the community is admissible to determine injury to reputation. [2006]

Question 170

In an attempted murder trial, evidence that the defendant once threatened another person with a weapon is _________?

Answer 170

Rule 1120: In an attempted murder trial, evidence that the defendant once threatened another person with a weapon is improper character evidence and therefore inadmissible unless it is instead used to prove motive, opportunity, intent, preparation,plan, knowledge, identity, or absence ofmistake. [1998]

Question 171

At a murder trial, the defense can call witness to testify regarding character for reputation but can NOT bring witness to testify regarding the defendant being ______?

Answer 171

Rule 1121: At a murder trial, a defendant can call witnesses to testify that the defendant has a reputation in their community as a peaceable man, but witnesses cannot testify that the defendant is a truthful person since it is not pertinent to whether the defendant committed the murder. [1998]

Question 172

Evidence of other crimes,wrongs, or acts is not admissible to prove _________ but it is admissible for ___________?

Answer 172

Rule 1122: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show propensity, although it is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [1998]

Question 173

Habit evidence is admissible to prove what?

Answer 173

Rule 1123: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not, is admissible to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [1998]

Question 174

Corroborating testimony regarding a unique weapon used in multiple crimes is admissible to establsh _____?

Answer 174

Rule 1124: Corroborating testimony regarding a unique weapon used in multiple crimes is admissible to establish an identifying circumstance. [1992]

Question 175

On a cross-examination in a contract cause of action, is it poper to ask about the witness‚reputation as the neighborhood alcoholic?

Answer 175

Rule 1125: On a cross-examination in a contract cause of action, it is NOT proper to ask about the witness‚reputation as the neighborhood alcoholic. [1992]

Question 176

When may the prosecution introduce evidence of the defendants poor character?

Answer 176

Rule 1126: If a defendant introduces evidence of good general character, the prosecution may rebut by reputation or opinion evidence of the defendant‚poor character and may use specific acts evidence during its cross of the defendant‚good-character witnesses. [1992]

Question 177

If a defendant introduces evidence of good general character, the prosecution may rebut by using what type of evidence?

Answer 177

Rule 1126: the prosecution may rebut by reputation or opinion evidence of the defendant‚poor character and may use specific acts evidence during its cross of the defendant‚good-character witnesses. [1992]

Question 178

On the cross-examination of a defendant, asking about a prior conviction for tax fraud is ______ to show that the defendant is ___________?

Answer 178

Rule 1127: On the cross-examination of a defendant, asking about a prior conviction for tax fraud is proper to show that the defendant is inclined to lie. [1992]

Question 179

A defendant can show the character of the victim to show what?

Answer 179

Rule 1128: A defendant can show the character of the victim by use of reputation or opinion evidence to show the victim was the aggressor and support the defendant‚theory of self-defense.[1992]

Question 180

What type of character evidence is a defendant charged with murder allowed to show?

Answer 180

Rule 1129: A defendant charged with murder is allowed to show that he has the general character of being law-abiding. He is also permitted to show the narrower trait of being peaceable. [1992]

Question 181

When is the defendant’s opinion evidence of his good character for truth and veracity inadmissible?

Answer 181

Rule 1130: A defendant’s opinion evidence of his good character for truth and veracity is inadmissible if the trait is not pertinent to the case.[1992]

Question 182

Evidence by a criminal defendant that he has a good general character is admissible to show what?

Answer 182

Rule 1131: Evidence by a criminal defendant that he has a good general character is admissible to show the improbability of the defendant eaking the law. [1992]

Question 183

In a negligence action, testimony that the defendant had a reputation in the community of being reckless is _____ admissible to show negligence?

Answer 183

Rule 1132: In a negligence action, testimony that the defendant had a reputation in the community of being reckless is NOT admissible to show negligence. [1992]

Question 184

When will a court allow a prior conviction to be admissible?

Answer 184

Rule 1133: The cross-examination of a defendant regarding a prior conviction is proper if the court finds that the probative value for impeachment outweighs the prejudice to the defendant. [1992]

Question 185

If you’re being sued for slander because you called someone a thief, evidence that the person has stolen in the past is ______ because ______?

Answer 185

Rule 1134: If you’re being sued for slander because you called someone a thief, evidence that the person has stolen in the past is admissible because specific instances of conduct may be proved when character is directly in issue. [1992

Question 186

If character is called into question, only evidence about _______is allowed

Answer 186

Rule 1135: If character is called into question, only evidence about that particular character trait is allowed (e.g. if charity is the issue in a defamation case, testimony from a witness about the plaintiff’s honesty is inadmissible as non-probative) [1991]

Question 187

Character evidenceis admissible in criminal trials if offered by the defendant to show what?

Answer 187

Rule 1136: Character evidence is admissible in criminal trials if offered by the defendant to show character not in keeping with the offense charged evidence is admitted by calling another witness whose testimony is limited to opinion or reputation. [1991]

Question 188

When is character evidence generally inadmissible?

Answer 188

Rule 1137: Character evidence is generally inadmissible to prove propensity in criminal or civil cases. [1991]

Question 189

How can a prosecutor rebut against evidence introduced by the defendant of the victim’s violent character?

Answer 189

Rule 1138: the prosecution may rebut in two different ways: by evidence of the victim‚good character for that trait or the defendant‚bad character for that trait. [1991]

Question 190

Evidence of the routine practice of an organization is relevant to prove what?

Answer 190

: Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. [1991]

Question 191

What are the three requirements to permit thetestimony of an expert witness?

Answer 191

Rule 1140: Three basic criteria are required to permit the testimony of an expert witness:

(1) the expert is qualified to give an opinion on the subject matter
(2) the state of the art or scientific knowledge permits a reasonable opinion to be given by the expert and
(3) the subject matter goes beyond the understanding of the average layman.

Generally, an expert may give an opinion or inference that embraces an ultimate issue, BUT an expert witness may not express a legal conclusion directly related to the ultimate issue of the case (e.g. an expert may not give a legal conclusion on whether the plaintiff was contributorily negligent) or whether a legal standard has been met (e.g. that a defendant met the requirements of a law) [2019]

Question 192

Before a expert can testify regarding causation, a judge must make sure the expert testimony is _____ and ______ before the expert may testify?

Answer 192

Rule 1141: A plaintiff often needs experts to prove causation, and the trial judge is responsible for making sure the expert testimony is

relevant and grounded in scientific research before an otherwise qualified expert may testify as to causation, the proponent of the evidence must usually establish not only that the evidence is relevant and helpful to the jury, but also that the methodology employed by the expert is reliable. [2019]

Question 193

An expert may testify as to the way drug dealers operate and to the meaning of code words that dealers use, as long as what?

Answer 193

Rule 1142: An expert may testify as to the way drug dealers operate and to the meaning of code words that dealers use, as long as the testimony is based on their expert opinion and not on the defendant‚specific mental processes (e.g. if a defendant used coded references to drugs and drug trafficking, such as using the term laptop for cocaine, a police officer experienced in narcotics investigations can provide an expert opinion based on that experience as to what the code words mean). [2019]

Question 194

An expert’s opinion on an ultimate issue of the case is admissible, but in a criminal case, an expert may not ________ ?

Answer 194

Rule 1143: An expert’s opinion on an ultimate issue of the case is admissible, but in a criminal case, an expert may not give an opinion as to whether a criminal defendant did or did not possess the mental state or condition that constitutes an element (or defense) of the crime charged

(the expert can only diagnose a mental condition and explain what it is)

whereas in a civil case, the expert can testify to a person’s mental state or condition

(e.g. if a homeowner sues his insurance company when it refuses to cover the damage on the basis that he intentionally set fire to his home, the homeowner, after claiming negligence, may call his treating psychiatrist to testify that, “in my opinion, the homeowner was mentally unstable, but he has an intense fear of fire or getting burned” because it is an opinion by a qualified expert that is helpful to the jury in helping it understanding a mental state that is relevant to an important issue in a civil action such as whether a party‚action is negligent or intentional). [2013]

Question 195

An expert’s testimony that expresses an opinion concerning the defendant’s mental state or condition at the time of the crime is _____ because _____ ?

Answer 195

Rule 1144: An expert’s testimony that expresses an opinion concerning the defendant’s mental state or condition at the time of the crime is inadmissible since only the jury may address that ultimate issue. [1998]

Question 196

What can you cross-examine an expert wtiness on?

Answer 196

Rule 1146: You can cross examine an expert witness with specific acts that bear on his capacity as an expert. [1992]

Question 197

What is an unacceptable method of authenticating a person’s signature on a document?

Answer 197

Rule 1147: A non-expert’s analysis of a signature is not an accepted method of authenticating a person’s signature on a document. [1992]

Question 198

Asking an expert witness if he failed tests related to his field is admissible because _____?

Answer 198

Rule 1148: Asking an expert witness if he failed tests related to his field is admissible because it is relevant to the weight to be given to the expert’s testimony. [1992]

Question 199

Can an expert listen to the evidence and then testify in court?

Answer 199

Rule 1149: An expert can listen to the evidence in court and then testify, basing his opinion on the facts made known to him at the trial. [1992]

Question 200

May a cocaine addict be an expert?

Answer 200

Rule 1150: A cocaine addict can be regarded as an expert in ascertaining whether a drug is cocaine. [1991]

Question 201

What needs to be established for a treatise to be used on direct or cross-exam?

Answer 201

Rule 1151: If a party can establish that a treatise is reliable authority, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence. [1991

Question 202

A letter attesting to an expert’s qualifications may be considered by whom?

Answer 202

A letter attesting to an expert‚qualifications may be considered by the judge only, without regard to the hearsay rule. [1991]

Question 203

What is the confidential marital communication privilege

Answer 203

Rule 1153: Under the confidential marital communication privilege, in criminal/ civil cases, one spouse may not (even if he/ she wants to) testify to any confidential communication between the couple made during a valid marriage
(even if the marriage is later terminated) unless the other spouse waives the privilege

(e.g. if D is being prosecuted for murder, if D’s ex-wife wants to testify that D told her during the marriage that he killed the victim, D’s ex-wife cannot testify under the confidential marital communication privilege). [2019]

Question 204

Can a criminal defendant stop his spouse from voluntarily giving testimony?

Answer 204

NO. A spouse can refuse to testify against her criminal defendant spouse under the spousal privilege, but the criminal defendant cannot stop his spouse from voluntarily giving testimony. [2006]

Question 205

In a criminal case in federal court, a spouse can choose to testify against the other spouse about conversations that happened before marriage BECAUSE ?

Answer 205

In a criminal case in federal court, a spouse can choose to testify against the other spouse about conversations that happened before marriage since they are not confidential marital communications. [1992]

Question 206

May a witness testify againt the defendant if the testimony was aquired as a result of the defendants grand jury testimony which was granted immunity?

Answer 206

W1 cannot testify against D1 if W1‚testimony was acquired as a result of D1‚grand jury testimony if D1 is granted immunity for the grand jury testimony. [1992

Question 207

What is the spousal immunity privilege and what does it cover?

Answer 207

Under the Spousal Immunity Privilege, the prosecution cannot compel the defendant‚spouse to testify against the defendant in a criminal case.This privilege covers testimony against a spouse, so long as the witness and the defendant are currently married, although the privilege may be waived by the witness spouse. [1991]

Question 208

When are marrital communications not privileged?

Answer 208

Marital communications are not privileged if they are made to enable, aid or commit a crime or fraud. [1991]

Question 209

What happens to the spousal privilage when the spouse dies or divorces?

Answer 209

The marital communications privilege survives divorce and death. [1991

Question 210

Jointly represented clients may assert the attorney client privilege with respect to their communications with a lawyer, on a matter of common interest to the co-clients BUT THEY MAY NOT ASSERT THE PRIVILAGE WITH RESPECT TO

Answer 210

Rule 1160: Two or more jointly represented clients may assert the attorney client privilege with respect to their communications with a lawyer, on a matter of common interest to the co-clients, but they may not assert the privilege with respect to these communications in any subsequent litigation between the former co-clients (e.g. if an attorney is consulted and retained by two clients to establish a business, the privilege cannot be invoked for communications made to the attorney retained in common due to a subsequent litigation between the clients). [2019]

Question 211

When is the attorney-client privilege waived?

Answer 211

Rule 1161: If a defendant voluntarily and selectively discloses privileged information to a prosecutor without taking steps to protect the privileged nature of such information, the attorney-client privilege has been waived as to the disclosed information and all information on the same subject

(e.g. if a defendant and codefendant are tried jointly for murder, and the codefendant and his attorney offer to reveal the murder weapon‚location for leniency, but the victim‚ father kills the codefendant, the prosecution cannot compel the codefendant‚ attorney to disclose what the codefendant revealed to him because the communications comes under the attorney-client privilege, which was not waived by the codefendant because he never disclosed the confidential communications to the prosecution) [2013]

Question 212

What type of information does the attorney client prvilege apply to?

Answer 212

The attorney-client privilege applies only to confidential communications made for the purpose of facilitating legal representation of the client, and fee arrangements/ payments are generally outside the scope of protection of the attorney-client privileges

(e.g. in a trial for tax evasion, the amount D paid in legal fees to his attorney is admissible as relevant info, b/c such records of fee arrangements & payments are not protected by the attorney client privilege)/u. [2008]

Question 213

statements that were in furtherance of a crime or fraud is ____ protected by the attorney-client privilege?

Answer 213

Rule 1163: A defendant‚letter to his attorney that contains statements that were in furtherance of a crime or fraud is NOT protected by the attorney-client privilege. [1998]

Question 214

Is an accident report prepared for an attorney privileged?

Answer 214

An accident report prepared for an attorney is a privileged communication from client to attorney and its production cannot be demanded. [1992]

Question 215

In a lawsuit against an attorney for double-billing, the attorney-client privilege does not protect information regarding hours billed by the attorney to __________?

Answer 215

In a lawsuit against an attorney for double-billing, the attorney-client privilege does not protect information regarding hours billed by the attorney to other clients. [1992]

Question 216

Is the employees of the attorney subject to the attorney-client privilage?

Answer 216

Rule 1168: If an attorney hires someone, statements made to that person by the defendant are privileged. [1991]

Question 217

When is there no attorney-client privilage?

Answer 217

There is no privilege if a client tells his attorney of a future crime or fraud, even if the attorney didn’t know that the client was telling him about a future crime or fraud. [1991]

Question 218

When an attorney acts for joint clients can privilage be invoked in a suit between the two parties?

Answer 218

Rule 1170: When an attorney acts for joint clients, no privilege can be invoked in a suit between the two parties. [1991

Question 219

Who is the holder of the doctor-patient privilege?Does the doctor have any duty under this privilege?

Answer 219

Rule 1172: The holder of the doctor-patient privilege is the patient, but the doctor is under a duty to assert the privilege on behalf of the patient if the patient or his duly authorized representative is not present to assert it

(e.g. if the patient’s attorney is sitting in court, the assertion of the doctor-patient privilege by the patient‚attorney is the best way to exclude a privileged statement made by the patient). [1992

Question 220

Under what circumstance will the physician-patient privilage not apply?

Answer 220

Rule 1173: The physician-patient privilege does not apply to non-medical matters. [1991]

Question 221

Is a mental patient telling his nurse that he is going to kill someone privileged?

Answer 221

Rule 1174: A mental patient telling his nurse that he is going to kill someone is not privileged. [1991

Question 222

When may a person invoke the privilege against self-incrimination? The privilege is available only where the consequence of the incriminating statement is ________?

Answer 222

Rule 1175: A person may invoke the privilege against self-incrimination in any civil or criminal proceeding, whether formal or informal

(e.g. grand jury proceedings, trials, administrative hearings) the privilege is available only where the possible consequence of the incriminating statement is criminal prosecution it may not be invoked to shield against personal disgrace, loss of employment, or civil confinement (e.g. under cross examination in a civil action for negligence, a witness may properly refuse to answer a question about his personal use of drugs if doing so could subject the witness to criminal liability). [2011]

Question 223

evidence of liability insurance cannot be used substantively to prove ______ but it can be used to prove _____ ?

Answer 223

Rule 1182: Under the FRE, evidence of liability insurance cannot be used substantively to prove negligence or other wrongful conduct, BUT where the evidence of liability insurance is offered for some other purpose, such as impeachment for bias as a relevant, non-negligence purpose, it is admissible (e.g. if an insurance investigator testifies in an automobile accident case on behalf of the defendant, the plaintiff may cross examine and impeach the investigator by showing that he is unemployed by the defendant-driver’s insurer and is thus biased though the bias is established by evidence of liability insurance, the evidence is admissible for the impeachment purpose) [2011]

Question 224

subsequent remedial measuresis not admissible to prove _______ BUT it may be admited to show __________

Answer 224

Rule 1184: When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence fault, the existence of a defect in a product or its design, or a need for a warning or instruction,BUT the court may admit this evidence for another purpose, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures (e.g. if D offers evidence that it would be impossible or unreasonably expensive to make a particular change that would prevent similar accidents, proof of subsequent remedial measures is admissible if it tends to refute the testimony, BUT if D only says that the conditions were reasonably safe at the time of the accident, and does not claim they could not have been made safer, then feasibility is not being contested and the door is not opened for P to prove that remedial measures were later implemented). This feasibility exception is rarely applied because it is foolhardy for a defendant to argue that a suggested change was prohibitively expensive or beyond the state of the art when the change was in fact made after the accident. [2019]

Question 225

An offer to pay medical expenses is inadmissible for proving culpable conduct, BUT this protection only applies to _____ and does NOT apply to _____?

Answer 225

An offer to pay medical expenses is inadmissible for proving culpable conduct, BUT this protection only applies to the actual offer or payment of medical expenses and does NOT apply to admissions made by a party in the course of the offer (e.g. if D says to P I’m sorry my dog bit you, please allow me to pay for your hospital bills only D’s offer to pay the hospital bill is protected). [2019]

Question 226

If a claim is disputed as to validity or amount, statements or admissions made in compromise negotiations are inadmissible to prove ____ but can be used to show ______

Answer 226

Rule 1190: If a claim is disputed as to validity or amount, statements or admissions made in compromise negotiations are inadmissible to prove liability (but can be used to show bias, prejudice, negative undue delay or obstruction) in order to encourage settlements (which are less likely to occur if the parties are guarded in their negotiations). [2006]

Question 227

When does the best evidence rule apply?

Answer 227

Rule 1198: A witness may testify about things about which he or she has personal knowledge, and if the fact to be proved has an existence independent of any writing/ recording, there is no need to produce the original writing/ recording or account for its absence

the best evidence rule applies only if the testimony is derived from the writing itself, not from personal knowledge (e.g. if a government agent overhears a conversation between a defendant and his conspirators about a planned robbery, the agent‚in-court testimony relating the conversation is admissible under the hearsay exception of admissions of a co- conspirator, BUT the availability of an audiotape of the conversation does not trigger the best evidence rule to bar the agent‚testimony since he did not depend on the audiotape for his knowledge). [2011]

Question 228

Under theBest Evidence Rule, audio recordings of a party are admissible only where

Answer 228

Under the Best Evidence Rule, audio recordings of a party are admissible only where there is a need to prove the content of the recording, so if a witness has independent knowledge (e.g. he was present while making the recording and heard the party‚statements), the audio recordings are NOT admissible, but the witness‚testimony of the party‚statements are still admissible as admissions of a party-opponent. [2008]

Question 229

When can a summary of voluminous writings/recordings or photos be admitted into evidence? (3 req)

Answer 229

Rule 1209: If writings, recordings, or photographs to be admitted into evidence are so voluminous they cant be conveniently examined in court, summaries are admissible in the form of charts, summaries, or calculations, provided

(1) both the original and summary are separately authenticated
(2) giving notice to the parties and
(3) making the originals or duplicates available for examination or copying (or both) by other parties at a reasonable time and place

(e.g. a graph based on 10 years of daily weather data qualifies as a proper voluminous records summary because it is a summary of all the data which is sufficiently numerous as to make comprehension difficult and inconvenient). [2019]

Question 230

What is the best evidence rule?

Answer 230

The Best Evidence Rule requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original (or a duplicate) or account for its non production (e.g. a clay model does not fall under the Best Evidence Rule). [1991]

Question 231

May a witness refer to documents without providing the documents?

Answer 231

Rule 1208: A witness may refer to collateral documents without providing the documents themselves. [1991]

Question 232

What should the court do if we have an original document and a copy that is different?

Answer 232

: If there is an original document and a copy that is different, the court should admit both documents and let the jury decide which one is authentic. [1991]

Question 233

What should the court do if there is a question about the authenticity of an original document and only a COPY of the document is offered for admission,

Answer 233

: If there is a question about the authenticity of an original document and only a copy is offered for admission, the copy is NOT admissible. [1991]

Question 234

in proving the terms of a writing, where the terms are material, the original must be produced unless what?

Answer 234

Rule 1204: Under the Best Evidence Rule, in proving the terms of a writing, where the terms are material, the original must be produced unless it is unavailable for some other reason than fault of the proponent. [1991

Question 235

A witness testimony about writing a letter is admissible without production of the letter or the showing of its unavailability BECAUSE?

Answer 235

Rule 1202: A witness‚testimony about writing a letter is admissible without production of the letter or the showing of its unavailability (the letter is not the best evidence because the testimony is not about the contents of the letter). [1992]

Question 236

Testimony about the contents of a letter should be admitted in evidence only if?

Answer 236

Rule 1201: Testimony about the contents of a letter should be admitted in evidence only if the judge finds that the original letter is unavailable. [1992]

Question 237

If an item is lost and therefore cannot be introduced into evidence, the plaintiff can still testify as to the condition of the item if what?

Answer 237

Rule 1200: If an item is lost and therefore cannot be introduced into evidence, the plaintiff can still testify as to the condition of the item if the plaintiff has personal knowledge of it. [1998

Question 238

when are offers to compromise inadmissible?

Answer 238

Rule 1197: Offers to compromise are only inadmissible if the claim is in dispute. [1991]

Question 239

An offer to pay medical expenses made IMMEDIATELY after an accident is _______?

Answer 239

Rule 1196: An offer to pay medical expenses made IMMEDIATELY after an accident is inadmissible as an offer to pay medical expenses. [1991]

Question 240

What portion of the defendants statement is inadmissible in an offer of compromise?What portion of the defendants statement is inadmissible in an offer to pay medical expenses?

Answer 240

Rule 1195:
If a defendant makes an offer of compromise, all of the defendant’s statements are inadmissible and excluded

but if a defendant offers to pay medical expenses, only the statement about medical expenses is excluded. [1991]

Question 241

What is the policy reason for offers to compromise being inadmissible?

Answer 241

Rule 1192: Offers of compromise are inadmissible, because the policy of the law is to encourage settlement negotiations. [1992]

Question 242

Any evidence of furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is _______?

Answer 242

Rule 1191: Any evidence of furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible. [1998

Question 243

Subsequent remedial measures are admissible to rebut a defendant‚ claim that he did not _______?

Answer 243

Rule 1188: Subsequent remedial measures are admissible to rebut a defendant‚claim that he did not own or control property involved in an accident where he subsequently repaired the property. [1992]

Question 244

Subsequent remedial measuresare admissible to establish that a defendant ____________

Answer 244

Rule 1187: Subsequent remedial measures are admissible to establish that a defendant owned or controlled a property involved in an accident. [1992]

Question 245

Evidence of remedial measures is inadmissible to establish D’s negligence or a product defectiveness, because

Answer 245

Rule 1186: Evidence of remedial measures is inadmissible to establish D’s negligence or a product defectiveness, because its admission would discourage the taking of such remedial measures. [1992]

Question 246

What is evidence of an insurance policy admissible to prove?

Answer 246

Rule 1183: Evidence of an insurance policy is admissible to prove the defendant owned or had responsibility for the insured property. [1998]

Question 247

Will a statement made to a priest at a social event be privileged?

Answer 247

Rule 1181: A statement made to a priest at a social event is not privileged because the statement is not within the scope of the privilege. [1991]

Question 248

When can a witness invoke the 5th amendment ?

Answer 248

Rule 1180: A witness can invoke the 5th Amendment and remain silent if the judge believes there is some reasonable possibility that the witness will incriminate herself. [1991]

Question 249

Is a grand jury hearing privileged?

Answer 249

Rule 1179: In a Grand Jury Hearing, privileged information cannot be disclosed absent a waiver of the privilege. [1991]

Question 250

May a dead person invoke a privilege?

Answer 250

Rule 1178: A dead person cannot invoke a privilege. [1991]

Question 251

If a witness refuses to answer at cross examination on the ground of self- incrimination, the judge may ______ ?

Answer 251

Rule 1177: If a witness refuses to answer at cross examination on the ground of self- incrimination, the judge may order the witness to testify or have the direct testimony stricken because the invocation of the privilege prevents adequate cross examination. [1992]

Question 252

Rule 1034: A statement that someone was drunk the night of a car accident is admissible as

Answer 252

a statement regarding a condition that person observed, made while the person was observing it. [1992]