Evidence

Question 1

evidence to be self-authenticating,

Answer 1

do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records.

Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document.

**The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.

Question 2

best evidence rule

Answer 2

requires that the original document be produced in order to prove the contents of that document, when the contents of the document are at issue. Here, the defendant is giving testimony about the contents of a written document, the contract, which are directly at issue in the case. Further, the defendant has not produced the original document or shown an excuse for nonproduction

Question 3

statement against interest

Answer 3

because had the friend lived, it could have subjected him to civil or criminal liability. Further, the friend is unavailable, so the statement satisfies Federal Rule of Evidence 804(b)(3). Because this is a civil case, the company does not have to provide “corroborating circumstances” that would clearly indicate the trustworthiness of the statement.

Question 4

specific acts are admissible for

Answer 4

for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (i.e., “MIMIC” evidence).

Question 5

Hypothetical

Answer 5

Before an expert witness may testify, the court must first determine whether the subject matter of the witness’s testimony (i) is scientific, technical, or otherwise specialized knowledge, which focuses on the reliability of the testimony; and (ii) will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony. Here, a hypothetical question that omits a key fact affecting the issue before the court is not helpful to the jury.

Question 6

statements against interest made by an unavailable declarant

Answer 6

at the time it was made, (i) it was against the declarant’s pecuniary, proprietary, civil, or penal interest, and (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true

Question 7

Statement against interest

Answer 7

statement made by a declarant who is “unavailable” to testify is not excluded as hearsay if the statement was against the declarant’s interest at the time it was made and would not have been made by a reasonable person unless he believed it to be true.

Question 8

juror after trial

Answer 8

may not testify about:

i) Any statement made or incident that occurred during the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.

Exceptions:

i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.

Question 9

criminal defendant convictions

Answer 9

When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant.

This stricter-than-usual balancing test gives extra protection to a criminal defendant who takes the stand in his own defense.

HENCE, the defendant must show that the probative value of the conviction is SUBSTANTIALLY outweighed by the prejudicial effect in order to prevail.

Question 10

witness’s character for truthfulness may be impeached with evidence that the witness has been

Answer 10

convicted of a crime; can be federal or state

a. Crimes involving dishonesty or false statement
- Subject to the 10-year restriction

b. Crimes not involving dishonesty or false statement
- Subject to the 10-year restriction (typically, a felony).

** In measuring the 10-year period, the later of the date of conviction or release from imprisonment is used.

** A conviction may not be used for impeachment purposes if the witness has been PARDONED, provided that either (i) the action was based on a FINDING of innocence; OR (ii) the witness has NOT BEEN SUBSEQUENTLY convicted of another felony.

Question 11

Compromise Offers and Negotiations

Answer 11

Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or contradiction. Fed. R. Evid. 408.

** Lack of dispute: If the claim is not disputed as to its validity or amount (e.g., a party admits to both), then a statement made in connection with an offer to settle for a lesser amount is admissible.

Question 12

Plea Negotiation

Answer 12

In a civil or criminal case, evidence of the following is generally not admissible against the defendant who made the plea or participated in the plea discussions:

i) Withdrawn guilty pleas;
ii) Pleas of no contest (i.e., a nolo contendere plea);
iii) Statements made while negotiating a plea with a prosecutor (e.g., an offer to plead guilty); and
iv) Statements made during a plea proceeding (e.g., a Rule 11 proceeding under the Federal Rules of Criminal Procedure).

Question 13

Statement Against Party THAT CAUSED Declarant’s Unavailability

Answer 13

a party who engages in wrongdoing intended to procure the unavailability of a declarant that does cause the declarant to be unavailable forfeits any right to object to the admissibility of hearsay evidence of the declarant’s statements. While use of the statement could raise some constitutional Confrontation Clause issues, as the witness’s statement could be considered testimonial, the witness’s unavailability was due to the defendant’s wrongdoing.

Question 14

MIMIC

Answer 14

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Question 15

evidence of a subsequent change

Answer 15

Rule 407 provides that evidence of a subsequent change may be admitted for the limited purpose of showing the practicability of making a change. Consequently, since the maker, in its answer, denied that there was any other way to present the instructions for the replacement of various parts of the manufacturer’s appliances, the maker’s own instruction sheets rebut this denial.

Question 16

intentionally destroyed evidence

Answer 16

When a party can show that another party intentionally destroyed evidence, that party is entitled to a rebuttable presumption that the destroyed evidence would have been unfavorable to the party that destroyed it.

The party seeking the presumption must establish that (i) the destruction was intentional, (ii) the destroyed evidence was relevant to an issue about which the party seeks the inference, and (iii) the injured party acted with due diligence in seeking the evidence.

Question 17

habit evidence

Answer 17

In order for evidence of a person’s conduct to be admissible as habit evidence, the evidence must be sufficiently specific.

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person’s particular routine reaction to a specific set of circumstances.

Example: A person drives the same route to work and parks in the same spot every day.

Habit evidence may be admitted without corroboration and without an eyewitness. Fed. R. Evid. 406.

EXAM NOTE: Habit is more specific than character evidence. On the MBE, words like “always” or “every time” generally refer to habit, whereas “often” or “frequently” are more likely to imply character evidence.

Question 18

challenging an expert witness

Answer 18

A party can challenge the credibility of an expert witness on cross-examination by attacking the adequacy of the expert’s knowledge, both their general knowledge in their field of expertise and their specific knowledge of the facts underlying their testimony.

e.g. “what was your class rank”

Question 19

effect that it had on the listener

Answer 19

NOT HEARSAY, NOT OFFERED FOR TRUTH OF MATTER ASSERTED.

-the actual words I the statement is not the focus, rather the effect that it had on the listener. Ex: “watch out for that banana!” is really to show the statement had an effect on the listener, not that it was said word for word.

Question 20

what is wrong with this statement:

The friend plans to testify that he knows that the driver is a safe driver, and that it is unlikely that the driver failed to stop at a red light on the day of the accident.

Answer 20

The friend plans to testify that he knows that the driver is a safe driver, AND THAT IT IS unlikely that the driver failed to stop at a red light on the day of the accident.

Friend went too far. A non-expert witness must have personal knowledge of a matter in order to testify about that matter

Question 21

cross examining a witness about prior acts

Answer 21

An arrest for a bad act is not a bad act itself. Therefore, a witness may not be cross-examined about an “arrest” because it was not a conviction.

Question 22

confidential marital communications

Answer 22

confidential marital communications privilege, a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege is held by both spouses and applies in both civil and criminal cases. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage.

Question 23

any statement made during plea negotiations

Answer 23

FRE 410 provides that statements made in the course of plea discussions with an attorney for the prosecuting authority that do not result in a plea of guilty are not admissible in any civil or criminal proceeding against the defendant who was a participant in the plea discussions

e.g. nonadmissible:
The prosecution seeks to introduce a properly authenticated recording of the defendant, made two years earlier while negotiating a never-completed plea agreement with the state’s attorney on another charge, in which the defendant stated that he hated his dentist and wished he “would drop off the face of the earth.”

Question 24

silence as an adoptive statement

Answer 24

Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a REASONABLY person similarly situated WOULD HAVE denied the statement.

e.g. clown yelling random accusations does not count

Question 25

is statement made by a party in current litigation hearsay?

Answer 25

A statement made by a party to the current litigation is NOT hearsay IF it is offered by an opposing party

Question 26

crime involving dishonesty

Answer 26

ANY witness, including a criminal defendant, may be impeached with evidence that he has been convicted of ANY crime involving dishonesty or false statement WITHIN 10 years of conviction.

Question 27

best evidence rule

Answer 27

The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. The rule applies ONLY WHEN the contents of a document are at ISSUE or a witness is relying on the document when testifying.

Question 28

A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine, and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning for the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury. Is this evidence admissible?

Answer 28

Correct Answer: Yes, because the manufacturer began providing the warning before the boat owner’s accident.

The court must exclude evidence of subsequent remedial measures undertaken by a defendant AFTER the event that caused a plaintiff’s alleged injury or harm. Here, the manufacturer began providing a warning BEFORE the boat owner’s accident.

Question 29

When can prior inconsistent statement be used as substantive?

Answer 29

A prior inconsistent statement may be used to impeach a witness. Further, if a prior inconsistent statement is made under oath at a trial, hearing, or deposition, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement. The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial.

Question 30

is acquittal hearsay?

Answer 30

Evidence of a judgment of ACQUITTAL introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act is HEARSAY; it is an out-of-court statement of the court or jury that is offered for its truth.

Although there is an EXCEPTION to the hearsay rule for judgments of CONVICTION (there is no such exception that allows for the admission of a judgment of acquittal).

Question 31

jury info to support new trial

Answer 31

After a trial, a juror may testify regarding extraneous prejudicial information brought to his attention that was NOT ADMITTED at trial. Such evidence would support a motion for a new trial.

Question 32

best evidence rule

Answer 32

PERSONAL KNOWLEDGE may be established by the witness’s own testimony as well as through other means.

The best evidence rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying. The contents of a document are at issue when:

1. the document is used as proof of the happening of an event,
2. the document has a legal effect, or
3. the witness is testifying based on facts LEARNED FROM the writing AS OPPOSED TO based on personal knowledge.

Question 33

A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. In the investigating officer’s report, the only witness is quoted saying, “I saw the whole thing. The car had the green light.” At trial, the witness testified that he clearly remembered that the car’s traffic light had been red, and that the car ran the light. The defendant did not cross-examine the witness and the witness was dismissed and left the jurisdiction. After the plaintiff had presented his case, the defendant moved to introduce the witness’s statement from the investigating officer’s report solely to impeach the witness’s testimony. The plaintiff objected. How should the court rule?

Answer 33

Correct Answer: Sustain the objection, because extrinsic evidence may not be used to impeach a witness under the circumstances.

A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness. However, extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. In this case, because the witness was not given an opportunity to explain or deny the statement, the evidence should be excluded.

Question 34

authenticating a photo

Answer 34

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. Here, the woman has personal knowledge of the necklace and the friend wearing it in the photograph, so the photograph is admissible.

Question 35

how are X-ray images, electrocardiograms admissible and why?

Answer 35

X-ray images, electrocardiograms, and similar items are physical REPRESENTATIONS of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body), and, as such, unlike other reproductions, they cannot simply be authenticated by the testimony of a witness claiming that they are accurate reproductions of the facts. To authenticate such an item, it must be shown that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. The chain of custody must also be established.

Question 36

Spousal immunity

Answer 36

The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who is the defendant.

** In FEDERAL COURTS (and a majority of states), the witness spouse holds the privilege and may choose to testify but cannot be compelled to do so.

The spousal immunity privilege can be asserted only DURING a valid marriage. The right to assert the privilege expires upon divorce or annulment.

Question 37

Confidential marital communications

Answer 37

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage.

The majority view, which is followed by most federal courts, is that the privilege is held by both spouses.

Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying.

Question 38

can plea bargain statements be waived?

Answer 38

Although statements made by a defendant during plea negotiations are generally inadmissible pursuant to Federal Rule 410, the protection afforded by this rule may be waived by the defendant. In this case, the defendant knowingly and voluntarily, and in the presence of counsel, waived this exclusion.

Question 39

may evidence of settlement be admitted to prove damages?

Answer 39

Evidence of a settlement offer, including evidence of the acceptance of such an offer, is not admissible for the purpose of establishing the validity of a claim or the amount of damages.

Question 40

A woman shopping at a jewelry store overheard the defendant talking on the phone and saying to someone, “I am going to rob this jewelry store tomorrow morning.” The woman went home and told her roommate what the defendant said. The next morning, the jewelry store was robbed and the defendant was arrested. The woman refused to testify at the defendant’s trial despite a court order. The prosecution called the woman’s roommate to testify about the defendant’s statement. Is the roommate’s testimony admissible?

Answer 40

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Here, the defendant’s statement may have fallen under a hearsay exception as a statement of present motive or plan to prove conduct in conformity with his state of mind (i.e., robbing the jewelry store). HOWEVER, the repetition of the statement by the woman to her roommate is not covered by a hearsay exception.

Question 41

The driver of an automobile was tried and convicted of manslaughter in the death of a cyclist. Subsequently, family members of the cyclist initiated a wrongful death action against the driver. In this civil action, the plaintiffs seek to introduce testimony given by a witness at the criminal trial that the witness had observed the driver’s reckless speeding less than a minute before the accident with the cyclist. The witness died of natural causes before the wrongful death action began. The driver objected, noting that, although the witness was cross-examined at the criminal trial, the driver’s attorney did not, for tactical reasons, make a serious effort to undermine the witness’s credibility despite the availability of substantial impeachment information. Should the witness’s testimony from the manslaughter case be admitted?

Answer 41

Correct Answer: Yes, under the hearsay exception for former testimony.

Testimony that was given by a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being introduced had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. Here, the driver’s motive for cross-examining the witness at the prior criminal trial corresponds with the driver’s motive for such cross-examination at the wrongful death action. Although the driver’s attorney elected not to undermine the witness’s credibility at the prior trial, he had the opportunity to do so.

Question 42

deciding preliminary questions

Answer 42

The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness. The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence.

With respect to preliminary questions, the party offering the evidence ordinarily bears the burden to persuade the trial judge by a preponderance of the evidence.

Question 43

preliminary question, such as the voluntariness of the defendant’s confession

Answer 43

A defendant in a criminal case who testifies as to a preliminary question, such as the voluntariness of the defendant’s confession, has not opened himself up to cross-examination on other issues in the case. Here, the defendant testified as to whether his confession at the police station was voluntary, which is a preliminary question. On cross-examination, the prosecution cannot ask a question about what the defendant told his coworker the night before his boss was murdered. Therefore, the question was improper.

Question 44

MIMIC

Answer 44

A defendant’s past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of motive, intent, absence of mistake, identity, or common plan or scheme (the “MIMIC” rule).

Although a defendant’s crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Question 45

testifying to truthfulness for murder defendant

Answer 45

not admissible. testimony should be for peaceable, UNLESS truthfulness was actually called into question .

Question 46

A plaintiff who had been injured in a car accident with a truck brought an action against the truck driver for negligent driving and against the employer of the truck driver for negligent hiring. Prior to trial, the employer filed a summary judgment motion seeking a ruling that it was entitled to judgment as a matter of law. The plaintiff submitted an affidavit by an investigator that the truck driver had told the investigator that he had informed his employer of his past history of accidents when applying for the job. Should the court consider the statement in this affidavit in ruling on the employer’s summary judgment motion?

Answer 46

Correct Answer: Yes, because it is not hearsay.

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. Here, the affidavit filed by the plaintiff in response to the employer’s summary judgment motion contains a statement made by the truck driver to his employer about the truck driver’s past history of accidents. This statement is not being introduced against the employer for its truth—that the truck driver had a past history of accidents—but instead to show that the employer had notice of those accidents and therefore was negligent in hiring the truck driver.

Question 47

advance notice

Answer 47

When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice.

Although a proponent of a SELF-AUTHENTICATING document generally is NOT REQUIRED to give an adverse party advance notice of the intent to introduce the document, the proponent of BUSINESS RECORDS (item ix, above) MUST give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge them.

Question 48

opposing party statement

Answer 48

A statement made by a party to the current litigation is NOT hearsay if it is OFFERED BY an opposing party.

Question 49

new objection

Answer 49

Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began.

e.g.
Prior to trial, a criminal defendant filed a motion to prevent the prosecution from introducing statements by an alleged co-conspirator. At the hearing on the motion, the court definitively ruled that the statements could be admitted into evidence. At the jury trial, the prosecution called the alleged co-conspirator to testify about the statements. The defendant did not object to the introduction of the statements into evidence. On appeal, the defendant claimed that the trial court erred in admitting the statements. Should the appellate court decide the merits of this claim of error?

Correct Answer: Yes, because the court made a definitive ruling on the record admitting the statements.

Question 50

judicial notice of adjudicative fact

Answer 50

Under FRE 201, the court must take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so.

Question 51

which party is required to give notice of evidence

Answer 51

When a criminal defendant requests, the PROSECUTION MUST provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial.

The DEFENSE IS NOT required to give the prosecution the same notice.

Question 52

are hypotheticals allowed by expert testimony?

Answer 52

Before an expert witness may testify, the court must first determine whether the subject matter of the witness’s testimony (i) is scientific, technical, or otherwise specialized knowledge, which focuses on the reliability of the testimony; and (ii) will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony. Here, a hypothetical question that OMITS A KEY FACT affecting the issue before the court is not helpful to the jury.

Question 53

is advance notice required for self-authenticating evidence?

Answer 53

The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it

Question 54

A man was on trial for the murder of his roommate. The man claimed that he had acted in self-defense when the roommate lunged at him with a knife during a physical altercation. At trial, the prosecutor called a witness who testified that he witnessed the altercation between the man and the roommate through the window of an apartment building adjacent to the man’s building. The witness testified that he saw the man grab a knife and stab the roommate. In rebuttal, the defense seeks to call the roommate’s ex-girlfriend to testify that the day before the altercation, the roommate told her that he had known for a couple of weeks that the man was having an affair with her and that he was going to make sure the man “disappeared.” Is the ex-girlfriend’s testimony admissible?

Answer 54

Correct Answer: Yes, under the hearsay exception for statements of the declarant’s then existing state of mind.

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind.

Question 55

admitting photograph at trial

Answer 55

just need someone with personal knowledge of the accuracy of the photograph. Nothing grand. DO NOT need to call in the original photo taker.

Question 56

Exclusion of Witnesses

Answer 56

At a party’s request or upon the court’s own initiative, the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses. Some witnesses, however, MAY NOT be excluded under this rule, including:

i) A party who is a natural person;
ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney;
iii) A person whose presence is essential to a party’s presentation of its case, such as a POLICE OFFICER IN CHARGE OF THE INVESTIGATION in a criminal case; or
iv) A person, such as a victim, whose presence is permitted by statute.

Fed. R. Evid. 615. Note that a victim may be excluded if the court determines, by clear and convincing evidence, that the victim’s testimony would be materially altered by the victim hearing other testimony.

Question 57

treatise

Answer 57

read into evidence as SUBSTANTIVE.

A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if (i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and (ii) an expert relied on it during direct examination or it was brought to the expert’s attention on cross-examination.

Question 58

reputation for peacefulness

Answer 58

for CRIMINAL CASE, not for civil (as self defense)

Question 59

character at issue

Answer 59

WHEN:

1. defamation: character is DIRECTLY at issue
2. negligent entrustment/hiring: character is DIRECTLY at issue
3. child custody: character is DIRECTLY at issue
4. wrongful death: character of decedent’s ability for earning money. Hence, it’s only for calculating damages.

HOW:
reputation,
opinion,
AND SPECIFIC ACTS

Question 60

summary of records

Answer 60

1. fair (other side had access)

2. based on underlining docs that are themselves admissible.

Question 61

may judge ask a question?

Answer 61

yes, but is still bound by rules of evidence.

e.g.
cannot ask lay non-expert witness to offer an opinion about the defendant’s thinking. While lay witnesses may testify as to conclusions in some situations (e.g., whether a person seemed intoxicated, whether a car was speeding), cannot ask “What did the pharmacist think about this prescription?”

Question 62

extrinsic evidence

Answer 62

The former supervisor may not testify about the falsified records because it would be impeachment by extrinsic evidence of a specific instance of conduct. A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.

Question 63

immunity

Answer 63

he witness is not entitled to “transactional” immunity, i.e., protection against prosecution for the entire transaction about which he was testifying; instead, the government is constitutionally required to offer mere “use” immunity, which prohibits only the use of the compelled testimony against the witness.

If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution.

Question 64

when is dying declaration admissible?

Answer 64

only in homicide prosecutions and civil actions.

Not criminal trial for attempted murder