Evidence

Question 1

T/F. Evidence of compromises or offers to compromise are admissible to impeach through a prior inconsistent statement.

Answer 1

F

Evidence of compromises or offers to compromise is inadmissible to prove liability for or invalidity of a claim that is disputed as to validity or amount. Such evidence is also inadmissible to impeach through a prior inconsistent statement. [Fed. R. Evid. 408] Rationale: Public policy favors the settlement of disputes without litigation, and settlement would be discouraged if either side were deterred from making offers by the fear that they would be admitted in evidence.

Question 2

The Federal Rules also exclude “_____” made in the course of negotiating a compromise, as well as the offer to compromise itself; therefore, _____ made during compromise negotiations are inadmissible.

Answer 2

conduct or statements

admissions of fact

Question 3

When are “conduct or statements” made in the course of negotiating a compromise admissible?

Answer 3

However, “conduct or statements” made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case.

Question 4

Although the _____ is not a prerequisite for the 408 exclusionary rule (offers of settlement), there must be _____. Thus, a party’s volunteered admission of fact accompanying an offer to settle immediately following the incident is usually _____ because there has not been time for the other party to indicate an intent to make a claim.

Answer 4

filing of a suit

some indication, express or implied, that a party is going to make some kind of claim

admissible

Question 5

To trigger the exclusionary feature of Rule 408, the claim must be disputed as to _____. Thus, if a party admits liability and the amount of liability but offers to settle (rather than litigate) for a lesser amount, _____.

Answer 5

liability or amount

every statement made in connection with that offer is admissible

Question 6

T/F. Under the Federal Rules, withdrawn guilty pleas are never admissible against the criminal defendant who made the withdrawn plea.

Answer 6

T

Question 7

Industrial custom is not admissible to prove that a party likely acted in accordance with that industrial custom on the occasion in question. Rather, the _____ may be introduced for this purpose.

Answer 7

routine of a specific business or firm

Question 8

Custom of an industry is offered to prove the actions of other persons in the same industry in an attempt to show _____.

When one of the issues in dispute is _____, evidence of the industry’s custom under _____ may be introduced by _____ as tending to _____.

Although custom of the trade or business is admissible on the standard of care to be exercised, it is not _____.

Answer 8

adherence to or deviance from an industry-wide standard of care

negligence arising out of inadequate safety devices or precautions

the same circumstances

either party

establish a standard by which reasonable or ordinary care may be judged

conclusive

Question 9

Evidence that one party to a lawsuit has liability insurance may be admissible to prove ownership and to _____.

Answer 9

impeach a witness.

Question 10

When is evidence considered competent?

Answer 10

When it does not violate an exclusionary rule.

Question 11

T/F. Relevance is not concerned with the form or manner of the evidence.

Answer 11

T.

Question 12

Relevant evidence is concerned with materiality which refers to whether _____.

Answer 12

whether the disputed fact is at issue in the case

Question 13

T/F. Courts never consider the evidence’s proximity in time to the events in question when determining its relevance.

Answer 13

F

Question 14

Because the public policy behind the federal rule is to encourage people to make repairs, subsequent remedial measures are inadmissible to prove _____.

Answer 14

(i) negligence or other culpable conduct, (ii) a defect in a product or its design, or (iii) the need for a warning or instruction.

Question 15

A post-accident admission of a negligent employee truck driver may be admissible against the truck driver in an action for negligence. However, under certain circumstances it may not be admissible against a defendant employer who owned the truck. Under these circumstances, what must the court do?

Answer 15

When evidence that is admissible as to one party or for one purpose but is not admissible as to another party or for another purpose is admitted, the court must, upon request, restrict the evidence to its proper scope and instruct the jury accordingly. [Fed. R. Evid. 105] If the court determines that even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose, the evidence may be excluded.

Question 16

T/F. Unfair surprise is relevant to the 403 balancing test.

Answer 16

F

Question 17

T/F. Liability insurance is admissible when used to impeaching a witness.

Answer 17

T

Question 18

When a person makes an admission of liability and makes a reference to insurance _____, the reference to liability insurance is admissible.

Answer 18

that cannot be severed without lessening the value of the admission

Question 19

If evidence is introduced that the party has made previous similar false claims, such evidence is usually relevant, under a _____ theory, to prove that _____.

Answer 19

common scheme or plan

the present claim is likely to be false

Question 20

Evidence of a party’s character (e.g., that the plaintiff is a dishonest person) is generally not admissible as substantive evidence in ____ cases, unless _____ (e.g., _____). (Note, however, that a testifying witness may still be impeached with _____.)

Answer 20

civil

character is directly at issue

defamation and negligent hiring claims

evidence of character for untruthfulness

Question 21

T/F. An admission of fact accompanying an offer to pay medical expenses is not admissible.

Answer 21

F

Question 22

In any __________ proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally __________.

Answer 22

criminal or civil

inadmissible.

NOTE: but there are exceptions for both civil and criminal.

Question 23

If the witness denies knowledge of the defendant’s acts, the prosecution may not seek to prove those acts through extrinsic evidence. When does this apply?

Answer 23

A character witness testifies as to the defendant’s good character. The prosecution then cross-examines the character witness regarding the defendant’s specific instances of misconduct.

Question 24

In a __________ case where the defendant is accused of committing an act of sexual assault or child molestation, evidence of a defendant’s _____ is admissible.

Answer 24

prior acts of sexual assault or child molestation

Question 25

Difference between civil and criminal sexual assault cases, in which evidence is offered to prove the sexual disposition or alleged behavior of the victim.

Answer 25

Civil:
sexual disposition or behavior
specific acts = ok if . . . 
1.  otherwise admissible under FRE
2.  probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party

reputation = only if placed in controversy by victim

Criminal:
sexual disposition or behavior
1. only in specific instances, such as where evidence of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent.

Question 26

In a criminal case, once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with _____ evidence of _____.

Answer 26

reputation or opinion

(i) the victim’s good character, or (ii) the defendant’s bad character for the same trait.

Question 27

The defendant may introduce _____ evidence of a _____ of the alleged crime victim when it is relevant to show the defendant’s innocence. However, by specific exception, this rule does not extend to showing the bad character of _____ victims.

Answer 27

reputation or opinion

bad character trait

rape

Example: In an assault or murder prosecution where the defendant claims self-defense, she may introduce evidence of the victim’s violent character as tending to show that the victim was the aggressor.

Question 28

Defendant is charged with the murder of Victim. Defendant pleads self-defense and offers evidence that Victim was a violent person. Prosecutor can rebut such evidence with evidence that _____.

Answer 28

Victim was a nonviolent person and/or with evidence that Defendant is a violent person.

reputation or opinion

Question 29

In a homicide case in which the defendant pleads self-defense, _____ evidence that the victim was the first aggressor (e.g., eyewitness testimony that the victim struck first) opens the door to evidence that _____ [Fed. R. Evid. 404(a)(2)] This evidence can be introduced regardless of whether _____. The rationale behind this rule is that the victim’s death deprives the prosecution of the victim’s testimony as to the identity of the first aggressor.

Answer 29

any kind of

the victim had good character for peacefulness.

the defendant has introduced character evidence of the victim’s generally violent propensity

Question 30

Procedural requirement for admitting evidence about the victims character in civil and criminal . . .

Answer 30

To offer evidence under the above exceptions, the party must file a motion 14 days before trial describing the evidence and its purpose, and must serve the motion on all parties and notify the victim. Before admitting the evidence, the court must conduct an in camera hearing and afford the victim and the parties a right to be heard.

Question 31

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally inadmissible. What are the exceptions?

Answer 31

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally inadmissible. [Fed. R. Evid. 412(a)]

1) Exceptions in Criminal Cases
In a criminal case, evidence of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence is admissible. Also, specific instances of sexual behavior between the victim and the accused are admissible by the prosecution, or by the defense to prove consent. Evidence of a victim’s sexual behavior is also admissible when its exclusion would violate the defendant’s constitutional rights. [Fed. R. Evid. 412(b)(1)]

2) Exceptions in Civil Cases
In civil cases, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim. [Fed. R. Evid. 412(b)(2)]

Question 32

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with _____ evidence of _____.

Answer 32

reputation or opinion

(i) the victim’s good character, or (ii) the defendant’s bad character for the SAME trait.

Question 33

What is the standard for admissibility of prior misconduct against a defendant?

Answer 33

sufficient evidence to support a jury finding that the defendant committed the prior act

Question 34

Since the life or liberty of the defendant is at stake, she should be allowed to introduce evidence of her _____ since it may _____.

A D does not put character at issue by _____, however his _____ is at issue.

How can a D prove good character?

How can P rebut?

Answer 34

good character

have a tendency to show that she did not commit the crime charged

1. calls W; reputation (good rep or not heard anything bad) or opinion
2. NOT specific acts

taking the stand and giving testimony on the facts of the controversy

credibility

1. cross W (specific acts - have you heard?; do you know? Can’t prove the acts with extrinsic evidence if W denies knowledge.
2. bad character W - defendant’s bad reputation or their opinion of the defendant’s character for the particular trait involved.

Question 35

A defendant does not put her _____ in issue merely by taking the stand and giving testimony on the facts of the controversy. However, if the defendant takes the stand, she puts her in issue and is subject to _____.

Answer 35

character

credibility

impeachment

Question 36

Where the defendant first introduces evidence of her good character, the prosecution introduce evidence of the defendant’s bad character to _____.

Answer 36

establish she probably committed the crime charged

Question 37

When is character evidence (propensity), admissible in a civil trial and what kind of evidence may be used?

Answer 37

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is “directly in issue.” Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances.

Examples:

1) In a defamation action, when D is being sued for calling P a thief and pleads as an affirmative defense that she spoke the truth (i.e., that P is indeed a thief), P’s character is clearly in issue.
2) When an employer is charged with negligently retaining an employee “of unstable and violent disposition,” the character of the employee is also in issue.

Compare: In a civil action for damages based on assault or battery, the defendant’s claim that he acted in self-defense does not put either the plaintiff-victim’s or the defendant’s character for violence or peacefulness into issue. On the issue of who struck first, the substantive law does not require proof of either party’s character.

When character is directly in issue, almost all courts will admit evidence of specific acts that show this character (e.g., in Example 1) above, D may offer evidence that on different occasions P has stolen things to show that he is a thief). Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue. [Fed. R. Evid. 405(b)]

Question 38

In a civil action for damages based on assault or battery, the defendant claims that he acted in self-defense. Can he offer character evidence to prove this?

Answer 38

No.

Question 39

Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible in civil and criminal cases, without a preliminary ruling, as long as:

Answer 39

(i) There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of Federal Rule 104); and
(ii) Its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice (i.e., the test of Federal Rule 403).

Question 40

Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value. (403 test)

Answer 40

Substantially outweighs

Question 41

Under what circumstances is evidence of a defendant’s prior acts of sexual assault or child molestation admissible?

Answer 41

In any civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation. The prior act need not have involved the same victim. The party who intends to offer this evidence must disclose the evidence to the defendant 15 days before trial (or later with good cause).

Question 42

A party’s burden of __________ is the burden of introducing sufficient evidence to avoid judgment against her as a matter of law.

Answer 42

producing evidence

Question 43

Where there is a dispute about whether a note was signed by the defendant (as opposed to a forger), the authenticity of the document is decided by the _____ because _____.

Answer 43

jury

a forged document is irrelevant

Question 44

Under the Federal Rules, the jury decides questions of ______ of evidence, while the judge decides questions of the _____ of relevant evidence. A jury may decide certain preliminary facts regarding _____ because this issue goes to _____.

Answer 44

relevancy

competency

authenticity

relevancy

Here, where there is a dispute about whether a note was signed by the defendant (as opposed to a forger), the authenticity of the document is decided by the jury because a forged document is irrelevant.

Question 45

The Federal Rule conforms to the existing state rules governing judicial notice. Federal Rule 201(b) defines a fact that may be noticed as “_____” in that it is either (i) generally known within the territorial jurisdiction of the trial court” (_____facts), or (ii) “capable of accurate and _____ determination by resort to sources whose accuracy cannot _____ be questioned” (_____facts). When can judicial notice be taken? Does it have to be requested?

Answer 45

one not subject to reasonable dispute

notorious

ready

reasonably

manifest

any time

No

Question 46

A jury must accept as conclusive any fact judicially noticed __________.

Answer 46

In a civil case, but not in a criminal case

Question 47

When the property or estate of a missing person is involved, a presumption of death arises only if the ______.

Answer 47

person is inexplicably absent for a continuous period of seven years and she has not been heard from by those with whom she would normally be expected to communicate

Question 48

Where legitimacy is in dispute, the law presumes that _____. The _____ gives rise to the presumption. The presumption is destroyed by evidence of illegitimacy that is “_____.”

Answer 48

every person is legitimate

mere fact of birth

clear and convincing.

Question 49

Proof of ownership of a car gives rise to the presumption that _____.

Answer 49

the owner was the driver or that the driver was the owner’s agent.

Question 50

When the cause of death is in dispute, a presumption arises in _____ cases that _____.

Answer 50

civil (not criminal)

the death was not a suicide

Question 51

T/F. The court will take judicial notice of the following fact: That August 2, 2012, was a Thursday by reference to a calendar

Answer 51

T

Question 52

Who decides preliminary facts regarding the existence of a privilege?

Answer 52

Judge

Question 53

A court may (but is not required to) take judicial notice of:

Answer 53

Municipal ordinances.

Must take judicial notice of Federal treaties
Public state statutes
The United States Constitution

Question 54

Trial courts have increasingly taken judicial notice of scientific principles as a type of manifest fact. Once a particular scientific _____ has become _____, courts no longer require proof (expert testimony) of the underlying basis of the test. The results of such a test are therefore admissible into evidence.

Answer 54

test or principle

sufficiently well-established (i.e., generally accepted among the scientific community)

Question 55

Difference b/w true presumption and permissible inference?

Answer 55

The true presumption, with its mandatory rebuttable inference, should not be confused with permissible inferences. A permissible inference (prima facie case, or sometimes erroneously called “presumption of fact”) (ex. res ipsa) will allow a party to meet the burden of production, but will not shift the burden to the adversary. In contrast, a true presumption shifts the burden to the opposing party, and a conclusive presumption (which is really a rule of substantive law) cannot be rebutted by the opposing party.

Question 56

The standard of proof for authenticating a document is:

Answer 56

Proof sufficient to support a jury finding of genuineness

Question 57

The essence of the parol evidence rule is as follows: If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it. All _____ are merged into the written agreement. Parol (extrinsic) evidence is not admissible to add to, detract from, or alter the agreement as written.

The rule applies only to negotiations or agreements made _____ the execution of the written contract. The rule does not apply to _____ of the written contract.

Answer 57

prior or contemporaneous negotiations or agreements

prior to, or at the time of,

subsequent modification or discharge

Question 58

An objection may be either general (“I object”) or specific (“Objection, relevance”). If a specific objection is sustained, the ruling will be upheld on appeal only if _____.

Answer 58

the ground stated was the correct one

Question 59

T/F. An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel

Answer 59

F

Question 60

T/F. An expert witness may not opine on the ultimate issue in the case.

Answer 60

F

Question 61

The Dead Man Acts generally provide that a _____, is incompetent to testify to _____, when such testimony is offered _____.

Answer 61

party or person interested in the event, or his predecessor in interest

a personal transaction or communication with a deceased

against the representative or successors in interest of the deceased

Question 62

A publication may be established as reliable by:

Answer 62

(i) The direct testimony or cross-examination admission of the expert,
(ii) The testimony of another expert, or
(iii) Judicial notice.

Question 63

T/F. A W may be deemed incompetent to testify if he has no recollection of the matter.

Answer 63

T

Question 64

Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an _____ is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to _____.

Answer 64

adverse party

introduce it into evidence

Unlike the adverse party, the party using a memorandum to refresh the witness’s recollection has no right to offer it into evidence.

Question 65

After a deposition has taken place, objections to the __________ of a question are waived unless made during the deposition.

However, in a deposition, objections as to_____ are not waived if they are not made during the deposition. Objections going to the _____ can be postponed until the deposition is offered in evidence.

Answer 65

form (ex. leading)

relevance

substance of a question or answer (e.g., relevance, hearsay)

Question 66

T/F. Under a Dead Man’s Act an interested person may always testify to facts that occurred after the death of the deceased

Answer 66

T

Question 67

An expert may be cross-examined concerning statements contained in a scientific publication, as long as the publication is established as _____.

Answer 67

reliable authority

Question 68

T/F. An insane person may be competent to testify.

Answer 68

T

Question 69

T/F. An objection based on a testimonial privilege may validly be made after the deposition.

Answer 69

F

Question 70

Character Witness provides opinion and reputation testimony that Defendant is an honest person. Prosecutor knows that Defendant embezzled money from his previous job.

Under the Federal Rules, how may Prosecutor impeach Character Witness’s testimony?

Answer 70

By asking if Character Witness “has heard” OR “knows” that Defendant embezzled money from his previous job

Question 71

A prior felony conviction not involving dishonesty is admissible against a criminal defendant if what standard is met?

In the case of any witness other than the accused in a criminal case, _____ is admissible, but the court retains discretion under _____. This test favors _____ of the evidence, while the test for impeaching the criminal accused with a felony conviction favors _____.

Answer 71

The probative value outweighs the prejudicial effect

any felony conviction

Rule 403 to exclude it if its probative value as impeachment evidence is substantially outweighed by the danger of unfair prejudice

admission

exclusion

Question 72

Under the Federal Rules, a witness’s character for truthfulness may be attacked (or impeached) by _____ if it can be readily determined that conviction of the crime required proof or admission of an act of _____. In most cases, the statutory elements will indicate whether such an act was required. What is the trial courts standard for admitting?

If doesn’t involve dishonesty or false statement and used to impeach a W, what is the standard?

If doesn’t involve dishonesty or false statement and used to impeach a D, what is the standard?

Answer 72

any crime (felony or misdemeanor)

dishonesty or false statement

The trial court has no discretion—not even under Federal Rule 403—to disallow impeachment by such crimes.

A witness’s character for truthfulness may also be attacked, under the Federal Rules, by any felony whether or not it involves dishonesty or a false statement. However, if the felony is one that does not involve dishonesty or false statement, the trial court may exercise discretion to exclude it under one of the following standards.

(1) Accused in Criminal Case
If, in a criminal case, the witness being impeached is the accused, the felony conviction will be admitted only if the government shows that its probative value as impeachment evidence outweighs its prejudicial effect.

(2) Witness Other than Accused in Criminal Case
In the case of any witness other than the accused in a criminal case, any felony conviction is admissible, but the court retains discretion under Rule 403 to exclude it if its probative value as impeachment evidence is substantially outweighed by the danger of unfair prejudice.

(3) Compare the Balancing Tests
Note that under Federal Rule 609, different balancing tests apply for the exercise of discretion. If the felony conviction is offered to impeach the accused in a criminal case, the

Question 73

T/F. Impeaching a W or D with prior crime requires conviction.

Answer 73

T.

This type of impeachment requires an actual conviction of a crime. The fact that the witness has been arrested or indicted may not be elicited here.

Question 74

Generally speaking, a party may bolster the testimony of his own witness _____. There are exceptions to this rule, such as _____.

Answer 74

After the witness has been impeached

In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Furthermore, evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.

Question 75

Under the Federal Rules, a conviction is usually too remote and inadmissible if more than ____ years have elapsed _____, whichever is the _____ date. In extraordinary circumstances, such convictions can be admitted, but only if the trial judge determines that _____.

Answer 75

10

since the date of conviction or the date of release from the confinement imposed for the conviction

later

the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment. [Fed. R. Evid. 609(b)]

Question 76

T/F. In most states, a conviction may be shown even though the witness has subsequently been pardoned.

Answer 76

T

Question 77

In most states, a conviction may be shown even though the witness has subsequently been pardoned. Under the Federal Rules, however, the conviction may not be shown if the pardon was _____.

Answer 77

based on innocence or if the person pardoned has not been convicted of a subsequent crime punishable by death or imprisonment in excess of one year

Question 78

T/F. In most jurisdictions and under the Federal Rules, a conviction may be used to impeach even though an appeal is pending.

Answer 78

T.

Question 79

In most jurisdictions and under the Federal Rules, a conviction may be used to impeach even though an appeal is pending, though _____.

Answer 79

the pendency of the appeal may also be shown

Question 80

A prior conviction may usually be shown by either _____. No _____ need be laid. Note, however, that when a witness is being cross-examined about previous convictions, the questions must be asked _____. Improper questioning may be grounds for a _____.

Answer 80

an admission on direct or cross-examination of the witness or by introducing a record of the judgment

foundation

in good faith (i.e., with a reasonable belief as to the existence of the conviction)

mistrial

Question 81

Under the Federal Rules, an inconsistent statement may be proved by either cross-examination or _____. To prove the statement by _____, certain requirements must first be met: _____

Answer 81

extrinsic evidence

extrinsic evidence

(i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case; i.e., it cannot be a collateral matter.

Question 82

Under the Federal Rules, there are no foundational requirements for impeaching a witness by admitting proof of her __________ by extrinsic evidence.

Answer 82

Prior criminal conviction

Question 83

The traditional majority view is that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any _____. Inquiry into “bad acts” is permitted even though _____. Federal Rule _____ permits such inquiry, in the discretion of the court, only if _____.

Extrinsic evidence of “bad acts” is _____. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on _____ of the witness. If the witness denies the act, the cross-examiner _____ refute the answer by calling other witnesses or producing other evidence. It is not usually improper for the cross-examiner, acting in good faith, to continue the cross-examination after a denial in the hope that the witness will change his answer.

Answer 83

immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief

the witness was never convicted

608

the act of misconduct is probative of truthfulness (i.e., is an act of deceit or lying).

not permitted

cross-examination

cannot

Question 84

An _____ hearsay declarant may be impeached by evidence that _____.

Answer 84

unavailable

would be admissible if the declarant had testified as a witness

Question 85

An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that _____ does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be _____.

Answer 85

she must explain or deny her statement

rehabilitated

Question 86

Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar _____.

Answer 86

the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement.

Plaintiff’s witness testifies, “I saw the defendant run a red light on the way home from a video arcade.” The witness could be impeached with that the defendant had a green light, but it would be “collateral” for the defendant to show that the witness was on his way home from a pool hall rather than a video arcade. It would not be “collateral,” however, to show that the witness was on his way home from a dinner at the plaintiff’s house, because that suggests bias, which is a separate basis for impeachment (see 3.b., supra).

Question 87

T/F. The following is a permissible method of impeaching a witness:

Asking the witness in good faith during cross-examination if he cheated on the bar exam.

Answer 87

T

Asking a witness in good faith if he cheated on the bar exam is permissible because it involves an act that is probative of truthfulness. Federal Rule 608 permits inquiry into a witness’s prior acts of misconduct if the act of misconduct is probative of truthfulness (i.e., is an act of deceit or lying). The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about.

Question 88

T/F. The following is a permissible method of impeaching a witness:

Calling the witness’s former supervisor to testify that the witness once stole from the cash register.

Answer 88

F

Calling the witness’s former supervisor to testify that the witness once stole from the cash register is not a permissible method of impeachment. Although a witness may be asked about his prior acts of misconduct on cross-examination, extrinsic evidence of such acts is not allowed.

Question 89

When a witness makes a statement that is not directly relevant to any issue in the case, the rule against impeachment on collateral matters precludes the opponent from using __________ to prove that the statement is untrue.

Answer 89

Extrinsic evidence

Question 90

A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. As a general rule this is true even _____.

What is the exception to this rule?

Answer 90

when the witness has been impeached by showing a prior inconsistent statement. The inconsistency is not removed by the fact that the witness made more than one consistent statement.

Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive, counsel may introduce into evidence a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate. Under Federal Rule 801(d)(1)(B), this statement not only is used to bolster the witness’s testimony, but also is substantive evidence of the truth of its contents, whether or not made under oath.

Question 91

Where the opposing counsel has impeached the credibility of a witness by making an _____ charge that the witness is ______ because of _____, counsel may introduce into evidence a _____ statement made by the witness _____. Under Federal Rule 801(d)(1)(B), this statement not only is used to bolster the witness’s testimony, but also _____, whether or not _____.

Answer 91

express or an implied charge

lying or exaggerating

some motive

prior consistent

before the time of the alleged motive to lie or exaggerate

is substantive evidence of the truth of its contents

made under oath

Question 92

T/F. Defense attorney intimated on cross-examination that the prosecution witness was biased against his client because of a fight they recently had. The prosecutor may introduce evidence of a statement the witness made, consistent with his testimony, before the fight occurred.

Answer 92

T
Generally Not Permitted
A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. As a general rule this is true even when the witness has been impeached by showing a prior inconsistent statement. The inconsistency is not removed by the fact that the witness made more than one consistent statement.

2) Exceptions
Where the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive, counsel may introduce into evidence a prior consistent statement made by the witness before the time of the alleged motive to lie or exaggerate. Under Federal Rule 801(d)(1)(B), this statement not only is used to bolster the witness’s testimony, but also is substantive evidence of the truth of its contents, whether or not made under oath.

Question 93

T/F. When impeaching a witness with extrinsic evidence of bias, that evidence need not be substantively admissible in order to be admitted for impeachment purposes.

Answer 93

T

Question 94

Under what circumstances do the Federal Rules permit cross-examination of a witness about a prior act of misconduct?

Answer 94

Only where the act is probative of truthfulness

Question 95

T/F. Impeaching by prior inconsistent with extrinsic evidence . . . A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.

Answer 95

T

Question 96

Impeaching by prior inconsistent with extrinsic evidence . . . Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.

Answer 96

T

Question 97

A prior criminal conviction may usually be shown by _____.

Generally, before a witness can be impeached by extrinsic evidence of _____, he must first be asked about the facts that show _____ on cross-examination.

_____ may never be proved by extrinsic evidence. This is true even if the witness denies the act during cross-examination.

Answer 97

either an admission on direct or cross-examination of the witness or by introducing a record of the judgment (i.e., extrinsic evidence). No foundation need be laid

bias or interest

bias or interest

Prior acts of misconduct

Question 98

Generally, a party may not bolster the credibility of her own witness unless the witness has already been impeached. The two exceptions to this rule are when the bolstering is relevant to show:

Answer 98

Timely complaint; prior identification

Question 99

T/F. A party may bolster the testimony of his witness when the party anticipates that the witness will be impeached.

Answer 99

F

Question 100

Under the Federal Rules, there are no foundational requirements for impeaching a witness by admitting proof of her __________ by extrinsic evidence.

Answer 100

Prior criminal conviction

Question 101

T/F. A witness’s bias may be shown only by cross-examination, not by extrinsic evidence

Answer 101

F

Question 102

T/F. When a witness makes a statement that is not directly relevant to any issue in the case, the rule against impeachment on collateral matters precludes the opponent from using cross examination to prove that the statement is untrue.

Answer 102

F

the right answer is extrinsic evidence

Question 103

Extrinsic evidence may be used to prove up a prior inconsistent statement if the statement is _____.

Answer 103

Is directly relevant to the issues in the case

Question 104

T/F. A party may introduce extrinsic evidence of a witness’s bias prior to the witness’s testimony.

Answer 104

F

Question 105

T/F. A party is not permitted to show that a witness’s bias is justified.

Answer 105

T

Question 106

Impeachment by extrinsic evidence is __________(always/generally not/never) admissible to show the witness’s bias or interest to testify falsely.

Answer 106

always

Question 107

Who may invoke the Fifth Amendment privilege against self-incrimination?

Answer 107

Any witness

Question 108

T/F. The United States Supreme Court recognizes a federal privilege for communications between a licensed social worker and his client or a psychotherapist (psychiatrist or psychologist) and his client.

Answer 108

T

Question 109

T/F. The physician-patient privilege is a statutory privilege, but has not been adopted in all jurisdictions.

Answer 109

T

Question 110

The physician-patient privilege is a statutory privilege, but has not been adopted in all jurisdictions. However, in a substantial number of jurisdictions, a physician (and, in some jurisdictions, a dentist or nurse) is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a _____ capacity, which information was _____ to enable the physician to act in his professional capacity.

Answer 110

professional

necessary

Question 111

T/F. Federal courts currently recognize a priest-penitent privilege.

Answer 111

F

Question 112

The federal courts currently recognize three privileges: _____. Note, however, that in civil actions when state law supplies the rule of decision as to an element of a claim or defense, the state law applies with respect to testimonial privileges as well. Thus, in diversity cases, the state law of privilege applies.

Answer 112

the attorney-client privilege, the privilege for spousal communications, and the psychotherapist/social worker-client privilege

Question 113

Elements for privilege for confidential marital communications: (different than spousal immunity)

Who holds the privilege?

Civil, criminal or both?

Neither the spousal immunity nor the confidential marital communications privilege applies in _____.

Answer 113

Both spouses jointly hold this privilege, and either can refuse to disclose the communication or prevent any other person from disclosing the confidential communication.

Civil or criminal.

a) Marital Relationship
The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.

b) Reliance upon Intimacy
The communication must be made in reliance upon the intimacy of the marital relationship. Routine exchanges of a business nature, abusive language, and misconduct directed to the spouse are not privileged. If the communication was made in the known presence of a stranger, it is not privileged. The confidential communication need not be spoken but may be made by conduct intended as a communication.

actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children (e.g., assault and battery, incest, bigamy, child abuse, etc.).

Question 114

Under what circumstances to spousal immunity apply?

Who may invoke the privilege?

When may the privilege by asserted?

Answer 114

Spousal Immunity—Privilege Not to Testify in Criminal Cases
When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. (This second part of the privilege exists even where the spouse is not a defendant, such as in grand jury proceedings.) The purpose of this immunity is to protect the marital relationship from the disruption that would follow from allowing one spouse to testify against the other.

1) Federal Courts—Privilege Belongs to Witness-Spouse
In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). [See Trammel v. United States, 445 U.S. 40 (1980)] Some states (e.g., California) follow the federal view.

2) Some State Courts—Privilege Belongs to Party-Spouse
In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege.

3) Valid Marriage Required
There must be a valid marriage for the privilege to exist. No privilege exists if the marriage is void (e.g., because it is incestuous, bigamous, or a sham).

4) Immunity May Be Asserted Only During Marriage
The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place BEFORE the marriage. Remember, however, that in federal court the privilege belongs to the witness. Therefore, an accused cannot use marriage to silence a federal court witness.

Question 115

T/F. Failure to object when privileged testimony is offered results in waiver of the privilege.

Answer 115

T

Question 116

T/F. A privilege can be waived through a contractual provision waiving in advance the right to claim a privilege.

Answer 116

T

Question 117

The statements of any corporate official or employee made to the attorney are protected if _____.

Answer 117

they were authorized or directed by the corporation.

Question 118

ocuments prepared by an attorney for his own use in prosecuting his client’s case are not protected by the _____. However, they may be protected by the attorney’s _____ rule.

Answer 118

attorney-client privilege

“work product”

Question 119

T/F. The physician/client relationship is likely to apply where:

Patient, who is now on trial for drunk driving, was taken to the hospital on the night of his arrest because he was behaving erratically. At the hospital, Doctor examines Patient for possible signs of alcohol poisoning. Patient tells Doctor that he drank 20 beers immediately prior to his arrest.

Answer 119

T

Question 120

T/F. The physician/client relationship is likely to apply where:

Patient breaks her leg falling off a ladder. She tells Doctor, while he is treating her, that the accident was her fault. Patient later files a lawsuit against the ladder manufacturer, claiming damages for injuries suffered in the fall.

Answer 120

F

Question 121

T/F. The privilege against self-incrimination protects against exposure to civil liability.

Answer 121

F.

Criminal only

Question 122

When may the spousal immunity doctrine be invoked?

For matters that took place _____.

Answer 122

In criminal cases only, for matters that took place before or during the marriage

Question 123

T/F. The spousal immunity doctrine be asserted

when an ex-wife wants to assert it at her ex-husband’s trial

Answer 123

F

Question 124

Who may invoke the Fifth Amendment privilege against self-incrimination?

Answer 124

any w

Question 125

T/F. The Fifth Amendment’s privilege against self-incrimination can be invoked by corporations or associations.

Answer 125

F

Question 126

T/F. In federal courts, spousal immunity may be invoked in both civil and criminal cases.

Answer 126

F

Criminal only

Question 127

T/F. In federal courts, spousal immunity is not terminated upon divorce.

Answer 127

F

Question 128

Regarding the privilege for confidential marital communications, __________ spouse can prevent anyone from disclosing confidential communications made __________ a valid marriage.

Answer 128

either; during

Question 129

T/F. Only a criminal D can plead the 5th.

Answer 129

F. Any W.

Question 130

T/F. A corporation can be a “client” within the meaning of the attorney-client privilege.

Answer 130

T. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation.

Question 131

T/F. Statements made to an attorney by an employee of a corporation are privileged if the statements are about the corporation.

Answer 131

F

Are privileged, if the corporation authorized the employee to make the statements

Question 132

In order for the attorney-client privilege to apply the client must have _____, the attorney at the time of the communication

Answer 132

been seeking, or already retained

Question 133

Under the Federal Rules, when offered to prove the truth of the matter asserted, a witness’s prior inconsistent statement made at a deposition is _____. (hearsay or not hearsay)

Answer 133

not hearsay

Question 134

The “past recollection recorded” exception to the hearsay rule applies where _____. A party may _____.

There are several foundational requirements for the admission of a writing under this exception. One is that the writing must have been made _____, made _____, or _____. Thus, the witness must have known about the writing _____ trial.

If admitted under this exception, a writing may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “_____,” which allows a party to use a writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is _____ into evidence.

Answer 134

a witness’s memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event

introduce the writing into evidence

no requirement

by the witness

at the witness’s direction

adopted by the witness

before

present recollection revived

not introduced

Question 135

T/F. A declarant’s exited utterance may be admitted as an exception to the hearsay rule only if the declarant is unavailable to testify at trial.

Answer 135

F

Question 136

T/F. T/F. A declarant’s former testimony may be admitted as an exception to the hearsay rule only if the declarant is unavailable to testify at trial.

Answer 136

T

Question 137

The five important exceptions requiring the declarant’s unavailability are:

Answer 137

(i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against a party procuring the declarant’s unavailability.

Question 138

Difference between admissibility of present bodily condition declaration and past bodily condition.

Answer 138

a. Present Bodily Condition—Admissible
- even though they are not made to a physician.
- such declarations relate to symptoms, including the existence of pain.
- they are contemporaneous with the symptoms, they are more reliable than present testimony based upon recollection.

Example: Victim tells friend, “My ankle hurts so much it must be broken.” The statement is admissible as a declaration of present pain, although it is not to be used to prove the ankle was in fact broken.

b. Past Bodily Condition—Admissible If to Assist Diagnosis or Treatment
- as a general rule, declarations of past physical condition are excluded, since there is no way to check the memory of the declarant by cross-examination and there is a greater likelihood of falsification where the declarant is describing a past condition.
- However, the Federal Rules, recognizing that a patient has a strong motive to tell the truth when seeking medical treatment, admit declarations of past physical condition if made to assist in diagnosing or treating the condition. [Fed. R. Evid. 803(4)]
- Furthermore, the Federal Rule allows declarations not only of past symptoms and medical history, but also of the cause or source of the condition insofar as reasonably pertinent to diagnosis or treatment.
- Moreover, contrary to the majority state view, Rule 803(4) permits such declarations even when made to a doctor employed to testify.

Question 139

Under the Federal Rules, a party may be held vicariously responsible for the admission of someone with any of the following relationships to the party:

Answer 139

Authorized Spokesperson
The statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party as an admission.

Principal-Agent
Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this admission may be introduced against her employer even if she was not authorized to speak for the employer.

Partners
After a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others.

Co-Conspirators
The Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.

Question 140

Public Records and Reports
The exception for public records and reports is necessary to avoid having public officers leave their jobs constantly to appear in court and testify to acts done in their official capacity, especially since the entrant could probably add nothing to the record. Also, such records are presumed _____because officials are under a duty to record properly that which they do.

Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth _____.

Answer 140

to be trustworthy

(i) The activities of the office or agency;
(ii) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or
(iii)   In civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Question 141

T/F. A manual prepared by the office that processes Medicare claims, explaining which claims are properly payable under Medicare, is admissible against the defendant in a Medicare fraud case under Federal Rule 803(8)(A).

Answer 141

T

Public Records and Reports

Question 142

A police officer arrives at the scene of the accident. Several witnesses tell him that Dan drove through a stop sign and hit Vic, who was riding a bicycle. The police officer has had many years’ experience in evaluating accident scenes. From the tire marks, he decides that Dan did indeed run the stop sign. In his report he includes the statements of the witnesses and his evaluation of the scene, including his conclusion that Dan ran the stop sign. What is admissible under public records exception?

Answer 142

Everything except the witnesses’ statements can be admitted under Federal Rule 803(8)(C), including the officer’s conclusion. The witnesses’ statements can be admitted only if they fall within some other exception. Remember that the investigative report is admissible only in civil cases and only against the government in criminal cases. The report could not be offered against Dan in a criminal prosecution.

Question 143

Elements of public records exception:

Answer 143

a) Duty to Record
The writing must have been made by, and within the scope of duty of, the public employee.

b) Entry Near Time of Event
The writing must have been made at or near the time of the act, condition, or event.

c) Trustworthiness
The sources of information and other circumstances must be such as to indicate its trustworthiness.

Question 144

Records of Vital Statistics

Records of births, deaths, and marriages are admissible if _____.

Answer 144

the report was made to a public office pursuant to requirements of law. [Fed. R. Evid. 803(9)]

Question 145

A civil judgment is admissible in a subsequent criminal proceeding.

Answer 145

F.

A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.

Question 146

Many courts do not admit learned treatises as _____, and allow them to be used for _____ only. However, the Federal Rules recognize an exception to the hearsay rule for learned treatises. Federal Rule 803(18) provides for the substantive admissibility of a learned treatise if the treatise is:

The relevant portion of the treatise usually is _____ to the jury, but is admissible by _____.

Answer 146

substantive evidence

impeachment purposes

(i) Called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and
(ii) Established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.

not shown

being read into the record

Question 147

The testimony of a _____ witness given _____ at ______ is admissible in a subsequent trial as long as _____. This exception is the clearest example of hearsay with special guarantees of trustworthiness, since the former testimony was given during _____ and _____ by a witness _____.

Under the former testimony exception, the _____ need not be identical.

Answer 147

now-unavailable

under oath

another hearing or in a deposition taken in accordance with law

there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful

formal proceedings

under oath

subject to cross-examination

parties and issues

Question 148

T/F. A party is not held vicariously liable for an admission made by a co-party.

Answer 148

T

Question 149

T/F. A witness’s statement that the assault occurred at 10:15 because that was what it said on her watch is hearsay.

Answer 149

F

Question 150

T/F. A statement by a police officer that the radar “gun” he used said that the driver’s speed was 55 m.p.h. is hearsay.

Answer 150

F

Question 151

T/F. A crime laboratory report stating that the substance submitted for analysis was heroin is hearsay.

Answer 151

T

Question 152

T/F. Testimony by a trained bomb-sniffing dog’s handler that the dog barked and sat down next to the bag in such a way as to indicate that explosives were inside is hearsay.

Answer 152

F

Question 153

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:

Answer 153

(i) The statement must have been against pecuniary, proprietary, or penal interest when made;
(ii) The declarant must have had personal knowledge of the facts;
(iii) The declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and
(iv) The declarant must be unavailable as a witness.

Question 154

A statement in a document that _____ an interest in property is _____, but it is generally admissible as an exception to the hearsay rule. Unlike the traditional view, which required that only ancient property-disposing documents qualified for the exception, the Federal Rules will admit the statement regardless of its _____.

Answer 154

establishes or affects

hearsay

age

Question 155

T/F. The availability of the entrant is immaterial in considering whether a business record is admissible under the exception.

Answer 155

T.

The authenticity of the record must be established. The usual method of authentication is to have the custodian or other qualified witness testify to the identity of the record and the mode of its preparation. However, a foundation witness is not necessary to authenticate the record (i.e., the record will be self-authenticating) if the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception. [Fed. R. Evid. 803(6), 902(11)]

Normally, the original or first permanent record of the transaction must be introduced, but where the records to be introduced are voluminous, summaries or compilations may be admitted.

Question 156

For the business records exception, the authenticity of the record must be established. The usual method of authentication is to _____. However, a foundation witness is not necessary to authenticate the record (i.e., the record will be self-authenticating) if _____. [Fed. R. Evid. 803(6), 902(11)]

Normally, the original or first permanent record of the transaction must be introduced, but where _____, summaries or compilations may be admitted.

Answer 156

have the custodian or other qualified witness testify to the identity of the record and the mode of its preparation

the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception

the records to be introduced are voluminous

Question 157

If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission. For silence to be an admission the following requirements must be met:

Answer 157

(i) The party must have heard and understood the statement;
(ii) The party must have been physically and mentally capable of denying the statement; and
(iii) A reasonable person would have denied the accusation under the same circumstances.

One of the requirements is that the party heard and understood the statement. It is not enough that he heard it; he must understand it as well.

Question 158

Under the Federal Rules, the absence of a business record can be admissible to prove the nonoccurrence of a matter, if:

Answer 158

It was the regular practice of the business to record all such matters

Question 159

police officers’ observations contained in police reports are inadmissible against _____.

Answer 159

the defendant in criminal case

Question 160

The Federal Rules specifically provide that judgments of _____ convictions are admissible as exceptions to the hearsay rule in _____ to prove _____.

Answer 160

felony

both criminal and civil actions

any fact essential to the judgment

Question 161

T/F. If a defendant was convicted of a felony assault, the injured party could use the judgment of conviction in a later civil suit against the same defendant to prove the happening of the assault.

Answer 161

T

The traditional view, still followed by most state courts, is that a judgment of conviction is inadmissible. First, it is merely the “opinion” of the jury, and second, it is hearsay as proof of the fact asserted, i.e., the guilt of the defendant. Of course, under certain circumstances the conviction may be used for impeachment. The Federal Rules, however, specifically provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. For example, if a defendant was convicted of a felony assault, the injured party could use the judgment of conviction in a later civil suit against the same defendant to prove the happening of the assault. In the Rules, felony convictions are defined as crimes punishable by death or imprisonment in excess of one year. [Fed. R. Evid. 803(22)] The convictions that may be used are limited to felonies because persons may choose not to defend misdemeanor charges (e.g., traffic violations).

Question 162

In the Rules, felony convictions are defined as crimes punishable by _____.

Answer 162

death or imprisonment in excess of one year

Question 163

The Federal Rules, however, specifically provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to _____.

In a criminal case, the government may use a prior conviction for the purpose of _____ only against _____. Against other persons, the government may use prior convictions _____.

A civil judgment is _____ in a criminal case

The general rule is that civil judgments are _____ in subsequent civil proceedings. However, there are certain statutory exceptions to the rule of inadmissibility. For example, under the Federal Rules, a prior civil judgment is admissible as _____.

Answer 163

prove any fact essential to the judgment

proving a fact

the accused

only for impeachment

inadmissible

inadmissible

proof of matters of personal, family, or general history, or boundaries of land, if it would be provable by reputation evidence (e.g., X may prove her citizenship by a judgment establishing that X’s parents were citizens). [Fed. R. Evid. 803(23)]

Question 164

Statements of Personal or Family History
Statements concerning _____, are admissible under an exception to the hearsay rule. Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements of others for the knowledge of where they were born, who their relatives are, etc.

In most jurisdictions, the statement must have been made _____. However, the Federal Rules have _____ this requirement on the theory that ______.

The now unavailable declarant must be _____. Most jurisdictions require that _____. Some jurisdictions, and the Federal Rules, have extended this requirement to admit statements by declarants who _____.

The declarant’s statements may be based either on ______.

d. Other Ways to Prove Pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics [Fed. R. Evid. 803(9)]; records of religious organizations [Fed. R. Evid. 803(11)]; marriage certificates and other certificates [Fed. R. Evid. 803(12)]; family records [Fed. R. Evid. 803(13)]; statements in property documents [Fed. R. Evid. 803(15)]; reputation [Fed. R. Evid. 803(19)]; and judgments [Fed. R. Evid. 803(23)]. For these exceptions, the declarant’s availability is immaterial.

Answer 164

birth, marriage, divorce, death, relationship, etc.

at a time when no controversy existed as to the matters stated—to ensure their reliability

dropped

the time at which the statement was made affects its weight rather than its admissibility. [Fed. R. Evid. 804(b)(4)]

a member of the family in question or otherwise intimately associated with the family

the declarant be related by blood or marriage to the family whose history is involved

are so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., the family doctor). [Fed. R. Evid. 804(b)(4)]

her own personal knowledge of the facts involved or on her knowledge of family reputation

Question 165

Under the Federal Rules, a “statement” for purposes of the hearsay rule is _____.

Conduct (nonverbal or verbal) that the declarant _____ but which is offered as an assertion of some fact is _____ and thus not hearsay.

Answer 165

an oral or written assertion or nonverbal conduct intended as an assertion

did not intend as an assertion

not a “statement”

Question 166

Explain the “personal knowledge” requirement of the business records exception to the hearsay rule.

Answer 166

Either the entrant or someone with a business duty to transmit such matters to the entrant must have personal knowledge of the matters contained in the business record

Question 167

T/F. The following is hearsay:

On the issue of whether there was an agreement by the landlord to lease the apartment to the plaintiff, a neighbor testifies that the plaintiff said to the landlord, “I will rent this apartment if you fix the lock,” and the landlord said, “Okay”.

Answer 167

F

When the issue is whether the landlord agreed to lease the apartment to the plaintiff, the plaintiff’s statement to the landlord that he will rent the apartment if the landlord will fix the lock and the landlord’s reply are not hearsay because the evidence is not being offered to prove that the landlord will fix the lock; it is offered to show that there was an agreement between the parties.

Question 168

When is a declarants state of mind, emotion, sensation, or physical condition admissible?

Answer 168

• must usually be made under circumstances of apparent sincerity
• when the declarant’s state of mind is directly in issue and material to the controversy or
• if they are declarations of intent offered to show subsequent acts of the declarant; i.e., a declaration of intent to do something in the future is admitted as circumstantial evidence tending to show that the intent was carried out
• does NOT require unavail

Question 169

The type of hearsay exception statement is often offered to establish the intent of a person, either as a direct fact to be proved as such (domicile, criminal intent) or as a basis for a circumstantial inference that the intent was probably carried out.

Answer 169

present state of mind

Question 170

T/F. The location of X on May 15 is relevant. W may testify that she heard X say on May 8 that “I intend to go to Denver next week.”

Answer 170

T

present state of mind

Question 171

T/F. Declarant’s out-of-court statement, “I think I left the keys in the car,” may be introduced for the purpose of proving that he left the keys in the car under present state of mind.

Answer 171

F

The hearsay statement is not admissible if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed.
Example: Declarant’s out-of-court statement, “I think I left the keys in the car,” may not be introduced for the purpose of proving that he left the keys in the car.

Statements of memory or belief are admissible, however, to prove facts remembered or believed concerning the execution, revocation, identification, or terms of declarant’s will.

Question 172

The hearsay statement is not admissible if it expresses a ______ of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed.

These statement are admissible, however, to prove facts remembered or believed concerning ______.

Answer 172

memory or belief

the execution, revocation, identification, or terms of declarant’s will

Question 173

Elements of excited utterance . . .

Answer 173

• does NOT require unavail
• made under the stress of excitement
• the stress or excitement must be produced by the startling event
• the declaration must relate to the startling event.
• If a declaration is made while the event is still in progress, it is easy to find that the excitement prompted the utterance. Declarations made shortly after the event have sometimes been excluded as mere narrative of past events. But when the declaration is made so near to the time of the occurrence as to negate any probability of fabrication, it is usually admissible.

Question 174

A statement of a declarant’s then-existing state of mind, _____, _____, or _____ is admissible under the present state of mind exception

Answer 174

emotion
sensation
physical condition

Question 175

Elements of present sense impression:

Answer 175

• comment regarding a situation then before the declarant
• The statement will usually have been made to another person—the very witness who reports it—who would have equal opportunity to observe and to contradict or correct a misstatement.

Question 176

T/F. Decla said to N, “Look at that car go.” W may testify that Decla made the statement in order to prove that the car was speeding under present sense impression exception to hearsay.

Answer 176

T

Question 177

When does the dying declaration hearsay exception apply?

Answer 177

In a prosecution for homicide or a civil action, a declaration made by the now unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. [Fed. R. Evid. 804(b)(2)] The declarant need not actually die, but he must be unavailable at the time the declaration is offered.

Note that under the traditional view, still followed by some states, the declaration was admissible only in homicide prosecutions (not civil actions), and then only if the declarant actually died.