Evidence Capstone Flashcards
A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate.
Is the foreman’s proposed testimony hearsay?
A No, because the declarant is testifying as a witness at the hearing.
B No, because the statement is not offered for its truth.
C Yes, but it should be admitted under the hearsay exception for present sense impressions.Y
D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.
The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement’s effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay) regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no opportunity for cross-examination at the time the statement was made. The key in this case is not that the declarant is testifying, but that the statement is not being offered for its truth. (C) characterizes the testimony as hearsay, which is incorrect because it is not being offered for its truth. Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception for present sense impressions, which are statements made contemporaneously with perceiving some event. The testimony of the foreman would not come within this exception. (D) incorrectly characterizes the testimony as hearsay. In addition, this statement, even if hearsay, would not come within the present state of mind exception. A statement of a declarant’s then-existing state of mind is admissible when the declarant’s state of mind is directly in issue and material to the controversy, or as a basis for a circumstantial inference that a particular declaration of intent was carried out. The declarant here is the foreman. There is no indication that his state of mind is at all relevant to this litigation, nor is the statement offered indicative of any particular intent on the part of the foreman. Thus, the present state of mind exception is inapplicable.
A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years’ imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident.
Upon proper objection, should the court rule that the witness’s statement before the grand jury is admissible?
A Yes, for impeachment only.
B Yes, as substantive evidence only.
C Yes, for impeachment and as substantive evidence.
D No, because it is hearsay not within any exception.
The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness’s sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness’s credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident. (C) is the only answer that reflects the fact that the grand jury statement may be used both for impeachment and for substantive purposes. (A) reflects the view of prior law, which was that prior inconsistent statements were limited to impeachment regardless of the circumstances under which they were made. As noted above, Federal Rule 801(d)(1)(A) deems such statements made under penalty of perjury at a prior trial or other proceeding to be nonhearsay and, as such, admissible as substantive evidence. (B) is incorrect because it precludes use of the witness’s grand jury testimony for impeachment purposes. A prior inconsistent statement may always be used to impeach the credibility of a witness. (D) is incorrect for two reasons. First, even if deemed to be hearsay, a prior inconsistent statement would be admissible to impeach the witness. Second, because the prior inconsistent statement of the witness was made under oath at a grand jury proceeding, it is admissible nonhearsay.
The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner’s lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened.
Whose testimony is necessary to introduce the photograph into evidence?
A The employee’s testimony is necessary and the witness’s is unnecessary.
B The witness’s testimony is necessary and the employee’s is unnecessary.
C The testimonies of both the employee and the witness are necessary.
D The picture is inadmissible.
Only the witness’s testimony is necessary to introduce the photograph. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible. (A) incorrectly categorizes the employee’s testimony as necessary. Generally, a photographer’s testimony is not necessary to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene. (C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.
The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence.
How should the court rule?
A Admissible, because the affidavit satisfies the best evidence rule.
B Admissible, because the affidavit is a business record.
C Admissible, because the affidavit was prepared pursuant to statute.
D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.
The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible-the lab technician must be brought in to testify as to the findings of the fingerprint test. (A) is incorrect because the fact that the affidavit is an original does not, by itself, make it admissible. Admissibility still violates the defendant’s rights under the Confrontation Clause. (B) is incorrect because, even if the affidavit qualifies as a business record, it is inadmissible in this case under the Confrontation Clause. (C) is incorrect because the report, even if prepared pursuant to statute, is still inadmissible because it violates the Confrontation Clause.
Question
A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state.
Is the testimony of the witness admissible?
A Yes, because the witness testified under oath at another hearing related to the same subject matter.
B Yes, because the defendant is a party to both proceedings.
C No, because the plaintiffs were not parties to the criminal proceeding.
D No, because the witness can be subpoenaed to testify.
The witness’s testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is “unavailable” for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant’s attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of “unavailability” in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish “unavailability.” In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.
A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim’s car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, “I don’t think I’m going to make it. I tried to slow down, but my brakes didn’t work. My former partner must have tampered with them to get back at me.” With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant.
At trial, can the motorist testify as to the statement made by the victim?
A No, because the victim did not know that the defendant tampered with the brakes.
B No, because the victim is still alive.
C Yes, because the victim thought he was about to die.
D Yes, because this is a civil case.
Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be “unavailable” when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim’s statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant’s death is no longer required; unavailability is sufficient. Thus, if the victim’s statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist’s testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)
A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff’s attorney calls a witness who testifies that, at the time of the incident, the defendant stated, “It was my fault.” The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest.
Are the grounds for the judge’s decision correct?
A Yes, because the statement subjected the defendant to tort liability.
B Yes, because the defendant is a party to the litigation.
C No, because the statement is not against an important interest.
D No, because the defendant is available to testify.
The ground for the judge’s decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable. Also, this choice implies that this exception would be available only if she were subjected to tort liability, not criminal liability. Although some courts so limit the exception, the Federal Rules include statements against penal interest within the parameters of the statement against interest. (B) is incorrect because the defendant need not be a party to the litigation for her statement to qualify as a statement against interest. Thus, her status as a party would not be a basis for deciding that the statement against interest exception applies here. Of course, this choice is also incorrect because her availability to testify precludes application of this exception. (C) is incorrect because the defendant’s statement, which effectively acknowledges liability for the plaintiff’s injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the possibility of being held financially liable for the plaintiff’s damages. Note that the judge correctly overruled the objection by the defendant’s attorney, but for the wrong reason. The defendant’s statement constitutes a statement by a party-opponent (commonly called an admission), which is an act done or statement made by a party and offered against that party and is nonhearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the declarant need not be unavailable. (Don’t be confused by the fact that, although the judge was correct in allowing the testimony as to the defendant’s statement, the call of the question pertains to the grounds for the ruling, which were incorrect.)
A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion, each time telling the operator that he wanted to “end it all.”
Is the testimony admissible?
A Yes, because the statements were made in “contemplation” of death.
B Yes, because it tends to show that the husband intended to commit suicide.Yes, because it tends to show that the husband intended to commit suicide.
C No, because it violates the psychiatrist-patient privilege.
D No, because no phone calls were made to the clinic by the husband on the day he died.
The court should rule that the testimony is admissible. Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. Here, the husband’s statements to the operator tend to show that the husband intended to commit suicide, so they are admissible to prove that he did so. (A) is incorrect because a “dying declaration” must concern the cause or circumstances of what the declarant believed to be his “impending” death. Although the husband made threats to end his life, there is no indication he believed his death was impending, and he did not discuss the cause or circumstances of his impending death. (C) is incorrect because the operator is not a psychiatrist, and there is no evidence that the husband assumed her to be one. (D) is wrong because the state of mind need not be as of the time of the incident to be relevant.
A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm’s pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a “proposed witness list” from his case file at the firm. After the name of the doctor is the notation, “the plaintiff wants us to check this guy out before trial.” The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff’s case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation.
Is the proposed witness list and notation admissible?
A Yes, as past recollection recorded.
B Yes, as a record of a regularly conducted activity.Yes, as a record of a regularly conducted activity.
C No, as hearsay not within any recognized exception.
D No, as hearsay within hearsay, and one level is not within an exception.
The witness list should be admitted as a record of a regularly conducted activity (business record). A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction. The list of proposed witnesses and the notation constitute a statement that the law firm was alerted to the existence of the doctor as a potential expert witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e., that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay problem. Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of the paralegal responsible for updating case files to enter the handwritten notation regarding the doctor at the direction of one of the firm’s attorneys. The matters contained in the list and notation would be within the personal knowledge of the attorney, who was under a business duty to report the information accurately to the paralegal, who was under a business duty to properly record the information. Thus, all the requirements for a business record are present, and the list and notation, made as records of the firm’s having been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is incorrect because past recollection recorded comes into play when a witness’s memory cannot be refreshed by looking at something. At that point, there may be an attempt to introduce a memorandum or other record made by the witness or under his direction at or near the time of the event. The record is characterized as past recollection recorded. Here, there is no indication that a witness who has an insufficient memory is testifying, and the list of proposed witnesses and notation are not being offered as a record of anyone’s past recollection. Rather, the evidence is offered as a record of the firm’s being informed of the doctor as a potential expert witness. Therefore, the evidence will not be admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered evidence does come within a recognized hearsay exception. (D) is incorrect because the facts do not present any problem of “levels” of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., “the doctor says that he will be available to testify on the date of the trial”) and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor’s availability.
Question
In a claim for damages in a personal injury action, a plaintiff’s attorney sought to introduce evidence of the plaintiff’s testimony made to her boyfriend several days after her accident that “I must have sprained my neck when it happened because it hurts so much.” The plaintiff is also planning to offer medical evidence that her neck was sprained.
Is the testimony admissible?
A No, because it is hearsay not within any exception.
B No, because the plaintiff is not qualified to give testimony as to her medical condition.
C Yes, because the plaintiff is also going to present medical evidence that her neck was sprained.
D Yes, to show that the plaintiff had suffered physical pain.
The court should admit the plaintiff’s testimony. Although it was hearsay, the plaintiff’s testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff’s testimony is not to establish that she suffered a “sprained” neck, which would require an expert witness, but just to establish that her neck was in pain. (C) is wrong because the plaintiff’s statement would be admissible to show her current physical condition even if she had not planned to introduce medical evidence.
Question
A resident being interviewed live by a television reporter stated that, “The biggest problem in this city is corruption in city government, particularly the mayor.” The mayor has now brought an action for defamation against the resident. At trial, the mayor has produced testimony as to his honesty and good character. As part of his defense, the defendant seeks to offer into evidence the fact that the mayor was convicted two years ago of taking a bribe to award a city contract for solid waste disposal.
Is the evidence admissible?
A No, because character evidence is not admissible in civil cases.
B No, because character can be proved only by opinion or reputation testimony.
C Yes, because the mayor’s character is directly in issue.
D Yes, because there was an actual conviction for the crime.
The evidence is admissible because the mayor’s character is directly in issue. The general rule is that evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when a person’s character itself is one of the issues in the case, character evidence is not only admissible, but in fact is the best method of proving the issue. Where the plaintiff brings a defamation action for injury to reputation and the defendant pleads as an affirmative defense that his statements were true, the plaintiff’s character is directly at issue in the case. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue. [Fed. R. Evid. 405(b)] Here, the mayor’s character is at issue and the resident is offering character evidence to show that his assertion that the mayor is corrupt is a true statement. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because, as stated above, any of the types of evidence can be used to prove character when it is directly in issue. (D) is incorrect because an actual conviction is required for impeachment purposes, but not for the purpose of establishing character-evidence of an arrest or indictment would have been equally admissible.
In an accountant’s trial for filing fraudulent tax reports, the prosecution calls a former colleague of the accountant, and she testifies that the accountant’s reputation in the community is for frequently participating in very questionable reporting, often resulting in unnecessary risk for his clients. She testifies further that she thinks the accountant is dishonest.
Should the trial court admit this evidence over the accountant’s objection?
A No, because the prosecution cannot initiate evidence of the defendant’s character.
B No, because use of the colleague’s opinion is improper.
C Yes, because it is evidence of the defendant’s character for dishonesty.
D Yes, because it is evidence of habit.
The court should not admit this evidence because the prosecution cannot initiate evidence of the defendant’s bad character. The prosecution may offer such evidence only after the accused has put his character in issue by either taking the stand (thus placing his credibility in issue) or offering evidence of his good character. Thus, (C) is incorrect. (B) is incorrect because, under the Federal Rules, character may be proven by opinion evidence. (D) is incorrect because this does not constitute a regular response to a specific set of circumstances; it is merely reputation and opinion evidence.
A defendant is charged with trafficking in firearms, in violation of federal firearms control laws, as well as receiving stolen property. The charges arise from the defendant’s having attempted to sell a semi-automatic weapon identified as one of dozens that were stolen from a warehouse a year ago. The defendant denies intending to sell the gun or knowing that it had been stolen.
At trial, assuming all notice requirements have been met, which of the following would the court be LEAST likely to allow the prosecution to introduce as evidence against the defendant?
A Evidence that the defendant was once convicted of armed robbery with a semi-automatic weapon.
B The testimony of a witness that, the day before the defendant’s arrest, he asked the witness how much she would be willing to pay for a semi-automatic weapon.
C The testimony of a member of a secret paramilitary group that the defendant had been supplying the group with weapons for several months.
D Evidence that the defendant had been previously convicted of receipt of stolen weapons.
The defendant’s armed robbery conviction is least likely to be admitted. In a criminal case, evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged. Such evidence may be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Here, (A) is least likely to be admitted because evidence of the defendant’s previous conviction for armed robbery does not come within any permissible use of evidence of other crimes or bad acts. Because the defendant apparently is not contesting the issue of whether he possessed the semi-automatic weapon, it is irrelevant that the robbery conviction shows possession of such a weapon at some earlier time. The only use to which evidence of this conviction can be put is to show the defendant’s bad character and disposition to commit the crimes with which he is presently charged. (B) is likely to be admitted because testimony that the defendant apparently tried to interest the witness in buying a semi-automatic weapon tends to show that the defendant had the intent to engage in selling the weapon. For the same reason, (C) is also likely to be admitted. Supplying guns to a paramilitary group is certainly evidence of involvement in a plan of firearms trafficking. (D) is likely to be admitted as evidence of intent or knowledge. Because the defendant has denied knowing that the weapon was stolen, evidence of his prior convictions for receipt of stolen weapons can be introduced to show the likelihood that he knew the weapon was stolen in the present case, negating his claim of good faith.
A defendant is on trial for stealing jewelry from his co-worker. The defendant claims that the co-worker sold the jewelry to him because she needed money to buy medicine for her sick mother. The defense witness is asked to testify as to the co-worker’s reputation in the community. The witness testifies that the co-worker is known as a dishonest person who makes her living as a “con artist.”
Assuming appropriate objections by defense counsel, which of the following questions would NOT be proper on cross-examination of the witness by the prosecutor?
A “Isn’t it true that you’re maligning the defendant’s co-worker because she and your wife have been enemies since childhood?”
B “Isn’t it true that you were charged last year with assault for striking your wife?”
C “Have you heard that the defendant’s co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?”
D “Do you know that the defendant’s co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?”
Asking the witness about the assault charge is an improper method of impeachment. A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness. An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the conviction would have been admissible, provided it was a felony. (A) is incorrect because it is an example of proper impeachment by showing bias. Evidence that a witness is biased tends to show that he has a motive to lie. The witness’s close relationship to his wife gives rise to an inference that he would be hostile toward the co-worker if she and his wife had a long-standing personal enmity. Consequently, the question posed in (A) represents a proper method of impeaching the witness’s credibility by probing into a possible bias against the co-worker. (C) and (D) are incorrect because these questions represent proper means of rebutting the evidence of the co-worker’s character for dishonesty, as well as trying to impeach the witness’s credibility based on lack of knowledge. Once the defendant has introduced evidence of the alleged victim’s bad character for a pertinent trait, the prosecution may counter with reputation or opinion evidence of the victim’s good character for the same trait. [Fed. R. Evid. 404] On cross-examination, the prosecution may inquire into relevant specific instances of conduct. [Fed. R. Evid. 405(a)] Traditionally, asking a witness if he has heard of a particular instance of conduct represents a means of testing the accuracy of the hearing and reporting of a reputation witness, who relates what he has heard. Asking a witness if he knows of a particular instance of conduct is a means of testing the basis of an opinion expressed by the witness. Here, the witness’s testimony indicates both that he has heard that the co-worker has a bad reputation for honesty and that his own opinion is that she is a dishonest person. Thus, in attempting to rebut this testimony, the prosecution may test the accuracy of what the witness has heard concerning the co-worker’s character by asking him if he has heard of specific instances of her teaching Sunday School and receiving a church award. Also, the prosecution may test the basis for the witness’s opinion as to the co-worker’s dishonesty by asking if he knows of these specific instances that are indicative of her good character.
The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant’s spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant’s spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver’s seat until the police arrived.
Is the testimony admissible?
A Yes, for impeachment purposes only.
B Yes, to show bias.
C No, because a witness who is available to testify can be impeached only through cross-examination.
D No, because the witness must be given an opportunity to explain or deny the statement.
The testimony is admissible to impeach the testimony of the defendant’s spouse. The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony. Here, the friend is prepared to testify that the defendant’s spouse stated that she had not been driving the car at the time of the incident, a fact that would be material to the allegations in the lawsuit and inconsistent with the spouse’s trial testimony. Thus, the friend’s testimony is admissible for impeachment purposes. (B) is incorrect. Extrinsic evidence of bias is not admissible unless a foundation has been laid-the witness must first be questioned about the facts that show bias on cross-examination. If the witness, on cross-examination, admits to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced. Here, nothing suggests that the spouse was cross-examined as to the facts tending to show bias; thus, this is an incorrect ground for admitting the testimony. (C) is incorrect because a witness ordinarily may be impeached by either cross-examination or extrinsic evidence. Here, the prosecution is seeking to impeach the defendant’s spouse by extrinsic evidence of her prior inconsistent statement, and the evidence will be admissible for that purpose. (D) is incorrect because the opportunity to explain or deny the statement can be given subsequent to the friend’s testimony; it does not need to be given prior to her testimony.
