Evidence Incorrects

Question 1

Bad Faith Cx by P

Answer 1

Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of good character introduced by the defendant), specific instances of a person’s conduct are not admissible. Character must be proved by either reputation or opinion testimony. However, when a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying. Here, the prosecutor asked the defendant’s character witness about his knowledge of the defendant’s involvement in a bar fight. This question raises a doubt as to the credibility of the witness with regard to his opinion that the defendant was a non-violent person. However, the party must ask the question of the witness in good faith.

Question 2

MIMIC Evidence

Answer 2

Although a defendant’s crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (“MIMIC”). In this case, the specifics of the prior burglary conviction are being used for “MIMIC” purposes, to establish the identity of the perpetrator based on the presence of an identically worded note left at both crime scenes. Because the court did not conclude that that the prejudicial effects of the prior conviction substantially outweighed its probative value, the court acted properly in overruling the objection raised by the defendant’s attorney.

Question 3

Crimes of Dishonesty

Answer 3

Any witness, including a criminal defendant, may be impeached with evidence that he has been convicted of any crime involving dishonesty or false statement within 10 years of conviction. Embezzlement is a crime of dishonesty or false statement. Since the conviction occurred within the last ten years, the prosecution may use it for impeachment purposes

Question 4

BER

Answer 4

Remember that the Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Your practice questions test concepts, including the Best Evidence Rule, in a variety of ways, in the event you see a question like it on the bar exam. You may see situations in which the Best Evidence Rule is the correct answer during your practice sessions, or on the bar exam.`

Question 5

ID Nonhearsay

Answer 5

While a prior, out-of-court statement of identification is often considered non-hearsay and can be admissible as substantive evidence, the witness who made the prior statement of identification must have testified at the present trial and have been subject to cross-examination concerning the identification for it to be admissible.

Question 6

Evidence of Acquittal

Answer 6

Evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act is hearsay; it is an out-of-court statement of the court or jury that is offered for its truth. Although there is an exception to the hearsay rule for judgments of conviction, there is no such exception that allows for the admission of a judgment of acquittal.

Question 7

Admitting a juvenile crime

Answer 7

Evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if (i) it is offered in a criminal case, (ii) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and (iii) admitting the evidence is necessary to fairly determine guilt or innocence.

Question 8

Testimony about the searching of a database

Answer 8

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Although a public record would fall under this definition, the agent’s statement regarding his search for the application would not.

Question 9

CE Kinda lol

Answer 9

A witness may be impeached by evidence that contradicts the witness’s testimony. In this case, the pedestrian testified that he always waits for the pedestrian crossing signal before crossing major intersections. The bus company’s question about the prior ticket for jaywalking directly contradicts the pedestrian’s testimony. Therefore, the question should be permitted.

Question 10

Exhibit Issue to Past Recorded Statement

Answer 10

FRE 803(5) creates an exception to the hearsay rule for a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. Here, the summary was made immediately after the slip-and-fall, while the witness’s memory of the events was fresh. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Here, the written summary is being read into evidence only.

Question 11

More BER

Answer 11

The original document rule requires the production of a recording when its contents are at issue. Here, the husband’s statement to his friend is not a direct inculpatory statement, but instead is an admission of making such a statement in a recording. Consequently, the contents of the recording are at issue and the recording itself must be produced since it is available. Although there is an exception to the original document rule for an adverse party’s admission as to the contents of a recording, this exception applies only when the admission was made in a deposition, testimony, or written statement

Question 12

Spousal Immunity in civ cases

Answer 12

spousal immunity does not apply in civil cases

Question 13

An arrest but no conviction

Answer 13

An arrest for a bad act is not a bad act itself. Therefore, a witness may not be cross-examined about an arrest. In this case, there was no evidence that the witness actually wrote any bad checks; as such, the subject may not be brought up on cross-examination.

Question 14

Experts and their basis for opinion

Answer 14

An expert’s opinion may be based on facts and data that the expert has personally observed or about which the expert has been made aware. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject.

Question 15

AC Priv

Answer 15

A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged. However, the attorney-client privilege does not protect communications made to enable or aid in the commission of what the client knew or should have known was a crime or fraud. Answer choice A is incorrect because the attorney’s knowledge of the client’s criminal purpose is not necessary to make the communication admissible. It is the client’s awareness of the criminal nature of his actions that defeats the privilege.

Question 16

Present Sense exception time limitation

Answer 16

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay. Here, the witness described the robbery to the officer a few minutes after perceiving it. These few minutes are a short enough time period to be considered “immediately after.”

Question 17

Confrontation Clause

Answer 17

The issue is whether the admission of a nontestifying witness’s out-of-court statement, provided in response to police questioning just minutes after viewing the crime, violates the Confrontation Clause of the Sixth Amendment. The Confrontation Clause requires that, to admit a testimonial hearsay statement against a criminal defendant the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. In determining whether a statement is testimonial, an objective analysis of the circumstances, rather than the subjective purpose of the participants, is key. A statement that has the primary purpose of ascertaining past criminal conduct is testimonial while a statement with the primary purpose of enabling police to provide assistance to meet an ongoing emergency is not testimonial.

Question 18

Not offered for truth of matter asserted

Answer 18

Alternatively, statements offered to prove something other than the truth of the matter asserted are not hearsay. A statement offered to show the effect on the person who heard it or to show the person’s state of mind is not hearsay.

The woman’s question to the mechanic is relevant because it has some tendency to make it more probable that the scooter brakes did or did not malfunction and has some tendency to show that the woman complied with her duty of care. There are no hearsay concerns because the woman’s statement is not an assertion. She asked the mechanic whether the scooter was safe to ride. This question does not communicate any information that can be offered for its truth.

However, a statement that is offered to prove something other than the truth of the matter asserted is not hearsay. For example, a statement offered to show the effect on the person who heard it is not hearsay.

Question 19

Prelim Questions and Priv

Answer 19

Answer choice C is incorrect because the court is bound by the Federal Rules in deciding preliminary questions of admissibility with respect to privileges.

Question 20

Crimes to impeach and the burden

Answer 20

Convictions for felony crimes not involving fraud or dishonesty that are less than 10 years old are admissible to impeach a witness. For a witness other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that the probative value is substantially outweighed by the prejudicial effect (i.e., the Rule 403 standard).

Question 21

Authentication

Answer 21

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

Question 22

MIMIC Evidence?

Answer 22

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

Question 23

X-ray

Answer 23

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

Question 24

judicial Notice

Answer 24

A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

Question 25

settlement offer

Answer 25

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

Question 26

Self-authenticating doc

Answer 26

FRE 803(14) establishes a hearsay exception for the record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. Additionally, a copy of an official record or of a document authorized by law to be recorded or filed that was actually recorded or filed in a public office and certified as correct by the custodian or other person authorized to make the certification is self-authenticating.

Question 27

Lay and Expert Opinion

Answer 27

A lay witness is generally not permitted to testify as to his opinion, except with respect to common-sense impressions. To be admissible, the opinion must be (i) rationally based on the witness’s perception, and (ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.

Alternatively, an expert witness may testify as to his opinion, provided: (i) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (ii) the testimony is based on sufficient facts or data; (iii) the testimony is the product of reliable principles and methods; and (iv) the witness applied the principles and methods reliably to the facts of the case.

Question 28

Patient to Doctor Priv and Waiver

Answer 28

Although there is no common-law privilege covering statements made by a patient to a physician, most states protect such communications by statute, so long as the communications were made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the privilege by placing her condition in issue in a personal injury lawsuit.

Question 29

Civil Judgments of others as evidence

Answer 29

A civil judgment, unlike a criminal judgment, constitutes hearsay that is not admissible under an exception to the hearsay rule

Question 30

something on collateral matters?

Answer 30

Although the Federal Rules do not explicitly prohibit impeachment on collateral issues, a court may refuse to admit evidence related to a collateral issue under the Rule 403 balancing test. Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness’s testimony.

Question 31

Sex Evidence in civ trial

Answer 31

. Evidence offered to prove a victim’s sexual conduct or predisposition is generally not admissible in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action. Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 32

MIMIK Evidence (CE is still confusing to me)

Answer 32

Although a defendant’s crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In this case, the prosecution may admit evidence of the previous misdemeanor convictions to show absence of mistake by demonstrating that, as a result of his prior convictions for possession of the same prescription drugs, the defendant knew the prescription drugs were not an over-the-counter medication.

Question 33

Vicarious Liability stuff as Non-hearsay

Answer 33

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship (i.e., a vicarious admission).

Question 34

Stment of treatise read into evidence

Answer 34

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if: (i) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and (ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice. If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.

Question 35

Testimony on a failed search

Answer 35

Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind.

Question 36

Role of Judge or Jury and BER

Answer 36

Generally, the trial judge decides preliminary questions as to the admissibility of evidence, while the jury determines the weight and credibility of the evidence, once admitted. With respect to the best evidence rule (which applies when the contents of a video recording are offered to prove the events captured in the recording), the jury determines whether the alleged recording ever existed and, if so, whether other evidence as to the content of that recording reflects that content.

Question 37

Public Policy Exclusion

Answer 37

Evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting from an injury is not admissible to prove liability for the injury. Such evidence is excluded based on public policy.

Question 38

Federal Inadvertent Rule

Answer 38

The federal inadvertent waiver rule (Federal Rule 502) applies to the disclosure of information covered by the attorney work-product protection as well as communications covered by the attorney-client privilege.

Question 39

Judge doesn’t need to care about the FRE lol

Answer 39

The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness. The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence. Deciding whether the coworker’s statement is admissible is a preliminary question of law for the judge (as opposed to a question of fact for the jury), and the judge may consider hearsay in the course of making that decision.

Question 40

Mutliple Experts and Treatises

Answer 40

A statement contained in a medical treatise that has been established as a reliable authority by the testimony of another expert witness is not excluded as hearsay if the statement is called to the expert’s attention on cross-examination.

Question 41

EE character witness?

Answer 41

Although the prosecution generally cannot introduce evidence of a defendant’s bad character, the defendant can make his character an issue in the case by offering evidence of his good character. When the defendant “opens the door” in this way, the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character. In introducing evidence as to the defendant’s character, the prosecution is generally limited to the same type of evidence that the defendant offers. However, on cross-examination, the prosecution may question a defendant’s character witness about specific instances of the defendant’s conduct. Here, the prosecution could only introduce the specific instance of conduct by asking the brother about the conduct on cross-examination. This evidence cannot be introduced by extrinsic evidence, i.e., the testimony of the defendant’s former employer.

Question 42

Biz Records Notice Requirement

Answer 42

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

Question 43

Statements to further a conspiracy

Answer 43

The friend’s statement does not satisfy the co-conspirator exception because it was made after the conspiracy was over and it was not made in furtherance of the conspiracy.

Question 44

Objection for review of evidence

Answer 44

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

Question 45

Photo from a video

Answer 45

Moreover, Rule 1001(d) provides that “[a]n ‘original’ of a photograph includes the negative or a print from it.” Under this definition, if the photograph being offered is found to be a print from the negative of the videotape, then it is itself an “original” and no showing of unavailability is required

Question 46

Authentication threshold

Answer 46

To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Question 47

Sometimes a court must take judicial notice

Answer 47

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

Question 48

Vicarious Liab again

Answer 48

Federal Rule of Evidence 801(d)(2)(D) provides that a statement is “not hearsay” if it is offered against a party and is “a statement by the party’s agent concerning a matter within the scope of employment, made during the existence of the relationship.”

Question 49

Notice by the sides

Answer 49

When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.