Evidence MCQ Rules 1

Question 1

Is a judge allowed to serve as a witness in a trial over which she is presiding?

Answer 1

NO. A judge is absolutely barred from testifying as a witness in a trial over which the judge presides. This is NOT a matter of discretion

Question 2

Is a statement made by a criminal D during plea negotiations admissible as evidence against the D?

Answer 2

A statement made by a criminal defendant during plea discussions with a prosecuting attorney is generally not admissible as evidence against the defendant. This type of statements are inadmissible regardless of whether they are being offered for impeachment purposes or as substantive evidence.

Question 3

When does adoption by silence take place?

Answer 3

An opposing party’s silence in response to another’s statement is considered an adoptive admission if (1) the party was present and heard and understood the statement, (2) the party had the ability and opportunity to deny the statement, and (3) a reasonable person similarly situated would have denied the statement.

Question 4

Who needs to make a statement for it to be considered under the hearsay rule?

Answer 4

Hearsay applies to statement made a human person (not machines, animals, etc.)

Question 5

How do juvenile convictions work for impeachment in a civil case?

Answer 5

Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.

Question 6

What is the hearsay exception for absent public records?

Answer 6

Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.

Question 7

What is the rule of completeness?

Answer 7

The rule of completeness applies when a party introduces all or part of a writing or recorded statement. It then allows an adverse party to compel the introduction of any other part—or any other writing or recorded statement—that in fairness should be considered at the same time.

Question 8

What is the test for competency of a child witness?

Answer 8

A child-witness is presumed competent to testify so long as the child can (1) recall and narrate his/her impressions of the occurrence at issue and (2) understand the difference between the truth and a lie and the importance of telling the truth.

Question 9

What is the past recollection recorded exception to the hearsay rule?

Answer 9

The recorded recollection hearsay exception allows a record to be read into evidence if it (1) concerns a matter that a witness once knew but cannot recall at trial, (2) was made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflects the witness’s personal knowledge at the time it was made.

Question 10

Are pleas, plea discussions, and related statements admissible against a D?

Answer 10

Generally, NO. FRE 410 bars evidence of (1) withdrawn guilty pleas, (2) nolo contendere pleas, (3) statements made during plea proceedings, and (4) statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.

Question 11

What is the marital communications privilege?

Answer 11

The marital-communications privilege protects confidential communications made between spouses during the marriage. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and (1) refuse to testify about the communication or (2) prevent the other spouse from testifying.

Question 12

What is the best evidence rule?

Answer 12

The best evidence rule requires production of an original or reliable duplicate of a document when its contents are at issue—i.e., when (1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts learned from the document.

Question 13

How do we deal with hearsay within hearsay?

Answer 13

The hearsay rule bars the admission of an out-of-court statement offered to prove the truth of the matter asserted therein. When such a statement is contained within another, neither statement is admissible unless both are excluded or excepted from hearsay.

Question 14

When is evidence of habit admissible?

Answer 14

Evidence of a person’s habit is admissible to prove that the person acted in accordance with that habit on a particular occasion. A habit is a person’s routine reaction to a specific set of circumstances that is semiautomatic in nature and is considered highly probative of the person’s conduct on a particular occasion. (E.g., Witness that carpools with D testifies that D always stops at the same stop sign on their way to work)

Question 15

For what limited purposes may evidence of subsequent remedial measures be admitted?

Answer 15

A court may allow evidence of such measures for limited purposes such as (1) resolving a dispute about the feasibility of precautionary measures, (2) impeaching a witness, or (3) proving ownership or control.

Question 16

When is evidence of subsequent remedial measures not admissible?

Answer 16

Evidence of subsequent remedial measures is inadmissible to prove negligence or other culpable conduct.

Question 17

Is evidence of an arrest alone sufficient to attack a witness’s character for truthfulness?

Answer 17

NO. A mere arrest does not qualify as a bad act that can be used to attack a witness’s character for truthfulness as specific instances of conduct. That is because an arrest for misconduct is not itself misconduct.

Question 18

What is the statement against interest exception to the hearsay rule?

Answer 18

The statement against interest exception applies to hearsay statements that (1) are against the proprietary/pecuniary interest of the declarant at
time made and (2) a reasonable person would not have made statement unless it was true.

Question 19

Is real of physical evidence subject to the Best Evidence Rule?

Answer 19

NO.
(E.g. three-dimensional model)

Question 20

Can a D waive his privilege against having statements made during plea negotiations asked for impeachment purposes?

Answer 20

A defendant’s statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.

Question 21

How can a Witness’s character for truthfulness be attacked through specific instances of conduct (SIC)?

Answer 21

A SIC that involves a conviction for a felony or crime of dishonesty can be introduced intrinsically (i.e., through the witness’s testimony) or extrinsically (i.e., from other sources). In contrast, a SIC involving a mere bad act may only be introduced intrinsically. As a result, when a witness denies a SIC involving a bad act on cross-examination, the examiner is stuck with the witness’s answer.

Question 22

What is the psychotherapist-patient privilege?

Answer 22

The psychotherapist-patient privilege protects confidential communications between a psychotherapist or social worker and a patient made during the course of treatment or diagnosis. The privilege belongs to the patient NOT the D.

Question 23

How is a photograph authenticated?

Answer 23

A photograph is authenticated by having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Question 24

How do you authenticate x-ray images and electrocardiograms?

Answer 24

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that (1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it.

Question 25

What is the admission by party exception to the Best evidence rule?

Answer 25

One exception to the best evidence rule allows a party to prove a document’s content through a party-opponent’s testimony, deposition, or written statement without accounting for the original document’s absence. But this exception does not apply to oral statements (or nonverbal conduct) made outside the context of testimony or deposition.

Question 26

What is the collateral evidence rule?

Answer 26

The collateral-evidence rule prohibits the use of extrinsic evidence to impeach a witness with a prior inconsistent statement that pertains to a collateral matter—i.e., a matter that is irrelevant to the outcome of the case.

Question 27

What is the doctrine of curative admission?

Answer 27

Under the doctrine of curative admission, when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 28

What is the Federal Inadvertent-Waiver Rule?

Answer 28

Under the federal inadvertent-waiver rule, an inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if (1) the disclosure was in a federal proceeding or to a federal agency and (2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.