Evidence - Missed Questions Flashcards
A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime.
Under the Federal Rules, which of the following is an impermissible manner of showing the defendant’s good character?
A. Calling a witness to give his personal opinion concerning the trait in issue of the Defendant
B. Caling a witness to testify as to the defendant’s good reputation for the trait involved in the case
C. Calling a witness to testify to the defendant’s specific acts of conduc to prove the trait in issue
D. Calling a witness to testify that he has heard nothing bad regarding the defendant’s reputation for the trait involved in the case
C. Calling a witness to testify as to the defendant’s specific acts of conduct to prove the trait in issue.
A pedestrian sued the driver of a car that hit him, alleging that the driver ran a stop sign. The driver denies this, maintaining that the pedestrian carelessly darted into the street. At trial, the pedestrian calls her husband to testify for her. The husband offers testimony that the pedestrian invariably looks both ways before crossing a street. The driver objects to the admission of this evidence.
How should the court rule on the driver’s objection?
A. Sustained, because there is no evidence to corroborate the husband’s testimony
B. Sustained, because it seeks to prove conduct in conformity with the character evidence
C. Overruled, because the pedestrian’s character is in issue
D. Overruled, because it tends to establish the pedestrian’s habit
D. Overruled, because it tends to establish the pedestrian’s habit.
While a driver was driving someone else’s car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence.
How should the court rule on the objection?
A. Sustained, because the driver’s character is not in issue
B. Sustained, because specific evidence of misconduct is not admissible to estbalish evidence of character
C. Overruled as to the case against the owner, but sustained as to the case against the driver
D. Overruled, because the evidence goes to the issue of the driver’s criminal negligence
C. Overruled as to the case against the owner, but sustained as to the case against the driver.
A defendant is being tried for the murder of a victim, which occurred during the burglary of the victim’s house. In its case-in-chief, the prosecution seeks to offer evidence that the defendant, who was arrested several days after the crime, had been caught with several grams of cocaine in his car. All notice requirements have been met.
This evidence will most likely be:
A. Inadmissible, because the defendant has not offered evidence of good character
B. Inadmissible, because it has limited probative value and is unduly prejudicial
C. Admissible, because it tends to show what the defendant did with the money
D. Admissible, because it tends to show that the defendant is capable of committing serious crimes
B. Inadmissible, because it has limited probative value and is unduly prejudicial.
The “recorded recollection” exception to the hearsay rule allows the offering party to:
A. Use a memo as a substitute for an unavailable declarant’s tesimony
B. Admit a memo into evidence as an exhibit
C. Introduce a memo into evidence by reading it aloud
D. Refresh the witness’s recollection with a memo but not read it to the jury
C. Introduce a memo into evidence by reading it aloud
Which of the following statements regarding expert testimony is false?
A. The witness must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject
B. The witness’s opinoni must not embrace the ultimate issue to be decided by the trier of fact in the case
C. The subject matter must be one where specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue
D. The witness must possess reasonable certainty or probability regarding his opinion.
B. The witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case.
At the trial of a lawsuit that arose out of a collision between the plaintiff’s and the defendant’s cars, the plaintiff’s attorney calls an automobile mechanic as a witness, who testifies that he has 12 years’ experience and was the only witness to the accident. The witness also testifies that he arrived at the scene immediately after the accident, which caused both cars to overturn, and saw the wheels on both cars still spinning. He testifies that the wheels of the defendant’s car were spinning faster than the wheels of the plaintiff’s car. The plaintiff’s attorney asks the witness to testify as to what speed the respective cars were traveling at the time of the accident based upon his observations of the spinning wheels. The defendant’s attorney objects.
Should the testimony regarding the speed of the cars be admitted?
A. Yes, as the witness’s personal opinion
B. Yes, as a matter based upon personal observation
C. No, because the witness has not been qualified as an expert in accident reconstruction
D. No, because there is not another witness to corroborate the witness’s presence at the accident scene
C. No, because the witness has not been qualified as an expert in accident reconstruction.
A witness testified against a defendant in a contract action. The defendant then called the witness’s neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness’s employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago.
Is the employee’s testimony admissible?
A. No, because it is merely cumulative impeachment
B. No, because it is extrinsic evidence of a specific instance of misconduct
C. Yes, because the hoax resulted in a conviction of a witness
D. Yes, because a hoax involves untruthfulness
B. No, because it is extrinsic evidence of a specific instance of misconduct.
The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window.
Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?
A. No, because specific acts of misconduct that did not result in a conviction cannot be used to impeach a witness, either on cross-examination or through extrinsic evidence
B. No, because specific acts of misconduct that did not result in a conviction cannot be established through extrinsic evidence
C. Yes, as evidence of bias
D. Yes, to establish that the waiter lied under oath.
C. Yes, as evidence of bias.
Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:
A. Hearsay, and not admissible
B. Nonhearsay
C. Hearsay, but nonetheless admissible as an exception to the hearsay rule
D. Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement
B. Nonhearsay
In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence.
Which statement regarding the permissibility of extrinsic evidence is false?
A. A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation
B. Generally, a witness must be given an opportunity to explain or deny her inconsistent statement
C. The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case
D. The prior inconsistent statement must be relevant to the case
C. The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.
Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:
A. Hearsay, but admissible as an exception
B. Not hearsay, as long as the witness is subject to cross-examination
C. Inadmissible hearsay
D. Not hearsay, as long as the witness is given an opportunity to explain or deny the prior statement
B. Not hearsay, as long as the witness is subject to cross-examination
Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?
A. An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated
B. An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement
C. An unavailable hearssay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness
D. An unavailable hearsay declarant may not be impeached by any method because she is not present at trial.
C. An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.
A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman’s car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident.
Will this evidence be permitted?
A. No,the statement is hearsay not within any recognized exception
B. No, the moving company cannot impeach its own witness
C. Yes, but it may be used only to impeach the driver
D. Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober
D. Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.
A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant’s attorney called the clerk’s employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him.
How should the trial judge rule on the admissibility of this testimony?
A. Admissible, because it tends to show that the clerk is an unreliable witness
B. Admissible, because it has bearing on the clerk’s truthfulness and veracity
C. Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter
D. Inadmissible, because it is hearsay not subject to any exceptions
C. Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
A. Yes, for impeachment purposes only
B. Yes, as both substantive and impeachment evidence
C. No, because a party may not impeach his own witness
D. No, because it is inadmissible hearsay
B. Yes, as both substantive and impeachment evidence.
The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child’s parents seeks to have the defendant’s then wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, “Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would’ve hit the kid.” The wife had become divorced from the defendant a week before trial and was eager to testify against him. The attorney for the child’s parents also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window.
Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?
A. Yes, because she and the defendant were divorced during the time between the making of the statement and the trial
B. Yes, because the fact that the neighbor heard the statement removes the privileged status of the statement
C. No, because the defendant’s statement was a confidential marital communication
D. No, because the privilege to foreclose such testimony belongs to the party-spouse
C. No, because the defendant’s statement was a confidential marital communication.
The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross-examination of the witness, the prosecutor asked, “Weren’t you on the jury that acquitted the defendant of another criminal charge?”
What is the best reason for sustaining an objection to this question?
A. The question goes beyond the scope of direct examination.
B. The probative value of the answer would be substantially outweighed by its tendency to mislead.
C. The question is a leading question.
D. Prior jury service in a case involving a party renders the witness incompetent.
B. The probative value of the answer would be substantially outweighed by its tendency to mislead.
Not unquestionably correct, the court would have to decide under rule 403 weighing test.
However, important to recognize that this question/answer would inevitably let the jury know that D had been previously charged with a crime. Therefore, could be highly prejudicial to his defense.
The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant’s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, “I know I don’t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!”
Should this testimony be admitted?
A. Yes, because it is a statement by an opposing party.
B. Yes, because it falls within the hearsay exception for dying declarations.
C. Yes, because it is a statement by an opposing party and falls within the hearsay exception.
D. No, because it is inadmissible hearsay.
D. No, because it is inadmissible hearsay.
Hearsay within hearsay. Statement by aunt to nurse does not fall within any exception, regardless of whether the nephews statement does fall within an exception.
A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation’s files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had “lack of corporate spirit” listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union’s lawyer asked that the chart be admitted into evidence. The corporation’s attorney objected.
How should the court rule on the admissibility of the chart?
A. Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.
B. Admissible, because the chart is helpful to the trier of fact.
C. Inadmissible, because it is hearsay not within any exception.
D. Inadmissible, in the absence of the underlying records having been first introduced into evidence.
A. Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.
A defendant was charged with arson (a felony) of an antique shop. Only one corner of the shop was damaged before the fire was extinguished. Under a plea agreement, the defendant pled guilty and received a suspended sentence. Because the owner of the shop had not yet insured a recently acquired 400-year-old refectory table that was destroyed by the fire, he sued the defendant for damages. At trial, the owner offers the properly authenticated record of the defendant’s conviction for arson.
Should the record be admitted into evidence?
A. Yes, as proof of the defendant’s character in order to infer liability.
B. Yes, as proof that the defendant set the fire.
C. No, because the conviction was not the result of a trial.
D. No, because it is hearsay not within any exception.
B. Yes, as proof that the defendant set the fire.
While working on a construction project, a plaintiff was injured when a heavy object struck his knee. Although the plaintiff was fully compensated for his injuries at the time of the incident, he now seeks disability payments from the construction company because he has developed arthritis in the same knee. The construction company claims that the arthritis has nothing to do with the plaintiff’s on-the-job injury and refuses to pay him disability money. The plaintiff sues. A doctor takes the stand to testify for the plaintiff. He is qualified as an expert witness and during direct examination states that in his opinion the blow to the plaintiff’s knee caused his arthritis. On cross-examination, the construction company’s attorney produces a treatise on arthritis and asks the doctor if the treatise is considered to be authoritative. The doctor responds that the treatise is a standard authority in the field, but that he did not rely on it in forming his professional opinion regarding the plaintiff’s condition. The attorney then seeks to introduce into evidence a statement in the treatise that “the idea that arthritis can be caused by a single traumatic event is purely folklore, although it is widely believed by the ignorant who have no scientific basis for their beliefs.” The plaintiff’s attorney objects.
How should the court rule on the admissibility of the statement from the treatise?
A. Admissible, but only for the purpose of impeaching the doctor’s testimony.
B. Admissible, but only as substantive evidence.
C. Admissible, both as substantive evidence and for purposes of impeaching the doctor.
D. Inadmissible.
C. Admissible, both as substantive evidence and for purposes of impeaching the doctor.
A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant.
Is the testimony of the chemist admissible?
A. Yes, because there has been proper authentication.
B. Yes, because the chemist qualifies as an expert witness.
C. No, because there is an insufficent chain of custody.
D. No, because he did not take the original blood sample at the scene of the crime.
C. No, because there is an insufficient chain of custody.
A defendant is on trial for manslaughter after he hit a victim in a bar, causing the victim to fall and hit his head on the marble bar top. The defendant claims that he hit the victim in self-defense after the victim lunged at him with a knife. During the prosecution’s case, a witness testifies that she heard the victim’s friend shout at the defendant, “You just killed a helpless man!” A defense witness is called to testify that he was there and does not remember hearing the victim’s friend say anything.
Should the defense witness’s testimony be admitted?
A. No, it is irrelevant to any issue in the case.
B. Yes, it is proper impeachment of the prosecution’s witness.
C. No, it is improper impeachment of the prosecution’s witness because it relates to a collateral matter.
D. No, it is improper impeachment because it does not positively controvert the prosecution witness’s testimony, as the defense witness merely says he does not remember.
B. Yes, it is proper impeachment of the prosecution’s witness.
