Evidence Questions

Question 1

A party has a burden of persuasion to establish a claim or defense and face

Answer 1

a directed verdict on the issue if they fail to provide the required proof

Question 2

A presumption shifts

Answer 2

the burden of going forward to the opposing party by allowing an inference that can be drawn based on a set of facts (basic facts) that show a high probability of the existence of another set of facts (presumed facts). This presumption can be rebutted with contrary evidence, but the rebuttal evidence must be beyond a reasonable doubt

Question 3

A presumption of notice will be lost when

Answer 3

a party provides contrary evidence that rebuts the presumption

Question 4

What type of presumption can not be rebutted

Answer 4

Only Conclusive presumptions that essentially establish a substantive rule of law may not be rebutted.

Question 5

The Federal Rules of Evidence provide that on direct examination, the examiner may, upon laying a proper foundation, jog the memory of a witness who has some knowledge of the purported testimony but whose memory is incomplete by,

Answer 5

Any writing, photograph or other form of evidence which refreshes the witness’s recollection will suffice. After the memory has been “refreshed,” the witness must testify without having the refreshing evidence present.

Question 6

The FRE 404 allows for admission of past crimes or other wrongful acts of a defendant as

Answer 6

circumstantial proof of an ELEMENT of the charged crime, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence mistake, or lack of accident.

Question 7

Under the FRE 404 admission of past crimes, wrongs, or other acts, the trial judge must

Answer 7

the trial judge must consider whether the risk of undue prejudice substantially outweighs the probative value of the past crimes or wrongful conduct evidence.

Question 8

All FRE 404(b)(2) crimes, wrongs, or other acts, such as plan, absent mistake, motive, intent, preparation, lack of accident, opportunity, or knowledge are

Answer 8

character evidence in the form of specific acts

Question 9

All FRE 404(b)(2) crimes, wrongs, or other acts, such as plan, absent mistake, motive, intent, preparation, lack of accident, opportunity, or knowledge are character evidence in the form of specific acts, DISTINGUISHABLE from

Answer 9

As opposed to reputation or opinion evidence

Question 10

Under FRE 609(a), the credibility of a witness may be attacked on

Answer 10

cross-examination by evidence of his or her conviction of a crime if the crime involved dishonesty or false statements, where the crime was a felony or a misdemeanor

Question 11

Forgery

Answer 11

even when only a misdemeanor, is a crime involving dishonesty, so it may be used to impeach a witness on cross-examination

Question 12

Under the FRE, any party can attack the credibility of a witness, including

Answer 12

the party calling the witness.

Question 13

Prior inconsistent statements of a witness

Answer 13

can be used on direct or cross-examination to impeach a witness

Question 14

Once a basis for bias is established on cross-examination, then

Answer 14

testimony to rebut the inference of bias is allowed on redirect, and is NOT hearsay, and it is relevant to the issue of bias even if it does not relate directly subject matter of the statement or claim

Question 15

Pursuant to the FRE 410, a plea that is later withdrawn

Answer 15

may NOT be admitted into evidence against a defendant who made the plea (or participated in the plea discussions) in any civil or criminal proceeding.

Question 16

Evidence of a rape victim’s prior sexual conduct or sexual predisposition, exceptions

Answer 16

such evidence is admissible to prove that a person other than the accused is the source of semen, the victim’s injury, or other physical evidence, or if exclusion of the evidence would violate the constitutional rights of the defendant. Specific instances of sexual behavior between the accused and the victim may also be offered to prove consent.

Question 17

FRE 702 Qualification of an Expert requires

Answer 17

that Formal Education is unnecessary to attain status to render an expert opinion. FRE 702 requires that (1) the witness be qualified as an expert by knowledge, skill, experience, training or education; (2) the scientific, technical, or other specialized knowledge possessed by the witness will assist the jury; and (3) the witness is able to testify with a reasonable degree of probability concerning the opinion

Question 18

FRE 703 permits an expert to base her opinion testimony on

Answer 18

facts perceived by her or made known to her at or before a hearing, which, if the facts are of a type reasonably relied upon by experts in the particular field, need not be admissible in evidence at the hearing. Therefore, an expert may base her opinion solely of facts made known to the expert at trial.

Question 19

FRE 704, an expert’s opinion testimony is

Answer 19

not inadmissible simply because it relates to an ultimate issue.

Question 20

When a person’s character is in “issue,” what forms of character evidence are admissible

Answer 20

All forms of character evidence are admissible, such as reputation, opinion, and specific acts of conduct.

Question 21

What evidence or testimony is a sufficient foundation to authenticate a person’s identity when the conversation was over the phone

Answer 21

Mere assertion of identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation. Some additional evidence is required to lay a foundation, such as:

(1) the speaker disclosed knowledge of facts known particular to him
(2) the party testifies as to more occasions or opportunities to hear the defendant’s voice to enable him to be familiar enough

Question 22

A photograph is generally considered

Answer 22

to be a graphic portrayal of oral testimony. A photograph becomes admissible only where a witness testifies that it is a correct and accurate representation of the facts that the witness observed.

Question 23

Non-assertive conduct under Rule 801(a) is

Answer 23

behavior that the actor does not intend to operate as communication, but which nevertheless may, by inference, be interpreted as some sort of a statement. The FRE classify non-assertive conduct as non-hearsay.

Question 24

Evidence of an offer to compromise or settle a dispute claim is

Answer 24

not admissible to prove liability for the claim, because as a matter of public policy litigants should be encouraged to attempt settlements

Question 25

When a witness-declarant wants to testify in court of his own out of court statement, the statement may still

Answer 25

qualify as hearsay, and if no exception to the hearsay rule applies, the court is most likely find the witness-declarant’s statement inadmissible, this should be tested under 801(d)(1) exemptions that are not hearsay, or 803 exceptions

Question 26

FRE 801(d)(2) classifies a statement as

Answer 26

non-hearsay prior statements of a party, IF offered into evidence by an adverse party.

Question 27

FRE 409 excludes evidence of

Answer 27

offers to pay medical expenses, and is applied very narrowly. An admission made in conjunction with the payment or offer to pay medical expenses are not protected. Therefore, if a statement does not violate either hearsay rule or the policy exclusion, the statement is severed from the offer to pay medical expenses, and admissible

Question 28

A declaration of interest is an exception to the hearsay rule, which requires

Answer 28

under FRE 804, (1) the declarant to be unavailable at trial, and (2) that at the time of the declaration was made, the statement, was contrary to the declarant’s pecuniary, proprietary or penal interest (FRE 804(b)(3). There has to be a clear indication that the declarant is unavailable

Question 29

FRE 106 completeness rule which provides

Answer 29

that if a proponent offers part of a writing, the judge may require production of the entire writing, if fairness dictates

Question 30

What is the policy exception to FRE 106 completeness rule

Answer 30

The policy exclusion would preclude introduction of the complete writing, when an exclusion such as FRE 409 (offer to pay medical expenses with an admission in writing)

Question 31

Under FRE 803(2), excited utterance

Answer 31

a hearsay declaration will be admitted as an excited utterance where the statement relates to a starting event or condition and was made while the declarant was under the stress or excitement caused by the event or condition.

Question 32

What is an example of an excited utterance under FRE 803(2)

Answer 32

Witnessing an accident usually is sufficiently startling to qualify, if the other elements are met. Which include a witness rushing to help and express her concern, so she was probably still under the stress of the event.

Question 33

To satisfy the unavailability requirements of a witness, the party offering the testimony must establish

Answer 33

every reasonable effort has been made to obtain the witness’s presence

Question 34

FRE 804 unavailability is generally defined as

Answer 34

Unavailability for hearsay exceptions includes situations in which the declarant is: (1) exempted from testifying on the basis of privilege; (2) refusing to testify despite a court order; (3) unable to remember the subject matter of the statement; (4) dead or unable to testify due to physical or mental illness; and (5) absent from the hearing and the proponent of the statement has been unable to obtain his presence by any available means

Question 35

Non-hearsay vicarious admission is

Answer 35

Under FRE 801(d)(2), which is a statement by an agent or employee acting within the course of her agency or employment

Question 36

An admission as a “declaration against penal interest” is

Answer 36

when a declarant makes an out of court statement against his “penal” interest and is unavailable for trial, the statement will qualify as a declaration against interest under 804, and will be admitted as an exception to the hearsay rule.

Question 37

Prior testimony given in any proceeding, such as a deposition, trial, etc., can be admitted as an exception to the hearsay rule under

Answer 37

Under 804(b)(1), such testimony can be admitted as long as the witness is unavailable to testify, AND the other CONDITION is that the party against whom the testimony is offered must have had a chance to develop the witness’ testimony by cross-examination, direct, or redirect. The party must also have had a similar motive in developing the testimony.

Question 38

FRE 803(5) past recollection recorded is

Answer 38

allowable evident that was written down in a record by the witness to be admitted if the witness cannot presently recall the matter. Such a writing requires that the witness has written down something about which they had a personal knowledge and if it is was written down while it was fresh in the witness’s memory. However, 803(5) is ONLY applicable when the witness is available to testify.

Question 39

A non-expert lay witness under FRE 701 is able to provide

Answer 39

opinion testimony as it relates to numerous topics such as:

(1) Perceptions of speed
(2) Measurements
(3) Physical states like intoxication or injury
(4) the personal emotions of others
(5) sensory descriptions, and
(6) the value of one’s own land

Question 40

A non-expert lay witness under FRE 701 restricts a lay witness’s testimony, and therefore the lay witness cannot give opinion testimony which reaches

Answer 40

a legal conclusion

Question 41

Under FRE 606,

Answer 41

a juror is not competent to testify regarding the manner in which the jury reached its decision even upon an inquiry into the validity of a verdict or indictment. No juror may testify to any statements made during the deliberations, the though processes by which the juror arrived at a decision, or votes that were taken.

Question 42

Judicial notice is

Answer 42

in which a court either may or must take judicial notice of facts and accepts matters as true without a requirement of formal proof. However, a judge may not take judicial notice of a fact merely because it is within that judge’s knowledge. A judge may take judicial notice of a fact capable of being readily verified by a source whose accuracy cannot be reasonably be questioned.

Question 43

Under FRE 901(b)(2), a person’s handwriting may be authenticated by

Answer 43

“non-expert opinion as to the genuineness of the handwriting based on familiarity not acquired for purposes of the litigation.” Under FRE 901 since authentication may be made by “comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.”

Question 44

Under the FRE, what is the general rule of witnesses at the trial

Answer 44

The FRE provide that, at a party’s request, the court must exclude witnesses so they cannot hear other witnesses’ testimony. Or the court may order witnesses excluded on its own, absent a request from a party. The court, however, cannot exclude witnesses that are parties or representatives of the parties.

The court’s order on its own to exclude non-party witnesses from the courtroom was, therefore, proper.