Evidence - Relevance, Authentication, Best Evidence, Witnesses, Impeachment

Question 1

Evidence is RELEVANT if it has

Answer 1

any tendency to make a material fact more or less probable than would be the case without the evidence.

Question 2

The general rule is that all evidence is admissible, unless

Answer 2

(1) an exclusionary rule applies

(2) the probative value of the evidence is substantially outweighed

Question 3

When considering whether the probative value of the evidence is substantially outweighed by unfair prejudice, the six factors that the judge considers are

Answer 3

(1) danger of unfair prejudice
(2) confusion of the issues
(3) danger misleading the jury
(4) unreasonably delay
(5) waste of time
(6) unduly cumulative

Question 4

Generally, plaintiff’s accident history is (admissible/inadmissible) because __________.

Answer 4

inadmissible; shows nothing more than the P is accident prone and being accident prone is inadmissible character evidence in a civil action.

Question 5

Plaintiff’s prior accidents are admissible if

Answer 5

the event that caused the plaintiff’s injuries is in issue (e.g. defendant is contending that a prior accident caused P’s injury, not the injury for which D might be responsible).

Question 6

Generally, defendant’s accident history is (admissible/inadmissible) because ________.

Answer 6

inadmissible; it shows nothing more than that D has a general character for being careless.

Question 7

Other accidents involving the defendant and the same instrumentality or condition may be admitted for three potential purposes if the accident occurred under __________.

Answer 7

substantially similar circumstances.

**Same type of weather, daytime/nighttime, traffic conditions, etc.

Question 8

The three purposes for which defendant’s accident history may be admitted are

Answer 8

(1) to show the existence of a dangerous condition
(2) causation of THIS accident (instrumentality or condition that caused the accident, not the P’s own negligence)
(3) notice to the D

Question 9

Evidence of experiments or tests may be admissible if the experiment or test occurred under

Answer 9

substantially similar circumstances.

Question 10

If intent is in issue, _______ of a person may be admissible to raise an inference of the person’s _______ on a later occasion.

Answer 10

prior similar conduct; intent

Question 11

If value is in issue, ______ ______ are admissible.

Answer 11

comparable sales. Property must be of similar type, location, and close in time period.

Question 12

______ of a person or routine of an organization is admissible as circumstantial evidence of how the person or business acted __________ at issue in the litigation.

Answer 12

Habit; on the occasion.

Question 13

Habit is defined as a

Answer 13

repetitive response to a particular set of circumstances.

Question 14

The two defining characteristics of habit are

Answer 14

(1) frequency of conduct
(2) particularity

**Look for words like always, never, invariably, automatically, instinctively.

Question 15

Industrial custom is admissible to show how a party in the instant litigation

Answer 15

should have acted, i.e. as evidence of the appropriate standard of care.

Question 16

The policy-based exclusions are

Answer 16

(1) liability insurance
(2) subsequent remedial measures
(3) settlements of disputed civil claims
(4) plea bargaining in criminal cases
(5) offer to pay hospital or medical expenses

Question 17

Evidence that a person has liability insurance is _________ for the purpose of _________.

Answer 17

inadmissible; proving fault or the absence of fault

**Policy: encouraging people to carry insurance, concern that the jury will find for P b/c of the insurance

Question 18

Evidence of insurance may be admissible for the purposes of showing (1) ________ or (2) _______, but ONLY IF those issues are (3) _______ by the defendant.

Answer 18

(1) proof of ownership or control of the instrumentality or location
(2) impeaching a witness on the ground of bias
(3) disputed

Question 19

If evidence is admissible for one purpose but not another, then a _________ should be given to the jury.

Answer 19

limiting instruction

Question 20

Subsequent remedial measures are _________ for the purpose of proving ___________.

Answer 20

inadmissible; negligence, culpable conduct, product defect, need for a warning.

**Policy: encourage people to fix things

Question 21

Subsequent remedial measures may be admissible for the purpose of showing (1) _________ or (2) _________, but ONLY IF those issues are ______ by the defendant.

Answer 21

(1) ownership or control
(2) feasibility of a safer condition
(3) disputed

Question 22

In the event of a DISPUTED civil claim, the following types of settlement-related evidence are inadmissible to prove liability:

Answer 22

(1) evidence of settlement
(2) offer to settle
(3) statements of fact made during settlement discussions

**Policy: encourage settlement.

Question 23

Settlement evidence is admissible for the purpose of _______.

Answer 23

impeaching a witness on the ground of bias (e.g. one D settles with P and then testifies against the other D, the other D can introduce the settlement as evidence of bias)

Question 24

Statements of FACT made during settlement discussions in a civil case with a government regulatory entity are ______ in a later _______ case.

Answer 24

admissible; criminal. Note, offers to settle are NOT admissible under this exception, only statements of fact.

Question 25

The settlement evidence exclusionary rule only applies if there is a ______ that is ______ as to its ______ or ________ at the time of the discussion.

Answer 25

claim; disputed; validity; amount of damages. A lawsuit need not have been filed, but the prospective P must have asserted the claim in SOME fashion.

Question 26

The following types of evidence regarding plea bargaining during a criminal case are inadmissible:

Answer 26

(1) offer to plead guilty - can’t be used in current criminal case or later civil case based on same facts.
(2) withdrawn guilty plea - can’t be used in current criminal case or later civil case based on same facts.
(3) plea of solo contendere - can’t be used in later civil case based on same facts
(4) statements made during any of the above plea discussions

Question 27

A plea of _____ is admissible in subsequent ______ based on the same facts under the rule of ______.

Answer 27

guilty; litigation; party admissions.

Question 28

Evidence that a party has PAID or OFFERED to pay an accidents victim’s hospital or medical expenses is _________ to prove liability.

Answer 28

inadmissible. There need not be a disputed claim at the time the payment or offer to payment is made.

**Policy: encourage generosity.

Question 29

The exclusionary rule for payments or offers to pay medical expenses does NOT exclude

Answer 29

other statements made in connection with the payment or offer to pay.

ONLY the payment or offer to pay itself is inadmissible.

Question 30

Character evidence refers to a person’s

Answer 30

general propensity or disposition.

Question 31

Potential purposes for the admissibility of character evidence are

Answer 31

(1) person’s character is an essential element of the case (rare in civil cases and NEVER in criminal cases)
(2) circumstantial evidence of the person’s conduct on a particular occasion
(3) witness’s bad character for truthfulness to impeach credibility

Question 32

In a criminal case, evidence of the D’s character to provee D’s conduct on a particular occasion is

Answer 32

inadmissible in the prosecution’s case in chief

Question 33

A D in a criminal case ______ introduce character evidence of a ______ character trait.

Answer 33

may; relevant.

Question 34

Once a D in a criminal case introduces character evidence, it opens the door to the

Answer 34

prosecution to rebut with its own character evidence.

Question 35

The prosecution may rebut a D’s character evidence by

Answer 35

(1) cross-examining D’s character witnesses about specific acts
(2) introducing its own reputation and opinion character witnesses during its rebuttal

Question 36

If the prosecution rebuts D’s character evidence by cross-examining D’s character witness, the prosecution may ask the witness about ________ in the form of

Answer 36

D’s specific acts; “did you know/are you aware” type questions about incidents that relate to the particular character trait.

**The purpose here is to impeach the character witness’ knowledge of D’s character

Question 37

The two proper forms of character evidence are

Answer 37

(1) reputation in the community
(2) personal opinion of the witness

**Witnesses can testify that the D is “law-abiding”, but is deemed to apply only to the trait at issue.

Question 38

In a criminal case, the D’s character trait is _____ an essential element of the crime.

Answer 38

never

Question 39

If the prosecution asks D’s character witness about an incident and the witness is not aware of it, the prosecution must

Answer 39

take the witness’ answer on its face and move on. The prosecution CANNOT introduce evidence of the incident.

Question 40

In order to ask D’s character witness about a specific incident, the prosecution must have a ________ that the incident occurred.

Answer 40

reasonable basis

Question 41

A criminal D asserting a self-defense defense may introduce _______ evidence of the victim’s ________.

Answer 41

character; character for violence.

Question 42

If a criminal D introduces character evidence of the victim, the prosecution may introduce

Answer 42

(1) character evidence of the victim’s peaceful nature

(2) character evidence of the D’s character for violence

Question 43

If a criminal D introduces evidence of ANY KIND that the victim was the ___________ the prosecution may introduce evidence of the victim’s ________.

Answer 43

first aggressor; good character for peacefulness.

**Note that the prosecution cannot impugn D’s character unless the evidence D uses is character evidence.

Question 44

If a criminal D, at the time of the alleged self-defense, was aware of the victim’s _______________, such awareness may be proven to show the D’s _________ to show D acted reasonably.

Answer 44

violent reputation or prior specific acts of violence; state of mind.

Question 45

Under rape shield laws, the following types of evidence are generally inadmissible:

Answer 45

(1) opinion or reputation evidence about the victim’s sexual propensity
(2) evidence of specific sexual behavior of the victim

Question 46

The three exceptions to the rape shield law in criminal cases are

Answer 46

(1) specific sexual behavior of the victim to prove that someone other than the D was the source of semen or injury to the victim
(2) victim’s prior sexual activity with the D if the defense of consent is asserted
(3) where exclusion would violate D’s right of due process (e.g. the love triangle case)

Question 47

In a civil case, a court may admit evidence of specific sexual behavior or sexual propensity of the victim if

Answer 47

its probative value SUBSTANTIALLY outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 48

Character evidence in civil cases is generally ________ to prove a person’s conduct on a particular occasion.

Answer 48

inadmissible.

Question 49

Evidence of a person’s character is admissible in civil action where such character is an

Answer 49

essential element of a claim or defense.

Question 50

The three situations in civil cases where a person’s character is an essential element of a claim or defense are

Answer 50

(1) a tort action alleging negligent hiring or entrustment
(2) defense of “truth” in a defamation case
(3) child custody case

Question 51

A D’s other crimes or specific bad acts are generally _______ for the purpose of showing D’s ________.

Answer 51

inadmissible; propensity to commit the crime charged.

Question 52

D’s bad acts or other crimes may be admissible to show

Answer 52

something specific and non-character about the crime charged.

**Requires a LIMITING INSTRUCTION. Still must balance probative vs prejudicial

Question 53

The five most common non-character purposes for using D’s bad acts or other crimes are

Answer 53

MIMIC

1) motive
(2) intent (state of mind type stuff
(3) mistake (absence of)
(4) identity
(5) common scheme or plan

Question 54

A defendant’s modus operandi of a prior crime is admissible if the

Answer 54

the MO was distinctive and the D used the same MO in perpetrating the crime charged.

Question 55

The standard of proof for using MIMIC-type evidence is a

Answer 55

(1) conviction; or

(2) by evidence that proves the crime occurred

Question 56

If the prosecution uses MIMIC-type evidence that lacks a conviction, the evidence is evaluated under the ______ standard and the prosecution must produce _______.

Answer 56

conditional relevancy; sufficient evidence from which a reasonable juror could conclude that the defendant committed the other crime.

Question 57

Upon a defendant’s request, the prosecution must give ______ _____ of the intent to introduce MIMIC evidence

Answer 57

pretrial notice.

Question 58

A party can use MIMIC evidence in civil cases if

Answer 58

relevant to a non-character purpose.

Question 59

When deciding to admit MIMIC evidence, court must weigh the evidence’s

Answer 59

probative value vs. prejudicial and give a LIMITING INSTRUCTION.

Question 60

In a case alleging sexual assault or child molestation, evidence or prior acts is admissible to show that D has a ____________.

Answer 60

propensity for sexual assault or child molestation.

Question 61

The methods of authenticating a writing are

Answer 61

(1) witness testimony based on personal knowledge
(2) proof of handwriting
(3) proof by circumstantial evidence
(4) ancient document rule
(5) solicited reply doctrine

Question 62

Whenever a writing appears on the exam, be alert to the three issues of

Answer 62

(1) authentication
(2) best evidence rule
(3) hearsay

Question 63

Handwriting may be proven by

Answer 63

(1) lay opinion testimony from a witness that is familiar with the party’s handwriting
(2) expert testimony from a handwriting expert
(3) jury comparison

Question 64

Under the ancient document rule, authenticity may be inferred if

Answer 64

(1) the document is at least 20 years old
(2) facially free from suspicion (no erasures, whiteouts)
(3) found in a place of natural custody

Question 65

Types of circumstantial evidence commonly used to authenticate a document are

Answer 65

appearance, contents, substance, distinctive characteristics (the doc contains info that only D knows)

Question 66

Under the solicited reply doctrine, a document can be authenticated by evidence that it was

Answer 66

received in response to a prior communication to the alleged offer.

Question 67

A document is considered authenticated if the court determines that there is

Answer 67

sufficient evidence from which a reasonable juror could conclude that the document is genuine.

Question 68

The six types of self-authenticating documents are

Answer 68

(1) official publications
(2) certified copies of public or private records on file in public office
(3) newspapers or periodicals
(4) trade inscriptions and labels
(5) acknowledged document - certified by notary public
(6) commercial paper

Question 69

Photographs can be authenticated by having a witness testify that the photograph and is a ________ of the people or objects portrayed.

Answer 69

fair and accurate representation.

The witness need not be the photographer, need only have personal knowledge of what the photo shows.

Question 70

Under the best evidence rule, a party who seeks to prove the contents of a ________ must either _______ or provide ________________.

Answer 70

writing; produce the original writing; an acceptable excuse for its absence.

Question 71

If the court finds acceptable a party’s excuse for failure to satisfy the best evidence rule, the party may then use

Answer 71

secondary evidence, like oral testimony about the document’s contents or a copy.

Question 72

The definition of “writing” includes

Answer 72

sound recordings, x-rays, and films.

Question 73

The two principal situations in which the best evidence rule applies are

Answer 73

(1) the writing is a legally operative document that creates rights and obligations (e.g. deed, patent, mortgage, written contract, divorce decree)
(2) a witness is testifying as to facts that she learned solely from reading about them in a writing

Question 74

The best evidence rule does not apply when a witness with _________ testifies as to fact that exists ________ of a writing that records that fact.

Answer 74

personal knowledge; independently.

Question 75

The best evidence rule applies when a party is seeking to

Answer 75

prove the contents of a writing.

Question 76

Excuses for non-production of an original document are that the document was

Answer 76

(1) lost or cannot be found
(2) destroyed without bad faith
(3) cannot be obtained with legal process (beyond the court’s subpoena power)

Question 77

In assessing the sufficiency of an excuse for non-product of an original document, the court evaluates the excuse by a standard of

Answer 77

preponderance of the evidence.

Question 78

What qualifies as an “original” under the best evidence rules?

Answer 78

(1) whatever the parties intended as the original, counterparts intended to have the same effect, negative of a film or print from the negative

Question 79

Under the best evidence rule, a “duplicate” is defined as any

Answer 79

counterpart produced by mechanical means (e.g. a photocopy)

Question 80

Under the best evidence rule, duplicates are admissible to the same extent as the original unless

Answer 80

(1) it would be unfair; or

(2) there is a genuine question about the authenticity of the original

Question 81

A handwritten copy of a writing ________ an original or duplicate.

Answer 81

is niether.

Question 82

The three “escapes” from having to produce an original writing when the writing is indeed available are

Answer 82

(1) voluminous production (can use a summary or chart, provided originals would be admissible and are available for inspection)
(2) certified copies of public records
(3) collateral documents (e.g. license of a plumber)

Question 83

For a witness to be competent, the witness must

Answer 83

(1) have personal knowledge; and

2) take an oath or affirmation (willingness to tell the truth

Question 84

In general, a witness is not incompetent merely because she has an

Answer 84

interest – direct legal stake – in the outcome of the litigation.

**Merely being biased is not an “interest”

Question 85

Under “Dead Man’s Statutes,” in a _____ action, an ________ witness is __________ to testify against the estate of a ___________ concerning _________ between the interested witness and debtor

Answer 85

(1) civil
(2) interested
(3) incompetent
(4) decedent
(5) a transaction or communication

Question 86

Leadings questions are generally not allowed during ______ examination but are allowed on ______ examination.

Answer 86

direct; cross

Question 87

Leadings questions are allowed on direct examination if

Answer 87

(1) it is a preliminary, introductory matter; or
(2) youthful or forgetful witness; or
(3) a hostile witness; or
(4) if you call to the stand the adverse party herself or someone in control of the adverse party (like an employee)

Question 88

The two situations in which writings are used during witness testimony are

Answer 88

(1) present recollection refreshed

(2) past recollection recorded

Question 89

Generally a witness cannot read from a prepared memorandum and must testify based on current recollection, but if the witness’ memory fails him, he may be shown

Answer 89

ANY writing to refresh his memory.

No need for authentication, best evidence rule, or hearsay.

Question 90

If the witness uses a writing to refresh his memory, the adverse party has the right to

Answer 90

(1) inspect the writing
(2) use it on cross-examination
(3) introduce it into evidence

Question 91

A writing used to refresh a witness’ memory ______ be introduced into evidence by the _______.

Answer 91

cannot; proponent (the ADVERSE party CAN introduce it into evidence)

Question 92

The five-element foundation for past recollection recorded requires

Answer 92

(1) showing the writing to the witness fails to jog the witness’ memory
(2) the witness had personal knowledge at the former time
(3) the writing was made by the witness OR adopted by the witness
(4) the making or adoption occurred while the event was still fresh in the witness’ memory
(5) the witness can vouch for the accuracy of the writing when made or adopted

Question 93

Under the past recollection recorded exception, the writing ______ be read to the jury but not be _______ by the ______.

Answer 93

can; introduced as an exhibit; proponent. The opponent CAN introduce the writing as an exhibit.

Question 94

Lay opinion testimony is admissible if the opinion is

Answer 94

(1) rationally based on the witness’ own perception (personal knowledge); and
(2) the opinion will be helpful to the jury in deciding a fact

Question 95

The typical types of permissible lay opinions are

Answer 95

(1) drunk/sober
(2) speed of vehicle
(3) sane/insane
(4) emotions of another person
(5) odors
(6) handwriting
(7) character (when permitted)

Question 96

Expert witness testimony requires

Answer 96

(1) the expert be qualified
(2) the subject matter is technical and helpful
(3) the basis of the opinion is proper
(4) relevance and reliability

Question 97

Expert witnesses can be qualified by

Answer 97

(1) education; and/or

(2) experience

Question 98

The expert subject matter is ____________ that will be _______ to the jury in deciding a fact.

Answer 98

scientific, technical, or specialized knowledge; helpful.

Question 99

The expert’s opinion must be based on a ____________.

Answer 99

reasonable degree of probability or certainty

Question 100

The expert may draw upon three permissible data sources in forming an opinion:

Answer 100

(1) personal knowledge
(2) other evidence in that trial record
(3) facts outside the record if the out of court material is of the type that is reasonably relied upon by experts in this particular field in forming their opinions

Question 101

An expert may rely on facts outside the record if the out-of-court materials are

Answer 101

of the type that is reasonably relied upon by experts in this particular field in forming their opinions

Question 102

The contents of out-of-court materials that an expert relies upon are generally not ________ to the jury, but a judge can choose admit the evidence with a _______ that it can only be used to ___________ of the expert’s opinion.

Answer 102

disclosed; warning; evaluate the quality.

Question 103

To be admissible, expert opinion must be ______ to the issue at hand and ___________.

Answer 103

relevant; sufficiently reliable (reliable principles that are reliable applied).

Question 104

In determining the RELIABILITY of the principles and methods used by an expert to reach an opinion, the court looks to the following four factors:

Answer 104

TRAP

(1) testing of the principles and methods
(2) rate of error
(3) acceptance by other experts in the same discipline (general acceptance is not required)
(4) peer review/publication

Question 105

A learned treatise may be used to aid expert testimony be used by party’s own expert on direct

Answer 105

in conjunction with the expert’s testimony and can be read into evidence

**On direct, a treatise cannot be read in on it’s own but must accompany the expert’s testimony.

Question 106

A learned treatise may be used on cross-examination to

Answer 106

impeach and may be read into evidence on its own (cannot be introduced as an exhibit)

Question 107

Generally, any witness _____ give an opinion on the ultimate issue of the case provided that _________.

Answer 107

can; all other requirements for opinion testimony are satisfied.

**But see exception for expert’s in criminal cases.

Question 108

An expert witness ____ give an opinion on the ultimate issue in a ______ case where ________ is at issue.

Answer 108

cannot; criminal; the D’s mental state.

E.g., the expert cannot say “D’s insanity prevented him from understanding that he was shooting.”

Question 109

Questions on cross-examination must be within the _____ of the ___________ and matters that test the witness’ _______.

Answer 109

scope; direct examination; credibility.

Question 110

A party cannot bolster their own witness’ credibility until

Answer 110

the witness’ credibility has been attacked.

Question 111

Post-impeachment repair of a witness’s credibility is called

Answer 111

rehabilitation.

Question 112

Prior inconsistent statements are _______ before the witness’s credibility has been attacked.

Answer 112

inadmissible (they are also hearsay).

Question 113

The one permissible type of prior consistent statements on direct examination is a

Answer 113

prior identification of the D by the trial witness. This is an exclusion at hearsay.

Question 114

The witness who testifies to a prior identification must ______ and be subject to ______.

Answer 114

testify at trial; cross examination.

Question 115

A party ______ impeach his own witness.

Answer 115

can

Question 116

The seven impeachment methods are

Answer 116

(1) prior inconsistent statement
(2) bias
(3) sensory deficiencies
(4) bad reputation or opinion about the witness’s character for truthfulness
(5) criminal convictions
(6) bad acts (w/o conviction) that reflect adversely on witness’s character for truthfulness
(7) contradiction

Question 117

There are two possible ways to use impeachment methods:

Answer 117

(1) ask the witness about the impeaching fact

(2) prove the impeaching fact with extrinsic evidence

Question 118

The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods

Answer 118

all except bad acts or some cases of contradiction.

Question 119

For the impeachment methods that allow extrinsic evidence, the witness need not _______ about the impeaching fact before _______ is introduced except in the case of _______.

Answer 119

be asked; extrinsic evidence; bias

Question 120

A prior inconsistent statement is generally admissible only for the purpose of

Answer 120

impeachment.

Question 121

A prior inconsistent statement is NOT hearsay and may be admitted both to impeach OR for the truth if

Answer 121

(1) the witness is currently subject to cross-examination; and
(2) the statement was made orally under oath; and
(3) as part of a formal, hearing, proceeding, trial, or deposition

Question 122

A witness need not be ________ with her prior inconsistent statement while still on the stand, but must be given an ________ at some point to ___________.

Answer 122

confronted; opportunity; explain or deny the prior inconsistent statement.

Question 123

An opportunity to explain an inconsistent statement is not required if the witness is

Answer 123

the opposing party.

Also, opposing party statements are a hearsay exception and can come in for the truth.

Question 124

Bias may be based on ________ that would give a witness a reason to testify __________ about a party’s case.

Answer 124

any fact; favorably or negatively.

Question 125

A prior inconsistent statement ________ be proven with extrinsic evidence.

Answer 125

can

Question 126

Bias _______ be proven with extrinsic evidence but only if the witness has been ________.

Answer 126

can; confronted with the alleged bias.

Question 127

A witness _______ confronted with alleged bias while on the stand.

Answer 127

must be.

This is one of the few that requires confrontation.

Question 128

A sensory deficiency is anything that could affect the witness’s

Answer 128

perception or memory.

Question 129

A witness _____ confronted with an alleged sensory deficiency while on the stand.

Answer 129

need not be.

Question 130

A sensory deficiency _______ be proven with extrinsic evidence.

Answer 130

can

Question 131

The bad reputation or opinion about a witness’s character for truthfulness can be proven by

Answer 131

a character witness giving reputation or opinion evidence.

Question 132

Bad reputation or opinion about a witness’s character for truthfulness _______ be proven by extrinsic evidence.

Answer 132

must. In the form of reputation or opinion evidence ONLY.

Question 133

The types of convictions that can be used for impeachment of any witness are

Answer 133

(1) any type of crime that required the prosecution to prove a “false statement” as the element of crime
(2) felony convictions

Question 134

A prior conviction is automatically admissible if the crime required ___________ and the court has _________ to exclude it.

Answer 134

the prosecution to prove a “false statement”; no discretion

Question 135

A prior felony conviction is _________ for impeachment purposes against a criminal defendant IF ____________.

Answer 135

admissible; its probative value on the witness’s credibility outweighs the danger of unfair prejudice.

**Note the absence of “substantially”, burden on prosecution to get it in.

Question 136

A prior conviction that is more than _____ years old is inadmissible for impeachment unless its ________ and ________.

Answer 136

10; probative value substantially outweighs its prejudicial effect; the adverse party is given notice that it will be used for impeachment.

**This is the reverse of 403 and burden is on prosecution to get it in.

Question 137

Some factors that make a prior felony conviction probative are

Answer 137

(1) seriousness of the crime

(2) relation to deception and stealth

Question 138

The fear of unfair prejudice in using a prior conviction for impeachment is that the jury will misuse it as

Answer 138

evidence of liability or guilt, not evidence of truthfulness of testimony.

Question 139

A prior felony conviction is _________ for impeachment purposes against a non-criminal defendant witness UNLESS ____________.

Answer 139

admissible; its probative value is substantially outweighed by the danger of unfair prejudice (standard 403 analysis).

Question 140

A prior criminal conviction may be introduced to impeach a witness by either

Answer 140

(1) asking the witness to admit the prior conviction; or

(2) introducing the record of the conviction

Question 141

A prior criminal conviction _______ be proven by extrinsic evidence.

Answer 141

can

Question 142

Inquiry about prior bad acts of a witness for impeachment purpose _____ be proven by extrinsic evidence.

Answer 142

cannot

**This would have to be a bad act of deceit or lying

Question 143

In order to inquire about the prior bad act of the a witness for impeachment purposes, the cross-examiner must have a ___________ for the inquiry

Answer 143

good-faith basis

Question 144

The witness ______ confronted with a prior bad act on cross-examination.

Answer 144

must be

Question 145

Questioning a witness on prior bad acts for impeachment purposes is subject to the

Answer 145

court’s discretion.

Question 146

Proving a witness’s prior bad act for impeachment purposes is allowed if

Answer 146

the bad act is relevant for some purpose other than bad character for truthfulness (i.e. bias).

Question 147

A prior bad act being used for impeachment purposes need not be

Answer 147

a crime. Could be something like lying on a resume.

Question 148

If a witness that is confronted with a prior bad act denies making the statement or committing the act, the cross-examiner is __________.

Answer 148

bound by the witness’s answer and must move on.

Question 149

Impeaching a witness with a prior bad act requires that the prior bad act be related to the witness’s

Answer 149

character for truthfulness, like deceit or lying.

Question 150

A witness _______ be impeached by being asked about prior arrests.

Answer 150

may not. An arrest in and of itself are not bad acts, nor are they convictions.

Question 151

Look out for cases where witness’s testifying for the _______ are impeached through questions about their prior arrests, because the question is also impeach on ______ grounds.

Answer 151

prosecution; bias.

Question 152

A contradictory fact _______ be proven with extrinsic evidence.

Answer 152

may. If the contradictory fact is collateral, no extrinsic evidence is allowed.

Question 153

Impeachment by contradictory fact is where the cross-examiner tries to obtain an admission that the witness

Answer 153

made a mistake or lied about any fact she testified to during the direct examination.

Question 154

A COLLATERAL contradictory fact is a fact that

Answer 154

(1) has no significant relevance to the case or to the

(2) witness’s credibility

Question 155

Rehabilitating may be accomplished through the following two methods:

Answer 155

(1) showing witness’s good character for truthfulness;

(2) a prior consistent statement to rebut

Question 156

Rehabilitation by showing the witness’s good character for truthfulness may be used only when the impeachment alleged that

Answer 156

your witness was lying and not merely mistaken (methods 4, 5, and 6)

Question 157

Rehabilitation by a prior consistent statement is permissible to rebut

Answer 157

(1) a charge of recent fabrication*
(2) a contention of inconsistency
(3) a contention of sensory deficiency
* Most likely on the bar exam.

Question 158

Rehabilitation by a prior consistent statement to rebut a charge of recent fabrication is admissible if it was made

Answer 158

prior to the motive to fabricate arose.

Question 159

A prior consistent statement used to rehabilitate is also admissible as

Answer 159

substantive evidence that the prior statement was true under a hearsay exclusion.