Evidence workshop Flashcards
An airline passenger nearly killed in a crash
is suing the airline for personal injuries. To
prove the extent of his injuries, the passenger
offers a videotape taken by a local news station
immediately after the crash that shows serious
burns covering much of the passenger’s face.
The airline moves to exclude the videotape on
grounds that its probative value is substantially
outweighed by the danger of unfair prejudice.
In making his ruling, which of the following
is NOT appropriate for the judge to consider?
(A) The videotape will make it more likely that
the passenger will win the suit.
(B) There are other methods of proving the
passenger’s damages.
(C) The videotape can be restricted to its proper
purpose by instructing the jury to disregard
any possible emotional appeal.
(D) The videotape will encourage the jury to
decide the suit on an emotional basis.
The judge may not consider whether the videotape will make it more likely that the passenger
will win. This question involves the use of the probative value/prejudicial impact balancing test
contained in Federal Rule of Evidence 403. Under this test, relevant evidence is admissible unless
its prejudicial impact substantially outweighs its probative value. Since the question asks which
argument is least appropriate for the trial judge to consider, turn the question around and ask
which of the choices are appropriate to consider when balancing the probative value and prejudicial impact of an item of evidence. The key to answering this question is to recognize that the only
kind of prejudice that can properly be balanced under this test is unfair prejudice. The fact that
evidence, if admitted, will help one party and hurt another party could be considered prejudicial in
the most general sense, but it does not make the evidence unfairly prejudicial within the meaning
of the balancing test. Thus, (A) is the correct answer. In determining whether the videotape, which
shows serious burns over the passenger’s face, should be excluded, it would be inappropriate for the
trial judge to consider the argument that the videotape will make it more likely that the passenger
will win the suit. That would not render the evidence unfairly prejudicial. Unlike (A), all the
other choices contain arguments that would be appropriate to consider when applying the probative
value/prejudicial impact balancing test. It is appropriate to consider whether the videotape would
cause jurors to decide the suit on an emotional basis; that is the essence of unfair prejudice. Thus,
(D) is incorrect. (C) is incorrect because it is likewise appropriate to consider whether an instruction to the jury to disregard any possible emotional appeal would be effective. (B) is incorrect
because it is also appropriate to consider whether there are other means available to the passenger
to prove damages that would bear on how necessary (i.e., how probative) the videotape would be to
prove damages. If other evidence is available to prove damages, especially evidence less emotionally charged than the videotape, a judge should consider that fact in determining whether the prejudicial impact of the videotape substantially outweighs its probative value.
A defendant charged with auto theft under a
theory of accomplice liability testified at trial on
his own behalf that although he was in the car
when the police apprehended the driver, he was
unaware that the car was stolen.
On cross-examination, the prosecutor asks
the defendant whether he lied on an employment application three years ago when he falsely
claimed to hold a college degree.
If the judge allows the question, what is the
most likely reason?
(A) The evidence may tend to establish that
the defendant is a dishonest person and
therefore may have committed the crime
charged.
(B) The prosecutor has a right to inquire about
prior bad acts during cross-examination.
(C) The evidence is relevant to the issue of
the credibility of the witness and the court
determines that its value is not outweighed
by other considerations.
(D) The evidence may tend to establish the
intent of the defendant to commit auto theft.
The judge will allow the evidence if it is relevant and its value is not outweighed by other
considerations. Under Federal Rule 608, the trial court is given the discretion to allow counsel
to inquire, during cross-examination, about specific instances of bad conduct on the part of the
witness which show a lack of credibility. Therefore, (C) is a more accurate answer than (B). (A)
is wrong; specific instances of previous bad conduct on the part of the accused are not admissible
to prove the accused is the type of person who may have committed the crime. (D) is wrong; it is
true that the prosecutor can prove previous bad acts to establish intent, but the prior behavior must
show more about the defendant’s intent at the time of the crime than this behavior does, because
not all prior bad acts can be inquired about during cross-examination.
A defendant on trial for robbery took the stand
in his own defense and testified that the robber
was his neighbor. The jury acquitted the defendant based on this testimony. The neighbor was
then indicted and brought to trial for the robbery.
At that trial the prosecution called the defendant
from the first trial to the stand, expecting him
to incriminate the neighbor. Surprisingly, the
defendant testified: “My neighbor didn’t have
anything to do with that robbery, but I know who
did! I committed the robbery myself.” When
asked about the testimony he gave at his own
trial, the defendant insisted he didn’t remember
anything about it.
Finding her case in shambles, the prosecutor
calls a juror from the first trial to the stand as
a witness, who is prepared to testify that the
defendant said at the first trial that the neighbor
committed the robbery.
On objection by the defense, should the court
admit the juror’s testimony?
(A) Yes, to impeach the first defendant’s credibility as a witness, but not as substantive
evidence of the neighbor’s guilt.
(B) Yes, to impeach the first defendant’s
credibility as a witness, and as substantive
evidence of the neighbor’s guilt.
(C) No, because former jurors are not competent to testify concerning cases upon which
they sat as jurors.
(D) No, because a transcript of the first defendant’s testimony at his robbery trial is the
best evidence
The juror’s testimony is admissible to impeach the first defendant’s credibility and as substantive evidence of the neighbor’s guilt. As long as the witness is given an opportunity to explain
or deny the statement, extrinsic proof of a prior inconsistent statement is admissible to impeach
the witness’s testimony. If the witness is subject to cross-examination and the prior inconsistent
statement was made under penalty of perjury at a prior trial or proceeding, or in a deposition,
it is admissible nonhearsay; i.e., it is admissible as substantive evidence. A witness is generally
“subject to cross-examination” if he responds willingly to questions (even if he claims a lack of
memory). In this case, the prior inconsistent statement was made under oath at the first defendant’s trial and thus is admissible for its substance as well as for impeachment. (A) is incorrect
because, as discussed above, the juror’s testimony is admissible as substantive evidence of the neighbor’s guilt. (C) is incorrect because jurors are incompetent to testify only (i) before the jury
on which they are sitting, and (ii) in post-verdict proceedings as to certain matters occurring
during jury deliberations. Since the juror is not testifying before the jury on which she was sitting
and is not testifying about jury deliberations, she is a competent witness. (D) is incorrect because
the best evidence rule does not apply to this situation. The juror is not being called to prove the
terms of a writing or to testify about knowledge she gained from reading a writing. The facts she
is testifying to exist independently of any writing; thus, the best evidence rule does not apply
The issue at trial is whether the sun was
shining in a particular city on a particular day
at 11 a.m. A witness testified that he was lying
beside his wife on the beach in that city at 11
a.m. that day and she said to him, “Now that the
sun is out, I’ll be able to get my great tan!”
Is the statement admissible?
(A) No, as hearsay not within any exception.
(B) No, because the witness does not have firsthand knowledge.
(C) Yes, but only if the witness’s wife is
unavailable.
(D) Yes, whether or not the witness’s wife is
unavailable.
The statement is admissible whether or not the witness’s wife is unavailable. The statement by the
witness’s wife is hearsay, an out-of-court statement offered to prove the truth of the matter stated,
that the sun was out at a specific time. However, it is admissible as a present sense impression
under Federal Rule 803(1) because she was observing the condition of the sun at the time that
she made the statement. Unavailability is not required for this exception.
Therefore, (A) and (C) are incorrect.
(B) is incorrect on the law and the facts. The present sense impression exception to the hearsay rule, which is applicable in this case, only requires that the witness actually hear the declarant make the statement at the time that the declarant is observing the event. It does not
require that the witness also observe the event. Moreover, as a factual matter, although it is not
legally relevant, the witness would have first-hand knowledge of the event described because he was on the beach too.
A music fan sued a well-known groupie of a
rock band, alleging that she was assaulted by the
groupie during a melee at a concert. The fan’s
attorney calls the custodian of records for the
hospital that treated her. He wishes to introduce
a portion of the record by the emergency room
physician, who is now deceased, reporting that
the fan said she was assaulted by the groupie.
Assuming the custodian testifies that the
record is an original, kept in the ordinary
course of hospital business, is that portion of the
hospital record admissible?
(A) Yes, as hearsay within the exception for
records of regularly conducted activity.
(B) Yes, as a statement made for the purpose of
medical diagnosis or treatment.
(C) No, because the physician who made the
record is not available for cross-examination.
(D) No, as hearsay not within any exception.
That portion of the record is inadmissible. The statement is an assertive out-of-court statement
by the music fan which does not qualify under any exception to the hearsay rule. For a business
record to be admissible as an exception to the hearsay rule, the declarant must either have personal
knowledge of the fact stated or must have received the information from someone with personal
knowledge who transmitted it in the ordinary course of business. In this case, the music fan’s
statement does not qualify for the business record exception because the emergency room physician had no personal knowledge of the attack and the fan did not transmit it in the ordinary course
of business. It likewise does not qualify as a statement made for the purpose of medical diagnosis
or treatment.
The statement is not offered to describe the injuries which the music fan suffered so
that she could be treated for them, but rather to identify the assailant.
The exception for statements
made for the purpose of medical treatment under Federal Rule 803(4) is inapplicable here. Therefore, (A) and (B) are incorrect. (C) is incorrect because the presence of the physician is irrelevant
under the business record exception. That exception does not require the presence of the author of
the record, only a custodian of the record.
A wife is on trial for murdering her husband.
At trial, the prosecution entered into evidence
the fact that the wife fired the gun which killed
her husband. The wife testified in her defense
that her husband was threatening her with a
knife when she picked up the gun and shot him.
In rebuttal, the prosecution calls one of the
officers who responded to the wife’s 911 call
right after the shooting. The officer will testify
that the wife said, “I accidentally dropped my
gun on the floor and it went off, killing my
husband.”
Is the officer’s testimony admissible?
(A) Yes, as an excited utterance.
(B) Yes, to impeach the wife and as evidence
that she did not act in self-defense.
(C) No, because of the wife’s privilege against
self-incrimination.
(D) No, for the purpose of impeaching the wife,
because the prosecutor did not call her
attention to her statement to the officer on
cross-examination.
The officer’s testimony is admissible. Because the wife is a party, any statement she makes can be
offered against her as a statement by an opposing party (commonly called an admission). Statements by an opposing party are not hearsay and therefore need not qualify for an exception to the
hearsay rule. The statement is admissible substantively because it contradicts, and therefore tends to
disprove, the self-defense theory. It is likewise a prior inconsistent statement which can be used to
impeach the wife’s credibility as a witness.
(A) is incorrect because the statement made in this case
was made to a police officer when he arrived at the house some time after the shooting. Moreover,
the form of the statement shows it to be the product of reflection, rather than an unthinking
response to an exciting event.
(C) is incorrect because as a general rule the privilege against selfincrimination only permits an individual to refuse to give an answer to a question because it might
tend to incriminate her; it does not require that an answer already given be held inadmissible
later when offered in evidence. The exception is when an individual is held in custody and interrogated by the police without being given Miranda warnings and without waiving Miranda rights.
However, Miranda warnings are not required when a statement is volunteered and not the product
of interrogation, as here.
(D) is incorrect. Extrinsic evidence of a prior inconsistent statement ordinarily may not be introduced unless the witness is given the opportunity to explain or deny the
inconsistent statement. However, this foundational requirement does not apply to statements by an
opposing party. Even if the wife were not a party, the extrinsic evidence would be proper because
she is available to be recalled. While the opportunity to explain or deny an inconsistent statement
most often occurs during cross-examination and before the extrinsic evidence is introduced, the
opportunity may be given at any point by recalling the witness after the prior inconsistent statement
has been admitted into evidence.
The son of a famous author who has not been
seen in two years brings an action against an
insurance company to compel payment of the
proceeds of the author’s insurance policy, for
which the son is the sole beneficiary.
The son introduced evidence that, on the day
the author disappeared, a plane left from the
city where she lived and was lost while traveling
over the ocean. The manifest of the airline was
introduced showing that a passenger with a name
similar to hers was aboard the airliner.
The son wants to testify that his mother told him that she
was going to be on that plane and, to preserve
her privacy, was going to travel under the name
that matches the name in the manifest.
Is the son’s testimony admissible?
(A) Yes, because it is a relevant indication of
state of mind.
(B) Yes, provided that there is corroborative
evidence in addition to the son’s mere statement.
(C) No, because it is hearsay not within any
exception.
(D) No, because it is not relevant.
The testimony is admissible as evidence of state of mind. A declaration of intent to do something
in the future is admissible as circumstantial evidence tending to show that the intent was carried
out. This falls under the “present mental state” exception to the hearsay rule, and so
(C) is incorrect.
(B) is incorrect because at issue is the admissibility of the testimony, not its sufficiency
to support a finding that the author perished on the plane. Thus, corroborative evidence is not
needed.
(D) is incorrect because the testimony of the author’s son is relevant; it tends to make more probable the fact that the author was on the ill-fated plane and, consequently, that she is dead. Thus, the testimony of the son is admissible as circumstantial evidence that the author
carried out her declared intent to travel on the plane under an assumed name.
