HYPOS (E&E, Casebook, Quimbee, Steinhauser) Flashcards
True or false: Conditionally admitted evidence is admitted for a limited purpose.
True.
Ch. 3, p. 67
True or false: Relevance objections are almost always sustained.
False.
Ch. 3, p.67
D is charged with armed robbery as he is caught by police officers running near the scene of the crime and arguably fitting the offender’s description. D, in handcuffs and surrounded by four police officers, is brought before the victim and told, “We found this guy running from the scene and he seems to fit the description.”
The victim responded, “Well, he does sort of look like the guy.” There were no other witnesses. D told the police he was running to catch the bus to work when they grabbed him.
At trial, the prosecution offers evidence in its case-and-chief that D was convicted nine years earlier of robbery. Should this be admitted?
Objection: Improper Character Evidence. If this evidence is admitted the jury will simply assume, “he robbed nine years ago, he’ll do it again” – act propensity.
Ruling: If the prior conviction caused the jurors to ignore all these things, they would be convicting him simply because they think he is a bad man. Inadmissible under R.404(a)(1).
Ex. p. 103-104
D was convicted of killing P by shooting him in the head at point-blank range, execution style. D served his time and was released.
A few months later, P2 was killed at D’s house. D admits to shooting P2, but he claims it was an unintentional accident. During its case in chief, the prosecution seeks to admit evidence of D shooting P to establish that D intended to kill P2.
The defense objects. How should the court rule?
Objection: Improper character evidence. Act propensity.
Reason: Under 404(b)(2), not offering for act propensity, but to prove intent. D clearly intended the first killing and likely intended this one too.
Ruling: Sustained. Even though the prosecution phrased the offer in terms of “intent,” the evidence’s relevancy on this theory turns on propensity. The prosecution is arguing that because D killed with intent before, he is the type of person who kills with intent.
Same result if the prosecution were using this to show “lack of accident” because the prosecution is still contending that D is less likey to have accidentally shot P2 because he is the kind of person who intentionally kills. Both theories violate 404(a)(1)(b).
Ex. p. 107-8
D, a 30-something accountant, shows up at a Jewish daycare center, shoots three five-year-old children and flees. Assuming he is sane, it is clear from the nature of his acts that he meant to cause serious bodily injury or death to these children. An investigation reveals he is a neo-Nazi who was personally insulted by the daycare’s rabbi, who called D a “hateful, powerless barbarian” the day before the shooting.
The prosecution wishes to introduce evidence of the exchange between D and the rabbi but D’s counsel objects. How should the court rule?
Objection: Improper character evidence
Response: This is not being offered for act propensity, but to show D’s motive and that he acted with the requisite mental state. 404(b)(2)
Ruling: Overruled. This is admissible to show D was motivated against the victims. D had a reason to retaliate against the rabbi. This is relevant to establish that D was more likely to have committed the crime than someone without a motive.
Ex. on p. 111-12.
The same would be true if it was known that someone shot the children (but not exactly who). An investigation reveals that D, a neo-Nazi, was near the daycare center at the time of the crime and he is a skilled marksman. The evidence could be used to show that D and not someone else killed the kids. This goes to motive, avoiding act propensity.
D is on trial for homicide. In cross examination of prosecution witnesses, defense counsel reveals its theory: D killed the victim because the victim was attacking D’s husband. The prosecution offered evidence that D had been unfaithful on numerous occasions during the year before the killing.
- Is this admissible? Why or why not?
- Should the ruling change if the prosecution also offers evidence that the victim had told D’s husband of her infidelity in a conversation that took place shortly before the victim’s demise?
- No, this is not relevant character evidence.
2. Yes, as it is more towards motive and not act propensity 404(b)(2)
Purported medium Jane Johnson is charged with fraudulently accepting money for putting clients “in touch” with their dead relatives. Johnson would hold seances during which the “dead” would talk to the living.
Prosecutors offer evidence of Johnson’s involvement in three scams in which she would mimic other persons’ voices and appearance to gain access to that person’s bank accounts, stock trading accounts, and pension funds.
The defense objects. How should the court rule?
Objection: Improper character evidence
Response: This is not offered for act propensity as prohibited by R.401, but to show Johnson’s opportunity to commit the crime under R.404(b)(2)
D is charged with assault. After the prosecution rests, with its sole testimony coming from the alleged assault victim, the defense calls a rabbi and a priest to the stand, both of whom testify that, in their opinion, D was a peaceful man.
In rebuttal, the prosecution calls D’s ex-wife, who opines that D is a violent man.
Is any of this testimony barred?
No, under 404(a)(2)(A) this is allowed in a criminal trial. D can introduce witness testimony regarding a pertinent trait and the prosecution can rebut it.
D is charged with assaulting P. D in her primary defense calls a witness, her neighbor, to testify that P has a reputation in the neighborhood as a violent person. D claims self-defense, arguing that P was the first aggressor.
The prosecution objects. How should the court rule?
Objection: Improper character evidence
Response: This is an exception to act propensity under 404(a)(2)(B) – P’s violent nature is pertinent to D’s claim of self defense.
Ruling: Overruled
However, P can bring in her own character witness to testify that she is, in fact, very gentle and peaceful.
After a night of drinking D stabbed P in the chest with a butcher knife. P died as a result of the wound. At her criminal murder trial, D’s defense is that P came at her first with another knife, also recovered from the scene and she acted in self-defense.
D calls an eyewitness from the night of the killing to testify to her version of the events and the witness does testify that P came at D first.
In its rebuttal case, P’s attorney calls two of her sisters to testify that when she was alive, P was a peaceful person.
D objects. How should the court rule?
Objection: Improper character evidence
Response: Exception to act propensity, R.404(a)(2)(C) allows the prosecution in a homicide case to introduce evidence that the victim had a peaceful nature (if D’s defense is self-defense)
Ruling: Overruled
In an assault case, the prosecution calls a witness to the stand to testify that D was the first aggressor. On cross examination, D’s attorney confronts the witness with grand jury testimony in which the witness said, “I really can’t blame D. It’s hard not to react when you are punched in the mouth.”
The defense attorney asks the witness, “Did I read your sworn testimony correctly?” And the witness responds, “yes.”
P’s attorney objects. How should the court rule?
Objection: Improper Character Evidence
Response: This is is not being used for act propensity, but for non-character impeachment (prior inconsistent statement.
Ruling: Overruled
Four categories of non-character impeachment: \+ Bias \+ Prior Inconsistent Statement \+ Contradictory Evidence \+ Memory or Perception
W is an alibi witness for her friend, D, at D’s robbery trial. During rebuttal, the prosecution seeks to call two witnesses to the stand to impeach W.
1) W’s next door neighbor testifies W is untruthful
2) W’s ex-spouse testifies that in her opinion, W is a thief and violent
D’s attorney objects to both witness testimony. How should the court rule?
Objection: Improper character evidence.
Response:
1) The neighbor’s testimony is being used under R.608(a) to impeach W’s reputation (truthfulness).
2) The ex’s testimony is being used for opinion under R.608(a)
Ruling:
1) Overruled, Untruthfulness evidence is admitted to impeach the witness.
2) Sustained. Character traits like being a thief and violent have nothing to do with truthfulness or untruthfulness – beyond the scope of R.608(a)
W testifies for the defense in a date rape trial. W testifies that he was at a frat party where the rape allegedly happened and saw the victim being the sexual aggressor. Prosecution asks W whether he once committed perjury by lying about the size of his assets when testifying at his recent divorce trial. W denies that he lied at the earlier trial.
W has never been convicted of perjury or even charged with it.
Prosecution seeks to call a witness to: 1) Establish the amount of money W testified to having in the bank in his divorce case and 2) the much greater amount of money W had in the bank at the time.
Defense objects to this testimony. How should the court rule?
Objection: Improper character evidence
Response: Using R. 608(b) to show specific acts of truththfullness
Ruling: Sustained. Though a conviction of a prior bad act is not required under R.608(b), extrinsic evidence is not allowed. P can ask W if he committed perjury, but if he denies it the prosecution has to let it go. At least under R.608(b).
If W had been convicted of perjury, R.609 applies.
D is charged with armed robbery of a clothing store. Just after the culprit left the store, a customer ran over to the victimized clerk and said, “I got a good look at the robber. He had a big scar on his right cheek.” The prosecution calls the clerk to testify to the customer’s statement to prove that D, who has a facial scar, was the robber. Assume that the customer’s statement would be admissible under the “excited utterance” exception to hearsay.
The effect of the Confrontation Clause is that…
1) The customer’s statement is testimonial and, if the customer is unavailable to testify at trial the customer’s statement is inadmissible unless D had a previous opportunity to cross-examine the witness.
2) Even if the customer’s statement is testimonial and the customer is unavailable to testify, the statement is admissible if it has “indicia of reliability”
3) Since the customer’s statement is non-testimonial, its admissibility is not affected by the Confrontation Clause
4) The Confrontation Clause allows the prosecution to offer the customer’s statement into evidence only if the customer testifies at D’s trial
3) Since the customer’s statement is non-testimonial, its admissibility is not affected by the Confrontation Clause
Elements to Bar a Statement – even if it meets a hearsay exception – must meet all the following:
1) Hearsay statement (admissible);
2) Offered against a criminal defendant (by prosecution);
3) Statement itself must be testimonial;
4) Cannot cross at trial – witness unavailable; and
5) No prior opportunity to cross examine witness
D is charged with armed robbery of a clothing store. A police office questions a customer after the robbery and she tells the officer, “Oh my God. I just remembered, the robber was missing a right earlobe.”
D has two intact earlobes. D’s lawyer calls the officer to testify to the customer’s statement. The judge decides that the customer’s statement is admissible under “excited utterance” exception to hearsay is that it is testimonial.
Should the judge exclude the customer’s statement as a violation of the Confrontation Clause?
No, because it is offered by the the defense.
Elements to Bar a Statement – even if it meets a hearsay exception – must meet all the following:
1) Hearsay statement admissible in court;
2) Offered against a criminal defendant (by prosecution);
3) Statement itself must be testimonial;
4) Cannot cross at trial – witness unavailable; and
5) No prior opportunity to cross examine witness
D is charged with arson. At his preliminary hearing, store clerk W testifies that the day before the fire, W sold D a bag of rags, a box of matches, and a gallon of gasoline. D’s lawyer cross-examined D at the preliminary hearing. At trial, W is available to testify, but the prosecution chooses not to call W to the stand, but instead reads the transcript of W’s preliminary testimony into the record.
D objects. How should the court rule?
Objection: Confrontation Clause
Response: The witness is available (doesn’t meet the element) and not admissible hearsay statment
Ruling: Overruled
Elements to Confrontation Clause:
Hearsay statement admissible in court;
Offered against a criminal defendant (by prosecution);
Statement itself must be testimonial;
Cannot cross at trial – witness unavailable; and
No prior opportunity to cross examine witness
P claims she was badly hurt by xanadite, an ingredient in a microwave pizza sold by D manufacturer. To support a claim for punitive damages, P wants to prove that xanadite is extremely dangerous.
Can she introduce the following evidence to show that xanadite is dangerous?
A letter from a university scientist found in the company’s files stating that the scientist has discovered that xanadite is very dangerous in microwave pizzas and asking to be hired by the company to do further research about it.
1) Is this an out of court statement? Yes
2) Used for the truth of the matter asserted? Yes
3) Is it relevant? Yes
4) Exceptions or exemptions that allow this to be in court? NO
R.801(d)(1) – Not a testifying Witness
R.801(d)(2) – Not an employee/authorized agent, company had not adopted
5) Confrontation Clause applicable? Not a criminal case, not an admissible hearsay statement
P claims she was badly hurt by xanadite, an ingredient in a microwave pizza sold by D manufacturer. To support a claim for punitive damages, P wants to prove that xanadite is extremely dangerous.
Can she introduce the following evidence to show that xanadite is dangerous?
A memo written by the company’s president to the company’s Chief Scientist saying the president wanted him to start woking immediately on a new formula for the company’s pizza that would replace the xanadite with another ingredient because
1) Out of court statement – yes
2) Used for truth of the matter asserted – yes
3) Relevant – yes
4) Exception or Exemption? Yes, opposing party
Non-hearsay purpose state of mind: President wanted him to start woking immediately on a new formula for the company’s pizza that would replace the xanadite with another ingredient
R.801(d)(2)(A) or (C): xanadite is extremely dangerous
+ Declarant is adversarial
+ declarant’s adversary offers party’s statement into evidence
+ Declarant is party to lawsuit (maybe?)
+ Declarant was expressly/impliedly a party’s authorized agent
+ Statement was within scope of authority
5) Confrontation Clause does not apply
P claims she was badly hurt by xanadite, an ingredient in a microwave pizza sold by D manufacturer. To support a claim for punitive damages, P wants to prove that xanadite is extremely dangerous.
Can she introduce the following evidence to show that xanadite is dangerous?
+ A note written by the company CEO to the company’s VP of public relations, with an attached copy of a scientific article, saying “the attached article says that xanadite is dangerous in foods. We use it in our microwave pizzas. This shows we’ve been selling something dangerous.”
+ What if the note instead reads, “This shows we may be in serious trouble” instead of “This shows we’ve been selling something dangerous”?
1) Out of court statement? Yes
2) Truth of the matter asserted? Yes
3) Relevant? Yes
4) Exceptions or Exemptions?
+ R.801(d)(2)(B) Adoptive statement (opponent) – both the article and note are permissible
+ A judge would decide if this is an adoptive statement
5) Confrontation Clause does not apply
P claims she was badly hurt by xanadite, an ingredient in a microwave pizza sold by D manufacturer. To support a claim for punitive damages, P wants to prove that xanadite is extremely dangerous.
Can she introduce the following evidence to show that xanadite is dangerous?
An autobiography by someone who once was the president of the manufacturing company, written after retirement, describing xanadite as a dangerous ingredient
1) Out of court statement - yes
2) Truth of the matter - yes
3) Relevant - yes
4) Exceptions or Exemptions? Opposing party statement
+ declarant is adversarial
+ declarant’s adversary offers party’s statement into evidence
+ Declarant was an employee
+ Declarant’s statement made within the scope of employment
+ Statement was made while employee was employed – No, because the book was written after the author retired.
D and D2 are on trial for bank robbery. A witness has testified that she saw them enter the bank together carrying guns. The prosecution seeks to have a police officer testify that after he had been arrested, D told the officer that D2 was the other person involved in the robbery. Is this testimony admissible to show that Moe was one of the two robbers?
1) Out of court statement - yes
2) Truth of the matter – yes
3) Relevancy – only relevant if true
4) Exception/Exemption –
R. 801(d)(2)(E): Co-conspiracy IF it was made to further a crime, but here, the statement has been made after they were caught. Does not apply.
5) Confrontation clause does not apply, as the statement is not allowed in court
Eagle Enterprises sues Cybernetics Corp., seeking damages on a claim that a computer program Cybernetics was supposed to produce by January 1, 2015 failed. An independent computer engineer testifies on behalf of Eagle (plaintiff) that he examined the program on February 1, 2015, and it did not work.
May he testify further to show that the computer program did not work properly and that in February 2015 he told a group of Eagle’s employees that the program did not work?
Yes. 801(d)(1)(B)
1) Out of court statement – yes, two of them
2) Truth of the matter – yes
3) Relevant – yes
4) Exception/Exemption? Yes
R.801(d)(1)(B) Prior Consistent Statement
+ Declarant testifies
+ Declarant subject to Cross
+ Prior statement - consistent with testimony
+ Statement offered to rehabilitate – AFTER attack on improper influence, the independent contractor may testify
P left his car to be repaired at a repair shop. When he picked it up and started to drive away, its brakes failed, causing P to hit something in the repair shop’s parking lot.
A person came up to P right after the accident and said, “I’m the service manager. I’m sorry we forgot to check the brakes.”
If P seeks damages from the repair shop, could he testify about the statement to show that the repair shop failed to inspect its work properly?”
1) Out of court statement? Yes
2) Truth of the matter? Yes
3) Relevant – Yes, we need this to be true
4) Exemption/Exception? Opposing Party Statement
R.801(d)(2)(D) Employee’s statement
+ declarant is adversarial
+ declarant’s adversary offers party’s statement into evidence
+ declarant was an employee – we will assume he is one in this case (wearing a jumpsuit or a hat with the repair shop’s logo?)
+ Statement was within the scope of employment
+ Statement made while employed
P was injured while riding a bus – the bus collided with a car. P sought damages from the bus company. One of her witnesses was an expert at reconstructing accidents. The expert testified that the collision probably happened because the bus driver was negligent in paying attention to oncoming traffic.
The bus company argued that there was a brake defect in the manufacturing of the bus, which caused the accident.
Could the transit company introduce evidence that P’s expert once testified in a similar case with a bus collision and concluded that the brake failure was the cause of the incident?
If admissible, could proof of the expert’s earlier statement be used for another purpose other than impeachment?
Impeachment: Prior Inconsistent Statement (non-character)
+ Witness said different things at different times about the same matter
+ Someone who changes their story is less likely to be telling the truth than someone with a consistent story
+ Bus company could use this, assuming it’s not being used for the truth of the matter asserted (not for hearsay purposes)
Other purpose beyond impeachment? YES, bus company could use this for hearsay purposes (Testifying Prior Witness’s Inconsistent Statement)
1) Out of court statement - yes (the previous testimony)
2) Truth of the matter asserted - yes
3) Relevant - yes
4) Exemptions to allow D to introduce this evidence? Yes, Testifying Witness
R.801(d)(1)A Prior Inconsistent Statement
+ Declarant Testifies
+ Declarant Subject to Cross
+ Prior statement given under oath, inconsistent with testimony at trial
P sues D for money she claims is due under the terms of the settlement of a prior suit. How can P establish her claim in light of R.408’s prohibitions re: evidence of settlements?
In this case P is allowed to introduce evidence of the settlement agreement because R.408 only precludes evidence about settlements or settlement talks if the evidence is introduced as relevant to the validity or invalidity of the underlying claim that is subject of the negotiations.
Here, the claim is not based on whatever dispute led to the settlement, but on a contractual undertaking (the settlement) which can be interpreted and enforced by a court without any attention to the OG dispute intended to resolve.
A customer says to a car dealer, “I’m sorry I haven’t made the last payment, and I have to admit the car runs fine, but I can’t afford it. I owe you $800 more but will you accept $450?”
In a later suit for the full $800, the customer claims he should not have to pay anything because the car was defective. To establish that there was nothing wrong with the car, can the dealer testify that the customer told him the car was fine?”
R.408 requires
1) A formal/informal compromise
2) Validity or amount in dispute
3) Considerable consideration
Because the customer tried to whittle down the amount she owed, this was not a compromise under the definition of the FRE. R.408 only covers statements and conduct in connection with claims that are disputed either as to the validity or amount. Here, there is no dispute about the amount owed or the quality of the car.
Objection: Quasi-privileges – Compromise/Settlement Negotiations
Response: Rule 408 does not apply here because there is no dispute (validity or amount), which the rule requires. Here, the customer’s conversation should be admissible because she was trying to re-negotiate the amount she owes that had already been decided when she bought the car, which was not the intent of this rule.
Ruling: Overruled
After an accident at a railroad crossing, the state highway dept. cut down trees that obstructed the view of the tracks from the road. The person injured in the accident sued the railroad, claiming the intersection was dangerous and the railroad should have instructed its engineers to slow down when approaching.
Can P introduce evidence that the highway department’s actions as relevant to the dangerousness of the intersection prior to the accident?
Yes.
P (individual harmed in the accident)
D (railroad)
Highway department is not involved in the lawsuit as a party, so their actions can be used to show that the intersection was dangerous. R. 407 subsequent remedial measures prohibition does not apply.
Objection: Quasi privileges – subsequent remedial measures
Response: R.407 does not apply because the highway department is not the defendant in this case. 407 is only for Ds who take subsequent measures.
Ruling: Overruled
P1 and P2 were walking across an intersection when they were both hit by a truck operated by D. They were both hospitalized and each accepted payments from D.
P1 sues D.
If P2 testifies at the trial that she and P1 were talking while they crossed the street and not particularly attentive (contributorily negligent), could P1 introduce evidence that D paid P2’s medical bills?
Yes. This could be used to show P2’s bias in favor of D and is not barred by R.409 (offers to pay medical expenses)
It cannot be used for truth of the matter asserted – like admitting fault or liability, but it does show motivation to P2 to lie or make testimony for D more favorable. The prosecution could impeach P2 and use this evidence.
A limiting jury instruction could be included, which says that the information can only be used to determine P2’s credibility, not if D was ultimately at fault by paying P2’s medical expenses.
Objection: Quasi Privileges – offers to pay medical expenses
Response: Not using this information to show D’s fault or liability, but as extrinsic evidence to show P2’s bias because D paid her medical bills.
Ruling: Overruled
A man was on trial for the murder of a bar bouncer. The man claimed that the bouncer had attacked him first and that he had only fought back in self-defense. The man sought to introduce the testimony of a witness who stated that several weeks before the murder, the bouncer had told the witness, “I’d like to kill one of these drunk idiots one day.” The man wanted to introduce the evidence to show the bouncer’s character for violence and that the bouncer likely acted in a violent manner toward the man before the murder.
Is a court likely to admit the witness’s testimony?
No, because the testimony only involves a specific instance of conduct.
Under Rule 405 of the Federal Rules of Evidence, whenever character evidence is admissible, character can be proven by testimony in the form of an opinion about a person’s character or trait. However, specific instances of conduct are not admissible to prove a person’s character to show that the person acted in a particular way based on his or her character. Consequently, the man could not use the witness’s testimony that the bouncer had once said that he wanted to kill “one of these drunk idiots” to show the bouncer’s character for violence.
A woman slipped on a wet floor in a restaurant and was injured. Thereafter, the restaurant owner implemented a policy that all employees had to display a portable warning sign stating “CAUTION—Wet Floor” whenever the floor was wet.
In a negligence action by the injured woman against the restaurant, for what purpose may the restaurant’s new policy be admitted into evidence?
The policy may be admitted to prove the feasibility of taking precautionary measures.
Pursuant to Rule 407 of the Federal Rules of Evidence, subsequent remedial measures, or measures that would have made an earlier inquiry or harm less likely to happen, are not admissible to prove negligence, culpable conduct, or a need for warning or instruction. Such measures may be admissible to prove ownership or control, as well as to prove the feasibility of taking precautionary measures
A plaintiff filed suit against a defendant for the intentional tort of assault. To prevail in this action, the plaintiff had to prove that the defendant, acting intentionally, caused the plaintiff reasonable apprehension of an immediate harmful or offensive contact. At trial, the defendant wished to offer evidence that, at the time of the alleged assault, he thought that the plaintiff was someone else.
If the judge excludes this evidence as inadmissible, what is the likely reason?
A) It does not relate to a matter of consequence in the action.
B) It does not make a fact more probable than it would be without the evidence.
C) Its relevance is outweighed by the likelihood of undue prejudice.
D) Its relevance is outweighed by the likelihood of confusing the jury.
A) It does not relate to a matter of consequence in the action.
The defendant’s belief that the plaintiff was someone else is not a matter of consequence in the tort of assault, and it is therefore not relevant to the plaintiff’s claim.
A woman was on trial for the murder of her husband, who was found shot to death. The woman claimed that she had no idea how to shoot a gun. The prosecutor sought to introduce evidence that the woman had been arrested previously for shooting of another person. The prior arrest had not resulted in a conviction because the woman had asserted a successful affirmative defense. However, the woman had admitted to shooting a gun in the trial involving the previous shooting.
Is the court likely to admit the evidence of the woman’s prior arrest?
Yes, because the arrest tended to show that the woman knew how to shoot someone.
Prior crimes or misconduct are only admissible for noncharacter purposes. Rule 404(b) of the Federal Rules of Evidence specifies that a person’s previous crimes, wrongs, or other acts are not admissible to prove a person’s character in order to show action in conformance with that character.
Prior crimes or misconduct may include arrests, convictions, or even testimony from witnesses who observed unreported crimes. While inadmissible for the purpose of proving character, prior crimes or misconduct may be admissible for relevant, noncharacter purposes, such as proving motive, opportunity, intent, preparation or planning, knowledge, identity, or absence of mistake or accident.
Typically, evidence of a prior crime or misconduct may be introduced only if it can be proven and if it was committed reasonably close in time to the relevant action. Here, the woman’s prior arrest could be used to show she had the knowledge of how to shoot someone.
A plaintiff motorist sued both the owner and the lessee of a highway rest stop for injuries incurred when she slipped in an oil spill and was injured at the rest stop. At trial, there was conflicting evidence as to whether the owner, the lessee, or both were responsible for maintaining the premises. The owner testified that it was the lessee’s sole responsibility. During the plaintiff’s cross-examination of the owner, the plaintiff asked the owner whether he had liability insurance coverage for injuries sustained on the rest-stop premises. The defense objected.
How should the trial judge rule on the defense’s objection?
Objection: Rule 411, Liability Insurance
Response: Not using to show liability, rather to prove ownership
Ruling: Overruled
The judge should admit the evidence to address the disputed issue of which defendant had control and responsibility for maintaining the rest stop.
Rule 411 of the Federal Rules of Evidence excludes evidence of liability insurance to prove negligence or wrongful conduct, but permits it for other purposes, such as to prove ownership or control. Here, because there is a dispute about which defendant had control of, and therefore responsibility for, maintaining the rest stop, evidence of liability insurance would be probative of the defendant’s assumption of responsibility for the premises.
A man was on trial for stealing a car. The prosecution offered the testimony of a witness who said that she saw the man stop and look at the car a short time before the car was reported missing.
Is a court likely to admit the witness’s testimony?
Yes, because the testimony increased the probability that the man stole the car.
Rule 401 of the Federal Rules of Evidence requires that, to be relevant, evidence must make a fact more probable than it would have been without the evidence. In addition, the fact that the evidence tends to support must be material, i.e., it must be of consequence in determining the action.
However, the burden does not require that any particular piece of evidence make a fact probable (i.e., make the fact likely or at least 51 percent probable). Instead, the burden only requires that each piece of evidence make some material fact slightly more probable than it would have been without the evidence. Here, the fact that the witness saw the man looking at the car a short time before the car was reported missing was admissible because it made it slightly more probable that the man stole the car.
A defendant was charged with murder. The prosecution and the defendant entered into plea negotiations, during which the prosecution offered to reduce the defendant’s charge to manslaughter if the defendant agreed to plead guilty to the lesser charge. The defendant refused. At trial, the defendant offered evidence that the prosecution had offered to reduce the defendant’s charge.
Is this admissible?
The judge may admit the evidence, because it is not being offered against the defendant, but the judge will likely consider the policy of encouraging free and open plea negotiations as a factor in the determination.
Federal Rule of Evidence 410 prohibits, in a civil or criminal case, the admissibility, against the defendant, of any statements made by the defendant during plea negotiations. The rule is a one-way street, however. It confers evidentiary protections upon the defendant, but not upon the prosecutor.
Therefore, under the language of the federal rule, the judge in this case would have the discretion to admit the prosecution’s offer of a lesser charge. However, as a practical matter, judges often exclude these statements, even when offered by the defendant, to encourage free and open negotiations in the context of plea discussions.
A doctor and a lawyer got into a verbal argument on a golf course, and the lawyer shot the doctor in the leg. The doctor sued the lawyer for his injuries. The lawyer claimed that he acted in reasonable belief that the doctor would physically attack him because the doctor had been convicted of assault and battery three times in the past 10 years. The lawyer did not know about the doctor’s prior convictions before the shooting. The lawyer offered the doctor’s prior convictions into evidence to prove his belief was reasonable.
Is it likely that the court will admit the doctor’s prior convictions?
No, because the doctor’s prior convictions are irrelevant to the lawyer’s defense.
Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if it meets two criteria.
First, the evidence must be probative in that it has any tendency to make a fact more or less probable than it would be without the evidence. Any tendency at all is sufficient; the standard is not stringent.
Second, the evidence must also be material in that the fact it makes more or less probable is of consequence in determining the action. A wide range of issues can be considered facts of consequence, including anything from a legal element of the case itself to undisputed background information that helps the jury to understand a matter.
Here, the lawyer is offering the evidence to prove he acted in reasonable belief that he would be physically attacked. However, the lawyer did not know about the three prior convictions before the shooting, so the prior convictions do not have any tendency at all to show that the lawyer was reasonable in his belief. Consequently, the prior convictions are irrelevant and should not be admitted.
A woman sued a company for negligence after she had a traffic accident with a delivery truck. The company claimed that it never employed drivers who were known to be negligent and that it did not own the truck involved in the accident. The woman offered evidence that the company had a liability insurance policy that covered the truck with which she had the accident.
Is a court likely to admit the woman’s evidence of the liability insurance policy?
Yes, because the liability policy may prove the company’s ownership of the truck.
Often, a person or organization will be insured against potential liability. When an accident occurs, the victim may try to use the fact that the injuring party owns liability insurance in order to prove that the injuring party acted wrongfully.
Rule 411 of the Federal Rules of Evidence prohibits the use of liability insurance ownership to prove that a person acted negligently or otherwise wrongfully. The public-policy rationale behind this rule is to encourage the ownership of liability insurance.
However, evidence of liability insurance may be admissible to prove witness bias or to prove agency, ownership, or control. Here, because the company claimed that it did not own the truck, the woman can use the liability policy to show ownership.
An accountant was charged with embezzling money from the charity that employed her. The indictment alleged that the accountant tried to conceal her embezzlement by falsifying the charity’s financial records. The accountant’s defense was that she did not misappropriate funds and that any inaccurate financial entries were innocent mistakes. The prosecution sought to offer evidence that, three years earlier, the accountant’s previous employer had fired her because he believed she had misappropriated funds and concealed the theft by falsifying the employer’s financial records.
For what purpose, if any, would it be proper for the judge to admit the evidence?
To prove that the accountant did not make an innocent mistake.
Under Rule 404(b) of the Federal Rules of Evidence, although crimes, wrongs, and other acts are not admissible to prove a person’s character in order to show that, on a particular occasion, the person acted in conformity with that character, they may be admissible for another purpose, such as proving the absence of a mistake.
Therefore, a judge could properly admit the evidence to rebut the accountant’s defense that she had made innocent mistakes with regard to the charity’s records. Note that if the judge admits the evidence, the judge would likely accompany the admission with a limiting instruction to the jury advising it that it may only consider the evidence for the purpose of deciding whether the accountant’s errors were mistakes.
A man was accused of stalking a woman. The prosecution sought to introduce a photograph of a man standing in an alley behind the woman’s house. The photograph was fuzzy, and the person’s face was unidentifiable, but it clearly showed a heavyset white male wearing a hat affiliated with a national political party. The man accused of stalking the woman was also a heavyset white male who was known to sometimes wear a hat like the one in the photograph.
If the court refuses to admit the photograph into evidence, what is its most likely reason for doing so?
The baseball cap could lead jurors to make decisions based on a non-rational basis.
Under Rule 403 of the Federal Rules of Evidence, “[t]he court may exclude evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Unfair prejudice refers to a situation where evidence has an undue tendency to suggest decisions on an improper basis—typically, though not necessarily, an emotional one (for example, a gory crime-scene photo or a picture of the defendant wearing a T-shirt with an offensive slogan).
Here, if the court refuses to admit the photograph into evidence, it is likely because the baseball cap could lead jurors to make a decision based on the man’s political affiliation instead of a proper basis.
A woman was charged with the murder of her husband. During a meeting with the prosecutor, the woman said, “I’ll plead guilty if you promise to reduce my charge to voluntary manslaughter. I’m too much of a lady to have murdered my husband, and I’m too much of a lady to go to trial.” The prosecutor accepted the offer and responded sarcastically, “We love to prosecute ladies around here.” Later, the woman withdrew her guilty plea, and the case went to trial. At trial, the woman testified that during plea negotiations the prosecutor told her that he “loved to prosecute ladies around here.” In response, the prosecutor sought to admit the statements the woman made during her meeting with the prosecutor.
May the court admit the woman’s statements?
Yes, because the woman testified to the prosecutor’s statement during plea negotiations.
Some types of pleas and plea-related statements are not admissible as evidence in criminal and civil cases. Rule 410 of the Federal Rules of Evidence prohibits the use of withdrawn guilty pleas and nolo contendere—or no contest—pleas, as well as any statements made during proceedings or discussions regarding those pleas. The public-policy rationale behind this rule is to encourage plea bargaining, in order to avoid litigation if possible.
However, there are two exceptions to Rule 410 that allow plea-related statements to be admissible in two situations.
+ First, a related statement may be admissible in any proceeding where another statement made during the same plea or plea discussion has already been introduced, but only if the statements should be considered together in the interests of fairness.
+ The second exception applies to criminal proceedings for perjury. If the defendant made the related statement under oath and on the record, with an attorney present, then that statement may be admissible in the perjury proceeding. Here, the woman testified to the prosecutor’s statement, so the woman’s related statement could be admitted in the interest of fairness.
A hot-dog vendor sued a bettor for battery after the vendor and the bettor got into a fight after a horse race. During the trial, the vendor sought to introduce several witnesses’ testimonies as habit evidence regarding the bettor.
Which of the following is the court LEAST likely to admit as habit evidence?
A) Evidence that the bettor always became violently angry whenever things did not go his way.
B) Evidence that the bettor always sat in a seat near the vendor.
C) Evidence that the bettor always bet on every race whenever he went to the track.
D) Evidence that the bettor always attended horse races on weekends and holidays.
Evidence that the bettor always became violently angry whenever things did not go his way.
Under Rule 406 of the Federal Rules of Evidence, for evidence to qualify as habit evidence, it must relate to behavior that is strong, specific, and consistent to the point of being almost automatic in its repetition. It must have occurred regularly enough to demonstrate that a person would have responded in a particular way to a particular situation. The more general the behavior, the more likely it is to be character rather than habit evidence. Here, evidence that the bettor always became angry whenever things did not go his way is more likely to be classified as character evidence. Importantly, this answer option does not state any particular behavior in a particular situation that is consistently repeated
A woman was charged with bank fraud. During trial, the woman sought to introduce a signed United States government banking approval, a foreign government’s signed banking approval, and an unsecured promissory note.
Which items of evidence are self-authenticating?
The foreign government’s approval and the promissory note.
Some evidence is self-authenticating and does not need to be further authenticated by the proffering party to be admissible. Fed. R. Evid. 902. Generally, this category of evidence consists of documents that are not particularly susceptible to fraud or forgery. Foreign government documents and commercial paper documents such as a promissory note are self-authenticating.
However, United States government documents must be either sealed or signed and certified to be self-authenticating. Because the United States banking approval was only signed, and not sealed or certified, the approval is not self-authenticating.
A banker was on trial for making terroristic threats to one of his co-workers in an internet chat room. To authenticate the content of the chat room conversation, the prosecutor introduced printouts of the chat room conversation and called the co-worker to testify that she had printed out the conversation herself and that the printouts were accurate reflections of the conversation.
Did the prosecutor properly authenticate the conversation?
Yes, because the prosecutor could use traditional authentication principles to authenticate the conversation.
A prisoner was charged with assault with a dangerous weapon and possession of a contraband knife. At trial, the prisoner took the stand and claimed self-defense on the assault charge. The prosecution sought to introduce into evidence the prisoner’s previous felony convictions for assault and possession of a contraband knife to impeach his character for truthfulness.
Is the court likely to allow the prosecution to introduce evidence of the prior convictions?
No, because the prejudicial effect of the prior convictions is likely very high.
The introduction of a prior conviction may be used only to attack the witness’s character for truthfulness. Fed. R. Evid. 609. There is a higher standard of admissibility for a prior felony conviction of a criminal-defendant witness than there is for a witness who is not a criminal defendant, because evidence of prior convictions is viewed as extremely prejudicial to criminal defendants. An otherwise admissible prior felony conviction of a criminal-defendant witness is admissible only if the probative value of admitting the prior felony conviction outweighs its prejudicial effect.
Consequently, prior convictions are generally inadmissible in cases where the current offense is the same or similar to the prior conviction. This is because the probative value of the prior convictions is generally outweighed by the high chance for prejudicial effect. A jury hearing that a defendant was previously convicted for the same crime the defendant is currently charged with would be more likely to draw an impermissible inference that the defendant must have committed the present crime because the defendant had done it before.
A man was charged with drug trafficking. The man’s wife hired a private investigator from another state who did not know the man or anyone else in the community. To determine the man’s community reputation, the private investigator interviewed one of the man’s coworkers, the man’s next-door neighbor, the minister of the man’s church, and the owner of the laundromat the man used at least once per week. During trial, the man took the stand and testified that he was not a drug trafficker. The man then sought to have the investigator testify as to the man’s reputation for truthfulness in the community.
Is the court likely to allow the investigator to testify about the man’s community reputation?
No, because the investigator did not have sufficient familiarity with the man or the community.
Reputation evidence refers to evidence indicating that the witness has a bad reputation for truthfulness in the witness’s community. To give reputation testimony about another witness, a person serving as a character witness must be sufficiently familiar with the witness’s reputation in the witness’s community to give competent testimony on the topic. Fed. R. Evid. 608(a)
A white woman was arrested for shoplifting jewelry from a local store. During trial, the prosecution offered a video surveillance tape from the day of the shoplifting. The tape showed a white woman shoplifting the jewelry, but the image was too fuzzy to show the shoplifter’s face or any other distinguishing features. The woman sought to have the tape excluded from evidence.
Is the court likely to exclude the tape from evidence?
No, because the tape increases the probability that the woman was the shoplifter.
Under Rule 401 of the Federal Rules of Evidence, evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence, and (2) the fact is of consequence in determining the appropriate outcome of the action. Here, the fact that the tape shows that a white woman was the shoplifter makes it more likely that the woman was the shoplifter because she is a white woman herself.
A criminal defendant was charged with murdering a witness who had been scheduled to testify against the defendant in a drug trafficking trial. Another criminal defendant was charged with conspiring with the murderer to bury the witness’s body. Thereafter, without communicating with the murderer, the assisting defendant convinced another person to claim that he, instead of the assisting defendant, had buried the witness’s body.
In order to add credibility to the false confessor’s claim, the assisting defendant drew a map that identified the location where the witness’s body was buried and gave the map to the false confessor. However, unbeknownst to the assisting defendant, the would-be false confessor was actually a cooperating witness, who provided the map to the government. The prosecutor at the murderer’s trial filed a pretrial motion seeking permission to introduce the assisting defendant’s map as a co-conspirator’s statement.
Should the judge grant the motion and admit the map as a co-conspirator’s statement?
No, because it was not a statement made during and in furtherance of a conspiracy.
The court should deny the motion and refuse to admit the map. Rule 801(d)(2)(E) of the Federal Rules of Evidence exempts from the definition of hearsay statements offered against an opposing party that were made by the party’s co-conspirator during, and in furtherance of, the conspiracy. Here, the conspiracy between the murderer and the assisting defendant involved solely the witness’s murder and burial. The assisting defendant’s unilateral solicitation of another person to claim responsibility for the burial was unrelated to the original conspiracy and occurred after that conspiracy had ended.
Therefore, the statement was not made during or in furtherance of the conspiracy between the assisting defendant and the murderer. Accordingly, the map is not admissible against the murderer as a co-conspirator’s statement.
A woman was charged with murdering her neighbor. At trial, the woman claimed that a gardener, not the woman, had actually murdered the neighbor. The gardener was deceased. The woman offered a statement the gardener made in a deposition in a prior civil case, in which the gardener was sued by his bank for failing to repay a $15,000 loan. In the deposition, the gardener explained that he could not repay the loan to the bank because he “owed $50,000 to her [the neighbor], and she had also been threatening to sue me.” The woman offered the statement to prove that the gardener had motive to murder the neighbor. Six months after the deposition, the neighbor sent the gardener a letter demanding $50,000, attaching receipts showing the amounts she had loaned the gardener and again threatening to sue. The neighbor’s claim against the gardener was still pending at the time of the neighbor’s murder. The prosecution objected that the gardener’s deposition statement was hearsay.
Should the court admit the gardener’s statement over the prosecution’s hearsay objection?
Federal Rule of Evidence 804(b)(3) carves out an exception to the hearsay rule for statements made by unavailable declarants that are against the declarant’s pecuniary or penal interest. Whether a statement is against the declarant’s interest is judged by an objective standard at the time the statement was made.
At issue is whether a reasonable person in the declarant’s position would have made the statement only if the declarant believed it to be true because the statement was so contrary to the declarant’s interest. A smoking gun or full confession is not required in order for a statement to be against interest. Rather, qualifying statements are those that are useful to investigators or prosecutors in proving that the declarant committed a crime, or are somehow damaging to the declarant’s financial interests, including as proof in civil litigation.
Here, the gardener is the declarant and is unavailable because he is deceased. At the time that the gardener was testifying by deposition, the neighbor had repeatedly threatened to sue the gardener for the amounts the gardener owed her. The gardener’s admission under oath that he owed the neighbor $50,000 was therefore strongly contrary to the gardener’s pecuniary interest. The statement provided the neighbor with proof in any civil case she would bring to recover what the gardener owed. For this reason, the court should admit the transcript over the prosecution’s hearsay objection because the exception for statements against interest applies.
A woman was on trial for the murder of her parents. At trial, the woman’s boyfriend took the stand and stated that he believed the woman’s parents were murdered by an unknown burglar. The prosecution sought to introduce evidence that the boyfriend had previously told a bartender, “I know my girlfriend murdered her parents to get the insurance money.” The woman objected to the evidence.
Is the boyfriend’s earlier statement to the bartender admissible under the exemptions for prior statements in Rule 801 of the Federal Rules of Evidence?
No, because the boyfriend’s prior statement to the bartender was not made under the penalty of perjury.
A declarant-witness’s prior inconsistent statement is exempted from the rule against hearsay under Federal Rule of Evidence 801(d)(1)(A) if the statement is (1) inconsistent with the declarant-witness’s testimony in the present trial, and (2) the prior statement was given under the penalty of perjury.
Typically, to meet the second requirement, the statement must have been made during a previous trial, hearing, or other proceeding requiring an oath or affirmation to testify truthfully. Here, because the boyfriend’s statement was made only to a bartender, the statement was not given under the penalty of perjury and would not be admitted as a prior inconsistent statement.
As part of an oil-spill investigation conducted by the federal Environmental Protection Agency (EPA), an EPA investigator wrote the following in an EPA report: “At approximately 4:00 p.m., I observed crude oil encroaching onto a 200-yard length of the beach. Based upon my measurements, the tidal and wind activity, and my interviews with local residents, I conclude that the crude oil spill originated approximately twelve hours before my observation of the scene.”
Are the statements in the report admissible in a negligence trial against the tanker alleged to have been responsible for the spill?
Yes, because the report is admissible under the public records exception.
Rule 803(8) creates an exception in civil cases for records or statements of public officers that are factual findings from a legally authorized investigation. See Fed. R. Evid. 803(8)(A)(iii). Here, the report satisfies Rule 803(8)’s requirements, as the EPA investigator was working on an EPA investigation of an oil spill and reported her factual findings from the investigation in an EPA report.
A defendant was on trial for impersonating a federal agent. To obtain a conviction, the government was required to show that the defendant had pretended to be an employee of the United States government. The government sought to offer testimony from a witness that the defendant had approached the witness and said, “I’m a federal agent.” The government sought to use this testimony to prove that the defendant had pretended to be an employee of the United States government.
If the judge admits the witness’s testimony about the defendant’s statement identifying himself to the witness as a federal agent, what is the most likely rationale for the judge’s decision?
The defendant’s statement identifying himself as a federal agent is not hearsay, because it is not being offered for the truth of the matter asserted.
Hearsay is an out-of-court statement offered to prove the truth of the matter the statement asserts. Fed. R. Evid. 801(c). An out-of-court statement offered not for its truth, but to show that the declarant made the statement, is not hearsay. Sometimes the fact that a declarant said something has legal significance that is independent from whether the statement is true. Out-of-court statements having legal significance independent of their truth are called verbal acts. Verbal acts are not hearsay, because their proponent is not using the statements to prove the truth of what the declarant said; rather, their proponent is offering them to prove that the declarant spoke the statement at all. Uttering the words themselves (regardless of whether the words were true) has legal significance.
Here, the government seeks to introduce an out-of-court statement from the defendant. In the statement, the defendant identified himself as a federal agent. The truth of the matter that the out-of-court statement asserts is that the defendant is a federal agent. The government is not using the statement to prove that the defendant is a federal agent. Rather, the government is using the statement to prove that the defendant said it at all. The fact that the defendant uttered the statement has legal significance, independent of whether the statement is actually true. The fact that the defendant said “I’m a federal agent,” proves an element of the government’s case: namely, that the defendant was pretending to be an employee of the United States government. Therefore, the most likely rationale for the judge is that the witness’s testimony is admissible because the defendant’s out-of-court statement is not hearsay, because it is not being offered to prove the truth of the matter it asserts.
