Hypos-Evidence Flashcards
A politician’s will stated that, when he died, a cryogenics company was to scan the politician’s brain and upload the data onto the internet. The politician believed that such a process could be a way of obtaining eternal life. When the politician died, the politician’s family refused to let the company scan the politician’s brain. The company sued the family to procure access to the
brain. During trial, the company offered the testimony of a scientist, who explained the brain-scanning process and how it would likely affect the politician’s brain.
Which of the following would be the most likely reason for a court to find the scientist’s testimony improper?
A. The scientist’s methods and principles are so new that they are not yet accepted by the scientific community.
B. The scientist’s testimony is not based on personal observation of the politician’s brain.
C. The scientist’s testimony is based on hypothetical facts regarding the politician’s brain.
D. The scientist does not have a college degree in computers or brain science.
A. The scientist’s methods and principles are so new that they are not yet accepted by the scientific community.
Class action by a group of homeowners against D, owner of a chemical plant, alleging that seepage from the
plant’s underground chemical storage tanks caused severe illnesses. After offering evidence that the seepage occurred and that the chemicals contaminated plaintiffs’ drinking water wells, plaintiffs call W, a Ph.D. toxicologist, as an expert witness. If allowed, W will testify that using a new scientific technique, she has determined that there is a causal connection between the contamination of plaintiffs’ drinking water and the illnesses.
If D objects to W’s testimony, which of the following factors may the court consider in making its
ruling?
A. The court may consider only whether W’s technique has achieved general acceptance in the relevant scientific community.
B. The court may consider only whether W has published her technique in a peer-reviewed journal.
C. The court may consider only whether it is possible to determine the error rate of W’s technique.
D. The court may consider all of the above.
D. The court may consider all of the above
A doctor was on trial for the murder of one of his patients. The doctor pled insanity as his defense. During trial, the doctor called a psychiatrist to testify as to the doctor’s mental state at the time of the murder. The psychiatrist testified that, although she had never worked with the doctor personally, his medical records showed that he likely suffered from schizophrenia to the extent that he met the legal test for insanity. The prosecutor objected to the psychiatrist’s testimony. Is the court likely to sustain the objection?
A. Yes, because an expert may never testify to the mental state of a criminal defendant.
B. Yes, because the doctor is pleading insanity as a defense.
C. No, because the psychiatrist may give her opinion regarding an ultimate issue in the case.
D. No, because the psychiatrist is giving her opinion regarding a medical diagnosis in her field.
B. Yes, because the doctor is pleading insanity as a defense.
A truck driver sued a student to recover for injuries resulting from a traffic accident. The truck driver alleged that the student caused the accident because she was texting on her phone while driving. The student intended to call her mother, who was a passenger in the car at the time of the accident, to testify that the student was not texting while driving. Besides the truck
driver and the student, the mother was the only witness to the accident. Through discovery, the truck driver learned that the mother was in the student’s car because the mother was a chronic alcoholic and was drunk at the time of the accident. The truck driver moved to disqualify the mother as an incompetent witness.
Is a court likely to find the mother an incompetent witness?
A. Yes, because the mother is a chronic alcoholic
B. Yes, because the mother was drunk at the time of the accident
C. No, because the mother is the only witness besides the parties
D. No, because the mother has personal knowledge of the accident.
D. No, because the mother has personal knowledge of the accident.
A plaintiff sued a defendant to recover for injuries resulting from an automobile collision between the parties. The plaintiff alleges that the defendant caused the collision because she was distracted by texting on her phone while driving. The defendant intends to call her best friend, who was a passenger in the car at the time of the collision, to testify that the
defendant was not texting while driving. Through discovery, the plaintiff has learned that the defendant’s best friend is a chronic alcoholic who had consumed alcohol in the hour preceding the collision. The plaintiff has moved to disqualify the defendant’s best friend as an incompetent witness.
If the judge denies the plaintiff’s motion, what is the most likely reason for her decision?
A. The fact that the defendant’s best friend was consuming alcohol before the collision is not evidence that he was intoxicated at the time of the collision.
B. The fact that the defendant’s best friend is an alcoholic is not evidence that he was intoxicated at the time of the collision.
C. Even if the defendant’s best friend was intoxicated at the time of the collision, his presence at the collision gives him the opportunity to have personal knowledge of the collision.
D. The fact that the defendant’s best friend is an alcoholic and consumed alcohol before the collision may affect the weight, but not the admissibility, of his testimony.
D. The fact that the defendant’s best friend is an alcoholic and consumed alcohol before the collision may affect the weight, but not the admissibility, of his testimony.
A woman was on trial for arson for the burning of a bar. An arson expert testified that the fire had been purposefully set, basing his opinion on both his firsthand inspection and on interviews with several witnesses at the scene. The expert stated that witness interviews were a standard investigatory technique in arson cases. The woman objected to the expert’s testimony, correctly noting that the witness interviews were inadmissible hearsay evidence.
Is the court likely to sustain the objection?
A. Yes, because the expert based part of his opinion on inadmissible hearsay evidence.
B. Yes, because the expert gave his opinion regarding an ultimate issue in the case.
C. No, because the expert based part of his opinion on firsthand inspection.
D. No, because witness interviews were a standard investigatory technique in arson cases.
D. No, because witness interviews were a standard investigatory technique in arson cases.
A truck driver crashed into a woman’s house after failing to make a turn in the road. The woman sued the truck driver for negligence. At trial, the woman called a neighbor who saw the crash to testify as to the neighbor’s opinion regarding the cause of the accident.
Which of the following statements by the neighbor is LEAST likely to be admissible as lay witness opinion testimony?
A. “The truck driver was definitely speeding when he tried to make the turn.”
B. “The speed limit on this road should really be lower than the posted limit for the turn to be safe.”
C. “The truck driver was looking at his phone instead of watching the turn.”
D. “The truck driver’s brakes were squealing when he reached the turn in the road.”
B. “The speed limit on this road should really be lower than the posted limit for the turn to be safe.”
In a personal injury action arising from a motor vehicle collision, the defendant called his
passenger at the time of the accident to testify as to her opinion about whether the plaintiff or
the defendant had failed to yield the right-of-way.
Which of the following passenger statements would NOT be admissible as lay
witness opinion testimony?
A. “There should have been a yield sign at that intersection.”
B. “The other car was definitely speeding.”
C. “The other driver was texting when she hit us.”
D. “We definitely slowed down at the intersection.”
A. “There should have been a yield sign at that intersection.”
. At a defendant’s trial for burglary, the defendant has called a witness who has testified without objection that the defendant said shortly after his arrest, “They’ve got the wrong person for this, because I have an alibi.” The prosecutor seeks to cross-examine the witness about why she did not mention that statement when the police asked her whether the defendant had said anything to her about having an alibi. Is the prosecutor’s proposed cross-examination proper?
A) No, because the witness’s character for truthfulness cannot be attacked by specific instances of conduct.
B) No, because the witness’s failure to mention the alibi is collateral and ambiguous.
C) Yes, as impeachment for bias and interest.
D) Yes, as impeachment for prior inconsistency.
D) Yes, as impeachment for prior inconsistency.
A plaintiff sued a defendant for injuries she allegedly received when she slipped and fell while shopping in the defendant’s grocery store. At trial, the plaintiff calls as a witness another shopper who testifies that she saw the plaintiff slip and fall on an oily substance on the floor of the store. On cross-examination, the defendant’s attorney asks: “Isn’t it true that you told an investigator one week after the accident that you did not see [the plaintiff] fall?” The witness denies making the statement. Later in the trial, the defendant’s attorney calls the investigator, who offers to testify that the witness told him, “I never saw [the plaintiff] fall.” The plaintiff objects to admission of the investigator’s testimony about the witness’s out-of-court statement. Should the court admit the investigator’s testimony about the witness’s out-of-court statement?
A) Yes, but only for the limited purpose of impeaching the witness’s trial testimony.
B) Yes, to prove that the plaintiff did not fall and to impeach the witness.
C) No, because the witness denied making the statement.
D) No, because the statement is inadmissible hearsay not within any hearsay exception.
A) Yes, but only for the limited purpose of impeaching the witness’s trial testimony
A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the letter for purchase at the cash register. The defendant has testified in her own behalf that someone else must have switched the tag. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud of a retailer by the same means of switching the price tage on a fur-trimmed coat.
Is the question about the prior convictions proper either to impeach the defendant or to prove that the defendant committed the crime?
A) It is not proper for either purpose.
B) It is proper for both purposes.
C) It is proper to impeach the defendant, but not to prove that the defendant committed the crime.
D) It is proper to prove that the defendant committed the crime, but not to impeach the defendant.
B) It is proper for both purposes.
At a defendant’s trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against self-incrimination. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit?
A) Evidence that the gang member had three misdemeanor convictions for assault.
B) Testimony by a psychologist that persons with the gang member’s background have a tendency to fabricate.
C) Testimony by a witness that, at the time the gang member testified, the gang member was challenging the defendant’s leadership role in the gang.
D) Testimony by a witness that the gang member is a cocaine dealer.
C) Testimony by a witness that, at the time the gang member testified, the gang member was challenging the defendant’s leadership role in the gang.
A plaintiff is suing a defendant for injuries suffered in an automobile collision. At trial the plaintiff’s first witness testified that, although she did not see the accident, she heard her friend say just before the crash, “Look at the crazy way old [defendant] is driving!” The defendant offers evidence to impeach the witness’s friend by asking the witness, “Isn’t it true that [the friend] beat up [the defendant] just the day before the collision?”
The question is:
A) Proper, because it tends to show possible bias of the witness’s friend against the defendant.
B) Proper, because it tends to show the witness’s friend’s character.
C) Improper, because the witness’s friend has no opportunity to explain or deny it.
D) Improper, because impeachment cannot properly be by specific instances.
A) Proper, because it tends to show possible bias of the witness’s friend against the defendant
A plaintiff sued a defendant, alleging that she was seriously injured when the defendant ran a red light and struck her while she was walking in a crosswalk. During the defendant’s case, a witness testified that the plaintiff had told him that she was “barely touched” by the defendant’s car. On cross-examination, should the court allow the plaintiff to elicit from the witness the fact that he is an adjuster for the defendant’s insurance company?
A) No, because testimony about liability insurance is barred by the rules of evidence.
B) No, because the reference to insurance raises a collateral issue.
C) Yes, for both substantive and impeachment purposes.
D)Yes, for impeachment purposes only
D)Yes, for impeachment purposes only
A plaintiff sued a defendant in federal court for assault and battery. At trial, the court has allowed the plaintiff to introduce the deposition testimony of a witness, now deceased, that he was with the plaintiff at the time of the incident. The defendant now seeks to impeach the testimony of the witness with his 13-year-old conviction for burglary (for which he served 18 months in prison) for breaking into the home of a neighbor while she was away and taking some of her valuable jewelry.
Should the court allow evidence of the conviction?
A) No, because the witness did not testify at trial.
B) No, unless the court finds, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
C) Yes, because prior convictions are probative to impeach the witness’s character for truthfulness.
D) Yes, because the crime involved an act of dishonesty.
B) No, unless the court finds, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
. A college student sued an amusement company for injuries he sustained when the amusement company’s roller coaster allegedly malfunctioned so that the student fell out. At trial, after the student presented his case, the amusement company called a witness who testified that just before the accident he had heard a bystander say to the bystander’s companion, “That crazy fool is standing up in the car.” The student has offered the testimony of another witness who would testify that the day after the accident she was with the same bystander, and that in describing the accident, the bystander told her that the car had jerked suddenly and “just threw the guy out of his seat.”
How should the court rule with respect to this offered testimony?
A) Rule it admissible only to impeach the bystander’s credibility.
B) Rule it admissible to impeach the bystander’s credibility and to prove the amusement company’s negligence.
C) Rule it inadmissible, because the bystander was given no opportunity to deny or explain her apparently inconsistent statement.
D) Rule it inadmissible, because the bystander herself was not called as a witness.
A) Rule it admissible only to impeach the bystander’s credibility.
When character evidence is an essential element in a case,
specific instances of conduct become admissible along with
reputation and opinion testimony.
True or False?
TRUE
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
On cross-examination of a character witness whether
testifying in the form of reputation or opinion, inquiry is
allowable into relevant specific instances of conduct.
True or False?
TRUE
When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s
reputation or by testimony in the form of an opinion. On cross examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
Evidence in the form of reputation or opinion as to an alleged victim’s character with respect to sexual matters is not admissible in a criminal case.
True or False?
TRUE
Evidence offered to prove any alleged victim’s sexual predisposition (character) is not admissible in any civil or criminal proceeding involving alleged sexual misconduct.
A criminal defendant is entitled to show that an alleged
victim’s pregnancy was the result of sexual behavior with another person.
True or False?
TRUE
In criminal cases evidence of specific instances of sexual
behavior by the alleged victim offered to prove that a person
other than the accused was the source of semen, injury or
other physical evidence is admissible.
A truck driver was accused of causing a car accident with serious
injuries when she was merging lanes onto a highway.
Which of the following pieces of evidence would be most
likely to be considered habit evidence to show that the truck
driver was NOT the cause of the accident?
a) Evidence that the truck driver had never been in an accident.
b) Evidence that the truck driver always yielded the right of way
c) Evidence that the truck driver had a perfect driving record.
d) Evidence that the truck driver was a careful driver.
b) Evidence that the truck driver always yielded the right of way
A man was charged with raping a woman at a bar. At trial, the alleged victim testified that the man raped her in the alley behind the bar. The man offered the testimony of one of his friends, who stated that the man was known around the bar for being peaceful. The man also offered the testimony of the bartender, who stated that the alleged victim was known to have had sex with several other men at the bar. Upon the prosecution’s proper objection, which of the following should the court admit?
a) Both the friend’s and the bartender’s testimony
b) The friend’s testimony
c) The bartender’s testimony
d) Neither the friend nor the bartender’s testimony
b) The friend’s testimony
A restaurant owner sued a woman for defamation after the woman called the restaurant owner a liar on a local news broadcast. The woman wanted to offer evidence that the restaurant owner lied to the city when he applied for a new permit for his restaurant. Specifically, when the restaurant owner applied for the new permit, he claimed that he had never hosted live music at the restaurant, when he had in fact done so many times.
Is it likely that the court will admit the evidence?
a) Yes, because the restaurant owner’s character for untruthfulness is an essential element of the woman’s defense.
b) Yes, because the fact that the restaurant owner lied to the city while applying for a legal permit
makes it more probable that he would lie to the court.
c) No, because the woman only has evidence of one single instance of the restaurant owner
telling a lie.
d) No, because there is no indication that the woman called the restaurant owner a liar
because of the lie he made on his permit application.
a) Yes, because the restaurant owner’s character for untruthfulness is an essential element of the woman’s defense.
A doctor was charged with tampering with syringes containing a powerful painkiller. The prosecution sought to prove the doctor’s motive to tamper with the syringes by introducing evidence that she had previously been convicted for stealing the painkiller from another hospital.
Is the court likely to admit the prior conviction?
a) No, because evidence of other crimes is not admissible to prove a person’s character in order
to show action in conformance with that character.
b) No, because a specific instance of conduct cannot be used to prove character.
c) Yes, because the conviction for stealing the painkiller proves the doctor’s motive for tampering with the syringes.
d) Yes, because a specific instance of conduct can be used to prove character.
c) Yes, because the conviction for stealing the painkiller proves the doctor’s motive for tampering with the syringes.
A company and the Internal Revenue Service (IRS) reached an agreement for the company’s payment of its outstanding tax liability. The agreement required the company to pay the IRS 24 consecutive monthly payments of $5,000 each. Payments made by mail were required to be postmarked by the first of every month or the company would be liable for significant additional penalties. The IRS received the payments as required for 15 months. However, the IRS did not receive the sixteenth payment. In accordance with the parties’ agreement, the IRS notified the company that it had been assessed additional penalties. The company sued, alleging that it had postmarked and mailed the letter on the required day.
At trial, the company sought to call one of its vice presidents to testify that she had been responsible for issuing and mailing the IRS checks as required; and that, in furtherance of that responsibility, for 24 consecutive months, she had personally enclosed the check in a sealed envelope on the first of every month and placed the envelope in a basket marked “ outgoing mail” in the company’s mail room. She would further testify that mail room employees took the outgoing mail to the post office every business day at 2 p.m. However, because the vice president had been out of the office at 2 p.m. on the day the missing check was purported to have been mailed, she was unable to testify that the mail had, in fact, been taken to the post office on that particular day.
Under the Federal Rules of Evidence (FRE), for what purpose, if any, is the court likely to admit the vice president’s testimony?
Generally speaking, FRE 404 prohibits the use of character evidence to prove that a person acted in conformity with that character. Conversely, FRE 406 permits the use of habit evidence to prove that a person acted in
conformity with that habit. Habit is evidence of a person’s customs or standard response in a given, recurring situation. Habit evidence is generally offered to demonstrate that a person acted in conformity with that habit on a particular occasion. The more specific and more regular the conduct is, the more likely a court will consider it a habit. Additionally, the more numerous the occasions on which the conduct occurred, the more likely a court will deem the conduct habitual.
Additionally, evidence of an organization’s routine practice is admissible to demonstrate that the organization likely acted in accordance with that practice on a particular occasion.
Here, the vice president’s testimony about her practice of enclosing the check in a sealed envelope on the first of every month and placing it in a basket marked “outgoing mail” in the company’s mail room for 24 consecutive months is likely specific, regular, and numerous enough to be admissible as habit evidence.
Similarly, the vice president’s testimony about the mail room employees’ routine practice of taking the outgoing mail to the post office every business day at 2 p.m. is likely specific, regular, and numerous enough to be admissible
as evidence of the employees’ routine practice.
Accordingly, under the FRE, the court is likely to admit the vice president’s testimony as proof of (1) the vice president’s practice of enclosing the check in a sealed envelope on the first of every month and placing it in a
basket marked “outgoing mail” in the company’s mail room and (2) the mail room employees’ routine practice of taking the outgoing mail to the post office every business day at 2 p.m.
