Long Questions Flashcards
While a driver was driving someone else’s car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence.
How should the court rule on the objection?
- Sustained, because specific evidence of misconduct is not admissible to establish evidence of character.
- Overruled as to the case against the owner, but sustained as to the case against the driver.
The witness’s testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character. Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver’s character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself
- is wrong because specific instances of conduct may be used to prove character when character is an issue in the case. [Fed. R. Evid. 405(B)]
In its lead editorial in the Sunday edition, a suburban daily newspaper characterized a real estate developer as a “common thief.” The developer promptly filed suit against the newspaper for defamation. During the course of the presentation of the plaintiff’s case, he sought to put a witness on the stand who is prepared to testify that the plaintiff once saved the life of a fellow soldier in combat.
If the newspaper’s lawyer objects, should the court rule that the testimony is admissible?
- No, because the witness’s testimony is not probative of any material issue.
- No, because specific instances of conduct are not admissible to prove character.
The witness’s testimony is inadmissible because it is not probative of a material issue (i.e., whether the plaintiff is a thief). Relevant evidence tends to prove or disprove a material fact in issue. Here, the testimony tends to prove that the plaintiff is brave and selfless, but it is not relevant as to the fact in issue, which is whether he is honest.
- is incorrect because proof of specific instances of a person’s conduct is admissible when character is directly in issue. [Fed. R. Evid. 405(b)]
A husband was on trial for the murder of his wife. During the course of the trial, the prosecution sought to introduce evidence that, six months before the wife’s death, the husband had purchased a large insurance policy on her life, and two weeks prior to her death he purchased two more large policies on the wife’s life from separate insurance carriers.
If the defense objects to admission of such evidence, should the objection be sustained?
No, because the evidence tends to establish motive.
This evidence is relevant because it establishes a motive for the murder, and facts showing motive for doing an act are circumstantial evidence that the act was done. Because there are no other grounds for excluding the evidence, it should be admitted.
What about inadmissibility as a matter of public policy? is incorrect because it misapplies the rule excluding evidence of insurance. Federal Rule 411 excludes evidence of liability insurance on the issue of whether a person acted negligently or wrongfully. Evidence of insurance coverage (particularly where it is life insurance on the life of a homicide victim) is relevant and admissible for other purposes.
The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence.
Should the court sustain the objection?
- No, because the character trait of a victim may be established by opinion evidence, reputation evidence, or specific acts of misconduct.
- Yes, because the character of a victim can be established only by reputation or opinion evidence.
Prior bad of misconduct are not permitted to show the character of a victim
The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the person in question that demonstrates that person’s character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bouncer’s propensity to use excessive force.
A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter’s high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.
Will the principal’s testimony likely be held to be admissible?
- Yes, because the principal personally saw the interview on television.
- No, because the testimony would be hearsay not within any exception.
Yes, because the principal personally saw the interview on television.
Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness’s own testimony. (2) is incorrect. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made.
The owner of a bar is being sued on a negligence action because he let one of his patrons left the bar clearly intoxicated and driving.
The P wants to include as evidence that the owner went a visited him in the hospital and offered to pay all medical expenses after saying “it the last thing I can do after letting the driver go being that drunk”
It is admissible?
Yes,
As a Hearsay Exclusion made. Normally settlement offerings are not considered as recognition of lability, However: 1) here is no settlement, is only an offer to pay, and 2) at the moment of the statement there was no ongoing litigation or threatened.
This statement can be considered statement by opposing party offered against that party.
A camper sued the manufacturer of thermal underwear, alleging that while he was attempting to stomp out a fire, the camper’s underwear caught fire and burned in a melting fashion up his waist because it was defective, and that, a half-hour later, he suffered a heart attack as a result of the burns he suffered
A physician hearing the camper testify to the events that occurred is called by the camper and asked whether the camper’s heart attack could have resulted from the burns.
Is his opinion admissible to do what?
- To give his opinion whether P’s story is credible
- To respond to a hypothetical question
To respond to a hypothetical question.
An expert need not have personal knowledge of the facts on which the expert bases an opinion. Under Federal Rule 703, the expert may base an opinion upon facts or data perceived by or made known to the expert at or before the hearing.
FR 705 permits the expert to give the opinion without prior disclosure of the underlying facts or data, although the opposing attorney can inquire into the basis of the opinion in cross-examination. Here the witness is volunteering the facts on which the opinion is based by answering a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact-based upon admissible evidence. Since the underlying facts have been introduced in evidence, this opinion is admissible.
A small business owner decided to retire, so she offered her long-time employee a chance to buy the business for $1 million. She promised in writing to keep the offer open to him for 90 days and to give him enough time to secure financing once he accepted the offer. Over the next few days, the employee cashed out all his retirement accounts and took a second mortgage on his home to raise the funds to purchase the business. When he approached the business owner to discuss the details of the sale, she said that she changed her mind and was revoking her offer because she did not want to retire after all.
Was the owner’s revocation of her offer proper?
Yes, generally, offers can be revoked at will by the offeror, even if she has promised not to revoke for a certain period of time. There are limitations on the offeror’s power to revoke, but none of those exceptions apply in this case
- There was no consideration, so there was no option contract
- The detrimental reliance by the employee was not known to the offeror or when the offeror expects reliance by the offeree. Here, the offer itself included a promise by the owner to give the employee time to secure financing after the offer was accepted. Therefore, the owner had no reason to anticipate that the employee would take immediate steps to raise the purchase money before he even accepted the offer.
- This is not a merchant’s firm offer, because this is not under a UCC Art 2 Sale of Goods
A driver drove into an intersection and struck a pedestrian. The driver immediately left his car and ran to the pedestrian. Before the ambulance arrived, the driver said to the pedestrian, “It was all my fault; I’m sorry I ran a red light.” The driver then said, “I’ll pay for all your medical expenses.” The pedestrian sued the driver for his injuries and, at the resulting trial, the pedestrian wished to testify to the two statements made by the driver. The defense objected.
How should the court rule?
- Both of the driver’s statements are admissible.
- The driver’s statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian’s medical expenses is inadmissible.
- The driver’s statement acknowledging that he ran a red light is inadmissible, but his promise to pay the pedestrian’s medical expenses is admissible.
- Neither of the driver’s statements is admissible.
The driver’s statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian’s medical expenses is inadmissible.
The court should rule the driver’s statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian’s medical expenses inadmissible. The driver’s statement acknowledging that he ran a red light is admissible as a statement by an opposing party (commonly called an admission), while his promise to the pedestrian is inadmissible as an offer to pay medical expenses. An admission is a statement made by a party and offered against that party. The Federal Rules of Evidence treat such statements as nonhearsay. In his first statement, the driver acknowledges that he ran the red light, and that the accident resulting in the pedestrian’s injuries was his fault. This statement qualifies as an admission by a party-opponent. Evidence that a party paid (or offered to pay) an injured party’s medical bills is not admissible to prove liability for the injuries. Such payment (or offer to pay) might be prompted solely by humanitarian motives. The driver’s second statement is clearly an offer to pay the medical bills of the pedestrian, an injured party. Thus, the statement is not admissible to prove liability for the pedestrian’s injuries (and proving liability appears to be the only reason the pedestrian has for attempting to introduce the statement into evidence). Note that had this been a single statement, the outcome would have been the same, because an admission of fact accompanying offers to pay medical expenses is admissible.
A woman was struck by a brick with her name scrawled on it that was thrown through her bedroom window. The victim believes that her ex-boyfriend, who is a gang member, threw the brick because she has become active in anti-gang groups, but she did not actually see him throw it.
If the ex-boyfriend is arrested and put on trial for battery, which of the following items of the victim’s proposed testimony is LEAST likely to be admitted?
- The victim recently moved to a new apartment and only her ex-boyfriend and a few family members knew its location.
- The victim had testified against a member of her ex-boyfriend’s gang last month in a drug case.
- On another occasion, the victim had seen her ex-boyfriend throw a rock through the window of a rival street gang member.
- Immediately after the brick went through her window, the victim heard a voice she recognized as her ex-boyfriend’s yell, “If you don’t start minding your own business, you’ll get a lot worse than this next time!”
On another occasion, the victim had seen her ex-boyfriend throw a rock through the window of a rival street gang member.
Evidence of the defendant’s other crimes or misconduct is admissible only if relevant to some issue other than the defendant’s character or propensity to commit the crime charged. Such acts would be admissible to show motive, intent, absence of mistake, identity, or a common plan or scheme. Of these, the only one possibly relevant to these facts is identity. Evidence that the accused committed prior criminal acts that are so distinctive as to operate as a “signature” may be introduced to prove that the accused committed the act in question. Merely throwing an object, such as a brick, through a window could not be considered so distinctive as to operate as a signature. Thus, this evidence would not show identity. The only possible reason for offering the evidence is to show the ex-boyfriend’s propensity to commit the crime charged, in which case the testimony will be inadmissible. (A) is wrong because it is circumstantial evidence that the ex-boyfriend threw the brick. It is relevant because it tends to make it more probable that he threw the brick than it would be without the evidence. (B) is wrong because it is relevant and goes to motive. It too makes it more probable that the ex-boyfriend threw the brick than it would be if the victim had not testified against a member of his gang. (D) is wrong because the victim’s identification of the ex-boyfriend’s voice places him at the scene and is thus relevant. It is more probable that he threw the brick than it would be in the absence of this testimony. The identification of a voice is properly authenticated by the opinion of a person familiar with the alleged speaker’s voice. As his ex-girlfriend, the victim would be sufficiently familiar with the ex-boyfriend’s voice to make a proper identification.
A plaintiff brought a personal injury action against a defendant, the owner of a small fishing resort, for injuries he suffered when a dockside chair he was sitting on collapsed. At trial, the plaintiff testified that he had reported to the defendant the previous day that one of the chairs had a loose leg, whereupon the defendant tightened the screws holding the leg to the chair body, but that the next day the repaired leg of the chair collapsed while the plaintiff was fishing from it, injuring him. The plaintiff now wishes to offer evidence showing that the defendant had attached a new chair leg after the accident.
Should the defendant’s objection to that evidence be sustained?
- No, because it tends to prove the defendant’s negligence.
- No, because it is relevant to the defendant’s state of mind.
- Yes, because it constitutes assertive conduct.
- Yes, for public policy reasons.
Yes, for public policy reasons.
Evidence that the defendant had attached a new chair leg after the accident is inadmissible because, for public policy reasons, evidence of repairs or other precautionary measures made after an injury is inadmissible to prove negligence or culpable conduct. [Fed. R. Evid. 407] The purpose of this rule is to encourage people to make such repairs. Here, the plaintiff is offering the evidence to prove the defendant’s negligence in the original repair of the chair, by showing the need to attach a new leg. Thus, this evidence is inadmissible, and the objection should be sustained. (A) is wrong because, as discussed above, the evidence may not be used to show the defendant’s negligence. Thus, the tendency of the evidence to prove negligence would constitute a reason for sustaining the objection, rather than overruling it. (B) is wrong because the defendant’s state of mind is not at issue. In addition, the proffered evidence does not really tend to prove anything relative to her state of mind. (C) is wrong for two reasons: (i) Even if the act of replacing the chair leg constituted assertive conduct, it would not be hearsay. If the defendant’s conduct was a statement, it would be an admission of a party-opponent, and thus it would be nonhearsay. (ii) The act of replacing the leg is not assertive conduct constituting a statement under the hearsay rule. Assertive conduct is conduct intended by the actor to be a substitute for words. The defendant was not trying to communicate anything by replacing the leg.
A defendant is on trial for violating a statute forbidding possession of a concealed weapon within 100 yards of a government building. The prosecution presents evidence that the defendant was arrested on a street corner with a handgun in his pocket. The building housing the local city hall occupies the entire block on the north and east sides of the two streets where the defendant was apprehended.
Which of the following statements is most accurate regarding judicial notice of the location of the city hall?
- The judge may take judicial notice of this fact without resort to a map, and should instruct the jury that it may, but need not, accept this fact as evidence of an element of the offense.
- The judge may take judicial notice of this fact only upon reference to an official street map of the city.
- The judge may not take judicial notice of this type of fact in a criminal case without a request by the prosecution.
- If the judge properly takes judicial notice of this fact, a presumption is created that shifts the burden of persuasion to the defendant to disprove this fact.
The judge may take judicial notice of this fact without resort to a map, and should instruct the jury that it may, but need not, accept this fact as evidence of an element of the offense.
The judge may take judicial notice of this fact because it is a matter of common knowledge in the community, but the jury is not required to accept the fact as conclusive in a criminal case. Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court. [Fed. R. Evid. 201(b)] The facts need not be known everywhere as long as they are known in the community where the court is sitting. The location of the city hall is such a fact. As choice (A) also states, in a criminal case the jury should be instructed that it may, but is not required to, accept as conclusive any fact that is judicially noticed. [Fed. R. Evid. 201(f)] (B) is incorrect. While facts that are not generally known and accepted may be a subject of judicial notice if they are easily verified by resorting to easily accessible, well-established sources (i.e., facts capable of certain verification), facts that are matters of common knowledge in the community, such as the location of the city hall, may be judicially noticed without resort to reference materials. (C) is incorrect because a judge can take judicial notice of matters of common knowledge at any time, whether or not requested by a party, regardless of whether a criminal or civil case is involved. (D) is incorrect because a “presumption” in a criminal case is nothing more than a permissible inference that the jury may make. Because the accused in a criminal case is presumptively innocent until the prosecution proves every element of the offense beyond a reasonable doubt, the burden of persuasion is not shifted to the defendant by a “presumption” or by a fact that has been judicially noticed.
A plaintiff sued a defendant in a contract dispute. The plaintiff calls a witness to testify as to his personal knowledge of the agreement. The plaintiff now wants a second witness to testify as to her knowledge of the first witness’s honesty. The defendant objects and the court sustains the objection.
Why is the testimony of the second witness inadmissible?
- The first witness’s credibility has not been questioned.
- It would be inadmissible under the hearsay rule.
- The second witness may not testify as to an opinion.
- Character evidence is generally inadmissible in civil cases.
The plaintiff may not call the second witness to testify about the first witness’s honesty because his credibility has not been questioned.
Generally, a party may not bolster or accredit the testimony of her witness until the witness has been impeached. [Fed. R. Evid. 608(a)] Here, the defendant has not tried to cast any adverse reflection on the first witness’s truthfulness (i.e., he has not been impeached). Thus, the second witness’s testimony as to her knowledge of the first witness’s honesty will not be allowed. (B) is incorrect because these facts do not present a hearsay problem. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] The second witness’s testimony will relate only to her knowledge of the first witness’s honesty; the second witness will not be testifying as to a statement made by an out-of-court declarant. Consequently, her testimony does not involve hearsay. (C) is incorrect because the credibility of a witness may be supported (if impeached) or attacked by opinion or reputation evidence regarding the witness’s truthfulness. [Fed. R. Evid. 608(a)] Thus, if the first witness’s honesty had been attacked by the defendant, the second witness could testify as to her opinion of the first witness’s character for truthfulness or as to his reputation for honesty. (D) is incorrect because, although evidence of character of a person in a litigated event is generally inadmissible in civil cases (except where character itself is an essential element of a claim or defense in the case), opinion or reputation testimony about a witness’s character for truthfulness is generally admissible for purposes in both civil and criminal cases.
