My notes 3

Question 1

When impeaching by contradiction can you use extrinisic evidence merely to impeach on a collateral matter?

Answer 1

No. You can’t use extrinsic evidence to impeach a witness by contradiction on a collateral matter.

Question 2

Extrinsic evidence

Answer 2

Matters brought up through means other than the cross-examination of the very witness being impeached.

Question 3

Collateral matter

Answer 3

Something that has no independent value to the case (independent of contradicting the witness).

Question 4

Witness testifies in automobile case: I was standing at corner, wearing glasses, wall street journal tucked under my arm. I looked across the street and saw the accident happen. Can you impeach by entering extrinsic evidence that they wren’t standing at the corner?

Answer 4

You can impeach by entering extrinsic evidence that they weren’t standing at the corner (contradicts, but also used to show that they couldn’t see).

Question 5

Witness testifies in automobile case: I was standing at corner, wearing glasses, wall street journal tucked under my arm. I looked across the street and saw the accident happen. Can you impeach by entering extrinsic evidence that they weren’t carrying wall street journal?

Answer 5

Can’t introduce extrinsic evidence that they weren’t carrying wall street journal (because extrinsic, contradiction, on a collateral matter). You might be able to ask about it on cross (discretionary for judge to allow peripheral matters to be raised).

Question 6

B witnessed a fight in the afternoon between J and S. J sues S for civil assault. J calls B as a witness. B says, “I was on my way home from my visit to deliver chicken suit to my elderly and sick mother when I saw the fight.” S knows that B was returning from a poker game. On cross, can S ask “isn’t it actually the case that you were coming from a poker game?”

Answer 6

Yes (subject to discretion), because it would be intrinsic evidence.

Question 7

B witnessed a fight in the afternoon between J and S. J sues S for civil assault. J calls B as a witness. B says, “I was on my way home from my visit to deliver chicken suit to my elderly and sick mother when I saw the fight.” S knows that B was returning from a poker game. On cross, can S ask “isn’t it actually the case that you were coming from a poker game?” Yes (subject to discretion), because it would be intrinsic evidence.
B says, “No, I was on my way from my mother’s house.” Can S present testimony that B was actually playing poker with the boys before the fight, by calling one of the boys to testify.

Answer 7

No.

Question 8

B witnessed a fight in the afternoon between J and S. J sues S for civil assault. J calls B as a witness. B says, “I was on my way home from my visit to deliver chicken suit to my elderly and sick mother when I saw the fight.”. S wants to introduce evidence that B was playing poker all afternoon, including at the time of the fight, could this be introduced, via testimony by another witness?

Answer 8

Yes, it is not a collateral matter and it is used to do more than contradict.

Question 9

B witnessed a fight in the afternoon between J and S. J sues S for civil assault. J calls B as a witness. B says, “I was on my way home from my visit to deliver chicken suit to my elderly and sick mother when I saw the fight.” S wants to introduce testimony from another witness that B wasn’t on the way home from mom, but was actually coming home from a date with J’s sister?

Answer 9

Yes, impeaching via prejudice/bias as well as contradiction (not on a collateral matter).

Question 10

B witnessed a fight in the afternoon between J and S. J sues S for civil assault. J calls B as a witness. B says, “I was on my way home from my visit to deliver chicken suit to my elderly and sick mother when I saw the fight.” Wants to introduce extrinsic that B had actually been at a bar getting drunk before heading home.

Answer 10

Extrinsic evidence B not at mothers, but had been drinking at bar. Yes, impeaching via capacity to perceive as well as contradiction (not on a collateral matter).

Question 11

Undercover. Recorded serial number of bills from drug sale. Says it wasn’t him but someone he was playing dice with who had made the sale.
On cross D says they had only seen drugs on the news.
After responses, P calls for bench conference. Says they have reasonable basis that they know what cocaine looks like because they’ve tested positive three times.
Isn’t it true that you’ve tested positive for cocaine? “Yes.”
Was this ok?

Answer 11

Yes.

Question 12

Rule 404(a)(3): When evidence of a witness’s character may be admitted

Answer 12

A witness’s character may be admitted under rules 607, 608, and 609.

Question 13

608(a) reputation or opinion evidence for witness’s character

Answer 13

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthfulness is admissible only after the witness’s character for truthfulness has been attacked.

Question 14

Specific instances of conduct for a witness’s character (608b)

Answer 14

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired nto if they are probative of the character for truthfulness or untruthfulness of:
1) the witness; or 2) another witness whose character being cross-examined has testified about.

Question 15

By testifying on another matter does a witness waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness?

Answer 15

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Question 16

Can evidence regarding character for veracity in the form of specific instances of conduct be casked about on cross-examination?

Answer 16

Yes, but you are stuck with the answer. You can’t prove it by extrinsic means if you aren’t satisfied with what you got.

Question 17

M shot in back while driving.
G had rifle in hands.
G former military. Experienced marksman. Hunter.
Claims it was on accident. Cleared gun by pulling trigger.
M died.
Cross: “Did you knowingly omit criminal convictions and charges on warrant officer application.”
G: “ I didn’t omit these things. Gave info about some to personnel specialists who were supposed to put it on application.”
Is this impeachment valid?

Answer 17

Court: Impeachment with respect to convictions was proper, but impeachment with charges that didn’t lead to conviction not proper.
This is impeachment by prior bad act (608(b)).

Question 18

What do 608 and 609 deal with

Answer 18

608(a) deals with when you can use reputation and opinion. Prior bad acts (other than criminal convictions) covered by 608(b) (ex. Acts of lying, deceit, etc.). Prior criminal convictions covered by 609.

Question 19

Witness character
E1: Convictions and arrest
FP1: Show criminal disposition
FP2: Attack character for truthfulness

Answer 19

No and no (don’t have anything to do with truthfulness).

Question 20

Witness character
E2: Omission of convictions and arrests from application form.
FP1: Criminal disposition
FP2: Character for truthfulness.

Answer 20

Can’t be used to show (FP1) criminal disposition. Omission of convictions, but not arrest, can be used to show (FP2) character for truthfulness.

Question 21

Witness character Hypo: Conviction not on application. On cross when asked about this he says I was never convicted. Can they prove that he was convicted?

Answer 21

No. This is extrinsic evidence with no independent relevance to the case.

Question 22

Witness character:
Hypo: When asked about application. He says nothing was left out of the application. He says he did put them on the form. Can they introduce the form into evidence?

Answer 22

Maybe. In some courts you can lay foundation of form during examination of the very witness being impeached. Some courts say this is being brought in this way is intrinsic evidence.

Question 23

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
S takes the stand.
When can W1 testify:

Answer 23

Can be brought in regardless.

Question 24

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
S takes the stand.
When can W3: Testify

Answer 24

Only if W1 testifies (rule 404)

Question 25

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
S takes the stand.
When can W2 testify:

Answer 25

Only if truthfulness is attacked (can also open door if the trait is relevant to the crime charged, ex. fraud).

Question 26

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
S takes the stand.
When can W4 testify:

Answer 26

If S testifies

Question 27

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
S takes the stand.
No character evidence has come in yt. On cross: Isn’t it a fact that you blew up the federal building in OKC? allowed?

Answer 27

No, doesn’t bear upon truth or veracity under 608.

Question 28

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
Cross of S. No character evidence has come in yet. “You passed what you knew was a counterfeit $20 bill when you purchased lunch last week? Alloweable?

Answer 28

Yes, generally. It does bear upon truth or veracity. You do a 403 analysis.

Question 29

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
Cross of S. No character evidence has come in yet. “You passed what you knew was a counterfeit $20 bill when you purchased lunch last week? S says no. Can they introduce extrinsic?

Answer 29

No, they are stuck with it.

Question 30

S throws rock through J window. Charged with criminal destruction. S says sister through the rock.
Defense: W1: S has a good reputation for peace and good order. W2: S has a good reputation for truthfulness.
Prosecutor: W3: S has a bad reputation for violence and aggression. W4: S has a bad reputation for being a liar.
Cross of S. No character evidence has come in yet. “You passed what you knew was a counterfeit $20 bill when you purchased lunch last week?
S says yes. But I’m very sorry. Can S call as her next witness, B, to testify, with proper foundation, that S is a very truthful person.

Answer 30

Yes, because this is an attack on character.

Question 31

Is a challenge of prior inconsistent statement an attack on character

Answer 31

A challenge of prior inconsistent statement may or may not be an attack on character depending on the circumstances (this applies to all challenges via contradiction). For example, things where you couldn’t have been innocently mistaken when testifying).

Question 32

Are evidence of bias and interst attacks on character?

Answer 32

No.

Question 33

After B says S is a truthful person, could prosecutor ask B, S’s character witness, “didn’t you lie on your application to law school just last year” with a good faith basis?

Answer 33

yes.

Question 34

After B says S is a truthful person, could prosecutor ask B, S’s character witness, B, are you aware that S falsified drivers license?

Answer 34

Yes

Question 35

Are hearsay declarants witnesses?

Answer 35

Yes.

Question 36

After B says S is a truthful person, P following up with character witness saying B is well known as a liar?

Answer 36

Yes

Question 37

J sued in connection with personal injury of S. G runs up and yells J just shot S. G is unavailable as a witness. testimony admissible?

Answer 37

No confrontation clause problem because a civil case. Not hearsay because excited utterance.

Question 38

Can you impeach an absent declarant?

Answer 38

When hearsay statement admitted you can attack the declarant’s credibility with evidence that would be admissible if the declarant had been a witness.

Question 39

rule 806 attacking and supporting a hearsay declarant

Answer 39

When a hearsay statement – or a statement described in Rule 801(d)(2)(c), (d), or (e) – has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement admitted calls the declarant as a witness, the party my examine the declarant on the statement as if on cross-examination.

Question 40

Rule 609 in general

Answer 40

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
1) for a crime that, in the convicting jurisdiction was punishable by death or by imprisonment for more than one year, the evidence:
a) must ba admitted, subject to rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
b) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime require proving – or the witness’s admitting – a dishonest act or false statement.

Question 41

609 limit on using the evidence after 10 years?

Answer 41

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 42

Rule 609 effect of a pardon, annulment, or certificate of rehabilitation

Answer 42

Evidence of a conviction is not admissible if:
1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonmnet for more than one year; or
2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Question 43

609 and juvenile adjudications

Answer 43

Evidence of a juvenile adjudication is admissible under 609 only if
1) it is offered in a criminal case;
2) the adjudication was of a witness other than the defendant;
3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
4) admitting the evidence is necessary to fairly determining guilt or innocence.

Question 44

609 and pendancy of an appeal

Answer 44

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Question 45

State v. S. S accused of murdering J. Slashes initial S on J’s chest. S claims self-defense. S will testify on her own behalf. Can P introduce evidence during case-in-chief, that S was convicted a year prior of perjury.

Answer 45

No. S might not take stand. S is not a witness yet (609). No anticipatory attacks.

Question 46

tate v. S. S accused of murdering J. Slashes initial S on J’s chest. S claims self-defense. S has testified. On cross by P, based on certified copy of conviction, can they ask, isn’t it a fact you were convicted of perjury last year?

Answer 46

Yes. It has to be admitted under 609(b). Do not have to stick with answer if there is a denial.

Question 47

How to figure out if it requires proof of dishonest act or false statement for 609?

Answer 47

You can look at the elements, or if readily apparent from record (would it require proof of dishonest act or false statement based on the fact of the case).

Question 48

State v. S. S accused of murdering J. Slashes initial S on J’s chest. S claims self-defense. Cross of S. Could P ask S, based on rap sheet (complilation of criminal history, sometimes wrong, but a good faith basis), you were convicted of manslaughter in 2015 weren’t you?

Answer 48

No. Prejudicial value outweighs probative value (probative value needs to outweigh prejudicial effect to get in). No probative value, has nothing to do with truth or veracity. High prejudicial value.

Question 49

Charges: 1) Assault with a dangerous weapon with intent to do bodily harm with a shank, and 2) possession of contraband (the shank).
Charges to impeach with: 1) assault conviction and 2) contraband conviction.

Answer 49

Court: Similar offenses for impeachment under 609 should be admitted sparingly, if at all. It is highly prejudicial.

Question 50

609 impeachment value factors?

Answer 50

Similarity to crime charged (increases prejudice), recency (less probative the older it is), importance of D’s testimony (might be kept of stand by fear of it coming out), centrality of credibility.

Question 51

State v. S. S accused of murdering J. Slashes initial S on J’s chest. S claims self-defense. Cross of S. P asks “in 2015, you carved a figure S in the chest of a previous butler using the same buoy knife?”

Answer 51

No, even if it goes to identity, identity isn’t at issue because the defense is self-defense.

Question 52

State v. S. S accused of murdering J. Slashes initial S on J’s chest. S claims self-defense. Cross of S. Impeach on cross by asking about conviction for robbery 5 years ago?

Answer 52

Just a felony. Is not a crime involving dishonesty and false statement. Larceny is not a crime involving dishonesty and false statement (Broadnax). Probative value has to be greater than prejudicial. It might get in based on balance.

Question 53

When is it a crime requiring proof of a dishonest act or false statement (Broadnax)?

Answer 53

If the element per se does not involve having to prove dishonesty or a false statement, then it is not a crime requiring proof of a dishonest act or false statement. Robbery/larceny is not a crime requiring proof of a dishonest act or false statement, even though legislative history suggests it is.

Question 54

Examples of crimes involving dishonesty and false statements?

Answer 54

Perjury, false statement, criminal fraud, embezzlement, false pretense, forgery, identity theft, impersonating a public official, counterfeiting.

Question 55

Examples of crimes not involving dishonest act or false statement

Answer 55

All crimes of violence, disorderly conduct, prostitution, DUI.

Question 56

Which test is used for admitting 609 evidence of a conviction for embezzlment 11 years ago, and then served two years.

Answer 56

Crime requriing proof of dishonest act or false statement. It must be admitted. it is less than 10 years because 11-2 = 9.

Question 57

How is date for 609 determined?

Answer 57

Start from date of end of confinement or conviction, whichever is later.

Question 58

Cross: Inquiry into specific act of lying in the course of an embezzlement that was never charged. Can you ask?

Answer 58

Yes, but stuck with answer 608.

Question 59

What if embezzlement resulted in conviction but you aren’ asked about the conviction, you’re asked about the underlying lying?

Answer 59

Questioning under 609 is limited to date of conviction, name of offense, and punishment. Some courts will allow you to include elements and some will let you state the place.

Question 60

Can you impeach under 609 and then use underlying under 608?

Answer 60

Most courts: If you don’t mention conviction you can use 608, but if you mention conviction then you can’t use 608 and are restricted by 609 limitations.

Question 61

Impeachment by prior conviction test. Ordinary witness. Civil case. Prior conviction of felony. 14 years ago. Released confinement 12 years ago.

Answer 61

Strictest test.

Question 62

Impeachment by prior conviction. Complaining witness. Criminal case. Called by prosecution. Misdemeanor. Doesn’t deal with dishonesty or false statement. Eight years ago.

Answer 62

can never be used (misdemeanors can only be used if they involve dishonesty or false statement).

Question 63

Impechment by prior conviction. Criminal defendant. Forgery. Felony. Conviction 13 years ago. Served 5 years.

Answer 63

Always admitted.

Question 64

Do parole and probation count as confinement

Answer 64

No.

Question 65

Impeachment by prior conviction test:
Criminal defendant. Forgery. Felony. Held pre-trial for six months, released 11 years ago. Out on bail. Pre-trial for 18 months. Convicted 9.5 years ago. Time served.

Answer 65

Always admitted.

Question 66

Impeachment by prior conviction:
Ordinary witness. Criminal. Felony. Rape conviction. 5 years. Served 2.

Answer 66

403 balance.

Question 67

Impeachment by prior conviction:
Ordinary witness. Criminal. Felony. Rape. 5 years. Served 2. Person given pardon based on finding of innocence.

Answer 67

Can’t be used (there is an exception for pardons).

Question 68

Impeachment by prior conviction. Witness criminal defendant. Adjudication of juvenile delinquency. Would have been burglary. 2 years ago.

Answer 68

NO (can’t be used against defendent).

Question 69

Two types of prior statements

Answer 69

Prior consistent statemnts and prior inconsistent statemnts.

Question 70

Hearsay objection to prior inconsistent for impeachment?

Answer 70

Hearsay is not a problem if you are using them for impeachment.

Question 71

What must happen before extrinsic evidence is allowed to prove a prior inconsistent statement? (Queen Caroline’s Case, traditional common law approach)

Answer 71

Before extrinsic evidence is allowed (to prove a prior inconsistent statement, you must first: 1) draw the witness’s attention to the circumstances in which the statement is alleged to have been made (time, place, and person); 2) show the statement to the witness if it is in writing; and 3) ask the witness about the (substance of the) statement.

Question 72

Rule 613. Witness’s prior statement

Answer 72

a) showing or disclosing the statement during examination. When examining a witness about the witness’s prior statement, a party need not show it, or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
2) Extrinsic evidence of a prior inconsistent statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision does not apply to an opposing party’s statement under rule 801(d)(2).

Question 73

Rule 611 Mode and order of examining witnesses and presenting evidence
(a) control by the court; purposes

Answer 73

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
1) make those procedures effective for determining the truth;
2) avoid wasting time; and
3) protect witnesses from harassment or undue embarrassment.

Question 74

At trial nurse said she did not remember having a conversation with Nurse Spector after the event.
Claim: Nurse Clark told Nurse Spector that the Doctor had administered a big bolus of the drug into the victim and that the victim seized immediately.
Admissible as prior inconsistent statement?

Answer 74

Majority said this was admissible as a prior inconsistent statement.
Dissent disagrees. Says they needed to bring more attention to the specific situation. Without more specificity, saying she didn’t remember having a conversation isn’t necessarily inconsistent.

Question 75

Statement that is not hearsay. A declarnt-witness’s prior statement.

Answer 75

Not hearsay (exclusion) if the declarant testifies and is subject to cross examination about a prior statement, and the statement:
a) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition
b) is consistent with the declarant’s testimony and is offerred:
i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabiliate the declarant’s credibility as a witness when attacked on another ground.

Question 76

: S v. J, S claims J smashed black car into her car and broke her arm. S has a particular witness, B, who testifies that offending car was black. But B told another witness, C, at the scene, that the car was blue. J attorney doesn’t ask B on cross, but B remains available as a witness. Could J prove prior inconsistent statement, through other witness, without confronting B on cross?

Answer 76

Yes, because B could still be recalled.

Question 77

S v. J, S claims J smashed black car into her car and broke her arm. S has a particular witness, B, who testifies that offending car was black. But B told another witness, C, at the scene, that the car was blue. J attorney doesn’t ask B on cross. B leaves country right after testifying, everything else the same, could J bring C?

Answer 77

No, unless maybe if J didn’t find out about the prior inconsistent statement after B testified (because justice may require it).

Question 78

Substantive use of prior consistent/inconsistent statement =

Answer 78

for its truth (as opposed to using it to impeach).

Question 79

Prior statement under 801(d)(1) shorthand

Answer 79

A witness’s prior statement is not hearsay if the declarant/witness testifies and is subject to cross-examination about the statement, and 1) statement is inconsistent and was given under penalty of perjury at a prior proceeding or deposition; or 2) statement is consistent and is offered to rebut a change of recent fabrication or recent improper influence or motive, or to rehabilitate, when the witness’s credibility has been otherwise attacked.

Question 80

S sues J for Personal injury. Says J black car smashed into S’s car and broke her arm a year ago. S puts on a witness, B. B says he saw a big black car run through the stop sign and hit S’s car, while eating a fish sandwich. On cross, after alerting to time, place, and person, didn’t you tell police officer at seen two hours after that you were eating a steak and cheese sandwich. Can this be used for impeachment? For its truth?

Answer 80

Yes for impeachment. No for its truth. Prior inconsistent statement wasn’t given under penalty or perjury.

Question 81

S sues J for Personal injury. Says J black car smashed into S’s car and broke her arm a year ago. S puts on a witness, B. B says he saw a big black car run through the stop sign and hit S’s car, while eating a fish sandwich. On cross, after alerting to time, place, and person, didn’t you tell police officer at seen two hours after that you were eating a steak and cheese sandwich. What if B denies making the fish sandwich statement? Can you put the police officer on the stand to impeach?

Answer 81

No because that would be extrinsic evidence that has no relevance beyond its value for impeachment.

Question 82

sues J for Personal injury. Says J black car smashed into S’s car and broke her arm a year ago. S puts on a witness, B. B says he saw a big black car run through the stop sign and hit S’s car, while eating a fish sandwich. What if B testifies at trial, and on cross J’s attorney asks “isn’t it true that J, the defendant, ran off with B’s wife just last month? Can this be asked?

Answer 82

Yes, because it goes to witnesses bias.

Question 83

sues J for Personal injury. Says J black car smashed into S’s car and broke her arm a year ago. S puts on a witness, B. B says he saw a big black car run through the stop sign and hit S’s car, while eating a fish sandwich. What if B testifies at trial, and on cross J’s attorney asks “isn’t it true that J, the defendant, ran off with B’s wife just last month? B then says yes. Could S’s attorney call another witness, someoone who will testify that B had said, at the scene, the same thing he said at trial?

Answer 83

Yes, because it is to rebut a charge of fabrication.

Question 84

sues J for Personal injury. Says J black car smashed into S’s car and broke her arm a year ago. S puts on a witness, B. B says he saw a big black car run through the stop sign and hit S’s car, while eating a fish sandwich. What if B testifies at trial, and on cross J’s attorney asks “isn’t it true that J, the defendant, ran off with B’s wife just last month? B then says yes. Could S’s attorney call another witness, someoone who will testify that B had said, a week ago, the same thing he said at trial?

Answer 84

No because it already happened after the motivation to fabricate arose.

Question 85

When can you introduce a consistent out of court statement to rebut a charge of recent fabrication or improper influence or motive?

Answer 85

The rule permits the introduction of a declarant’s consistent out of court statement to rebut a charge of recent fabrication or improper influence or motive, only if those statements were made before the fabrication, improper influence or motive arose.

Question 87

What is the best evidence rule not?

Answer 87

The best evidence rule does not create any general requirement to present or offer the best available evidence.
Ex. You can provide testimony about a red car being damaged, even if the damaged red car is right outside the courthouse.

Question 88

When does the best evidence rule apply?

Answer 88

Best Evidence Rule only applies when there is an attempt to offer secondary evidence, instead of the original, to prove the content of a writing, recording, or photograph.

Question 89

Rule 1002 requirement of the original

Answer 89

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Question 90

Rule 1003 admissibility of duplicates

Answer 90

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Question 91

“writing”

Answer 91

a “writing” consists of letters, words, numbers, or their equivalent set down in any form.

Question 92

“recording”

Answer 92

a “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

Question 93

“photograph”

Answer 93

a “photograph” means a photographic image or its equivalent stored in any form.

Question 94

“original”

Answer 94

an “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout – or other output readable by sight – if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

Question 95

“duplicate”

Answer 95

a “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Question 96

Rule 1004 admissibility of other evidence of content

Answer 96

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.

Question 97

Best evidence (shorthand)

Answer 97

Best evidence rule (shorthand): 1) to prove the content, 2) of a writing, recording, or photograph, 3) you must produce the original, 4) or a duplicate ( unless a genuine question is raised about the original’s authenticity or circumstances make it unfair to admit the duplicate), 5) unless the original is unavailable not due to your bad faith, or it is not closely related to the controlling issue.

Question 98

Letter from J to S at issue. Instead of producing original letter, and without explaining its absence, a witness testifies about what the letter says. Is this admissible?

Answer 98

No.

Question 99

Is proving content the same as proving truth?

Answer 99

No proving content is broader.

Question 100

Gov tries to introduce transcript of testimony. They also have someone testify to what was in that testimony.
Matter to be proved: Lamarre’s testimony.
Method of proof 1: Witness R (who had examined Lamarre).
Method of proof 2: Transcript.
Is there a best evidence problem?

Answer 100

No (according to the majority). Not testifying about content of the writing, testifying about what was said.
Best evidence rule doesn’t apply when you have personal knowledge about, say, an event, just because it was written down, recorded, or photographed.
If knowledge of what happened is only based on looking at what had been written down, then you have a best evidence issue. Ex. Owner writes down books based on knowledge and maintains personal knowledge up to their testimony, there is no best evidence issue, but if the owner looks at books someone else has written, then checks the books, and then testifies you have a best evidence issue.

Question 101

There is a projected movie image. It isn’t shown. Instead they took pictures of parts of the movie and also orally described the movie.
A motion picture is a series of images that run together.
Violation of best evidence rule?

Answer 101

Yes.

Question 102

Agent testifies about searching a computer database and did not find a particular form.
Best evidence issue?

Answer 102

A database is considered a writing. But, no, because it’s testimony about what wasn’t in the database, so it doesn’t count as content.
The rule does not apply to testimony that books or records have been looked at and a specific piece of content was not found.
This is not testimony in which the smallest variation of words is important.

Question 103

J charged with robbing bank. State v. J. Prosecution wants to prove J passed a note to the teller saying “give me all your money.” Without explaining absence of note, could prosecution introduce, over BE objection, teller testimony that the note said this?

Answer 103

No

Question 104

J charged with robbing bank. State v. J. Prosecution wants to prove J passed a note to the teller saying “give me all your money.” Without explaining absence of note, could prosecution introduce, over BE objection, a photograph of the note?

Answer 104

Its a duplicate, so yes. But there could be an authenticity problem (this has to be raised by party bringing the objection).

Question 105

J charged with robbing bank. State v. J. Prosecution wants to prove J passed a note to the teller saying “give me all your money.” Without explaining absence of note, could prosecution introduce, over BE objection, a typed copy?

Answer 105

No. Even though a mechanical counterpart, it isn’t a duplicate because it isn’t an equivalent that accurently produces the original.

Question 106

J charged with robbing bank. State v. J. Prosecution wants to prove J passed a note to the teller saying “give me all your money.” Teller gives not to police. Police officer puts it on car for a second. it gets blown away by wind. Never found. Could it be introduced via testimony by the teller?

Answer 106

Yes because it was lost and it wasn’t in bad faith (wasn’t disappeared so it couldn’t be used in trial, it was lost due to carelessness, negligent loss is an adequate excuse).

Question 107

J charged with robbing bank. State v. J. Prosecution wants to prove J passed a note to the teller saying “give me all your money.” Teller gives not to police. Police officer puts it on car for a second. it gets blown away by wind. Never found. Before it blew away, the officer made a xerox copy. Could it be introduced via testimony by the teller?

Answer 107

Yes. You don’t have to use the duplicate if there is an excuse for why the original isn’t available. The rule recognizes no degree of secondary evidence.

Question 108

Lay witness

Answer 108

Aynone who is not, at that moment, testifying as a qualified witness.

Question 109

Can someone be a lay and expert witness at different times?

Answer 109

Yes.

Question 110

When is someone testifying in form of opinion?

Answer 110

Interpreting or drawing inferences from facts, rather than simply reciting the base facts.

Question 111

Rule 701. Opinion testimony by lay witnesses

Answer 111

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: a) rationally based on the witness’s perception; b) helpful to clearly understanding the witness’s testimony or to determine a fact in issue; and c) not based on scientific, technical, or other specialized knowledge within the scope of 702 (expert witness).

Question 112

Rationally based on witness’s perception =

Answer 112

personal knowledge

Question 113

Does expert opinoin have to be baseed on personal knowledge?

Answer 113

No.

Question 114

When is a witness’s opinion not helpful?

Answer 114

If fact finder can be put in as good a position as the witness to come to a conclusion, by the witness supplying base facts, then it is not helpful.

Question 115

Lay witness reasoning vs expert wintess reasoning

Answer 115

Lay witness = everyday reasoning, expert witness = reasoning requiring specialized training.

Question 116

Witness to car collision. Personal injury case. Can they testify: “In my opinion, the red car must have been going well over 50 mph.”

Answer 116

Yes. We can all tell this as a result of our everyday experiences, and it would be difficult to otherwise convey this.

Question 117

Opinion: “plane looked like it was going 1,000 MPH.” Allowed by lay?

Answer 117

No. Would require an expert.

Question 118

Lay: Red car caused the accident in my opinion

Answer 118

Not helpful. Jury could decide based on base facts.

Question 119

Can lay witness express opinion on ultimate matter

Answer 119

Yes 704(a) and 704(b)

Question 120

Lay: “Driver of red car walked away. He stood about 6 ft 3 and weighted about 195 pounds.”

Answer 120

Yes, this is based on everyday experience and is helpful.

Question 121

Lay “he looked mad”

Answer 121

Allowed. Would be too hard to get it across another way.

Question 122

Lay “he looked drunk” In a DUI case.

Answer 122

Allowed, even thought it may be helpful to explain why they looked drunk (ex. they were stumbling, slurring words, etc.
Note: an expert could not do this.

Question 123

Lay: He looked crazy to me

Answer 123

Allowed, even in a case where insanity is at issue, and even in a criminal case.

Question 124

Lay: He looked like he was suffering from an internal hemorrhage.

Answer 124

Not allowed. This would require specialized knowledge.

Question 125

Lay: He wanted to call the police, I think

Answer 125

Not allowed. Not helpufl. It also may not be rationally based on perception.

Question 126

Lay: He looked sleepy

Answer 126

Allowed

Question 127

Prototypical examples that lay can testify to

Answer 127

Appearance of persons or things, identity, manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, etc. Also, taste and smell, emotions, vehicular speed, voice identification, genuineness of handwriting (with basis for conclusion), irrational conduct, intoxication.

Question 128

What can experts do? Examples?

Answer 128

Can draw upon generalizations that come from uncommon experiences that gave them specialized knowledge or that use specialized processes of reasoning.
Expert can interpret evidence in ways the average juror and average witness cannot.
Ex. a doctor can examine a set of symptoms and come to a diagnosis, a chemist can test a white powder and determine whether or not it’s cocaine. Also a bricklayer, who has been doing it for years, can determine whether or not it’s been properly laid.

Question 129

Rule 702. Testimony by expert witnesses

Answer 129

Rule 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise [ex. Educating witnesses] if:
a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the principles and methods to the facts of the case.

Question 130

Rule 703. Bases of an expert.

Answer 130

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs the prejudicial effect.
[prejudicial effect here is based on the reason it was inadmissible].

Question 131

Rule 705. Disclosing the facts or data underlying an expert

Answer 131

Unless the court orders otherwise, an expert may state an opinion – and give reasons for it – without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
Note: You don’t ever have to disclose if you don’t want to (but this is far less persuasive), especially if you are asked about it on cross.

Question 132

Expert testimony shorthand

Answer 132

Expert testimony shorthand: 1) A qualified expert may testify, 2) in the form of an opinion (or otherwise), 3) if the expert’s specialized knowledge will, 4) help the trier of fact…5) and the testimony is based upon sufficient data, 6) of a kind reasonably relied upon by experts in the field, 7) and the product of reliable principles and methods, 8) reliably applied, 9) without first testifying to the underlying data.
[you can take witness on voir dire to figure out if they are qualified as an expert in that particular field]

Question 133

J is charged with the possession of implements of crime with intent to use unlawfully; a water pipe, a bent spoon, and a screwdriver. J says they didn’t intend to use any unlawfully and they can all be used lawfully. P wants to present testimony of 20 year veteran of police narcotics unit. Officer had examined water pipe and bent spoon, and based on training and experience the water pipe was a bong of the sort commonly used to smoke marijuana, and the bent spoon was a cooker of the sort commonly used to melt heroin. Admissible after qualified has an expert on drug paraphernalia?

Answer 133

Yes.

Question 134

J is charged with the possession of implements of crime with intent to use unlawfully; a water pipe, a bent spoon, and a screwdriver. J says they didn’t intend to use any unlawfully and they can all be used lawfully. P wants to present testimony of 20 year veteran of police narcotics unit. Officer had examined water pipe and bent spoon, and based on training and experience the water pipe was a bong of the sort commonly used to smoke marijuana, and the bent spoon was a cooker of the sort commonly used to melt heroin. He looked at bong. It had certain distinctive features. Would he have to reveal these features?

Answer 134

No. You don’t have to disclose underlying factual reasons, except on cross or if ordered by the judge under 705.

Question 135

J is charged with the possession of implements of crime with intent to use unlawfully; a water pipe, a bent spoon, and a screwdriver. J says they didn’t intend to use any unlawfully and they can all be used lawfully. P wants to present testimony of 20 year veteran of police narcotics unit. Officer had examined water pipe and bent spoon, and based on training and experience the water pipe was a bong of the sort commonly used to smoke marijuana, and the bent spoon was a cooker of the sort commonly used to melt heroin. Could witness be asked “in your opinion, were the pipe and spoon possessed by the defendant with intent to use unlawfully.”

Answer 135

No. This is blocked by rule 704.

Question 136

Rule 704. Opinion on an ultimate issue

Answer 136

a) In general – not automatically objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Question 137

J is charged with the possession of implements of crime with intent to use unlawfully; a water pipe, a bent spoon, and a screwdriver. J says they didn’t intend to use any unlawfully and they can all be used lawfully. P wants to present testimony of 20 year veteran of police narcotics unit. Officer had examined water pipe and bent spoon, and based on training and experience the water pipe was a bong of the sort commonly used to smoke marijuana, and the bent spoon was a cooker of the sort commonly used to melt heroin. Could the express give the expert opinion that screwdriver was sort of thing typically used by burglarers to enter into a building illegally?

Answer 137

No. They are an expert in drug paraphernalia. They would have to be seperately qualified to give this.

Question 138

Can a burgler be qualifed as expert witness?

Answer 138

Yes.

Question 139

Expert gives testimony on cooker based, in part, on chemist report that there were traces of meth on the spoon. Would report need to be disclosed?

Answer 139

No, except if ordered by judge or asked on cross.

Question 140

Could expert testify that to facts underlying opinion, assuming the report was inadmissible hearsay and there is a confrontation clause problem.

Answer 140

an only disclose underlying data on direct if probative value sufficiently outweighs the prejudicial value. On cross or demand by judge, based on standard 403 analysis.

Question 141

Standard for helpful for expert wintess

Answer 141

Expert just has to do a little bit to help the jury make their decision.

Question 142

Two minors born with birth defects. Allege that it was the result of a drug taken by their mother.
Defense expert: Studies say no link between drug and human birth defects. Concludes that there was no causation.
Plaintiff brings 8 experts: Can cause birth defects. Conclusion based on animal studies, pharmacological comparison to drugs that cause birth defects, and a reanalysis of studies discussed by defense expert.
Motion for summary judgment granted.
SC trying to figure out what proper test was for admissibility of expert testimony.

Answer 142

Test used by trial court: The Frye test. Testimony admissible if the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Applying test, 9th circuit found P’s evidence was not sufficient to meet that standard, and so it shouldn’t be used.
SC doesn’t use Frye test because it is superceded by Rule 702.
[Federal rules supersedes all common law unless indicated otherwise].
Juge is gatekeeper who determines when specialized knowledge is admissible.

Question 143

When is knowledge scientific

Answer 143

When iference or determiniation is based on the scientific method.
“The adjective scientific implies a grounding in the methods and procedures of science. Similarly, the word knowledge connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such factors or accepted as truths on good grounds.

Question 144

Car accident. Tire blew out. Suing car company in products liability case.
Expert for P: Can tell whether or not a blowout is based on a product defect.
Expert looked at tire right before deposition, but most of his opinion was based on looking at photos.
Allowed?

Answer 144

This is technical or other specialized knowledge. Does Daubert apply? Yes.
The judge can be flexible. The judge is going to have a lot of discretion in determining which factors to use. The judge can use the Daubert factors when they are helpful and pertinent, but the judge is required to use the factors.
The inquiry is flexible depending on the facts of the particular case.
Judges also have latitude/flexibility in deciding how to test reliability–including procedural flexibility (special briefing or proceedings needed to assess reliability). This is typically a special type of motion in limine hearing called a Daubert hearing.
Court doesn’t have to have an unnecessary reliability hearing when you can take the reliability of the expert witness’s testimony for granted.
Discretion granted to District Court. The DC’s finding that testimony was inadmissible is upheld (probably would have supported it if the DC had gone the other way).

Question 145

Does judge have to use Daubert factors?

Answer 145

The judge can be flexible. The judge is going to have a lot of discretion in determining which factors to use. The judge can use the Daubert factors when they are helpful and pertinent, but the judge is required to use the factors.
The inquiry is flexible depending on the facts of the particular case.
Judges also have latitude/flexibility in deciding how to test reliability–including procedural flexibility (special briefing or proceedings needed to assess reliability). This is typically a special type of motion in limine hearing called a Daubert hearing.
Court doesn’t have to have an unnecessary reliability hearing when you can take the reliability of the expert witness’s testimony for granted.
Discretion granted to District Court. The DC’s finding that testimony was inadmissible is upheld (probably would have supported it if the DC had gone the other way).

Question 146

What standard is used for 702 and other evidence questions on appeal

Answer 146

abuse of discretion

Question 147

DUI. P intro ev. D was stopped. Officer says asked them to step out. Smelled alcohol on breath and he stumbled? Admissible?

Answer 147

Doesn’t require specialized knowledge. Works as lay opinion.

Question 148

DUI. P intro ev. D was stopped. Officer says asked them to step out. Same. Testifies D intoxicated. Admissible?

Answer 148

Yes. Still lay testimony. Still helpful. Ok that’s its a mental condition that is an element because not an expert.

Question 149

Administered horizontal gaze and nystagmus test. “D followed spot of light left and right. Eyes were bouncing. In my opinion this indicates intoxication. I was taught test in police academy. This is widely accepted as a test of intoxication.” Admissible?

Answer 149

Object to them not having specialized knowledge. Response asks about experience in DUI cases. Officer is very experienced. In their experience people who fail this test also fail the breathalyzer. Is this an adequate basis to show reliability of testimony? No. At some point an expert would testify in that jurisdiction to the test’s reliability. Once decided reliable, it just becomes a question of whether or not the test was administered reliably.

Question 150

Almeciga said she didn’t sign paper release.
Supporting denial is a handwriting expert who compared signature on the release to other signatures of the same name, that were believed to be written by Almeciga, and said one of them was a forgery.
Judge asks her to write it 10 times in front of everyone.
Expert looks at those and says the contract signature is a forgery.
Problem: She might have intentionally written it differently in court.
Admissible?

Answer 150

No.
Court’s process in determining if expert testimony should be admissible: Go through Daubert factors. Handwriting expertise fails Daubert test. Method seems subjective. Method has been criticized. Experts not substantially better than lay people. No studies/tests done on their ability to determine if someone is intentionally fabricating their handwriting.

Question 151

Daubert factors

Answer 151

1) Can it be, and has it been, tested, 2) Has it been subjected to peer review and publication, 3) What is the known or potential rate of error, and are their standards controlling the technique’s operation, 4) has it gained general acceptance within the relevant community

Question 152

Factors in addition to Daubert

Answer 152

Influence of lawyer/client on expert, contradictions expert makes.

Question 153

Calf stolen from barn. Found in neighbors barn. To determine if stolen calf. Let it try to suckle different cows to see which one accepts it.
Expert: Says this is an accepted test. Expert was a lifelong cattleman.
Frye test was applied here: Generally accepted test in the community.

Answer 153

Court said evidence admissible.

Question 154

Preserving a claim of error

Answer 154

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

Question 155

timely

Answer 155

as soon as grounds to object become apparent

Question 156

specific

Answer 156

name of objectionary doctrine

Question 157

Offer of proof methods

Answer 157

Offer of proof: The witness would have said… (summary by council). Although, the judge can insist that it be done in a question and answer format (testimony by witness). In the case of a document you have a problem admitting (admit into record for appeal).

Question 158

611 control of the court

Answer 158

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

Question 159

611 scope of cross-examination

Answer 159

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

Question 160

611 leading questions

Answer 160

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Question 161

rule 806 attacking and supporting the delcarant

Answer 161

1) hearsay declarant may be attacked in anyway they could have if present.
2) If party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Question 162

When are leading questions routinely allowed

Answer 162

Preliminary matters (ex. Not disputed, address, job, etc.), refresh memory strategy, kids, elderly, lacking competency, laying foundation, 104(a) and (b) questions.

Question 163

Character evidence in civil cases?

Answer 163

No. Only in criminal

Question 164

SOM looking back for info put in a will?

Answer 164

Yes