Pg 9

Question 1

What is a Dead Man’s statute?

Answer 1

It requires exclusion of witness testimony about conversations or events that happened in the decedent’s or an incompetent’s presence when it’s offered against his representative

Question 2

If a car accident killed the plaintiff, can the defendant testify about the accident under a dead man’s statute?

Answer 2

No, because it happened in the decedent’s presence

Question 3

What is the rationale for dead man’s statutes?

Answer 3

When death or incompetency closes the mouth of one party, the law gets equality by closing the mouth of the other. The concern is that a party will lie when he can’t be directly contradicted

Question 4

If an attorney is going to object to the competency of a witness, when must the objection occur?

Answer 4

Before testimony is given, unless the disqualification is only for certain things, then the objection must be raised once the witness is asked about the barred event or conversation

Question 5

Do expert witnesses need to have personal knowledge of the events?

Answer 5

No, they can express opinions based on facts that they don’t have personal knowledge of

Question 6

What is the rule regarding interpreters?

Answer 6

They have to be qualified and provide an oath or affirmation to make a true translation and to communicate exactly what the witness is expressing

Question 7

When is an interpreter needed for a witness?

Answer 7

If the witness doesn’t speak English at all or well enough to testify fully, or if the witness speaks sign language, or if a criminal defendant can’t communicate well enough with counsel to understand the proceedings

Question 8

Is it necessary that an interpreter have personal knowledge of the events?

Answer 8

No

Question 9

Can a court clerk testify in a case that he is clerking for?

Answer 9

Yes

Question 10

Is it permissible under the federal rules of evidence for an attorney to testify as a witness in a case he is representing a party in?

Answer 10

Technically yes, but the court has discretion to refuse it and the model rules say this cannot happen unless the exceptions apply for an uncontested issue, the value of legal services, substantial hardship to the client, attorney is defending himself

Question 11

Is it OK for another attorney from the firm to be called as a witness in a case that the first attorney is acting in?

Answer 11

Yes

Question 12

Do the federal rules of evidence ban an attorney from testifying in a case that he is representing a client in?

Answer 12

No, but be careful not to get tricked. The FRE does not ban this. The model rules do

Question 13

How do you usually authenticate or identify evidence?

Answer 13

By using witness testimony about the item to lay foundation

Question 14

What is the procedure to determine evidence’s authenticity?

Answer 14

A sufficiency standard requires that the attorney must offer sufficient evidence for a judge to be persuaded that he could reasonably find the evidence is what the proponent claims it to be

Question 15

Authentication does what?

Answer 15

Determines whether the jury gets to see or hear or consider evidence at all

Question 16

Is the threshold for authentication high or low?

Answer 16

Low. Just need minimal relevance and reliability for the evidence to be seen by the jury

Question 17

Authentication only applies to what kind of evidence?

Answer 17

Real evidence, this means documents or data in tangible form

Question 18

What is the threshold for witness testimony and what is the threshold for real evidence?

Answer 18

– witness testimony: competency

– real evidence: authentication

Question 19

How are competency and authentication similar?

Answer 19

They both provide a minimum screening function for two different kinds of evidence

Question 20

Facts must be proven, not just assumed, so if an attorney hands a paper to the witness, what must be done?

Answer 20

It cannot be assumed that the paper is a contract, it must be established that it is contract through minimal testimony from the plaintiff to authenticate the document. He can say he recognizes the contract that he signed, he recognizes his own signature, he remembers the defendant signing it, he remembers getting the document in response after sending it to the defendant, etc.

Question 21

In order for evidence to be shown to a jury or the contents to be discussed in the jury’s presence, what has to happen?

Answer 21

Evidence must first be admitted

Question 22

What is the process to admit an item into evidence?

Answer 22

• objections can be made
  – objections are overcome
  – the item is marked for identification with exhibit stickers by the court or the bailiff
  – the attorney lets the opposing party inspect the exhibit
  – it is shown to the witness
  – attorney asks the witness questions about it to prove authenticity.
  – attorney moves the document into evidence
• opposing party can object
  – if no objections or they are overruled the document is admitted into evidence and becomes an exhibit
  – only then can it be shown to the jury

Question 23

Before an item is moved into evidence, how is it usually marked?

Answer 23

With an exhibit number or letter. I.e.: Exhibit 1 for identification

Question 24

Why must the attorney that is trying to admit an item into evidence allow the opposing party to inspect it first?

Answer 24

So that the other party can familiarize himself with the item to be sure that no notes are going to the witness from the attorney

Question 25

Is it possible to authenticate documents circumstantially?

Answer 25

Yes, based on their contents or circumstances, you don’t always need testimony

Question 26

What is an example of a situation where you can authenticate a document circumstantially?

Answer 26

A ledger that has names and figures on it is found close to drugs in the defendant’s warehouse. This can be authenticated by considering the contents of the document together with the circumstances like the appearance, contents, substance, internal patterns, or other distinctive characteristics combined with circumstances is enough to authenticate a document

Question 27

Why are hearsay objections often paired with authentication objections?

Answer 27

Because hearsay is implicated whenever you introduce a document that is created out of court or if a witness testified about the content of a document created out of court

Question 28

If a document hasn’t yet been offered into evidence, is it proper to make an objection saying it lacks foundation for authenticity?

Answer 28

No, that would be premature

Question 29

What is the extra points analysis that can be made on an essay to deal with x-rays being authenticated by a document?

Answer 29

How does the doctor know this is the x-ray for the plaintiff and not for someone else? Are there special markings or is it a unique break? The doctor never actually saw the bone inside the body, so you might need chain of custody. You need at least one fact to show how the doctor knows the x-ray belongs to the patient