Problem Questions

Question 1

D right to prove his law abiding character:

Answer 1

Although a criminal D always has the right to prove his law-abiding character, he must do so by opinion or reputation evidence, NOT evidence of specific law-abiding acts.

Question 2

Past Recollection Recorded.

Answer 2

“If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party”

Question 3

Attorney Client Priviledge and co-parties:

Answer 3

Where two co-clients are jointly represented in a matter, communications between them are not privileged for purposes of a subsequent dispute between them.

Question 4

Expert Testimony/test:

Answer 4

There is no rule that where a prospective proponent of expert testimony hires the expert to do testing, the proponent must give notice to her adversary and/or opportunity to participate in the testing process.

Question 5

Mandatory Presumption and crime:

Answer 5

SCOTUS has held that the use of a mandatory presumption with respect to an element of a crime violates the accused’s due process right to have the prosecution prove each element beyond reasonable right.

Question 6

Co-conspirator Statement and Non-hearsay:

Answer 6

Co-conspirator exception does not apply to statements that are either made after the conspiracy has ended or are not in furtherance of the conspiracy.

But otherwise, normally, non-hearsay.

Question 7

Privilage against self-incrimination TRUMPS:

Answer 7

The privilege against self-incrimination applies in civil cases as well as criminal cases. A witness may refuse to testify if the witness has a reasonable fear that the testimony may lead to her being criminally prosecuted.

Where a witness is testifying as to events she witnessed, her testimony may be impeached by showing a defect in her sensory capacity. Therefore, the questioner was entitled as a matter of general principle to raise issue on cross. But even though the question was proper, these principles of evidence law must yield to the woman’s federal constitutional right not to be required to give testimony that might tend to incriminate her.

Question 8

Writings to Refresh Memory:

Answer 8

If the witness used the writing for memory-refreshment WHILE TESTIFYING then the adverse party has an absolute right of inspection.

If the witness merely consulted the writing before taking the stand, the right of inspection, cross-examination ect. only apply if the court decides that justice requires the party to have those options.

Question 9

Must a court exclude a witness?

Answer 9

At a party’s request, a court MUST order witnesses to be excluded so that they cannot hear other witnesses testimony.

Question 10

A witness referring to collateral documents:

Answer 10

A witness may refer to collateral documents without having to produce the documents themselves. BUT not to prove the fact in those document!

Question 11

Cross-examination and credibility:

Answer 11

Matters of credibility are within the scope of cross-examination.

Question 12

Silence by Admission:

Answer 12

An admission by silence is only admissible if the person heard the accusatory statement, he was capable of denying the statement and a reasonable person would have denied the statement were it not true under the same circumstances. (IF UNDER POLICE CUSTODY, you can remain quit since they are scary).

Question 13

Two tiers of an out-of-court statement :

Answer 13

Anytime the evidence in question consists of an out-of-court statement by A repeating another out-of-court statement by B, you have to analyze both A and B’s statement – if either statement is hearsay not falling within any exception, the combined statement cannot come in.

Question 14

Competency:

Answer 14

Every person is competent to be a witness except as otherwise provided. The only two limitations given require that:

(1) The witness have personal knowledge of the matter about which he is to testify
(2) Witness must declare by oath or affirmation that he will testify truthfully.

PROSECUTOR DOES NOT HAVE TO PERSUADE THE JUDGE OF THE SON’S COMPETENCY TO TESTIFY.

Question 15

Felony Conviction:

Answer 15

A felony conviction is admissible to prove any fact essential to sustain the judgement.

Conviction must be for a crime punishable by death or imprisonment in excess of one year.

Question 16

Admission:

Answer 16

D’s guilty plea could be admissible as an admission since it’s an acknowledgement of guilt.

Question 17

Intrinsic evidence:

Answer 17

There are 5 general types of questions that may be used to elicit intrinsic impeachment from a witness:

OWN MOUTH

1. Bias or interest
2. Prior inconsistent statements
3. Certain prior convictions
4. Bad character for honest
5. Sensory deficiencies

When the evidence is only extrinsic, only reputation or opinion testimony may be used.

Question 18

Extrinsic Evidence:

Answer 18

Except for a criminal conviction, 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 into if they are probative of the character for truthfulness or untruthfulness of the witness.

Question 19

Automatic Photo

Answer 19

When an automatic device takes a picture, only a limited type of authentication is needed. A witness must testify about how the machine works, and that testimony must somehow tie the photo to the issue under question.

Question 20

Hearsay exception: Statement of then existing physical condition

Answer 20

Statements by a patient (not the doc.) regarding the patient’s physical condition made to a treating physician in connection with treatment are admissible as exceptions to the hearsay rule.

Question 21

Offer to Negotiate:

Answer 21

Offers to compromise on a claim which is disputed as to validity or amount, are inadmissible. Evidence of conduct or statements made during the negotiation of a compromise is also inadmissible.

Public policy exception!!

Question 22

Expert opinion:

Answer 22

Unless the court orders otherwise, an expert may state an opinion – and give the reasons for it – without first testifying to the underlying facts or data.

Question 23

Handwriting:

Answer 23

For a lay witness to properly authenticate handwriting, the witness’s familiarity with the handwriting must have not been acquired solely for purposes of litigation.

Question 24

Re-direct examination of a witness:

Answer 24

Re-direct examination must be permitted only if there were significant new matters raised on cross-examination.

Not every matter raised in cross-examination must be permitted to be questioned about in re-direct, only those that raise significant new issues.

Question 25

Evidence by deception:

Answer 25

There is no rule automatically barring evidence obtained by deception.

Some state and federal statutes do regulate secret recordings of conversations and violations of such statutes will sometimes result in the exclusion of recordings so obtained.

Question 26

A witness’s prior inconsistent statement can be used in two ways:

Answer 26

1. To impeach the witness provided that the witness is given an opportunity to explain or deny the statement.
2. Non-hearsay substantive evidence of the prior statement’s truth if the prior statement was given under oath and subject to penalty of perjury as part of a formal hearing, proceeding, trial or deposition.

Question 27

Unavailable witness and impeachment:

Answer 27

Former testimony of a now unavailable witness may be admissible if the testimony was given under oath and with the opportunity to cross-examine.

The party against whom such a statement is admitted may still impeach the credibility of the witness, even though he/she did not testify in court. The credibility of the witness may be attacked by any evidence that would be admissible if the witness had testified.

Question 28

Attorney-client Privilege:

Answer 28

Attorney-client privilege covers confidential communications between attorney and client made during the legal consultation and those communications are inadmissible in cases with 3rd party claimants.

E.g The driver and the owner were both clients of the attorney at the time of the conference, so the communications are still subject to the attorney-client privilege in regards to the litigant. Because the driver was not originally an adverse party to the owner, the communications in the original meeting were to be confidential to all outside sources, including the litigant.

Question 29

State issued motor vehicle registration:

Answer 29

State issued motor vehicle registrations are self-authenticating documents and are admissible as a hearsay exception.

Question 30

Habit evidence:

Answer 30

Habit evidence consists of a routine, specific practice, not a general reputation a and is offered to show a pattern of habitual action.

Question 31

Witness’s prior statement

Answer 31

A witness’s prior statement identifying a person as someone he perceived earlier is not considered hearsay. This rule does not apply however, when the witness is not subject to cross-examination including when the witness is dead.

Question 32

Burden on Persuasion:

Answer 32

The burden on persuasion does not shift.

Question 33

Sufficient Authentication for Telephone call:

Answer 33

The answering speaker’s identification of himself together with the usual accuracy of the telephone directory and transmission system furnishes sufficient authentication.

(Judicial notice of the accuracy of telephone directory by itself would not provide the proper authentication for the telephone call.

Question 34

Prior Identification by the Witness:

Answer 34

A prior statement by a witness, if that witness is testifying and available for cross-examination is not hearsay and is admissible if it is one of identification of a person made after perceiving the person.

(e.g. The bank teller’s prior identification of the defendant in a lineup is admissible as a prior identification by the witness)

Question 35

Preliminary questions concerning the admissibility of evidence shall be determined by the _______.

Answer 35

court

Question 36

Slander and character evidence:

Answer 36

In slander cases where the D makes a statement that the P has an unsavory character, the P character is considered “in issue.”

IN SLANDER CASES, CHARACTER EVIDENCE IS RELEVANT BOTH TO WHETHER THE P HAS A CERTAIN CHARACTER AND TO THE EXTENT OF DAMAGES

Where character is “in issue” it can be proved by evidence of reputation, opinion, or specific act.

Question 37

Learned Treatise Exception:

Answer 37

If the court finds a publication to be reliable authority, then if a statement in the publication is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination the statement may be read into evidence but not received as an exhibit.

Question 38

Expert witness and relying on hearsay:

Answer 38

An expert can rely on hearsay in reaching the conclusion so long as other experts would reasonably rely on such information. But the rule distinguishes between expert reliance on the hearsay and admitting the hearsay at trial for the jury to consider.

Question 39

Not introducing evidence:

Answer 39

Where it would be natural for a party to introduce a certain piece of available evidence, and he doesn’t do so, the other party can use this failure so as to invoke an adverse inference.

Question 40

Statement made for purposes for medical diagnosis (hearsay exception):

Answer 40

Statements made for purposes of medical diagnosis or treatment, and statements describing medical history or past or present symptoms, pain, or sensation or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment are an exception to the hearsay rule and are admissible.

Question 41

Best Evidence Rule:

Answer 41

rule is only applicable to writings, recordings, photographs or X-rays. (Therefore, not to robots)

Question 42

Judicial Notice in criminal cases;

Answer 42

In a criminal cases, an instruction on a judicially-noticed fact amount to no more than a permissible inference.

Question 43

Statements by agent or employee:

Answer 43

Statements by an agent or employee concerning any matter within the scope of her agency or employment made during the existence of the agency or employment relationship are admissible against the principle.

Question 44

Witness prior statement identifying someone he perceived:

Answer 44

A witness’s prior statement identifying a person as someone he perceived earlier is not hearsay. Before a prior identification is admissible as substantive evidence, the declarant must testify at the trial or hearing and must be subject to cross-examination concerning the statement.

Question 45

Authenticating phone call:

Answer 45

Self-identification by the caller, is insuffiicent evidence to allow for the admission of the telephone call against the speaker.

One method of authenticating a phone call is when the speaker has knowledge of certain facts that only a particular person would have.

Question 46

Leading questions:

Answer 46

Leading questions are generally permitted on cross-examination

A cross-examiner is entitled to question in such a way as to raise inferences about the motive of a witness to testify falsely.

Question 47

Statements of future plans:

Answer 47

fall within the hearsay exception for then-existing state of mind.

Question 48

Admissibility:

Answer 48

Preliminary questions concerning the admissibility of evidence shall be determined by the court.

Question 49

Reply-Letter Doctrine:

Answer 49

while the contents of the original letter are irrelevant and do not have to be proven, evidence that the inquiry letter was sent suffices to authenticate the reply letter.

Question 50

Ancient document:

Answer 50

The ancient document hearsay exception required that the document be properly autthenticated AND that it was prepared before January 1, 1998.

Question 51

Attorney Client Privilege:

Answer 51

When a client seeks his attorney’s advice in furtherance of planning to commit an illegal activity, the attorney client privilege does not apply, regardless of whether the attorney was aware of the illegal activity.

Question 52

Evidence of a witness’s truthful character:

Answer 52

Evidence of a witness’s truthful character is admissible “only after the witness’s character for truthfulness has been attacked.

SEEM TO ALWAYS FORGET THAT THEY MUST FIRST BE ATTACKED!

Question 53

Evidence is relevant test (USED BY JUDGE):

Answer 53

Evidence is relevant if:

A. It has any tendency to make a fact more or less probable than it would be without the evidence.

B. The fact is of consequence in determining the action.

Question 54

Past recollection recorded:

Answer 54

When a witness’s memory cannot be refreshed and the other requirements of the recorded recollection exception are met, the item is fully admissible as an exception to the hearsay rule.

Question 55

Learned treatise exception to the hearsay rule:

Answer 55

Learned treatise exception to the hearsay rule requires an expert witness to testify regarding the text for it to be admissible substantively.

(Statements may be read into evidence, but you cannot submit entire exhibit)

Question 56

Judicial notice in criminal cases:

Answer 56

court must instruct the jury that it may or may not accept the noticed fact as conclusive.