Short Questions

Question 1

Prior statements: scenarios, where it can be used for the truth of the matter asserted

Answer 1

1. A witness’s prior inconsistent statement made at a deposition. (He is under oath)
2. A witness’s prior consistent statement offered to rebut a charge that the witness is now lying to provide an alibi for his wife. (it was made before the alibi)
3. A witness’s prior statement identifying a person in a police lineup. ( A prior identification after perceiving a person or even after seeing his picture in a photo identification is not hearsay under the Federal Rule)

Question 2

Statements against interest require that the declarant is unavailable?

Answer 2

Yes,

The other ones are:

(i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against party procuring declarant’s unavailability.

Question 3

Does the “open the door” rule applies to civil and criminal cases?

Answer 3

It applies only to criminal cases.

In Civil case, character evidence (opinion, reputation or specific acts) is admissible only when is an issue in the civil case

Question 4

In a criminal case, when can prosecution call a witness to testify about D’s character for a particular trait?

Answer 4

Only if the defendant has already put that particular character trait in issue

Question 5

What of these can you use in a civil case to provide evidence of character?

• Reputation,
• opinion
• specific acts

Answer 5

All of them

any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue (e.g. defamation actions), either positive or negative

Question 6

Under what circumstances is evidence of a defendant’s prior acts of sexual assault or child molestation admissible?

Answer 6

In ANY civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation. Even if the victim is different

Question 7

What is the best type of criminal conviction to attack W’s character for truthfulness:

• Felony involving dishonesty 18y ago
• Felony not involving dishonesty 8y ago
• Misdemeanor involving dishonesty 12y ago
• Misdemeanor not involving dishonesty 6m ago

Answer 7

Best case:

Felony not involving dishonesty 8y ago

Felony is always good whether or not involves dishonesty or a false statement. Convictions over 10 years are normally too remote and inadmissible

A felony involving dishonesty where 18 years have passed since conviction and release from prison will likely be inadmissible.

A witness’s character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. However, a conviction is usually too remote and inadmissible

Question 8

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act:

Answer 8

is probative of truthfulness

Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief.

Question 9

A character witness testifies regarding the defendant’s good character for peacefulness. The prosecution may rebut this evidence by:

Answer 9

Asking the witness, “Did you know that the defendant beat his girlfriend three weeks prior to this incident?”

The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the character witness knows of, as well as whether he has heard of, specific instances of misconduct by the defendant. Therefore, it is proper for the prosecution to ask the witness about the defendant’s prior violent act.

If the witness denies knowledge of specific instances of misconduct by the defendant, the prosecutor may not prove them by extrinsic evidence (e.g., a rebuttal witness or an arrest report); he is limited to inquiry on cross-examination.

Question 10

If a defendant in a criminal case presents evidence of his own good character for a particular trait, which is a permissible method of rebutting this evidence?

Answer 10

If the defendant puts her character in issue, the prosecution may rebut the defendant’s character evidence by calling qualified witnesses to testify to the defendant’s bad reputation for the particular trait involved

No evidence about specific acts allowed

If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation, the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Question 11

Can a D in a hit and run case, use a priest testimony to show the he is a highly responsible person who would not run away from his obligations by leaving the scene of an accident?

Answer 11

Yes, because the testimony shows that the defendant is a person of good character.

The priest’s testimony as to the defendant’s responsible nature is admissible as circumstantial evidence that he was not driving the hit-and-run vehicle. The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case. In this case, whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait. The priest, having known the defendant for 12 years, is qualified to give his personal opinion as to the defendant’s character. The court should therefore permit the priest to testify.

Question 12

D is tried for a violent crime, he uses a testimony to show that he is a good and honorable person. Admissible?

Answer 12

No, because testimony regarding the D honesty is irrelevant in a violent crime case

While a criminal defendant, to show his innocence of the charged crime, may call a qualified witness to provide reputation or opinion testimony regarding the defendant’s good character for a trait involved in the case. The defendant is charged with a crime of violence, so his character for honesty and veracity is not pertinent to the case

Question 13

As a general rule, evidence of a prior bad act or crime is not admissible to prove:

Answer 13

Propensity to commit crime

MIMIC

Question 14

What do you need to prove specific instances of bad conduct (misconduct)?

Answer 14

Sufficient evidence (no clear and convincing, no beyond reasonable doubt, no prior conviction) to support a jury finding that the defendant committed the prior misconduct

Question 15

Recorded recollection specific requirements

Answer 15

1. event cannot be revived by reviewing a memorandum or other record
2. document needs to be made near the time of the event
3. record must have been made by the witness, made at the witness’s direction, or adopted by the witness.
4. record must be know to W before trial
5. document not entered as evidence, may be read into evidence and heard by the jury

Question 16

Refresh memory recollection specific requirements

Answer 16

1. No signature requirement
2. It doesn’t need to be authenticated
3. it doesn’t need to be read
4. Is included as evidence only when the opposite party requires it

Question 17

Can an expert opinion relate to the ultimate issue in the case?

Answer 17

Yes, an expert witness may embrace the ultimate issue in the case: Fed Rules states than an opinion is not objectionable just because it embraces an ultimate issue

Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

Question 18

This is false: An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.

Why?

Answer 18

Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Question 19

Does an expert need to disclose the basis of his opinion?

Answer 19

An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination

Question 20

Rules concerning using “Prior bad acts” as a way of impeachment, do you remember them?

Answer 20

1. No extrinsic evidence is permitted
2. FRE don’t have remoteness limitations, prior convictions, however, must not be too remote.
3. The cross-examiner doing the impeachment can only ask about the bad act, if the W denies it he can continue in good faith with the hopes that he will change his answer

Question 21

Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel can use another testimony? a entry in a journal? a transcript?

Answer 21

None of those, he can only continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry.

Question 22

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act ___?

1. is probative of truthfulness
2. affects the witness’s character in some way

Answer 22

is probative of truthfulness

Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief.

Question 23

An attorney wants to cross-examine a witness about the witness’s prior bad act that is probative of truthfulness. Is this a matter of right? or is a discretionary right given by the court?

Answer 23

The court may allow the inquiry, but they can deny it

Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court. Thus, the court may allow such inquiry, but because it is discretionary with the court, “must” is a wrong choice.

Question 24

A W described a felon at the police station, and a sketch was made. The prosecution wants to introduce it as evidence. The W is unavailable.

Admissable?

Answer 24

No, because is hearsay without any exception.

The sketch would be similar to any statement made by the W, and therefore it would be only acceptable with the W present and subject to cross-examination. Then it would be a prior statement after identification and a Hearsay Exemption

Question 25

Party wants to show that the day was sunny. A W testifies that he was lying at the sun at the beach and his wife told her “What a sunny day!!!”

Admissible?

Answer 25

Yes, as a hearsay exception that does not require the unavailability of the declarant

It is a present sense impression since the woman was describing the condition of the sun as she was describing it

Question 26

A woman suffers a deadly accident. A W comforts her and she wakes up startled and says “Help!!! D hit me with his car”

Admissible?

Answer 26

Yes,

As an excited utterance, admissible as a Hearsay exception that does not require unavailability.

Question 27

W is being questioned on his truthfulness on the basis that he made an oath before cross-examination, and he is known to be an atheist.

Can the opponent party use this as a way of impeachment?

Answer 27

NO, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.

Evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.

Question 28

W is a former employee of the D, and he testifies against him. D’s counsel wants to impeach W by showing that he throw a rock to the office of D. He denies the accusation. Can D bring a W to testify that he saw W throwing the stone?

Answer 28

Yes, to impeach by showing bias.

Remember difference when impeaching by bias or by prior acts of misconduct: if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible

Question 29

A Truck Driver of D Company crashed with P. The truck driver recognized immediately that “I was driving too fast, it was my fault”. He was fired two weeks after that.

Is this an admission against the D Company? Even if he is no longer an employee?

Answer 29

Yes, since the admission would also be attributed to the Company. If the statement is made (1) when the person was employed and (2) the statement was related to the employment, then it would be attributed to the Company as a party admission (non-hearsay exemption)

Question 30

Can you impeach a witness that is not present?

Answer 30

Yes, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

Since W is not present, then is not necessary to lay a foundation

Also, the impeached W can also be rehabilitated

Question 31

Police arrive at D’s apartment and talk with his wife. They ask her to give them the murder weapon. She complies and hands them the weapon without saying anything else.

Can the D exclude the evidence under a marital privilege?

Answer 31

No, because the privilege is concerning testimony evidence and communications, not another type of evidence such as handing evidence.

Question 32

What is asportation, and in which crime is used?

Answer 32

Asportation is “carrying away”, and is an element of the crime of Larceny

Other elements: (i) A taking; (ii) And carrying away (asportation); (iii) Of tangible personal property; (iv) Of another; (v) By trespass; (vi) With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property.

Question 33

The right to be free of double jeopardy for the same offense arises from the __________ amendment.

Answer 33

The Fifth Amendment

The right to be free of double jeopardy derives from the Fifth Amendment and has been incorporated into the Fourteenth Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense.

Question 34

What happens when you introduce just a portion of a statement as evidence? can the opposing party introduce the rest?

Answer 34

Yes, under FR106 when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness to considered at the same time.

So, imagine that Defendant is on trial for murdering Victim. During its case-in-chief, the prosecution wants to introduce part of of a letter Defendant sent Victim, which stated, “I’m going to kill you.” Assume, however, that (1) another part of the letter says, “Just kidding about that whole killing thing;” (2) Defendant sent Victim a second letter the next day that said, “Just kidding about that whole killing thing;” or (3) Defendant left a voicemail on Victim’s cell phone the next day, saying, “Just kidding about that whole killing thing.” Under any of these three scenarios, the rule of completeness would say that fairness requires that the defense could introduce the exculpatory statement at the same time as the inculpatory statement rather than having to wait to introduce it (during cross-examination or the defense case).

Question 35

A Metalhead arrives injured to hospital, and in the emergency room, he states the causes of his injuries and the person that did them (a Goth Kid).

The doctor who attended him died, but the custodian of records can testify that the record is original and it was made on the regular course of business of the hospital

it is admissible?

Answer 35

No, it would be hearsay without an exception.

For a business record to be admissible the declarant (that is the person making the record) needs to have personal knowledge of the fact stated or at least to have received the information from someone with personal knowledge who transmitted it in the ordinary course of business.

Here the doctor did not have personal knowledge of whether the Goth Kid did indeed was responsible for the attack (only about the injuries he saw on the Metalhead), and the Metalhead did no transmit the knowledge in the regular course of business

Question 36

A Woman is being accused of killing her husband, she said that it was on self-defense.

The prosecution calls one of the officers that answer the 911 call to testify that the woman stated that she said the day of the murder that it was an accident.

Admissible for impeachment or to show evidence?

Answer 36

Yes.

Even if it is hearsay, it is admissible for both reasons because the Woman is a party on the crime, and therefore it would be a Hearsay Exception as a statement made by a party opponent.

No foundation is required since she is a party.

Question 38

If something has “judicial notice” what is the effect it has on the trial

Is the effect different whether the trial is civil or criminal?

Answer 38

Criminal: The judge will now instruct the jury that it may, but is not required to, accept that fact as conclusively proven.

Civil: Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. [Fed. R. Evid. 201(f)]

Question 39

Can you use learned treatises to impeach an expert witness? can you use it as substantial evidence?

Answer 39

YES,

For impeachment you need that:

1. The expert on the stand for cross-examination and the treatise is brought to his attention
2. it is established that the treatise is reliable authority

For substantial evidence you need exactly the same thing:

1. The expert on the stand for cross-examination and the treatise is brought to his attention
2. it is established that the treatise is reliable authority

Question 40

Can you admit or not a certified copy of a judgment as proof that such judgment have been entered?

Answer 40

Yes/No Depending on the crime and purpose:

Felony convictions:

• Admissible for all purposes on civil cases.
• Admissible against the convicted party for all purposes, and to other parties only for impeachment on criminal cases.

Acquittals: Exclusionary rule applies

Judgment on a civil case: Almost inadmissible in criminal proceedings and civil proceedings

Question 41

A settlement offer (offer to compromise) is made before the proceeding begins, but the person that makes it, states that he wants to pursue litigation. Is the statement admissible?

Answer 41

The judge should rule the testimony inadmissible. Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim.

Question 42

There is an exception to the rule regarding settlement statements, which is only applicable to a civil dispute with a government authority. Explain it

Answer 42

Statements made during negotiation regarding a civil dispute with a govt authority are NOT excluded when offered in a criminal case.

An admission of guilt or fact in those settlement could be admissible against him in a related criminal trial

Question 43

An admission of a Co-Defendant can be about anything to be acceptable?

Answer 43

Only for the furtherance of the Conspiracy

For a statement to qualify under the Federal Rules as a vicarious admission of another member of the conspiracy, the admission must have been in furtherance of the conspiracy by a participant in it.

Question 44

What is the general regarding character evidence in a civil case?

List one exception

Answer 44

Evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case.

However, when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence—reputation, opinion, or specific acts—may be used

Question 45

What is the general rule to authenticate a photograph?

Answer 45

To be admissible, real or demonstrative evidence must not only be relevant but must also be authenticated, i.e., identified as being what the proponent claims it to be. For a photograph that is used as demonstrative evidence, authentication is by testimony that the photo is a faithful reproduction of the object or scene depicted. Here, testimony by a bank employee that the still frame from the video accurately portrays the setting where the robbery took place is sufficient for admissibility.

Question 46

A victim was struck by a car in a hit-and-run accident. A police officer arrived half an hour after the accident. The victim was in shock and came in and out of consciousness. As the officer applied first aid, the victim muttered, “I know I’m going to die. Oh my, he ran the light!”

The victim survived and filed a tort action against the driver. Before the case came to trial, the victim died of a heart attack.

Is the statement made to the police officer Admissible?

Answer 46

Yes, as a dying declaration

The officer’s testimony as to the victim’s statements is admissible because the statements were made when the victim feared impending death and so they qualify under the dying declaration exception to the hearsay rule.

Under the dying declaration exception to the hearsay rule, a statement made by a now-unavailable declarant while believing her death was imminent that concerns the cause or circumstances of what she believed to be her impending death is admissible. [Fed. R. Evid. 804(b)(2)] The declarant need not actually die as a result of the circumstances giving rise to her belief of imminent death.

Question 47

In a criminal trial, the prosecutor called a witness to the stand to authenticate the voice in a tape recording as the defendant’s. The only other time the witness had heard the defendant’s voice was after his arrest.

Assuming a proper foundation has been laid, may the witness properly authenticate the defendant’s voice?

Answer 47

Yes

The witness may properly authenticate the defendant’s voice because she is now familiar with his voice. Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity. Thus, because the witness is now familiar with the defendant’s voice, she may give her opinion as to whether it is his voice on the tape.

It makes no difference that she acquired such familiarity only after he was arrested. Thus, the witness may properly authenticate the voice.

Question 48

Does an expert witness necessary have a bias because he is employed by one of the parties?

Answer 48

No, unless the opposing party impeaches him through cross-examination

If the expert is an employee, his potential bias can be elicited on cross-examination.