Evidence - Barbri

Question 1

Is a party allowed to attack the credibility of a witness using evidence of a prior conviction?

Answer 1

Yes.

Question 2

When is evidence of a conviction permissible?

Answer 2

If the conviction is within the 10-year limit and for a crime involving dishonesty or false statement, it is permissible to use evidence of the conviction to impeach the witness as a matter of right.

Question 3

When may character evidence be used and for what purpose (substantive v. impeachment)?

Answer 3

Character evidence may be offered as substantive, NOT impeachment evidence to prove:

1. Character (only where it is the ultimate issue in the case) [RARE];
2. As circumstantial evidence of how a person probably acted.

Question 4

What are the means of proving character?

Answer 4

1. Evidence of Specific Acts as demonstrating character;
2. Opinion Testimony; and
3. Testimony as to a person’s general reputation in the community

Question 5

Is character evidence generally admissible/not admissible in civil cases?

Answer 5

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

Question 6

What is the exception for using character evidence in a civil case?

Answer 6

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 (i.e. directly in issue)[very rare]

Question 7

FRE 406: Habit evidence

Answer 7

Evidence of a person’s habit may be admitted to prove that on a particular occasion, the person acted in accordance with the habit.

Question 8

What is “habit”?

Answer 8

One’s regular response to a specific set of circumstances.

• more specific and particularized than character.

Question 9

Can the prosecution initiate evidence of the bad character of the D?

Answer 9

No.

Question 10

May the accused in a criminal case introduce evidence of her good character?

Answer 10

Yes, to show her innocence of the alleged crime.

Question 11

How can the defendant prove character in a criminal case?

Answer 11

Reputation and Personal Opinion Testimony (NOT specific acts of conduct)

Question 12

After the D brings up evidence of good character in a criminal case, what may the P do?

Answer 12

1. Test the character witness by X-exam regarding the basis for his opinion or knowledge
2. Call another witness as to the defendant’s bad character by reputation or opinion

Question 13

What can the prosecution do once D brings up the bad character of the victim?

Answer 13

P has the choice of:

1. Bringing in evidence of the victim’s good character for the same trait, or
2. the defendant’s bad character for the same trait

Question 14

FRE 302: Erie doctrine

Answer 14

This rule follows the Erie doctrine requiring the application of substantive state law, and provides that application of state law is appropriate ONLY when the presumption operates on a substantive element of a claim or defense (i.e. prima facie case-→substantive in nature)

Question 15

Hearsay exception: statements of present state of mind

Answer 15

Declarations of existing state of mind are admissible as circumstantial evidence to show subsequent acts of the declarant in conformity with that intent.

Question 16

When are leading questions allowed on direct examination?

Answer 16

Allowed in the case of a hostile witness.

Question 17

Is a misdemeanor conviction hearsay?

Answer 17

YES! It is not admissible under any exception.

Question 18

Is a prior inconsistent statement admissible to impeach a witness?

Answer 18

Yes. Where the witness is subject to cross-examination and the statement was made under penalty of perjury, it is nonhearsay and may be admissible as substantive evidence of the facts asserted

Question 19

Do the Federal Rules permit inquiry on cross-examination of a witness into a specific instance of that witness’s conduct that is probative of the witness’s character for truthfulness?

Answer 19

YES.

Question 20

Are communications between an attorney and client, made during professional consultation, privileged from disclosure?

Answer 20

Yes.

Question 21

Would a business report prepared as a communication from client to attorney be privileged?

Answer 21

Yes.

Question 22

What is the burden of persuasion?

Answer 22

The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor.

Question 23

Does the burden of persuasion shift from party to party during the course of a trial?

Answer 23

No.

Question 24

What is the burden of going forward with the evidence?

Answer 24

The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved.

Question 25

What does FRE 301 provide?

Answer 25

It provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption.

Question 26

What is circumstantial evidence?

Answer 26

Evidence of a subsidiary or collateral fact from which, alone or in conjunction with a cluster of other facts, the existence of a material issue can be inferred.

Question 27

When is circumstantial evidence in the form of opinion testimony by a lay witness admissible?

Answer 27

When it is:

1. Rationally based on the perception of the witness;
2. Helpful to a clear understanding of his testimony or to the determination of a fact in issue, and
3. Not based on scientific, technical, or other specialized knowledge

Question 28

Can a prior inconsistent statement NOT made under penalty of perjury be used as substantive evidence?

Answer 28

NO! But, it may still be offered to impeach the credibility of the witness.

• the statement may only be proved by EE if the witness is given an opportunity to explain or deny the inconsistency at some point during the proceeding (either before or after the EE is introduced)

Question 29

Are settlement offers & statements made during settlement negotiations admissible or inadmissible?

Answer 29

Inadmissible. Public policy favors the voluntary settlement of disputes.

Question 30

When is evidence of other crimes admissible against an accused in a criminal case?

Answer 30

If it is relevant to some issue other than the defendant’s character or disposition to commit the crime charged

Question 31

What evidence can an expert base his opinion on?

Answer 31

An expert’s opinion may be based upon the evidence introduced at the trial.

• The expert may listen to testimony at trial or counsel may relate the facts in the form of a hypothetical question

Question 32

What facts may judicial notice be taken of?

Answer 32

Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court.

Question 33

What should the jury be instructed in a criminal case regarding judicially noticed facts?

Answer 33

The jury should be instructed that it may but is not required to accept as conclusive any fact that is judicially noticed.

Question 34

Describe a typical Dead Man Act.

Answer 34

It provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.

Question 35

Can extrinsic evidence be used to establish specific instances of conduct of a witness for the purpose of attacking the witness’s credibility (other than conviction of a crime)?

Answer 35

NO!!!

Question 36

May a party inquire into a witness’s character for truthfulness on X-exam?

Answer 36

Yes BUT the party is bound by the answer given by the witness and may not up-prove by EE.

Question 37

What is foundation for receipt of a prior recorded recollection?

Answer 37

1. the witness had personal knowledge of the facts in the writing;
2. the writing was made by the witness or under her direction, or adopted by the witness;
3. the writing was timely made when the matter was fresh in the mind of the witness;
4. the writing is accurate; and
5. the witness has insufficient recollection to testify fully and accurately

Question 38

Can a prior recollection recorded be received as an exhibit?

Answer 38

If admitted, the writing may be read into evidence and heard by the jury, but the document itself is not received as an exhibit unless offered by the adverse party

Question 39

When one party has control over a witness and the witness does not testify, can an inference be drawn that the testimony of that witness is unfavorable to the party with control?

Answer 39

Yes!

Question 40

When is opinion testimony by lay witnesses admissible?

Answer 40

When:

1. It is rationally based on the perception of the witness;
2. it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and
3. it is NOT based on scientific technical, or other specialized knowledge

Question 41

To admit an excited utterance, does the person need to be unavailable to testify?

Answer 41

Not necessarily…the hearsay rule for excited utterances does NOT require the declarant to be unavailable to testify

Question 42

When the D in a criminal case introduces evidence of a character trait, does it have to be a pertinent character trait?

Answer 42

Yes!

Question 43

Is evidence of conviction of a crime involving dishonesty or false statement allowed as a matter of right to impeach a witness?

Answer 43

Yes, no distinction is made between felony and misdemeanor in these types of cases, and no discretion is given to the judge to exclude evidence of such convictions that are within the 10-year limit.

Question 44

Does the judge have discretion to exclude convictions for crimes involving dishonesty or false statements?

Answer 44

Only if they are too remote in time.

Question 45

What rule allows the admissibility of the deposition testimony of a now unavailable witness?

Answer 45

The former testimony exception to the hearsay rule

Question 46

What is the former testimony exception to the hearsay rule?

Answer 46

The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful

Question 47

May the jury consider statements from an authoritative text as substantive evidence?

Answer 47

Yes.

Question 48

May an expert base his opinion on facts supplied to him outside the courtroom?

Answer 48

Yes, including authoritative texts and treatises

Question 49

Can evidence of a party’s insurance coverage be admissible to prove liability?

Answer 49

No, but it may be admitted for other purposes, such as impeachment

Question 50

What is the effect of judicially noticed facts in a criminal case?

Answer 50

The jury is not required to accept the fact that has been judicially noticed.

Question 51

What is the effect of judicially noticed facts in a civil case?

Answer 51

The jury would be required to accept that the fact has been conclusively established.

Question 52

What can/must the court do if a witness has refreshed his memory before trial by looking at a writing?

Answer 52

It is within the court’s discretion to require production of the document and to permit inspection, cross-examination and introduction of pertinent excerpts. (even if it is attorney’s work product).

Question 53

Who can testify to the authenticity of another’s signature?

Answer 53

Any person, so long as that witness has seen the person’s signature and can express an opinion regarding its authenticity.

Question 54

Who determines the qualification of an expert?

Answer 54

This is a preliminary question of fact for the trial judge