Evidence

Question 1

TRUE OR FALSE:

General propensity evidence is admissible to prove conduct in conformity with that propensity.

Answer 1

FALSE

General propensity evidence is NOT admissible to prove conduct in conformity with that propensity.

Question 2

While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:

1. ___________
2. ___________

Answer 2

While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:

1. Frequency
2. Particularity (Specific set of circumstances)

Question 3

Is the below admissible as Habit, or inadmissible as General Propensity?

“X is a very careful person.”

Answer 3

Inadmissible as General Propensity, because the statement is not particular enough or related to specific circumstances.

Question 4

Is the below admissible as Habit, or inadmissible as General Propensity?

“X always wears her seatbelt when she drives.”

Answer 4

Admissible as Habit, because contains frequency (“always”) and specificity (“wears her seatbelt when she drives”).

Question 5

Remedial Measures are generally excluded, but are admissible under what exceptions?

1. ____________
2. ____________
3. _____________
4. _____________

Answer 5

Exceptions

1. Feasibility
2. Destruction of Evidence
3. Impeachment
4. Control

Question 6

Are Remedial Measures taken PRIOR to the accident admissible or inadmissible?

Answer 6

Admissible.

Remedial Measures taken PRIOR to the accident are not excluded under FRE 407.

Question 7

In a disputed claim, evidence of admissions of fault are ___________ (admissible or inadmissible) to impeach a witness with a prior inconsistent statement.

Answer 7

In a disputed claim, evidence of admissions of fault are Inadmissible to impeach a witness with a prior inconsistent statement.

Question 8

In a non-disputed claim, evidence of offers to settle are ___________ (admissible or inadmissible) to prove fault or damages.

Answer 8

In a non-disputed claim, evidence of offers to settle are Admissible to prove fault or damages.

Question 9

If a defendant pleads guilty in a criminal case, the plea is ___________ (admissible or inadmissible) as an admission in a subsequent civil case.

Answer 9

If a defendant pleads guilty in a criminal case, the plea is Admissible as an admission in a subsequent civil case.

Question 10

If a defendant pleads nolo contendere in a criminal case, the plea is ___________ (admissible or inadmissible) in a subsequent civil case.

Answer 10

If a defendant pleads nolo contendere in a criminal case, the plea is Inadmissible in a subsequent civil case.

Question 11

As a general rule, offers to pay medical expenses are___________ (admissible or inadmissible).

Answer 11

As a general rule, offers to pay medical expenses are inadmissible.

Question 12

If a party makes an admission of fault during an offer to pay medical expenses, that admission will be ___________ (admissible or inadmissible).

Answer 12

If a party makes an admission of fault during an offer to pay medical expenses, that admission will be Admissible.

Question 13

HYPO

D crashes into P’s car. D tells P, “That was my fault. I’ll pay your medical bills.”

Is D’s admission of fault admissible in trial?

Answer 13

Yes,

D’s admission of fault is admissible as an opposing-party statement, and is not protected.

However, D’s offer to pay P’s medical bills is not admissible.

Question 14

D is charged with homicide. In D’s defense case, D calls W to testify.

W testifies “I have seen D turn the other cheek when a bar patron slapped D in the face.”

Is W’s statement admissible?

Answer 14

No, W’s statement is inadmisslbe as Specific Acts. Specific Acts are not admissible as character evidence, even by the Defendant.

The Defendant may present either Reputation or Opinion evidence, but not Specific Acts.

Question 15

D is charged with homicide. In D’s defense case, D calls W to testify.

W testifies “I have known D for many years, and in my opinion, D is a very peaceful and soft-hearted person.”

Is W’s statement admissible?

Answer 15

Yes, W’s statement is admissible as Opinion evidence.

A Defendant may introduce evidence of his own pertinent character traits through Opinion or Reputation evidence.

Question 16

A criminal defendant may introduce character evidence of the defendant’s own ___________ character trait.

Answer 16

A criminal defendant may introduce character evidence of the defendant’s own PERTINENT character trait.

Question 17

In a criminal defendant’s defense case, the defendant may call witnesses to introduce evidence of the defendant’s character.

What methods of proving character may the defendant bring?

Answer 17

The defendant may present Opinion evidence or Reputation evidence, but not evidence of Specific Acts.

Question 18

The prosecution may rebut a criminal defendant’s character evidence in two ways:

1. ______________
2. _____________

Answer 18

The prosecution may rebut a criminal defendant’s character evidence in two ways:

1. Call its own witnesses to testify about the defendant’s pertinent bad character
2. Cross-examining Defendant’s character witnesses

Question 19

In her defense case, a criminal defendant calls a witness to testify as to the defendant’s character.

On cross-examination, the prosecution asks the defense witness about numerous bad acts by the defendant. The witness denies knowledge.

May the prosecution introduce extrinsic evidence regarding the criminal defendant, in order to impeach the witness?

Answer 19

No, all extrinsic evidence is inadmissible on cross-examination of the character witness. The prosecutor must accept the witness’s answer.

Question 20

In a Civil Case, evidence of a person’s character is Admissible when such character is an Essential Element.

This includes:

• Defamation
• Negligent Hiring
• Child Custody

What kinds of evidence may be presented, regarding a party’s character evidence in a civil case per the above?

A. Only Reputation evidence
B. Only Opinion evidence
C. Reputation and Opinion
D. Reputation, Opinion, and Specific Acts

Answer 20

In a civil case where a person’s character is an essential element, all kinds of evidence are admissible, so the answer is:

D. Reputation, Opinion, and Specific Acts

Question 21

The Best Evidence Rule (aka Original Writings Rule) requires that a party either:

1. _____________; or
2. _____________

Answer 21

The Best Evidence Rule (aka Original Writings Rule) requires that a party either:

1. Produce the original document; or
2. Account for the Absence of the original

Question 22

A Past Recorded Recollection must meet 5 requirements:

1. Witness once had _______ ______ of the facts in the writing.
2. Witness now ______ ________ …..
3. The writing was either _______ or _________ by the witness.
4. The writing was _____________ or ________ when ________…
5. Witness can ___________ __ ______ of writing.

Answer 22

A Past Recorded Recollection must meet 5 requirements:

1. Witness once had personal knowledge of the facts in the writing.
2. Witness now cannot recall well enough to testify fully and accurately.
3. Writing was either made by witness/adopted by witness.
4. The writing was made or adopted when the event was fresh in the witness’s memory.
5. Witness can vouch for the accuracy of the writing (when it was made or adopted).

Question 23

When impeaching a witness on the basis of Witness’s sensory defects, may extrinsic evidence be permitted?

Answer 23

Yes, extrinsic evidence is permitted in impeaching a Witness for sensory defect.

Question 24

When impeaching a witness on the basis of Criminal Convictions, which of the below does a Court have discretion* to admit or deny?

A. Felony Embezzlement from 8 years prior
B. Misdemeanor Perjury from 6 years prior
C. Felony Battery from 2 years ago
D. B & C.
E. None of the above
F. All of the above

*Discretion: weighs via balancing test: prejudicial vs. probative

Answer 24

C. Felony Battery from 2 years ago

A Court has discretion to admit or deny felony convictions that do not involve dishonesty.

Question 25

When impeaching a witness on the basis of Criminal Convictions, would the below conviction be admissible or inadmissible?

Misdemeanor Theft, convicted 6 months ago, released 2 months ago

Answer 25

Inadmissible.

Convictions not related to dishonesty or false statements must be a felony to be admissible.

Question 26

When impeaching a witness on the basis of Criminal Convictions, would the below conviction be admissible or inadmissible?

Felony Fraud, convicted 12 years ago, released from prison 9 years ago

Answer 26

Admissible.

The general rule for admissibility is that it must be within 10 years, from either conviction or release from prison, whichever is later.

Question 27

TRUE OR FALSE:

Extrinsic Evidence is generally not permitted in Impeachment for Prior Bad Acts; but is permitted if a witness denies the Prior Bad Act.

Answer 27

False.

Extrinsic Evidence is generally not permitted in Impeachment for Prior Bad Acts.
But, Extrinsic Evidence is still not permitted, even if the witness denies the bad act. The Examiner is required to accept the Witness’s answer.

Question 28

What is the difference between criminal and civil trials, when a Court takes judicial notice of a fact?

Answer 28

• In a Civil case, when a judge takes judicial notice of a fact, that fact becomes conclusive (binding) on the jury.
• In a Criminal case, the prosecutor’s burden of producing evidence on that fact is satisfied.
  ex: Judge takes judicial notice that to transport drugs from NY to Tampa involves crossing state lines. Prosecutor does not need to present evidence on that point.

Question 29

In what instances may a prosecutor in a criminal case present evidence of a defendant’s prior crimes?

Answer 29

To present proof of one of the ‘MIMIC’ issues

Motive
Intent
Mistake, absence thereof
Identity (aka Modus Operandi)
Common Plan or Scheme

Question 30

What are the 5 standard methods of impeachment?

Answer 30

1. Prior Inconsistent Statement
2. Bias
3. Prior Convictions
4. Prior (Specific) Bad Acts
5. Reputation or Opinion

Question 31

During Impeachment proceedings, when may a testifying witness’s Prior Inconsistent Statement be presented for the truth of the matter asserted?

Answer 31

A witness’s Prior Inconsistent Statement may be offered as substantive truth/proof of the matter asserted ONLY when that Prior Statement was originally given under oath as part of a legal proceeding.

Question 32

A prosecutor seeks to impeach a testifying defense witness on the basis of that witness’s bias.

May the prosecutor present Extrinsic Evidence as to the witness’s bias?

Answer 32

Yes, extrinsic evidence may be presented when impeaching a witness for bias.

Question 33

A prosecutor seeks to impeach a testifying defense witness on the basis of prior specific bad acts by that witness.

May the prosecutor present Extrinsic Evidence as to the witness’s bias?

Answer 33

No, no extrinsic evidence may be presented when impeaching a witness for specific bad acts.

Even if the witness denies the specific bad acts on the stand, the prosecutor is still barred from presenting any extrinsic evidence.

Question 34

In an impeachment proceeding of a testifying criminal defendant, the prosecutor seeks to impeach via Prior Conviction.

Which of the below does a judge have discretion as to admit?

1. Prior misdemeanor conviction involving dishonesty (misdemeanor perjury)
2. Prior felony conviction NOT involving dishonesty (i.e., felony armed robbery)
3. Prior misdemeanor conviction NOT involving dishonesty (i.e., misdemeanor resisting arrest)

Answer 34

1. Judges do NOT have discretion as to convictions involving dishonesty, regardless of whether the conviction is a misdemeanor or a felony. So long as the conviction is related to honesty/dishonesty, the conviction must be admissible.
2. Judges DO have discretion to include or exclude felonies that do not involve honesty or dishonesty. A judge must weigh the probative value vs. the prejudicial effect of the prior conviction.
3. Judges do NOT have discretion regarding misdemeanor convictions that do not involving dishonesty. Misdemeanor convictions not involving dishonesty are not admissible to impeach.

Note: the balancing test if the witness is the criminal defendant is weighed more heavily toward exclusion.

Question 35

If a witness makes a Prior Identification of a suspect out of court, evidence of that prior identification is admissible for the truth of the matter asserted, if ___________.

Answer 35

If that witness is available for cross examination.

If a witness is available for cross examination, then a prior identification of a suspect, made by that witness, is admissible for the truth of the matter asserted.

Question 36

What are the requirements for an out of court statement to be admissible as a Dying Declaration in court?

Answer 36

1. Speaker must have believed that her death was imminent
2. The statement was concerning the cause/circumstances of the speaker’s death
3. The speaker is unavailable to testify
4. The case is a civil case, or a criminal case for homicide

Question 37

What are the requirements for an out of court statement to be admissible as an Excited Utterance in court?

Answer 37

1. The statement must relate to a startling event

2. The statement must be made while the declarant was under the stress/excitement caused by that event

Question 38

Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.

A. Slightly Outweighs
B. Substantially Outweighs
C. Is equal to

Answer 38

B. Substantially Outweighs

Under Federal Rule 404(b), prior misconduct evidence is inadmissible if the danger of unfair prejudice substantially outweighs the probative value. The other statements of the standard are incorrect.