Evidence Set #2

Question 1

Relevance

Answer 1

Evidence tending to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the Evidence.

Question 2

Role of the Judge: The JUDGE determines what _________ the jury can weigh/evaluate.

Answer 2

EVIDENCE

Question 3

Role of the Judge: The JUDGE determines the __________ of a witness, if a witness is ________, and if any PRIVILEGES apply.

Answer 3

COMPETENCY QUALIFIED

Question 4

Plain Error Rule (FRE 103): An attorney need not make an objection and MAY STILL APPEAL when: -the error is so ________ that an objection is not necessary. -a ___________ right is affected.

Answer 4

OBVIOUS SUBSTANTIAL

Question 5

Judicial Notice: Judicial Notice applies only to _________ facts, NOT ________ facts under the FRE. Note: Florida Rules of Evidence may differ.

Answer 5

ADJUDICATIVE LEGISLATIVE

Question 6

Judicial Notice: Adjudicative facts are those that are ACCURATELY and READILY determinable from a source that __________ be ___________ questioned.

Answer 6

CANNOT REASONABLY

Question 7

Judicial Notice: Civil Juries _______ accept the judicially noticed fact as true. Criminal juries _______ or _______ _____ accept the fact as true.

Answer 7

MUST MAY MAY NOT

Question 8

May the judge call a witness?

Answer 8

YES

Question 9

Examination of Witnesses: The SCOPE of cross examination is limited to : 1. The ________ of Direct Questioning; and 2. _____________ .

Answer 9

SCOPE CREDIBILITY

Question 10

Name the “Form of Question” Considerations.

Answer 10

1. Leading (allowed for foundation/hostile/child) 2. Compound 3. Assume Facts not in Evidence 4. Call for a Conclusion or opinion (which not qual) 5. Asked and Answered

Question 11

Exclusion of Wtnesses: Generally ALLOWED - Only a _______ in a criminal case may NOT BE EXCLUDED. -An officer or employee who is the ________ ________ of a corporation -_________ or _________ witnesses -_________

Answer 11

PARTY (DEFENDANT) DESIGNATED REPRESENTATIVE ADVISORY EXPERT VICTIMS

Question 12

Burden of Persuasion: In a civil case, by a __________ of the ________ . In a criminal case, __________ a __________ Doubt .

Answer 12

PREPONDERANCE OF THE EVIDENCE “more likely than not” BEYOND A REASONABLE DOUBT “prosecution must prove every element of every count beyond a reasonable doubt”

Question 13

Probative- Define

Answer 13

“evidence that has any tendency to make a fact more or less probable than it would be without that evidence.”

Question 14

Circumstantial Evidence- Define

Answer 14

“evidence that INDIRECTLY proves a factual proposition through INFERENCE.”

Question 15

Relevant evidence MAY be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of…. 1. __________ prejudice 2. ________ the issues 3. __________ the Jury 4. ________ delay, waste of ________ 5. Needless Presentation of _________ ________

Answer 15

UNFAIR CONFUSING MISLEADING UNDUE TIME CUMULATIVE EVIDENCE

Question 16

Character Evidence: T/F Character evidence is always admissible to prove conduct in conformity (PROPENSITY).

Answer 16

FALSE General rule is that this type of character evidence is never admissible.

Question 17

Character Evidence (CIVIL) CIVIL case: Character evidence __________ to prove CONFORMING conduct. Exception- admissible if character is an _________ element of a CLAIM or DEFENSE.

Answer 17

INADMISSIBLE ESSENTIAL **DEFAMATION/NEGLIGENT HIRING/NEGLIGENT ENTRUSTMENT/CHILD CUSTODY.

Question 18

Character Evidence (CRIMINAL) CRIMINAL: The prosecution CANNOT introduce evidence of a defendants _____ character to prove that the defendant has a propensity to have committed the ______ in question. Exception- defendant may present _______ character evidence that is _________ with the type of crime being charged. *** must be pertinent to the crime charged.

Answer 18

BAD CRIME GOOD INCONSISTENT “evidence the defendant was non-violent in his murder trial is admissible. Evidence that the defendant was clean or a good speller would be inadmissible”

Question 19

Character Evidence (CRIMINAL) Federal Rules require the form of the evidence to be _________ or ________ testimony.

Answer 19

OPINION REPUTATION

Question 20

Character Evidence (CRIMINAL) If a defendant “opens the door” by introducing evidence of a good character trait, the prosecution can submit _________ character evidence to _______ the defendants evidence.

Answer 20

NEGATIVE REBUT

Question 21

Character Evidence (CRIMINAL) T/F The defendant “opens the door” to the prosecutions attack by taking the stand or testifying.

Answer 21

FALSE! only introduction of positive character by defendant can open the door- this is true even if he takes the stand.

Question 22

Character Evidence (CRIMINAL) A defendant may introduce evidence of the VICTIMS character that is relevant to one of the ________ asserted. The prosecutrion can then offer _______ character evidence ONLY AFTER the defendant has attacked victims character.

Answer 22

DEFENSES GOOD **same form is required- reputation/opinion.

Question 23

Character Evidence-T/F: A prior bad act is NOT admissible to prove conforming conduct (propensity).

Answer 23

TRUE *This is true regardless of whether its a crime or some outside act that party committed. * note: subject to MIMIC exceptions.

Question 24

Character Evidence (Civil Cases) When character evidence is admissible (element of claim/defense) it may be proved by: _________ __________ _________ ________ __ CONDUCT.

Answer 24

OPINION REPUTATION SPECIFIC INSTANCES OF

Question 25

Character Evidence: Although prior bad acts are NOT allowed to prove propensity, they ARE allowed to prove what?

Answer 25

MIMIC.

Question 26

Character Evidence: Define MIMIC

Answer 26

Used to prove the Defendants conduct regarding a PRIOR ACT which does not prove propensity. Motive Intent absence of Mistake Identity Common Plan also included: Opportunity/Knowledge

Question 27

Character Evidence: Prosecution must give defense ________ of its intent to use Prior Bad Acts for a MIMIC at trial.

Answer 27

NOTICE

Question 28

Character Evidence (CRIMINAL) When character evidence is admissible “opened the door” it may be proved by _________ or _________ . Specific instances of conduct ARE/ARE NOT Admissible for this purpose.

Answer 28

OPINION REPUTATION ARE NOT

Question 29

Character Evidence (CRIMINAL) Prior Bad Acts evidence is especially susceptible to the Rule 403 Exclusionary Rule: When the _________ value is substantially outweighed by _______ prejudice.

Answer 29

PROBATIVE UNFAIR

Question 30

Character Evidence: T/F: HABIT evidence can be admitted WITHOUT corroboration or an eyewitness.

Answer 30

TRUE

Question 31

MBE Distinctions- Words like: “ALWAYS” and “EVERY TIME” refer to _________ . Words like: “OFTEN” and “FREQUENTLY” refer to _________.

Answer 31

HABIT CHARACTER evidence

Question 32

Witnesses: Non-Expert lay witnesses MUST have _________ _________ they CANNOT speculate or hypothesize.

Answer 32

PERSONAL KNOWLEDGE **Expert Witnesses are opposite- they are allowed to speculate/hypothesize.

Question 33

Judges can/cannot be witnesses in a trial over which she presides.

Answer 33

CANNOT

Question 34

Post-Trial: A juror MAY/MAY NOT comment on: -anything said at deliberation -effect of anything on a jurors vote -any jurors MENTAL processes

Answer 34

MAY NOT

Question 35

Post-Trial: A juror MAY/MAY NOT comment on: -EXTRANEOUS prejudicial information brought in -OUTSIDE improper influences -MISTAKE made entering verdict onto the form

Answer 35

MAY

Question 36

There IS/IS NOT a bright line rule established at which age a child is deemed competent to testify.

Answer 36

IS NOT **decided by the court

Question 37

Impeachment: Who can impeach?

Answer 37

Any party, even the party calling the witness.

Question 38

Impeachment: How can a witness be impeached? By using _________ or _________ or even __________ __________ .

Answer 38

Opinon Reputation SPECIFIC INSTANCES

Question 39

Impeachment: A witness’ credibility CAN/CANNOT be BOLSTERED before he/she is attacked.

Answer 39

CANNOT

Question 40

Impeachment (specific instances of conduct) MAY/MAY NOT cross-examine a witness about an ARREST but MAY/MAY NOT cross-examine about the UNDERLYING CONDUCT that led to the arrest.

Answer 40

MAY NOT MAY

Question 41

Impeachment (specific instances of conduct) Smith lied on his job application. I am NOT allowed to bring in the job application to show that he lied. on CROSS-EXAMINATION I can ASK HIM about the job application. IF he DENIES LYING, I CAN/CANNOT bring in the extrinsic evidence.

Answer 41

CANNOT Smith was arrested for writing bad checks. I CANNOT ASK “you were arrested for bad check writing, correct?” However, I CAN ASK ““you cashed checks in someone elses name, correct?”

Question 42

Impeachment (Criminal Convictions) Using Criminal Convictions- General Rule- CONVICTION of a prior crime is a possible basis for impeaching a _________ __________ for truthfulness. This rule is subject to LIMITATIONS.

Answer 42

WITNESSES CHARACTER

Question 43

Impeachment (Criminal Convictions) Crimes involving DISHONESTY or FALSE STATEMENT will be ADMISSIBLE whether a __________ or __________ and REGARDLESS OF ___________ . ** Subject to the ______ year limitation Rule (note: florida may differ) **FRE 403 STILL APPLIES (probative vs. prejudicial)

Answer 43

MISDEMEANOR FELONY PUNISHMENT 10

Question 44

Impeachment (Criminal Convictions) Crimes NOT involving DISHONESTY will NOT be admissible UNLESS it was punishable by ________ or _____________ for more than ______ ________ . ** Also subject to the ______ year limitation Rule (note: florida may differ) **FRE 403 STILL APPLIES (probative vs. prejudicial)

Answer 44

DEATH IMPRISONMENT ONE YEAR (felony) 10

Question 45

Impeachment (Criminal Convictions) Crime which is MORE THAN 10 years old- party offering it MUST OVERCOME THE _________ test and give _________ on opposing counsel.

Answer 45

FRE 403- probative vs. prejudicial NOTICE

Question 46

Impeachment (Criminal Convictions) Conviction Evidence NOT ADMISSIBLE if..

Answer 46

PARDONED ANNULLED LATER FOUND INNOCENT REHABILITATED

Question 47

Impeachment (Criminal Convictions) Convictions are proved by: ___________ admission on cross or direct; OR ___________ evidence (record of conviction)

Answer 47

WITNESS’ EXTRINSIC

Question 48

Impeachment (Prior Inconsistent Statements) Does not HAVE TO BE A _________ STATEMENT.

Answer 48

SWORN

Question 49

Impeachment (Prior Inconsistent Statements) Witnesses chance to explain or deny the PIS- 1. The opportunity to explain or deny the statement DOES/DOES NOT need to take place before the statement is admitted. 2. Extrinsic evidence only MAY/MAY NOT be introduced IF the witness is given the chance to explain or deny the PIS.

Answer 49

DOES NOT MAY

Question 50

Impeachment (Prior Inconsistent Statements) No OPPORTUNITY to explain or deny need be given IF: _________ a hearsay declarant; OR _________ of a party opponent.

Answer 50

IMPEACHING ADMISSION

Question 51

Impeachment (Bias) Bias is ________ relevant to impeach.

Answer 51

ALWAYS

Question 52

Impeachment (Bias) Bases for using Bias to Impeach: -Witness has a __________ to the party or victim -Witness has an interest in the __________ of the case -Witness has an _________ in testifying

Answer 52

RELATIONSHIP OUTCOME INTEREST **note- foundation must be laid before extrinsic evidence is introduced.

Question 53

Impeachment (Hearsay Declarant) Hearsay Declarant may be impeached by ANY EVIDENCE that would have been admissible had the Declarant _______ .

Answer 53

TESTIFIED

Question 54

Impeachment (General) A witness who has been impeached CAN/CANNOT be rehabilitated by using: -_________ on direct -_________ or _______ evidence for truthfulness -Prior _________ statement offered to rebut charge witness lied.

Answer 54

EXPLANATION OPINION REPUTATION CONSISTENT

Question 55

Witnesses (Present Recollection Refreshed) A witness may examine ______ item to refresh the witnesses PRESENT RECOLLECTION but MAY NOT use the item while testifying (read directly from it). -Opposing Counsel has the right to _______ the item.

Answer 55

ANY INSPECT

Question 56

Witnesses (Past Recollection Recorded) Whats the difference between present recollection refreshed vs. past recorded recollection?

Answer 56

present recollection refreshed: Item used to refresh recollection usually NOT admitted into evidence. Past Recollection Recorded: Document used as a recorded recollection MAY be admitted into evidence.

Question 57

Witnesses (Experts) EXPERT may give ________ on an ________ ISSUE (including the defendants state of mind)

Answer 57

OPINION ULTIMATE

Question 58

Witnesses (Experts) Experts must possess a _________ _______ of certainty in their opinion.

Answer 58

REASONABLE DEGREE

Question 59

Witnesses (Experts) An expert CAN/CANNOT give an opinion about whether the defendant had the REQUISITE MENTAL STATE required for the crime.

Answer 59

CANNOT Expert could say Smith was an “angry man” but could not say Smith had the “requisite mental state for premeditation.”

Question 60

Tangible Evidence (authentication) How is Tangible Evidence Authenticated? 1. ________ _______ of the witness familiar with the object 2. ___________ characteristics 3. _________ ___ Custody

Answer 60

PERSONAL KNOWLEDGE DISTINCTIVE CHAIN OF

Question 61

Documentary Evidence (authentication) How is Documentary Evidence Authenticated? 1. _________ of the parties 2. _________ of an eyewitness; OR 3. _________ verification

Answer 61

STIPULATION TESTIMONY HANDWRITING

Question 62

A NON-EXPERT witness CAN/CANNOT have become familiar with the handwriting for litigation purposes.

Answer 62

CANNOT

Question 63

Name Self-Authenticating Documents ________ documents bearing a seal ________ copies of public records ________ publications _________ or Periodicals _________ Inscriptions (labels) _________ /Acknowledged Documents _________ Paper _________ declared by fed law to be authentic _________ Records

Answer 63

PUBLIC CERTIFIED OFFICIAL NEWSPAPERS TRADE NOTARIZED COMMERCIAL DOCUMENTS BUSINESS

Question 64

The “Best Evidence Rule” IS/IS NOT frequently a wrong answer on the MBE.

Answer 64

IS

Question 65

Best Evidence Rule: Applies ONLY WHEN the _______ ________ of a writing are at issue OR if a witness is __________ on the writing while testifying.

Answer 65

MATERIAL TERMS RELYING Duplicates are okay if they’re accurate//Original could not be produced.

Question 66

CRIMINAL Case: A Prosecutor CAN/CANNOT COMMENT on a defendants FAILURE to take the stand OR SUGGEST the jury should draw a negative inference therefrom.

Answer 66

CANNOT NOT Admissible to do this in criminal case by CAN do this in civil case.

Question 67

CIVIL Case: A Party CAN/CANNOT ask the jury to draw a negative inference from a witnesses claim of privilege.

Answer 67

CAN Admissible to do this in civil case but NOT criminal.

Question 68

T/F: Liability Insurance is used to prove NEGLIGENCE or WRONGFUL conduct.

Answer 68

FALSE

Question 69

T/F: Liability Insurance is used to prove AGENCY, OWNERSHIP, CONTROL, WITNESS, BIAS, and PREJUDICE.

Answer 69

TRUE

Question 70

Sexual conduct of the DEFENDANT WILL/WILL NOT be admitted in a case where relief is based on the DEFENDANTS sexual misconduct. Whereas, Sexual conduct of the VICTIM IS/IS NOT admissible, except for a few limited circumstances.

Answer 70

WILL -Sexual misconduct CAN be admissible to prove propensity to commit bad sexual acts. -no time limit -NOT limited to CONVICTIONS- any evidence can be brought in to show propensity. IS NOT Exceptions: source of semen/jury/injury/questions re:consent. Opinion or reputation-inadmissible/

Question 71

T/F: When a defendant takes the stand he is considered a “WITNESS” for impeachment purposes.

Answer 71

TRUE

Question 72

DEFENDANTS character can be attacked ONLY IF he: 1. “Opens the ________” 2. Takes the stand as a __________ (he can then be impeached if possible).

Answer 72

DOOR WITNESS

Question 73

T/F: The DEFENDANT can introduce bad character evidence of the VICTIM in a criminal case, there need be no “door opening” because its the victim, not the defendant.

Answer 73

TRUE Opinion or reputation **Important Note: the PROSECUTION can then introduce BAD character evidence of the DEFENDANT for the same trait.

Question 74

Cross-Examination of a character witness- the court may allow a party to inquire into SPECIFIC ACTS committed by a person about whom the witness is ____________ .

Answer 74

TESTIFYING

Question 75

T/F: Regarding opinion of Lay Witnesses, some examples of admissible “common-sense impressions” include: appearance, intoxication, speed of a vehicle, or another’s emotions.

Answer 75

TRUE

Question 76

T/F: Communications made between spouses while they were married is privileged if the communications were made in reliance on the sanctity of marriage. The majority view is that the privilege is held by BOTH spouses, and the time for asserting this privilege extends BEYOND the termination of the marriage. Thus, EITHER PARTY may assert the privilege – by refusing to testify or by preventing the other party from doing so – at ANY time, even after divorce or the death of one spouse.

Answer 76

TRUE

Question 77

Prior to trial, a criminal defendant filed a motion to prevent the prosecution from introducing statements by an alleged co-conspirator. At the hearing on the motion, the court definitively ruled that the statements could be admitted into evidence. At the jury trial, the prosecution called the alleged co-conspirator to testify about the statements. The defendant did not object to the introduction of the statements into evidence. On appeal, the defendant claimed that the trial court erred in admitting the statements. Should the appellate court decide the merits of this claim of error? No, because the defendant failed to object at trial when the prosecution introduced the statements. No, because the admissibility of evidence is properly a question for a trial court. Yes, because the court made a definitive ruling on the record admitting the statements. Yes, because an objection was unnecessary under the plain error rule.

Answer 77

Yes, because the court made a definitive ruling on the record admitting the statements. Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began.

Question 78

A man and woman who were co-workers were brought into the station house by police for questioning regarding embezzlement from their employer. Each voluntarily made a statement to police after being properly Mirandized. They were jointly tried before a jury, and both elected to testify at trial. The woman’s statement to police at the station house implicated both the man and the woman in the embezzlement. The man’s objection to the admission of the woman’s statement at trial, which implicated him, was overruled. When the woman took the stand, she repeatedly denied making a self-incriminating statement at the police station, even under cross-examination by the man’s attorney. Both were convicted of embezzlement. The man has appealed his conviction, seeking a reversal on the basis of the admission of the woman’s statement at the trial. How should the appellate court rule? Uphold the man’s conviction, because the woman testified at the trial. Uphold the man’s conviction, because the man testified at the trial. Reverse the man’s conviction, because the woman denied making the statement. Reverse the man’s conviction, because admission of the woman’s hearsay statement violated the Confrontation Clause.

Answer 78

Uphold the man’s conviction, because the woman testified at the trial. The admission against a defendant of a confession that implicates the defendant made by a non-testifying co-defendant at a joint trial violates the defendant’s Sixth Amendment right to confrontation. However, when the co-defendant testifies, the defendant cannot complain that this right has been denied because he could confront the witness on cross-examination. In this case, the co-defendant, the woman, testified at the trial. Accordingly, the man’s Sixth Amendment rights were not violated.