19. Questions Flashcards
X was called to the witness stand. Prosecution asked X whether he remembers the crash incident that killed the victim. X responds that he only heard the crash but never saw it. Should X be allowed to testify? Should X’s testimony be admissible?
NOT testify (witness competency) - NO basic testimonial attribute (observe)
Testimony maybe admissible
- Only affects weight of testimony
During X’s criminal trial, the judge took the witness stand. Prosecution asked the judge whether the judge saw X kill the victim. The judge responded ‘yes’. Should the judge be allowed to testify?
No (witness competency)
- Judge cannot testify as witness (Rule 605) => Disqualified
During X’s criminal trial, one of the jurors took the witness stand. Prosecution asked whether the juror saw X kill the victim. The juror responded ‘yes’ having remembered he was bribed into making such a statement by the victim’s sibling just before the trial. Should the juror be allowed to testify?
Yes (Witness competency)
- Juror can testify because he improperly obtained outside influence (Rule 606) => NOT disqualified
X was arrested for robbery of a store. X later died and his estate was represented by Y. Prosecution called a witness who was X’s friend. The witness testified that X had clear intent to rob the store based on his conversation with X before he died. Should the testimony be admitted under the Dead Man’s Act?
Yes
- No Dead Man’s Act (only civil cases, NOT criminal cases)
- X’s friend has nothing to gain/lose from judgment
X was called to the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. X then testifies that he will be able to remember at some point the conversation during the trial. Is X’s testimony admissible?
No (Witness memoranda)
- Refreshing recollection
- NOT present recollection (future)
X was called to the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. X decides to testify confirming the conversation whilst reading the entry. Is X’s testimony admissible?
No (Witness memoranda)
- Refreshing recollection
- NOT allowed to read directly from memoranda (can only be shown)
X was called to the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. After being shown the entry, X decides to testify confirming the conversation. D’s lawyer wishes to introduce this entry into evidence. Is the entry admissible?
No (Witness memoranda)
- Refreshing recollection
- X refreshes recollection on the stand
- Only adverse party can introduce into evidence (NOT own party)
X was about to take the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. After being shown the entry, X suddenly remembers. Prosecution immediately requests that the entry be produced at trial and inspected. Is the entry admissible?
Yes (Witness memoranda)
- Refreshing recollection
- X refreshes recollection before taking the stand
- Court has discretion to allow production/inspection (as justice requires)
X was called to the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. The diary entry was made by X’s friend a few hours after the conversation as instructed by X because he broke his arm at the time. After being shown the entry, X has slight recollection but cannot fully remember. D’s lawyer wishes for the jury to read the entry. Is the entry admissible?
No (Witness memoranda)
- Recorded recollection (fail to remember)
- Directed by X (X’s friend made memoranda)
- X has personal knowledge
- Accurately reflects X’s knowledge
- BUT not timely made (few hours after X had knowledge of conversation)
X was called to the witness stand. D’s lawyer asked whether X remembers the defendant confessing he has no interest in killing the victim. X cannot remember. D’s lawyer shows X a diary entry that recorded his conversation with the defendant. X has slight recollection but cannot fully remember. D’s lawyer wishes to introduce the entry by including it in his court statement rather than as an exhibit. Is the entry admissible?
No (Witness memoranda)
- Recorded recollection (fail to remember)
- Own party can offer
- Only as exhibit (NOT pleading)
During a murder trial, X was called to the stand. X previously testified that he was fearful of the killer. Prosecution asked X to testify on the killer’s interaction with X. X testified that the killer warned X not to tell anyone he committed the murder, otherwise the killer will attack X’s family. Is X’s testimony admissible as a witness opinion?
Yes (Witness opinion)
- Rationally based on W’s perception
- Helpful to clear understanding of W’s testimony
- Not specialised
During a murder trial, X who was at the scene of the crime was called to the stand. Prosecution asked whether X saw the killer use a knife to stab the victim. X testified that the victim’s wounds could only have been made by a kitchen knife, owing to the amount of blood loss and the measurement of the stabs. Is X’s testimony admissible?
No (Not witness opinion)
- Specialised (but not qualified as expert)
During a murder trial, X who was at the scene of the crime was called to the stand. Prosecution played a telephone recording of the killer to X. The recording included X discussing his plans to kill the victim. X is certain it is the killer’s voice based on what he was talking about, although X never met the killer in person. Is X’s testimony admissible?
No (Not witness opinion)
- Voice recognition
- No foundation laid to show familiarity with voice
During a murder trial, X who was at the scene of the crime was called to the stand. X testified that he remembers the killer was high on drugs. X remembers seeing a bottle of drugs in the killer’s hand. Is X’s testimony admissible?
Yes (Witness opinion)
- Intoxication
- Foundation laid (details of killer’s personal appearance - hands)
A bouncer worked for X as owner of a nightclub. The bouncer got involved in a fight with a pedestrian and killed him. During a murder trial, X was called to the stand. Prosecution asked X his business relationship with the killer. X testified that based on their past relationships, the killer was always allowed to use force whenever necessary as a bouncer. Is X’s testimony admissible?
No (Not witness opinion)
- Opinions on authorisation not allowed (only employment nature)
A banker worked for X as director of a major bank. The banker decided to enter into illegal trades, which X was aware of. The banker was arrested and brought to trial. X was called to the stand. Prosecution asked whether the contracts made for the illegal trades are discoverable. X testifies that they would be made because he remembers the contracts labelled on his personal drive. Is X’s testimony admissible as witness opinion?
No (Not witness opinion)
- Opinions on contract existence not allowed (only facts/actual existence of contract)
X was charged with murder. At trial, Prosecution called X’s brother to the stand. Prosecution asked whether any of X’s friend told him about X’s plans to kill someone. X’s brother responded ‘yes’. After trial concluded, X’s lawyer objected Prosecution’s question in that it was hearsay. Is the objection admissible?
No (Witness objection)
- Not made before witness’ answer
- Not made as soon as answer emerged as inadmissible (leading q)
- Deemed waiver of objection
X was charged with murder. At trial, Prosecution called X’s brother to the stand. Prosecution asked X’s friend whether it is true that X’s brother told him X will find his victim and kill him. X’s friend responded ‘yes’. X’s lawyer immediately moved to strike the question as a leading question. How must the judge rule?
Inadmissible testimony (Witness objection)
- Trial testimony
- Objection as soon as response emerged inadmissible (leading q)
- Witness objection allowed
X was charged with murder. X’s friend was called to deposition. Prosecution asked X’s friend what X told him about his murder plans. X’s friend responded ‘X’s brother told me X wanted to kill this guy at school’. X’s lawyer objected in that it was hearsay. Is his response admissible?
Not admissible (Witness objection)
- Deposition
- Objected re substance of answer (hearsay)
X was charged with murder. At trial, Prosecution called X’s friend to the stand. Prosecution asked X’s friend whether he knew X wanted to kill his victim. X’s friend responded ‘X’s brother would know, but I remember X saying he intended to kill him’. X’s lawyer objected on grounds of relevance. His objection was sustained and X’s friend’s response was ruled out. However, Prosecution wished to appeal the decision. How must the judge rule?
Admissible (No witness objection)
- Specific objection (relevance)
- Not correct ground
X was charged with murder. At trial, X’s lawyer introduced evidence of X’s whereabouts at the time victim was coming home. Prosecution introduced evidence of X’s friend calling X informing him the victim has arrived home. X’s lawyer objects to the relevancy of X’s whereabouts. How must the judge rule?
Overrule objection (No witness objection)
- Opening the door
- X’s lawyer cannot complain once he has introduced relevant evidence => Must counter Prosecution’s evidence
X was charged with murder of his wife. At trial, Prosecution wishes to introduce part of a text message by X’s secret girlfriend to her friend after the murder stating ‘it was about time’. X’s lawyer requests Prosecution to provide the rest of the text message. Prosecution objects because it is hearsay. How must the judge rule?
Overrule objection (No witness objection)
- Rule of completeness
- X’s lawyer cannot complain once he has introduced part of writing => Must produce rest of writing as requested
X is an American-born Korean living with his family. X went into frenzy and beat up his parents. X was charged with murder in New York. During trial, X’s lawyer mentioned that it is traditionally normal that Koreans live with their family during adulthood. Should the judge accept this fact?
No (Not judicial fact)
- Not notorious fact (not common knowledge within judge’s territory in New York)
X is charged with murder. X was brought to trial. X claims he performed a ritual at exactly 5 in the morning on his birthday, when he was born. The ritual involves killing his hated ones. Should the judge accept the time of his birth?
No (Not judicial fact)
- Not verifiable by easy access (X’s birth certificate)
X is charged with murder. X was brought to trial. The murder was reported at 8pm. X claims he killed the victim ‘as the sun was setting at 8pm’. The judge did not take notice of this. X was sentenced and X appealed but was unsuccessful. Can X request the judge to take notice of this fact?
No
- Judge should have taken notice (sunset hours, easily accessible)
- X should have requested first time on appeal, not second time
X is an American-born Korean living with his family. X went into frenzy and beat up his parents. X was charged with murder in New York. X was also involved in a divorce case. During both trials, X’s lawyer mentioned that it is traditionally normal that Koreans live with their family during adulthood. The judge took notice of this fact and instructed the jury to accept it. Should the jury accept this fact as conclusive?
Divorce: Yes
- Civil case
- Jury must accept as conclusive
Murder: No
- Criminal case
- Jury may accept as conclusive
X is charged with murder of a black citizen. X was brought to trial. Prosecution points out that the state’s statute on murder was enacted in response to violent attacks on blacks. Should the judge take notice of this?
Yes (Mandatory judicial notice
- State law (judge must accept)
X is charged with murder. At trial, X’s lawyer states that Latvian law does not rule X’s actions as murder. Should the jury accept this law?
No (Permissive judicial notice)
- Foreign law (judge may accept)
X is charged with murder. At trial, X’s lawyer states that Congress enacted a private act that harshened the requirements for murder. Must the judge take judicial notice of this?
No (Permissive judicial notice)
- Private act of Congress (judge may accept)
X was charged with murder. At trial, X’s lawyer raised the issue surrounding the legal requirement of ‘intent’. The judge instructed the jury to determine the applicability of such element. Was the instruction correctly made?
No
- Judge must determine question of law
X was charged with murder. At trial, a witness testified that he was told by X of his intentions to purchase the latest pistol design. The judge ruled this was admissible, despite being hearsay. The judge instructed the jury to review the evidence. The jury ruled X as guilty. However, the judge discovered that this conversation cannot be proven. Should X be found guilty?
No
- Judge instructed jury, but determined that jury could not reasonably find preliminary fact exists
- Judge should instruct jury to disregard evidence
X sued Y for breach of contract. At trial, X introduced conversations between Y and a third party. The judge instructed the jury to review the conversations. The jury recognised that the third party was Y’s agent, who negotiated with X. Is the evidence admissible?
Yes
- Jury determines relevancy of fact
- Agency existence
X sued Y for breach of contract. At trial, X introduced a letter signed by Y confirming he will enter the contract. The judge instructed the jury to review the letter. The jury recognised the letter was not signed by Y, but the contents were true. Is the evidence admissible?
Yes
- Jury determines relevancy of fact
- Authenticity proven (forgery not relevant)
X was arrested for fraud. At a jury trial, X’s manager testified that he never knew X was engaged in any fraud. Prosecution introduced manager’s previous convictions for misrepresentation. The judge reviewed the convictions to rule that the manager has a tendency to lie. Should the jury review the convictions as well?
Yes
- Jury must determine relevancy of fact (manager’s credibility)
X was arrested for fraud. At a jury trial, X’s manager testified that he never knew X was engaged in any fraud. The judge reviewed all the evidence and came to the conclusion that his manager had no personal knowledge of the fraud. Is this a valid ruling?
No
- Jury must determine relevancy of fact (manager’s personal knowledge)
X sued Y for breach of contract. At trial, X intended to introduce Y’s emails with his lawyer regarding the case. The judge instructed the jury to review the emails. The jury found they showed Y intended to breach. The judge realised they were privileged. Are the emails admissible?
Yes
- Judge determined question of law (privilege)
- But already shown (waiver of privilge)
X sued Y for breach of contract. At trial, X testified regarding a memorandum written by X in his company stating he paid the due amounts to Y on time. The judge instructed the jury to review the memo. The jury ruled it was relevant. The judge then instructed the jury to disregard it because it was not competent evidence. Should the jury disregard the memo?
No
- Judge should have determined competency of memo first
- Too late to disregard memo since jury already saw it
P sued D for negligent driving that led to P’s injuries. P was able to show evidence of D’s duty only by preponderance of evidence and breach, but no causation. The jury was persuaded by P’s evidence and made a verdict in P’s favour. Should D be found guilty?
No (Burden of proof)
- No prima facie case (no causation)
- Burden of proof never shifted to D
- P never met burden of producing evidence
X was charged with murder. Prosecution produced a diary note made by X confessing that X planned to commit the murder. X’s lawyer produced several text messages from the victim threatening X to implicate himself to murder by making the diary note. The jury concluded that by preponderance of Prosecution’s evidence X should be found guilty. Should X be found guilty?
No (Burden of proof)
- Prosecution never met burden of persuasion (beyond reasonable doubt)
X sued Y’s representative for breach of contract. X introduced evidence sufficient to show Y is on the loose as he has been absent without any contact for seven years. X orders that Y must meet its burden to persuade the jury that Y is not on the loose, but perhaps dead. Is Y required to do so?
No (Presumption)
- True presumption (7 years absence)
- Burden of production => Y
- Burden of persuasion => X (Rule 301)
X sued Y’s representative for breach of contract. X introduced evidence sufficient to show Y is on the loose as he has been absent without any contact for seven years. Y’s representative produces evidence showing Y is now dead based on a text message from Y a few years ago. X denies the evidence and presumes Y is still alive. If presumed, what should happen next?
No presumption
- True presumption (7 years absence)
- X fulfilled burden of production
- Y’s rep rebutted X’s evidence
- Burden of persuasion => X
- Civil case: Must persuade jury by preponderance of evidence that Y is on the loose
X sued Y for allowing Z to drive a car and crash into X. X’s lawyer introduced evidence showing Y as the owner of the car. X’s lawyer argues Z was driving as Y’s agent. Y refuses to disprove this presumption. Must Y rebut this presumption?
Yes
- True presumption
- Y’s ownership of car proven => Z presumed as agent of Y
- Burden of production on Y
X was charged with murder of his father. Prosecution argues that despite X’s age as a 7-year old, he took a gun and shot his father. X refuses to produce evidence to disprove this. Is X required to do so?
No
- Conclusive presumption
- 7-year old unlikely to kill
- No burden of production on X (no rebuttal expected)
X sued Y for negligently giving medicine that poisoned X. X’s lawyer argued that Y had accidentally created the poison based on res ipsa loquitor. Y refuses to disprove this presumption. Must Y rebut this presumption?
No
- Permissive inference
- Res ipsa loquitor
- No burden of production on Y (no rebuttal allowed)
X was on trial for murder. On cross examination, Prosecution asked X ‘Isn’t it true that you were driving well above the speed limit?’ X answered ‘no’. Is X’s response valid?
Yes (Witness examination)
- Leading question ‘Isn’t it true…’
- Allowed in cross exam
X was on trial for murder. X’s lawyer put X to the stand. X’s lawyer asked ‘Isn’t it true that the victim’s name is Wendy’? X responded ‘yes’. Is X’s response valid?
Yes (Witness examination)
- Leading question ‘Isn’t it true…’
- Allowed in direct exam (introductory matter)
X sued Y for negligent driving. X’s lawyer put X to the stand. X’s lawyer asked ‘Isn’t it true that your car was tested on 5 December 2019?’ X had a problem with lack of memory. X’s lawyer then asked whether he met with the car mechanic on that date. X responded ‘yes’. Is X’s response valid?
Yes (Witness examination)
- Leading question ‘Isn’t it true…’
- Allowed in direct exam (aid to respond due to memory loss)
X sued Y for negligent driving. X’s lawyer put X to the stand. He asked questions but X began to act out aggressively and refused to answer. X’s lawyer then asked ‘Isn’t it true that Y tried to intentionally stop and crash into your car’? Y’s lawyer objected to the question. X responded ‘yes’. Is X’s response valid?
No (Witness examination/objection)
- Leading question ‘Isn’t it true…’
- Allowed in direct exam (hostile W)
- Adverse party objected before W’s answer
X sued Y for a divorce. X’s lawyer asked Y on the stand ‘do you still beat your wife?’ Y refused to answer. Must Y respond?
No (Witness exam)
- Misleading question (Y does not intend to answer)
X was charged with burglary. During trial, X’s lawyer asked the victim ‘did you see and hear X come into your house?’ Must the victim respond?
No (Witness exam)
- Compound question (more than one answer expected)
X sued Y for negligent driving. During trial, X’s lawyer asked Y ‘why were you driving so negligently’? Must Y answer?
No (Witness exam)
- Argumentative question
X was charged with murder. During trial, Prosecution asked X ‘what did your parents think of your actions?’ Must X answer?
No (Witness exam)
- Conclusionary question
X was charged with murder. During trial, Prosecution asked X ‘tell me what you did on the eve of the murder’. Must X answer?
No (Witness exam)
- Narrative question
X was charged with murder. During trial, Prosecution asked X ‘isn’t it true that you left your house on 1 December?’ X responded ‘well I went to the grocery store on that day’. Is X’s response valid?
No (Witness exam)
- Not responsive (should answer only yes or no)
X is charged with murder. During trial, X’s lawyer asks victim’s friend to leave the courtroom during X’s testimony. The judge denies his request. Must the friend stay?
No (Witness exclusion)
- Party requested W exclusion
- Judge must accept request
X is charged with murder. During trial, X’s lawyer asks victim’s friend to leave the courtroom during X’s testimony, who was present at the scene. The judge denies his request because the friend must be able to confirm victim’s words used against X at the time of the murder. Must the friend stay?
Yes (No witness exclusion)
- Essential party
X was charged with robbery. During a jury trial, X’s lawyer called the victim’s landlord to the stand. X’s lawyer cross-examined the landlord. The jury agreed to leave the courtroom. Prosecution wished to object to the question. Is this valid?
Yes (Witness examination)
- Can object when jury not present
X was charged with murder. At trial, X testified that he never knew the victim before the intended murder. X’s lawyer introduces X’s testimony from his deposition confirming the same. Can X’s lawyer bolster X’s reputation?
No (Impeachment)
- X’s lawyer cannot bolster X until he has been impeached first
X was charged with robbery. Prosecution put a witness to the stand. He asked questions but the witness began to act out aggressively and refused to answer. Prosecution then cross-examined the witness about whether he previously assisted criminals in shoplifting before. Is this valid?
Yes (Impeachment)
- Prosecution can impeach own witness (hostile)
- Specific instances of misconduct (assist shoplifters, probative of deceit, cross-examination, relevant)
X was charged with robbery. Prosecution put a witness to the stand. Prosecution asked whether X threatened victim to open the store for him to rob. The witness somehow decided to testify that the victim gave the key to the store for X to rob, to Prosecution’s suprise. Prosecution then cross-examined witness asking whether he has personal stick with the victim. Is this valid?
Yes (Impeachment)
- Prosecution can impeach own witness (surprise testimony harmful to party)
- Bias/Interest (cross-examination first)
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice saw X take the money from the store. The accomplice said no. Prosecution wants to introduce a statement made by accomplice confirming he did see X doing so without allowing X’s lawyer to ask accomplice about the statement. Should accomplice’s statement be admissible?
Yes (Impeachment)
- Prior inconsistent statement (Witness)
- Chance for accomplice to explain/deny statement
- Chance for adverse party (X) to question accomplice re statement
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice knew X would rob the store. The accomplice said no. Prosecution wants to introduce a statement made by X to accomplice before robbery agreeing that he will rob the store. The judge allows the statement into court. Accomplice refuses to allow the statement into court. Should accomplice’s statement be admissible?
Yes (Impeachment)
- Prior inconsistent statement (Witness)
- Opponent admission (X)
- No need for accomplice to be given chance to explain/deny statement
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice knew X would rob the store. The accomplice said no. Prosecution wants to introduce a phone call made by X’s friend to accomplice informing him of X’s plans. The judge allows the statement into court. Accomplice refuses to allow the statement into court because the friend should be given a chance to explain. Should friend’s statement be admissible?
Yes (Impeachment)
- Prior inconsistent statement
- Hearsay declarant (made out of court)
- No need for accomplice to be given chance to explain/deny statement
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice knew X would rob the store. The accomplice said no and left the stand. Prosecution wants to introduce a statement made by X discussing his plans to rob the store with accomplice. The judge allows the statement into court. Accomplice cannot be reached by contact. Should accomplice’s statement be admissible?
Yes (Impeachment)
- Prior inconsistent statement (Witness)
- Accomplice not available after statement discovered
- Opponent admission (X)
- No need for X’s lawyer to be given chance to examine accomplice (as justice requires)
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice knew X would rob the store. The accomplice said no. Prosecution wants to introduce a statement made by accomplice discussing his plans to rob the store with X during deposition. X’s lawyer denies the statement should be used for impeachment. Should accomplice’s statement be admissible?
Yes (Not impeachment)
- Prior inconsistent statement
- Non-hearsay (deposition, made under oath)
- Substantive evidence
X was charged with robbery. Prosecution asked X’s accomplice to take the stand. Prosecution asked whether the accomplice knew X would rob the store. The accomplice said yes. X’s lawyer seeks to introduce evidence showing Prosecution secretly offered to grant immunity to accomplice before trial. Should accomplice’s testimony be admissible?
Yes (No impeachment)
- Bias/Interest (immunity)
- Must cross-examine first (judge has discretion to allow extrinsic evidence)
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution asked customer whether customer knew X from school. He said yes. Prosecution wishes to introduce evidence of them always hanging out together. Customer wants to explain that his friendship has no effect on his testimony. Should customer’s testimony be admissible?
No (Impeachment)
- Bias/interest
- No justification allowed for bias
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution asked customer whether he was previously arrested for perjury. Customer said yes. Is customer’s testimony admissible?
Yes (No impeachment)
- No criminal conviction (arrest)
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution introduced evidence of an appeal pending against customer for recent perjury. Is customer’s testimony admissible?
No (Impeachment)
- Criminal conviction (pending appeal)
- Felony involving dishonesty (perjury)
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution introduced customer’s criminal conviction for forgery of a contract, arguing that customer is lying. Is customer’s testimony admissible?
Yes (No impeachment)
- Criminal conviction
- Not felony involving dishonesty (forgery) (involves no false statement)
X was charged with murder. X’s lawyer calls his witness to the stand. X’s lawyer asked whether the victim tried to kill X first. Witness confirmed he did. Prosecution asks witness whether witness was ever convicted of speeding misdemeanour. Witness confirmed he did. Prosecution argues witness is not reliable. Is witness’ testimony admissible?
Yes (No impeachment)
- Criminal conviction
- Not felony involving no dishonesty (speeding misdemeanour)
X was charged with murder of a little girl. X’s lawyer calls X to the stand. X’s lawyer asked whether the victim tried to kill X first. X confirmed he did. Prosecution asks X whether he was ever convicted of raping young girls. X confirmed he was twice. Prosecution argues X’s testimony should be discredited. Can Prosecution impeach X?
Yes (Impeachment)
- Criminal conviction
- Felony involving no dishonesty (rape)
- Probative value > Prejudicial effect (raping little girls)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution introduces into evidence his friend’s conviction for murder of his brother. Prosecution argues his friend has experience of murdering and should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- Criminal conviction
- Felony involving no dishonesty (murder)
- Probative value NOT ‘substantially’ outweigh prejudicial effect
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution introduced customer’s criminal conviction for embezzlement that is at least 10 years old since the date of his conviction which led to his release from imprisonment a year later. Prosecution argued that customer is lying. Is customer’s testimony admissible?
No (Impeachment)
- Criminal conviction
- Felony involving dishonesty (embezzlement)
- Not too remote (not at least 10 years old since date of release from confinement)
X was charged with robbery of a store. X’s lawyer asked a customer of the store to take the stand. He asked whether the customer saw X rob the store. The customer said no. Prosecution introduced customer’s criminal conviction for embezzlement. The customer was pardoned for the crime, but was later convicted of robbery and sentenced to 7 months’ imprisonment. Is customer’s testimony admissible?
Yes (No impeachment)
- Criminal conviction
- Felony involving dishonesty (embezzlement)
- Pardoned + subsequent conviction of crime punishable by less than 1 year imprisonment
Y was arrested and indicted for false pretenses. Government decided to hire one of its officers to enter Y’s prison cell to obtain incriminating statements regarding the false pretenses. Y confessed he lied and sold a diamond ring for $1 million. Y was then convicted of false pretenses. Years later, X was charged with robbery of a store. X’s lawyer asked Y, a customer of the store to take the stand. He asked whether Y saw X rob the store. Y said no. Prosecution introduced Y’s criminal conviction for false pretenses arguing that Y is lying. Is Y’s testimony admissible?
Yes (No impeachment)
- Criminal conviction
- Felony involving dishonesty (false pretenses)
- Conviction obtained in violation of Y’s 6A right to counsel (charged, not aware of police, no counsel present during questioning)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution asked him whether he had previously shoplifted. His friend said yes. Prosecution argues his friend is of dangerous character and should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- Specific instance of misconduct (shoplifting)
- Not probative of truthfulness
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution asked whether he has previously misrepresented his sales of paintings. He confirms he was arrested but not convicted. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- Specific instance of misconduct (false pretenses)
- Not misconduct (arrest)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution asks whether friend ever misrepresented his sales of paintings. His friend denied it. Prosecution then called another witness to the stand to confirm it. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- Specific instance of misconduct (no arrest/conviction)
- Truthfulness (false pretenses)
- No extrinsic evidence allowed (calling other witnesses)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution introduced into evidence opinions collected from the friend’s online cooking class who admit he tends to lie a lot. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- Reputation re untruthfulness
- Not evidence from friend’s business circle/residing community (online cooking class)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution introduced into evidence opinions collected from the friend’s banking department who admit he tends to lie a lot. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
No (Impeachment)
- Reputation re untruthfulness
- Evidence from friend’s business circle
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution called the girl’s father to the stand who knew X’s friend. He testifies that the friend used to make up stories about crimes. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
No (Impeachment)
- Reputation re untruthfulness
- Personal opinion from impeaching witness
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether he saw X kill the girl. He confirmed he did not. Prosecution asks his friend whether he was recovering from a neck injury at the time. He confirms he was. Prosecution argues his friend should not be relied upon. Is the friend’s testimony admissible?
Yes (No impeachment)
- No sensory deficiency
- No defective capacity (neck injury)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever told him he intended to kill the girl. He confirmed he did not and that X has always respected young children. Prosecution asks his friend whether he is aware of X’s reputation for being intimidating towards girls. The friend was not aware of this. Is the friend’s testimony admissible?
No (impeachment)
- Sensory deficiency
- Lack of knowledge as character witness re X’s good character
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether he saw X wait outside the girl’s house on the night of the murder. He confirmed he did not because it was too dark at midnight. Prosecution introduces into evidence CCTV evidence showing it was 11pm, not midnight. Prosecution argues his friend’s testimony should be ruled out. Is the friend’s testimony admissible?
Yes (No impeachment)
- Contradictory fact
- Not material
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution called the girl’s father to the stand who knew X’s friend from the neighbourhood. He testifies that the friend always made up lies. X’s friend intends to call other witnesses to disprove this, but Prosecution denies. Can X’s friend call other witnesses?
Yes (Rehabilitation)
- Impeachment (Reputation for untruthfulness)
- Rehabilitate X’s friend for good reputation for truthfulness
- Call other witnesses for their opinions/testimonies (extrinsic evidence)
X was charged with robbery. X’s lawyer asked X’s friend to take the stand. X’s lawyer asked whether X’s friend ever helped X to rob the store. He said no and left the stand. Prosecution wants to introduce a statement made by friend that he would ensure no one entered the store at the time. X’s lawyer chose to introduce a statement his friend made shortly after that statement confirming that he was not intent to help X at all. Should his friend’s last statement be admissible?
No (Impeachment)
- Prior inconsistent statement
- Untruthfulness (X’s friend lied he never intended to help X rob the store)
- No rehabilitation (X’s friend’s consistent statement was made AFTER onset of alleged motive to lie)
X was charged with murder of a little girl. X’s lawyer calls X’s friend to the stand. X’s lawyer asked whether X ever intended to hurt the girl. He confirmed he did not. Prosecution introduced into evidence opinions collected from the friend’s banking department who admit he tends to lie a lot. Prosecution argues his friend should not be relied upon. X’s lawyer wants to introduce a statement by his friend made before the trial that X had no interest in the girl whatsoever. Is the friend’s testimony admissible?
No (Impeachment)
- Reputation for untruthfulness
- No rehabilitation (prior consistent statement) if reputation already attacked
X was on trial for murder. Prosecution requests X to present his discussions with his lawyer regarding the murder. X’s friend in the courtroom claims the discussions are privileged. Can X’s friend assert privilege?
No (No privilege)
- X’s friend does not hold privilege
X sued Y for breach of contract. X’s lawyer requests Y to present his contract discussions with Z where both claimed privilege over the contract. Y offers to present the discussions. Can Y assert privilege?
No (Privilege)
- Jointholder privilege (Y + Z)
- Need Z’s consent
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney. These include talks of his attorney’s initial rejection of Y’s case until he finally accepted it. Can Y assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Professional consultations (Retainer discussions)
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney. These include discussions sent to his attorney’s secretary regarding court arrangements. Can Y assert privilege?
No (No privilege)
- No attorney-client privilege
- Not confidential comms (TP comms not necessary to transmit info (court arrangements))
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney. The conversations were heard by Y’s agent to which his attorney was aware of at first and asked agent to leave. Can Y assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Confidential comms (not known TP saw + heard comms)
X sued Y for negligent driving and injuries. Y’s lawyer requests X to disclose his doctor’s examination. X refuses to disclose because his doctor demanded him to attend an examination. X’s doctor is not called to appear in the case but does not think they should be disclosed. Can the doctor assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Examination at doctor’s request
- Doctor not appearing as expert witness
- NOT physician-patient privilege (examination was not contemplated, but requested by doctor)
X sued Y and Z for breach of contract. X’s lawyer is also representing Y in the same case. The judge requests Y to present his conversations with his attorney. Can Y assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Confidential comms (TP (Z) involved despite joint representation)
X sued Y’s executor for breach of contract. X’s lawyer requests Y’s executor to present his conversations with his attorney before Y died. Can Y’s lawyer assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Applies after termination of relationship (Y’s death)
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney regarding contract negotiations made by Y’s agent. At the time, Y’s agent told Y he signed the contract without disclosing to X of Y’s financial statements to avoid delay. Can Y assert privilege?
No (No privilege)
- No attorney-client privilege
- Y should have known attorney’s services were sought to aid fraud (no disclosure of financial statements)
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney. Attorney refuses to disclose because it includes talks of attorney asking Y not to sue him for wrongfully using his legal advice to Y for another client. Can attorney assert privilege?
No (No privilege)
- No attorney-client privilege
- Dispute between attorney + client re attorney’s breach of duty to client
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney including Y’s statement for his fraud lawsuit incorporating his attorney’s advice. Can Y assert privilege?
Yes (Privilege)
- Attorney-client privilege
- Client did not put legal advice at issue into this case (but another case)
X sued Y for breach of contract. X’s lawyer requests Y’s lawyer to present his memoranda for Y’s case. Attorney refuses to disclose because they were to be used by the partners of his firm as precedents. Can attorney assert privilege?
No (No privilege)
- No attorney’s work product
- Not prepared for attorney’s own use (but for partners’ use)
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his attorney. Y refuses to disclose them but his lawyer suggests it is okay to do so for court proceedings. Can attorney disclose?
No (Privilege)
- Attorney-client privilege
- Only client can waive privilege (NOT lawyer)
X sued Y for breach of contract. Y’s lawyer requests X to disclose his physician’s examination of X. X’s physician refuses to disclose because he was handling another patient at the time. Can the physician assert privilege?
No (No privilege)
- No physician-patient privilege
- No professional relationship (physician was not present during treatment)
X sued Y for breach of contract. Y’s lawyer requests X to disclose his physician’s examination of X when he temporarily visited X’s home. Can X assert privilege?
No (No privilege)
- No physician-patient privilege
- Info not acquired while attending patient during treatment (visited X’s home)
X sued Y for breach of contract. Y’s lawyer requests X to disclose his physician’s examination of X. X refused to disclose because it included details of the accident and objects found in X’s clothing. Can X assert privilege?
No (No privilege)
- No physician-patient privilege
- Info not necessary for treatment (accident, clothing)
X sued Y for negligent injuries. Y’s lawyer requests X to disclose his physician’s examination of X including X’s injuries. Can the physician assert privilege?
No (No privilege)
- No physician-patient privilege
- X put his physical condition in issue (suing Y for negligent injuries)
X sued Y for breach of contract. X’s lawyer requests X to disclose his physician’s examination of X. Y refuses to disclose them but his physician suggests it is okay to do so for court proceedings. Can physician disclose?
No (Privilege)
- Physician-patient privilege
- Only patient can waive privilege (NOT physician)
X sued Y for breach of contract. X’s lawyer requests Y to present his conversations with his social worker. Y refuses to disclose them but his social worker suggests otherwise since she is not a physician. Can his social worker disclose?
No (Privilege)
- Psychotherapist-client privilege
- Only client can waive privilege (NOT social worker)
X was charged with burglary. Prosecution called X’s wife to the stand and requested she testifies that X talked about his fights with others while they were married. X refuses to allow her to testify because of spousal privilege. Must X’s wife testify?
No (Privilege)
- Spousal immunity
- Criminal case
- Witness-spouse (wife) NOT compelled to testify + has discretion to testify
X was charged with burglary. Prosecution called X’s wife to the stand and requested she testifies that X talked about kidnapping an old friend after X cheated on her. X refuses to allow her to testify because of spousal privilege. Must X’s wife testify?
Yes (No privilege)
- No spousal immunity
- No valid marriage (bigamy)
X was charged with burglary. Prosecution called X’s ex-wife to the stand and requested she testifies that X talked about fighting with other people before they got married. X refuses to allow her to testify because of spousal privilege. Must X’s wife testify?
No (Privilege)
- Spousal immunity
- Comms before marriage
X was sued by his former manager for breach of contract. The former manager’s lawyer called X’s wife to the stand and requested she testifies that X talked breaching the contract while they were married. X refuses to allow her to testify because it should be privileged. Must X’s wife testify?
No (Privilege)
- Confidential marital communications
- Civil case
- Defendant-spouse (X) can prevent Witness-spouse (wife) from testifying
X was sued by his former manager for breach of contract. The manager’s lawyer called X’s wife to the stand and requested she testifies that X talked about breaching the contract while they were married. X refuses to allow her to testify because of spousal privilege. Must X’s wife testify?
No (Privilege)
- No spousal immunity (civil case)
- Confidential marital communications
- Defendant-spouse (X) can prevent Witness-spouse (wife) from testifying
X was sued by his former manager for breach of contract. The former manager’s lawyer called X’s wife to the stand and requested she testifies that X talked about breaching the contract before they got married. X refuses to allow her to testify because of spousal privilege. Must X’s wife testify?
Yes (No privilege)
- No spousal immunity (civil case)
- No confidential marital communications (before marriage)
X was sued by his former manager for breach of contract. The former manager’s lawyer called X’s wife to the stand and requested she reveals their conversations while they were married. These include X’s racial abuse towards his wife and his negotiations with clients involving suspicious deals. Must X’s wife testify?
Yes (No privilege)
- No confidential marital communications
- Not reliant upon intimacy of marriage (routine business comms, abusive language at spouse)
X was suing his wife for mishandling of his accounts. X’s lawyer requested his wife to take the stand and confess to X warning her not to transfer his money without his consent. X’s wife argues it is privileged. Must X’s wife testify?
Yes (No privilege)
- Dispute between spouses
X was charged with assault towards his son. Prosecution called X’s wife to take the stand and confess that X admitted he was angry at her step-son while they were married. X refused to allow disclosure because it is confidential. Must X’s wife testify?
Yes (No privilege)
- Crime vs Spouse’s child
X was charged with battery. Prosecution called X’s wife to take the stand and reveal their secrets while they were married. X refused to allow disclosure because they include plans to sell fake paintings together. Must X’s wife testify?
Yes (No privilege)
- Comms in furtherance of joint fraud
X sued Y for negligently crashing his car into X. During trial, X’s lawyer wishes to introduce into evidence Y’s lack of insurance liability to prove Y was negligent. Is this admissible?
No (Public policy)
- Liability insurance
- Not allowed to prove negligence
