Adaptibar Qs

Question 1

In a civil action and proceeding, and deciding whether a presumption should be applied, that is determined according to what law?

Answer 1

The state law who substantive law is applied to the case

Question 2

If a defendant was charged with making a false statement to a bank, and at trial the prosecutor called the defendant’s wife as a willing witness to testify that the defendant told her in confidence that he misrepresented his assets on the application, if the defendant objects to the wife’s testimony should the testimony be admitted?

Answer 2

No, because even though the wife is a willing witness, the defendant has a right to exclude confidential marital communications in federal court

Question 3

If a party moves to exclude prospective witnesses before they testify, so that they aren’t in the court room during the testimony of other witnesses, will the court allow this?

Answer 3

Yes the court must order those witnesses to be excluded so they cannot hear the other witness’ testimonies

Question 4

If a defendant is on trial for bank fraud and his codefendant testifies that he was present when the defendant signed five of 75 forged checks, could the prosecutor then move for admission of all of the checks saying that the jury could compare the signatures on the ones that the codefendant identified with the ones on the others to demonstrate that they were all signed by the defendant?

Answer 4

Yes because the jurors are allowed to determine the genuineness of handwriting specimens based on comparison with authenticated specimens.

Question 5

If a doctor is called to be a witness by the defendant and asked to testify about statements that were made to him by his patient for the purpose of obtaining treatment, is it permissible for the physician to object asserting his doctor patient confidentiality?

Answer 5

No, because the doctor-patient privilege is held by the patient, not the doctor. Only the patient or a lawyer acting on the patient’s behalf has the right to invoke and waive that privilege.

Question 6

If there has been a statement by an opposing party, what is that admissible as and for?

Answer 6

This is admissible as non-hearsay, so the statement is fully admissible for all purposes, both to impeach the witness and for substantive evidence

Question 7

What is the KAPLAN approach to a hearsay question?

Answer 7

1. Is this statement relevant?
2. Is the case civil or criminal?***Important for confrontation clause
3. Circle or underline the statement
4. Who is the declarant? Witness or party?
5. What is the purpose the evidence is offered for?
   • truth: hearsay (not allowed in unless exception or exclusion applies)
   • not its truth: not hearsay (allowed)
6. does an exception or exclusion apply?
7. Is there a public policy consideration that applies? (Offer to pay medical)
8. What is the effect on the finder of fact? *** 403 and Confrontation Clause

Question 8

What is unique about sentencing hearings?

Answer 8

The rules of evidence do not apply to these. For the purposes of sentencing the defendant, the judge may consider hearsay and other evidence that would not be admissible at trial.

Question 9

Does the attorney client privilege protect information about how many hours you billed a client?

Answer 9

No, it only protects confidential communications between an attorney and a client.

Question 10

Does the best evidence rule always require that physical objects be admitted into evidence instead of pictures of those objects?

Answer 10

No, the best evidence rule generally requires an original writing, recording, or photograph to be used to prove its content, but that does not apply to physical object unless:
– the item can easily be brought into court, and
– the exact wording is necessary to the case.

If the defence has asserted that the best evidence rule should apply to a vehicle, since the vehicle cannot easily be brought into court, the best evidence rule does not apply and a photo of the vehicle is fine

Question 11

When can scientific experiments be performed in the courtroom?

Answer 11

– if the conditions are substantially similar to those of the original event, and
– the experiment will not cause confusion or be an undue waste of time

Question 12

If you make an objection that is overruled, what do you have to do in order to preserve the issue for appellate review?

Answer 12

Make a formal offer of proof at the time the objection is made, unless the substance of the evidence was apparent from the context

Question 13

Is the newsman’s privilege provided for under the first amendment?

Answer 13

No, the Supreme Court declined to allow a first amendment privilege for newsmen to refuse to reveal their sources. But many state courts have enacted “shield“ laws that allow a qualified privilege in this area.

***** So watch out for whether this is a state that has this shield law

Question 14

What are the four things that a juror can testify about during an inquiry into the validity of a verdict?

Answer 14

– Extraneous prejudicial information improperly brought to the jury‘s attention
– if a juror relied on racial stereotypes or animus to convict a criminal defendant
– outside influence improperly brought to bear on any juror
– a mistake made in entering the verdict on the form

Question 15

What is the difference between what is required for mental competency of a witness at common law and under the federal rules?

Answer 15

– Common law: witness must have capacity to accurately observe, remember, and relate the facts
– FRE: any question of competence goes to weight not admissibility

Question 16

What is the difference between the way that the common law and the FRE deals with disqualification of witnesses due to incompetence?

Answer 16

– common law: felons, atheists, infants, mental incompetents, financially interested parties, and spouses of parties are disqualified from being witnesses
– FRE: every person is competent to be a witness unless the case turns on state law because of diversity, then the Erie doctrine requires that the state’s rule of competence controls

Question 17

What is the difference between common law and the FRE in relation to judges and jurors testifying as witnesses?

Answer 17

– common law: these people are considered to be competent to testify
– FRE: residing judges are absolutely disqualified and jurors are disqualified if either party objects

Question 18

If a girl was adopted and searched hard to find her biological father, and she did, and when he saw her he said, “I’ve been waiting 30 years for this day, here’s my girl.“ If he later died intestate and the executor of his estate refused to recognize the woman as his heir, can she introduce his statement at trial?

Answer 18

Yes, even though it is hearsay it will be admitted as a statement of pedigree. The pedigree hearsay exception applies to statements of personal or family history that are made by an unavailable declarant concerning:
– the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood/adoption/marriage/ancestry, or other similar fact or personal or family history even though the declarant had no means of acquiring personal knowledge of the matter stated, or
– those things stated above and the death also of another person, if the declarant was related to the other by blood/adoption/marriage or was so intimately associated with the other’s family as to be likely to have accurate information about the matter declared.

Here the man is unavailable because he is now deceased, and he was the woman’s biological father, so his statement “here’s my girl“ is offered to prove the woman’s status as an heir

Question 19

When must re-direct examination of a witness be permitted?

Answer 19

Only to reply to significant new matters raised in cross-examination (not just a reply to any matter raised in cross-examination)

Question 20

If a document is used by a witness to refresh his recollection before he testifies, must it be admitted into evidence?

Answer 20

Yes, if the attorney for the other side wants to trier of fact to see the document to compare it with the testimony. This lets the jury evaluate whether the witness is just reiterating the contents of the document or testifying from memory of the events. It helps the jury evaluate the witness’ credibility and decide how much weight to give the testimony

Question 21

In a criminal case where the defendant’s mental state is an element of the crime or defense, an expert may not state an opinion about what?

Answer 21

Whether the accused did or did not have the mental state at issue.

Ie: if a defendant is on trial for murdering her husband and she claims self-defence and calls a psychologist to testify that in her opinion the defendant was in fear of her life at the time of the killing, this would not be allowed because it expresses an opinion about the defendant’s mental state at the time of the killing