Capstone 25 Question Set Flashcards
(4 cards)
The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner’s lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened.
Whose testimony is necessary to introduce the photograph into evidence?
A) The employee’s testimony is necessary and the witness’s is unnecessary.
B) The witness’s testimony is necessary and the employee’s is unnecessary.
C) The testimonies of both the employee and the witness are necessary.
D) The picture is inadmissible.
Only the witness’s testimony is necessary to introduce the photograph. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible. (A) incorrectly categorizes the employee’s testimony as necessary. Generally, a photographer’s testimony is not necessary to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene. (C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.
A defendant was on trial for burglary, and he took the stand in his own defense. On direct examination, the defendant vigorously denied having committed the burglary. Also on direct examination, the defendant stated that his last regular employment was as a bookkeeper for a corporation. On cross-examination, the prosecutor asked the defendant if he had embezzled funds from the corporation. The defendant denied that he had embezzled from the corporation or from anyone else. The prosecutor then wanted to call a police officer to the stand to testify that when she arrested the defendant for embezzlement, the defendant admitted to the officer that he had embezzled money from the corporation.
Assuming that the defendant has not yet been tried on the embezzlement charges, may the prosecutor call the officer to the stand?
A) Yes, but only for purposes of impeachment.
B) Yes, both for impeachment of the defendant and as substantive evidence.
C) No, because the defendant has not yet been convicted of embezzlement.
D) No, because the evidence would be extrinsic.
The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify.
During the trial of her personal injury action against a chemical company, the plaintiff testifies in response to a question by her own counsel that, shortly after she and her family were forced to leave their home because of fumes from its plant, the president of the chemical company telephoned her motel room and said, “If you or any member of your family requires medical treatment, our company will pay all medical expenses in full. We will not have it said that our company’s negligence resulted in the illness of a local family.” The company’s counsel makes a motion to strike all of the plaintiff’s testimony, and the court does so.
Was the court’s action correct?
A) Yes, because the testimony relates to inadmissible hearsay.
B) Yes, because the statement was made in connection with an offer to pay medical expenses.
C) No, because the statement includes an opposing party’s statement that it was negligent.
D) No, because the statement is a factual admission made in connection with an offer to compromise.
The court’s action was not correct. Federal Rule 409 excludes offers to pay medical expenses, but not statements made in connection with such offers. Thus, (B) is wrong.
(A) is wrong because the president’s statement constitutes an opposing party’s statement, which is not hearsay under the Federal Rules. The president of the company, obviously authorized to speak for that entity, has made an admission of negligence, and that statement is admissible against the company as a vicarious statement of an opposing party.
(D) is wrong because there was no offer to compromise-the company merely said that it would pay medical expenses, without bargaining for anything in return. In addition, if it were an offer to compromise, a statement made in connection with the offer would not be admissible.
A driver was driving north on a local road when his car went out of control, crossed the center line, and struck the vehicle of another driver who was driving south on the same road. Immediately after the accident, an off-duty officer came by and photographed the accident scene for the police report. In a suit between the drivers, the plaintiff seeks to introduce the photograph taken by the officer. The officer is present in court but has not been called as a witness.
Is the photograph of the scene of the accident admissible?
A) Yes, because the photograph was taken by a police officer who took the photo for an official report.
B) Yes, because the officer is available to testify at trial.
C) No, because a proper foundation has not been laid.
D) No, because of the best evidence rule.
The photograph is not admissible because a proper foundation has not been laid. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted.
Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. (It could be ANYONE who is familiar with it - not just the officer who took the picture). Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible.
(A) is incorrect because a photograph’s admissibility does not require that the photographer be a police officer or that the photograph be taken for an official report. The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility of the photograph.
(B) is incorrect because the photographer need not be available to testify at trial. To authenticate a photograph, any person familiar with the scene may authenticate the photograph.
(D) is incorrect because the best evidence rule (also known as the original document rule) is inapplicable to these facts. The best evidence rule states that in proving the terms of a writing (including a photograph), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent. [Fed. R. Evid. 1002]
Here, the admissibility of the original photograph is in issue. A copy of the photograph is not being offered. Thus, no problem arises under the best evidence rule.
