Character Evidence & Hearsay Flashcards
(16 cards)
While a driver was driving someone else’s car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence.
How should the court rule on the objection?
A) Sustained, because the driver’s character is not in issue.
B) Sustained, because specific evidence of misconduct is not admissible to establish evidence of character.
C) Overruled as to the case against the owner, but sustained as to the case against the driver.
D) Overruled, because the evidence goes to the issue of the driver’s criminal negligence.
The witness’s testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character.
Character evidence is admissible in a civil case when the character of a person is an issue in the case.
The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver’s character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself.
(A) is wrong; as stated, the driver’s character is in issue in determining whether the owner was negligent.
(B) is wrong because specific instances of conduct may be used to prove character when character is an issue in the case. [Fed. R. Evid. 405(B)]
(D) is wrong because this is not a criminal case.
A boy and his parents sued a driver for $75,000 for injuries they claim were caused when the driver’s car hit the boy one night when the boy was out delivering papers. The boy was knocked unconscious in the accident, and the driver claims that it was not his car that hit the boy. Except for damages, the main issue in the suit is whether it was the driver’s car that hit the boy. The driver’s own attorney asks him, “Could the boy have mistaken your car for another?”
Is this question objectionable?
A) Yes, because the answer would be hearsay.
B) Yes, because the answer would be an opinion.
C) No, because the answer would be relevant to the issue of whose car hit the boy.
D) No, if a proper foundation has been laid.
B is Correct. The driver’s answer could only reflect his opinion of what the boy did or thought, and is thus impermissible opinion evidence. A layperson’s opinion is admissible if it is rationally based on the perception of the witness, helpful to a clear understanding of the witness’s testimony on the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge. The driver’s opinion does not meet those requirements; he is speculating rather than testifying to his own perceptions.
(A) is wrong because the question does not call for the driver to testify about an out-of-court declaration.
(C) is wrong because, although relevant, the answer would still be improper. (D) is wrong because the form of the question is improper.
In which of the following cases would an objection to a leading question most likely be upheld?
A) When asked on direct examination of a disinterested witness.
B) When asked on direct examination of a minor.
C) When asked on cross-examination of an expert witness.
D) When related to the name, address, or occupation of the witness.
A is Correct. Leading questions are allowed on the direct examination of a “hostile” witness. There is no rule that allows leading questions on the direct examination of a “disinterested” witness. A leading question is normally permitted on cross-examination whether the witness is a layperson or an expert. Therefore, (C) is wrong. (B) is wrong because leading questions may be asked of very young or very old witnesses at the discretion of the court. (D) is wrong because a leading question may be asked of any witness on preliminary matters not in dispute.
The defendant is being tried for murder. A witness to the crime had aided the police artist in making the composite picture by which the defendant was identified. This witness disappeared before trial, and the prosecutor now wants to offer the sketch into evidence.
The sketch is:
A) Inadmissible, under the best evidence rule.
B) Inadmissible, as hearsay not within any exception.
C) Admissible, as a record by a public employee.
D) Admissible, as a prior identification.
B is Correct. The sketch is inadmissible. Under Rule 801 of the Federal Rules, prior identification can be admissible and the sketch could be deemed a prior identification. However, to be admissible, the witness must be there to testify at trial and be subject to cross-examination. The witness in this case is unavailable; hence, this exception does not apply.
(D) is therefore incorrect. (A) applies to documentary evidence and has no relevance to this question. (C) is likewise not applicable, because this exception applies only to information within the personal knowledge of the public employee. In this case, the public employee gained the knowledge from the hearsay statement of an absent witness.
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act __________.
A) resulted in a criminal conviction
B) is corroborated by extrinsic evidence
C) is probative of truthfulness
D) affects the witness’s character in some way
Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief.
Extrinsic evidence of “bad acts” is not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness.
A witness testified against a defendant in a contract action. The defendant then called the witness’s neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness’s employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago.
Is the employee’s testimony admissible?
A) No, because it is merely cumulative impeachment.
B) No, because it is extrinsic evidence of a specific instance of misconduct.
C) Yes, because the hoax resulted in a conviction of the witness.
D) Yes, because a hoax involves untruthfulness.
The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted.
A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it.
(A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements, or if the crime was a felony. However, the prior conviction will generally not be admitted if more than 10 years have passed since the date of conviction or release from confinement, whichever is the later date (although the judge has discretion to admit older convictions in extraordinary circumstances). Here the witness was convicted 20 years ago and the conviction is likely too remote. Additionally, the defendant did not attempt to introduce evidence of the witness’s conviction; the proposed testimony only concerns the commission of the misconduct. (D) is incorrect because even though a hoax would impair a witness’s credibility, it cannot be proven by extrinsic evidence, as discussed above.
The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window.
Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?
A) No, because specific acts of misconduct that did not result in a conviction cannot be used to impeach a witness, either on cross-examination or through extrinsic evidence.
B) No, because specific acts of misconduct that did not result in a conviction cannot be established through extrinsic evidence.
C) Yes, as evidence of bias.
D) Yes, to establish that the waiter lied under oath.
The witness’s testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie.
Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant’s window, because such evidence would help establish the waiter’s bias against the restaurant.
(A) is incorrect for two reasons: Federal Rule 608 provides that, if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible. (B) is incorrect as well for this latter reason. (D) is too broad a statement. In a broad sense, the evidence is offered to impeach the credibility of the waiter and to suggest to the jury that he may be lying under oath. However, the defense does not need to establish that the waiter lied; the reason the evidence is relevant and does not constitute impeachment on a collateral matter is because it is offered to show bias, making (C) the better answer.
Statements by an opposing party (also known as “admissions by a party-opponent”) are considered nonhearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must __________.
A) go against that party’s interest at the time it was made
B) be attributable to a party and offered against that party
C) have been within the party’s personal knowledge at the time
D) not be in the form of an opinion
To qualify as a “statement by an opposing party,” a party’s statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.)
Lack of personal knowledge does not necessarily exclude an opposing party’s statement. An opposing party’s statement may even be predicated on hearsay.
An opposing party’s statement need not have been against the party’s interest at the time it was made.
An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.
Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:
A) Hearsay, and not admissible
B) Nonhearsay
C) Hearsay, but nonetheless admissible as an exception to the hearsay rule
D) Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement.
Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an “admission by a party-opponent”) is not hearsay at all under the Federal Rules.
It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).
A large delivery truck collided with a car. At the time of the accident, the driver of the truck said to the car driver, “The accident was my fault; I wasn’t paying any attention. Don’t worry, my company will make it right.” The delivery company had not authorized the truck driver to make that statement. The subsequent investigation of the accident by the delivery company revealed that the truck driver had been drinking on the day of the accident. He was fired. The car driver brings an appropriate action against the delivery company for damages resulting from the accident. The truck driver has disappeared. The car driver now seeks to testify as to what the truck driver said at the time of the accident.
Is the evidence admissible?
A) Yes, as a statement attributable to the defendant.
B) Yes, as an excited utterance.
C) No, because the truck driver is no longer employed by the delivery company.
D) No, because the delivery company had not authorized the truck driver to speak on its behalf.
The evidence is admissible. This question raises the issue of whether an employee’s out-of-court statement will be attributed to the employer, and thus considered a vicarious statement of an opposing party. The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment. Thus (A) is correct.
The truck driver’s statement was made while he was employed by the delivery company, and it related to his employment since it pertained to an accident that occurred when he was driving a company truck, presumably in the course of employment. Thus, (C) is incorrect. That the truck driver is no longer employed by the delivery company does not bear on the admissibility of his statement; what counts is that he was employed at the time he made the statement.
(D) is also incorrect. That the delivery company did not authorize the truck driver to make the statement does not preclude it from being admissible. Although one basis for attributing an employee’s statement to the employer is the employer’s authorization for the employee to speak on its behalf about the matter, that is not the only one.
(B) is incorrect because there is little reason to conclude that the truck driver’s statement was an “excited utterance” within the meaning of that hearsay exception. The question does not indicate that the truck driver spoke in an excited manner or that he was agitated. That the truck driver spoke shortly after the accident would not alone be sufficient to make his statement an “excited utterance.”
In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence.
Which statement regarding the permissibility of extrinsic evidence is false?
A) A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.
B) Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.
C) The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.
D) The prior inconsistent statement must be relevant to the case.
To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter.
Furthermore, before extrinsic evidence is allowed, generally the witness first must be given an opportunity to explain or deny her statement, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.
Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:
A) Hearsay, but admissible as an exception
B) Not hearsay, as long as the witness is subject to cross-examination
C) Inadmissible hearsay
D) Not hearsay, as long as the witness is given an opportunity to explain or deny the prior statement.
B!
A witness testifies on direct examination that he saw defendant’s car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made:
A) Before a grand jury
B) To a police officer
C) At a deposition
D) At a prior hearing
The witness’s prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination.
The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
A) Yes, for impeachment purposes only.
B) Yes, as both substantive and impeachment evidence.
C) No, because a party may not impeach his own witness.
D) No, because it is inadmissible hearsay.
The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness’s prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee’s letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule.
Which of the following types of impeachment do not require any foundation?
A) Bias
B) Prior criminal conviction
C) Prior Inconsistent Statement
C!
A prior criminal conviction may usually be shown by either an admission on direct or cross-examination of the witness or by introducing a record of the judgment (i.e., extrinsic evidence).
Other methods of proof may also be permitted.
No foundation need be laid.
Generally, before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.
With certain exceptions, extrinsic evidence of the witness’s prior inconsistent statement is admissible only if the witness first is given an opportunity to explain or deny the allegedly inconsistent statement and the adverse party is given an opportunity to examine the witness about the statement.
A man is suing a bakery to recover for damage to the man’s garage, which burned down from a fire that started in the bakery. The man alleged that the fire was started by one of the bakery’s employees, who was known to come into the bakery after an evening of drinking at a nearby bar to experiment with recipes. The bakery denied the allegation and claimed that the fire was the result of arson by a local gang member. At trial, the man called to the stand a court reporter, who will testify that he recorded the testimony of the now-deceased manager of the bakery at a preliminary hearing on a criminal charge of arson against the gang member, and the manager testified that the fire was the result of the employee’s drunken experiments. The bakery’s attorney objects to the court reporter’s testimony.
Should the court rule that the testimony is admissible?
A) Yes, as substantive evidence of the cause of the fire.
B) Yes, under the former testimony exception to the hearsay rule.
C) No, because the court transcript would be the best evidence.
D) No, because it is hearsay not within any exception.
A is Correct. The court should rule that the testimony is admissible as substantive, nonhearsay evidence. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is inadmissible unless it falls within an exception to the hearsay rule.
However, statements by an opposing party (commonly called admissions) are not hearsay under the Federal Rules. Certain statements by nonparty declarants are attributable to the party as “vicarious” statements because of the relationship between the party and the declarant. For instance, the statement of a person authorized by a party to speak on its behalf can be admitted against the party as an opposing party’s statement. Furthermore, statements by an agent or employee concerning any matter within the scope of his agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.
Here, the bakery’s manager, an agent of the bakery, admitted during the preliminary hearing that the bakery’s employee was at fault for the fire. This statement by the manager is admissible against the bakery as a vicarious statement of an opposing party. Therefore, (A) is correct and (D) is incorrect.
(B) is incorrect. Under the former testimony exception to the hearsay rule, the testimony of a now-unavailable witness given at another hearing is admissible in a subsequent trial if there is a sufficient similarity of parties and issues so as to provide sufficient opportunity for cross-examination. As discussed, the testimony of the court reporter is not hearsay and the exception does not apply. However, even if the testimony were hearsay, the former testimony exception would still not apply because the criminal charges against the gang member are not related to the civil suit between the man and the bakery. The bakery was not a party to the criminal case and thus never had any opportunity to cross-examine the manager as to his statement.
(C) is incorrect because the best evidence rule applies only when the material contents of a document are sought to be proved. The rule does not apply to these facts because the manager’s testimony exists independently of the transcript.
