Evidence Flashcards
Explain the Best Evidence Rule (two parts!)
1) When a document creates rights/obligations, produce the document.
2) When a witness ONLY knows what they know because they saw some sort of document, the document itself should be the evidence, not that witness’ testimony.
Ex. Police review surveillance footage and testify that they saw footage where the defendant commits a crime. OBJECTION: Best evidence rule. The jury gets to make that determination, not the witness.
Homer’s house was burglarized 2 years ago, and several valuable items were stolen. Homer sued his insurer for failing to pay the loss covered by his homeowner’s policy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To refresh Homer’s recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule, and hearsay.
(1) What ruling?
(2) If Homer’s recollection is refreshed, may he then read the list into evidence?
(3) Imagine Homer looks at the list but it fails to jog his memory, and he is still unable to testify on the basis of current recollection. At this point, Homer’s attorney seeks to read the list into evidence. Objection: hearsay. Result?
(4) Homer’s attorney tries to admit the list as an exhibit. Proper?
(5) The insurer tries to admit the list as an exhibit on cross. Proper?
1) Overrule all three. Authentication is not necessary for refreshing recollection; best evidence is not implicated because Homer had the knowledge independent of the document at one point; hearsay not relevant because it is not being introduced directly (Homer’s memory is coming in, now that’s it’s been refreshed).
2) No. Then the three objections would apply.
3) Overruled. The recorded recollection rule permits reading in the list.
4) No. The recorded recollection exception only allows it to be read in by the attorney who called the witness.
5) Yes. The rule permits the adverse party to admit the recorded recollection as an exhibit.
Dr. Seuss, a board-certified child psychiatrist, testifies, “In my opinion, within a reasonable degree of medical probability, Bartholomew Cubbins’s preoccupation with hats is a disabling psychosis. My opinion is based on:
(a) my own clinical interviews and tests of Bartholomew;
(b) exhibits 1 and 2 in evidence (MRI test results, medical office records of Dr. Grinch);
(c) interviews of Bartholomew’s friends Wump, Gump, and Thump; and
(d) a written report prepared by Dr. Sam I. Am.”
(1) Bartholomew moves to strike Dr. Seuss’s opinion because it is based, in part, on inadmissible hearsay. Result?
(2) Should Dr. Seuss be permitted to testify further, “Let me read to you what Wump said during our interview . . . and here’s what was in Dr. Sam I. Am’s report”?
(1) Overruled. Experts are permitted to explain the bases of their opinion, even if the things themselves are inadmissible hearsay.
(2) No. Both are inadmissible hearsay.
(1) In a personal injury case, Defendant is alleged to have been driving recklessly at the time of a car accident. Witness who observed the event testifies that Defendant looked angry, smelled of alcohol, and drove away from the scene at 80 m.p.h. Objectionable?
(2) Witness then states, “It looked to me as though Defendant was engaged in conduct constituting a reckless disregard for the safety of others.” Objectionable?
1) Not objectionable. Emotion, intoxication, and speed are all permissible lay testimony.
2) Objectionable because it is not helpful to the trier of fact. This is NOT a valid “ultimate issue” objection. That objection only arises in a criminal matter when an expert testifies to a defendant’s mental state.
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that Phil has frequently driven into other stationary objects (tree, bridge, brick wall)?
No. Similar occurrences are not generally admissible (it has low relevancy to the case and has a high risk of misleading the jury/wasting time/confusing the issues).
Phil drove into a lamp post and sues the municipality for negligence, claiming damages for a neck injury. Six months before the lamp post accident at issue in this lawsuit, Phil injured his neck when he drove his car into a brick wall. Is that prior accident admissible, and for what purpose?
Yes. Provided the evidence shows that the party previously injured the same part of the body, it is admissible to show that the damages were not caused by the matter at issue.
Phil drives into a lamp post and sues the municipality for negligence. Could Phil introduce evidence that several other motorists had collided with the same lamp post as Phil? If so, for what purpose?
Yes. Similar past accidents, though generally inadmissible, are admissible when they occur under substantially similar circumstances to show the existence of a dangerous condition, that the dangerous condition caused the injury, and that the defendant had notice of the dangerous condition.
Marta sues Brewski Co. for sex discrimination, alleging that she was qualified for the job but was not hired because she is a woman. She seeks to show that Brewski hired no women, despite their qualifications, during the past 6 years. Admissible?
Yes. Previous similar acts are admissible to prove present motive or intent in the current case.
In an auto accident case, the issue is whether Joe Isuzu stopped his car at the stop sign at the intersection of Hickory and Main Streets.
(1) Plaintiff calls Wanda to testify that during the 6 months preceding the accident, she had seen Joe run red lights, change lanes without using signals, and run stop signs throughout town. Admissible as habit evidence to prove that Joe ran the stop sign?
(2) Wanda will testify that she has seen Joe run the stop sign at Hickory and Main on at least 8 occasions within a 2-week period. Admissible as habit evidence?
1) No. Habit describes a person’s REGULAR response to a SPECIFIC set of circumstances. This testimony does not demonstrate whether he habitually runs THAT stop sign.
2) Yes. This evidence shows that, at the relevant time, Joe’s habit was to run the stop sign.
The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man.
Which of the following, if offered by the prosecution, would most likely be admissible?
(A) A neighbor’s testimony that the defendant has beaten his wife on several occasions.
(B) A police officer’s testimony that the defendant has a general reputation in the community as a violent person.
(C) A neighbor’s testimony that the defendant has a reputation for being untruthful.
(D) Evidence that the defendant has a conviction for aggravated battery.
Correct Answer: B.
A is wrong because it is specific acts evidence. (It would be a valid cross-examination topic for D’s witness, but not an acceptable reason to call a witness.)
C is irrelevant, and therefore inadmissible.
D is prior bad acts evidence used solely to show propensity.
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
(A) Reputation, opinion, or specific acts
(B) Reputation and opinion only
(C) Opinion only
(D) Specific acts only
(A) When character is directly in issue in a civil case, character evidence is admissible. FRE does not restrict the types of character evidence which may be used in this situation because it is elemental to the case.
A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff’s witness would testify that the defendant is known by all his friends as “the Menace.”
Is the proffered testimony admissible?
(A) Yes, because reputation evidence is a proper method of proving character.
(B) Yes, because it is relevant.
(C) No, it is inadmissible to show that the defendant was negligent on this occasion.
(D) No, because the defendant did not introduce evidence of his reputation for carefulness.
(C). Character is generally inadmissible in civil cases, so the assumption should be that this is out. The only exceptions are suits where character is directly at issue. Not so here.
B is wrong because, although slightly probative, that value is outweighed by the risk of prejudice, distraction, and waste of time.
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.
(C). As to the driver, this is clearly inadmissible character evidence and the objection should be sustained. But negligent entrustment (like negligent hiring) is one of the rare cases where character (here, of the driver) is directly at issue, and therefore the objection should be overruled.
Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for Plaintiff that she saw the Suburban run the stop sign.
(1) On cross-examination, may Defendant’s counsel seek to establish that a few days after the accident, Witness told the police that a Jeep Cherokee, not Defendant’s Suburban, ran the stop sign?
(2) If Witness admits she made the prior inconsistent statement, may Defendant use the statement as substantive evidence that a Jeep Cherokee, rather than the Suburban, ran the stop sign?
(3) What if that prior inconsistent statement were made under oath?
(1) Yes. Prior inconsistent statements are valid forms of impeachment.
(2) No. If the prior inconsistent statement comes in for its truth, it ceases to be impeachment and becomes hearsay instead. It would therefore inadmissible.
(3) Then the PIS is admissible for its truth and is not subject to a hearsay objection. The oath makes it reliable in a way that typical hearsay is not.
In an auto accident case, Plaintiff testifies that she
was wearing her seat belt. Defendant does not crossexamine her. During the defense, Defendant calls Joe the Bartender, who testifies that Plaintiff told him, at Joe’s bar a week after the accident, that she had NOT been wearing her seat belt.
(1) Should Plaintiff’s motion to strike be granted on
the ground that Plaintiff was not given an immediate
opportunity to explain or deny the inconsistency?
(2) Is Plaintiff’s statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?
(1) No. Plaintiff is a party opponent, who are not entitled to right to explain a PIS. Additionally, NO witness is not entitled to an immediate right to explain a PIS.
(2) Yes. The impeachment value is obvious: it undermines Plaintiff’s testimony. It can also comes in for its truth because it is a party opponent statement, which is an exception to the hearsay exclusion rule.
In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Yale and Harvard on March 1, he saw that the traffic light was red for Defendant as his car entered the intersection and hit Plaintiff. On cross-examination, Witness is asked: (a) “Isn’t it a fact that the tree near the intersection of Yale and Harvard is an oak?” and (b) “Isn’t it a fact that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?” Witness insists that his direct testimony was accurate.
(1) During the defense, may Defendant properly prove that the tree at Yale and Harvard is an oak tree?
(2) During the defense, may Defendant properly call a police officer to testify that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?
(1) No. The type of tree is is a collateral issue to the case (it is insignificant to the case), so extrinsic evidence is impermissible to disprove the witness’ characterization.
(2) Yes. This is a material issue to the case, so extrinsic evidence contradicting the witness is permissible.
