Evidence

Question 1

Who decides whether a witness is qualified to offer expert opinion testimony?

Answer 1

Whether a witness is qualified to offer expert opinion testimony is a preliminary question for the COURT—not the jury. The court is not bound by the rules of evidence when determining such questions–including hearsay.

Question 2

What’s the balancing test to decide when a court may exclude relevant evidence?

Answer 2

A court may exclude relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence.

Question 3

When can evidence of a witness’ prior crime be admitted to impeach?

Answer 3

1) evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement)
2) if the conviction occurred within the previous 10 years.

Question 4

Explain the best evidence rule.

Answer 4

The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the CONTENTS of the document are at issue.

Question 5

Does the rule against hearsay bar testifying about what a drug-sniffing dog did?

Answer 5

Nope. The rule against hearsay bars the admission of an out-of-court statement made by a person—not a machine or animal—that is offered to prove the truth of the matter asserted therein. Includes date stamp on faxes, lab results

Question 6

If a witness is unavailable to testify, can their ID of defendant in a police line up be admitted?

Answer 6

NO. A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.

Question 7

Under Virginia law, in personal injury or wrongful death actions, no writing or recording may be used to contradict the witness, other than a(n) __________ or a recording made simultaneously with the wrongful act.

Answer 7

deposition

Question 8

Under Virginia Rule 608(b), specific instances of untruthful conduct ______________________________ for the purpose of attacking a witness’s credibility.

Answer 8

MAY NOT BE USED

Question 9

What’s the recorded recollection hearsay exception?

Answer 9

The recorded recollection hearsay exception allows a record to be read into evidence if it (1) concerns a matter that a witness once knew but cannot recall at trial, (2) was made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflects the witness’s personal knowledge at the time it was made.

Question 10

VA—When is evidence of prior abuse by the victim admissible in VA?

Answer 10

In any criminal case alleging personal injury or death.

Question 11

In VA, when may an expert base her evidence on inadmissible facts?

Answer 11

In civil cases, so long as they are of a type reasonably relied on by experts in the field.

Question 12

In VA, may a witness render an opinion as to the ultimate facts of a case?

Answer 12

An expert witness may render an opinion as to the ultimate facts at issue in a civil case.

Question 13

Does VA set a time limit on convictions that can be used for impeachment?

Answer 13

No. Virginia does not set a time limit on convictions that can be used for impeachment.

Question 14

Under Virginia Rule 608(b), specific instances of untruthful conduct ______________________________ for the purpose of attacking a witness’s credibility.

Answer 14

May NOT be used.

Question 15

In insanity cases, __________, an expert __________ testify to the defendant’s diagnosis of mental disease and to the effects of that disease, but __________ say explicitly that defendant lacked capacity to understand the wrongfulness of his actions.

Answer 15

Both in VA and FRE, can, cannot.

Question 16

What does it mean for evidence to be relevant?

Answer 16

Evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if it is both probative and material.

Relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice.

Question 17

When can a prior inconsistent statement (not under oath) be used to impeach a witness?

Answer 17

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires).

Question 18

After an accident, police record D saying “I ran a red light” and “Don’t worry, I have car insurance.” Which if any statements are admissible?

Answer 18

Just “I ran a red light.”

Statements made by and offered against a party-opponent are nonhearsay and therefore admissible substantively unless barred by another evidentiary rule. Under FRE 411, evidence that a party was (or was not) covered by liability insurance is not admissible as substantive proof of negligence or wrongdoing.

Question 19

When is a felony conviction admissible?

Answer 19

Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness unless the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect.

Question 20

How can a photograph by authenticated if it is admissible evidence?

Answer 20

A photograph is authenticated by having a witness with personal knowledge—i.e., knowledge based on firsthand observation or experience—of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Question 21

Must a declarant be unavailable for the present sense exception to be used to admit evidence?

Answer 21

NO. Statements concerning the declarant’s then-existing state of mind (e.g., statements of motive, intent, or plan) are excepted from the rule against hearsay.

Question 22

What are the 3 requirements to authenticate an x-ray?

Answer 22

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that
(1) the process for creating the evidence was accurate,
(2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.

Question 23

Can a witness testify to something they have personal knowledge of even if a corroborating document is not admitted?

Answer 23

Yes. A witness may testify to any relevant fact about which he/she has personal knowledge—i.e., firsthand experience or observation—even when other evidence may contain the same information.

Question 24

If evidence’s relevance depends on whether a fact exists, is it admissible?

Answer 24

When the relevance of evidence depends on whether a fact exists, proof MUST be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence. However, the court may admit the proposed evidence on the condition that such proof be introduced later.

Question 25

If evidence is admissible but only because of hearsay evidence, who makes the decision? Judge or jury?

Answer 25

A judge must determine the admissibility of evidence and can consider any relevant evidence—even if it is otherwise inadmissible (i.e. hearsay)—to do so. But the jury must decide the weight and credibility of the admitted evidence.

Judge decides what evidence gets admitted, jury decides what weight and credibility to give the evidence.

Question 26

Are juries required or allowed to accept a judicially noticed fact as conclusive?

Answer 26

Depends what kind of case it is! In a civil case, the court must instruct the jury that it is required to accept the noticed fact as conclusive. But in a criminal case, the court should instruct the jury that it may accept the noticed fact as conclusive.

Question 27

How can a party prove a document’s content without accounting for the original document’s absence?

Answer 27

One exception to the best evidence rule allows a party to prove a document’s content through a party-opponent’s testimony, deposition, or written statement without accounting for the original document’s absence. But this exception does not apply to oral statements (or nonverbal conduct) made outside the context of testimony or deposition.

Question 28

When can a learned treatise be read into evidence? Whole book or just statements?

Answer 28

Statements in a learned treatise, periodical, or pamphlet are excepted from hearsay and can be read into evidence if (1) the statements are called to the attention of or relied on by an expert witness during examination and (2) the publication is established as a reliable authority by a party’s expert or judicial notice.

(note: NOT the whole book)

Question 29

Can a criminal D testifying before a preliminary-questions hearing be cross-examined about all aspects of the case?

Answer 29

NO.

A criminal defendant who testifies at a preliminary-questions hearing can be cross-examined about issues related to the admissibility of the contested evidence and the defendant’s credibility—but not about other issues in the case.

Question 30

When MUST a court take judicial notice?

Answer 30

Under FRE 201, the court must take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so. Here, the fact at issue is an adjudicative fact in that it is not subject to reasonable dispute because it can be accurately and readily determined by resorting to sources whose accuracy cannot reasonably be questioned.

Question 31

In a homicide case, must a defendant with a self-defense claim specifically attack victim’s character in order for prosecution to put on evidence of victim’s truthfulness?

Answer 31

Nope. The self-defense argument is enough to permit evidence of victim’s peaceful character.

While generally the prosecution may not introduce evidence of the victim’s pertinent character trait unless the defendant has offered evidence of the victim’s bad character, the prosecution in a homicide case may offer evidence of a victim’s peacefulness to rebut evidence that the victim was the first aggressor, even if the defendant has not addressed the victim’s character directly.

Question 32

May a juvenile crime be admitted to impeach a witness?

Answer 32

Not in civil court. Maybe in criminal.

The court may occasionally permit evidence of a juvenile adjudication of a witness other than the accused under certain circumstances, but only in a criminal trial.

Question 33

If suing for IIED based on sexual assault, is evidence of defendant’s prior sexual assaults admissible? What if not a conviction?

Answer 33

Yes. Evidence concerning past sexual assault or child molestation by a defendant is admissible in a civil case where the claim for relief is based on a defendant’s sexual misconduct ((although the court does have the discretion to suppress such evidence under Rule 403 if the probative value is substantially outweighed by the danger of unfair prejudice). Evidence of the ex-girlfriend’s past sexual misconduct may be admissible even if she was never charged or prosecuted for that misconduct. 10 year rule does not apply.

Question 34

Are statements made during settlement negotiations ever admissible?

Answer 34

Yes.

Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim. Such statements may be admitted for other purposes, however, such as to prove the bias or prejudice of a witness.

Question 35

Are the out-of-court statements of an employee admissible against the employer?

Answer 35

YES. A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship. And a statement that is admissible as an opposing party’s statement does not require the declarant or the person about whom the statement is made to be unavailable to testify.

Question 36

Can a prior inconsistent statement from a deposition be offered to impeach a witness?

Answer 36

Yes.

A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility AND as substantive evidence.

Question 37

Can a statement against interest be admitted against an unavailable declarant?

Answer 37

Yes.

The general rule for statements against interest made by an unavailable declarant is that a statement qualifies as a hearsay exception if, at the time it was made, A hearsay exception applies to a record or statement of a public office or agency that sets out an observation of a person under a duty to report the observation or factual findings of a legal investigation. In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception. (i) it was against the declarant’s pecuniary, proprietary, civil, or penal interest, and (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true. A statement that could subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement,

Question 38

What’s the public records hearsay exception?

Answer 38

A hearsay exception applies to a record or statement of a public office or agency that sets out an observation of a person under a duty to report the observation or factual findings of a legal investigation. In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception.

Question 39

Can the Supreme Court review a final state-court judgment when it’s unclear if the decision relies on state or federal interpretations?

Answer 39

YES.

Although a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist. Here, because it is unclear whether the state court opinion relied on the court’s interpretation of definitions in the federal healthcare act, the Supreme Court may review the state court decision to make that determination. If the Supreme Court finds that the state court decision turns on a federal issue, then the Supreme Court may rule on whether the state court correctly decided the federal issue. If not, then the Supreme Court must dismiss the appeal.

Question 40

What allows Congress to regulate basically everything?

Answer 40

Correct Answer: The Commerce Clause of Article I, Section 8

Question 41

Can Congress regulate what kind of mail post offices send?

Answer 41

Yeah, if it meets the Postal Limitations Act test.
Congress has the exclusive power “to establish post offices and post roads” under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).

Question 42

What does the Postal Limitations Act do?

Answer 42

The Postal Limitations Act appears to regulate commercial speech, which is protected by the First Amendment. Restrictions on commercial speech are reviewed under a four-part test: i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) the asserted government interest must be substantial; iii) the regulation must directly advance the asserted interest; and iv) the regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 43

Can Congress regulate racist home sales by private parties?

Answer 43

Yes.
Pursuant to the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating the “badges or incidents” of slavery. This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers.

Question 44

Can a member of Congress be sued for defamation against the President if the Congressmember makes their remarks in a press conference?

Answer 44

Yes.

Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress. Accordingly, the immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in Congress.

Question 45

What does the Speech or Debate Clause protect a Congressmember from?

Answer 45

The Speech or Debate Clause of Article I, Section 6 protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.

Question 46

Are state legislators protected for defamation outside their legislative actibities?

Answer 46

The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity.

Question 47

Does a prosecutor have immunity even when she acts with personal malice?

Answer 47

Yes as long as she has jurisdiction. A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction.

Question 48

Can a state tax international cargo units?

Answer 48

A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state. In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues. Under these facts, because the cargo containers are subject to tax by the home country of the foreign corporation, the state tax subjects the containers to international multiple taxation, and thus the first of these two additional requirements has not been met.

Question 49

3 factors when an individual’s protected interest (i.e. losing driver’s license upon DUI arrest without hearing)?

Answer 49

When an individual’s protected interest is threatened by governmental action, a court considers three factors in determining the amount of process that is due: (i) the private interest affected by the governmental action; (ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and (iii) the burden involved in providing the additional process. A state has the burden to demonstrate a compelling interest justifying its actions when a fundamental right is at issue.

Question 50

What level review is age discimination reviewed under and who has the burden?

Answer 50

When reviewing government action under equal protection theories, a court applies one of three levels of review, depending on the classification of persons or the type of right concerned. The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) is not applicable, including laws drawing distinctions based on age. A law passes the rational basis standard of review if it is rationally related to a legitimate government interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption.

Question 51

To impeach a witness’s credibility, what kinds of criminal history is admissible?

Answer 51

–crime of untruthfulness
–A FELONY (i.e. a crime punishable by more than 1 year)

(exception: if D was pardoned for innocence)

Question 52

What’s teh difference between an excited utterance and a present sense impression?

Answer 52

Excited utterance: prompted by a startling event. (right after the accident)
Present sense impression: contemporaneous with the event. (literally during the accident)

Question 53

In VA, if the state wanted to introduce a text message allegedly written by the defendant, what would be the first step?

Answer 53

The determination of admissibility of evidence is within the sound discretion of the court. When hearsay is offered,
the court must first authenticate or identify the declarant.

Question 54

What’s the best evidence rule exception about a party-opponent?

Answer 54

Instead of producing the document/photo whatever, one exception allows a party to instead prove the contents of a document through the testimony, deposition, or written statement of the party against whom the evidence is offered.

In this case you don’t have to explain why document is missing

Question 55

Once a criminal D’s witness offers evidence of D’s good character pertinent to the crime, how can the P bring in rebutting specific acts?

Answer 55

By cross examining THAT SPECIFIC witness. The one that offered the pro-D testimony. P can’t call a new witness to talk about bad stuff D did.