Evidence Flashcards
(175 cards)
1
Q
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B drove into another tree, bridge, and wall. Admissible?
A
No. Shows nothing more than plaintiff is accident prone.
Irrelevant; relates to other time, place, event
2
Q
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B injured his arm when he crashed last year. Admissible?
A
Yes. Admissible, exception to rule that plaintiff’s history is inadmissible.
3
Q
B drives into a street sign and sues the city in negligence. On issue of contributory negligence, the city seeks to introduce evidence that B crashed multiple times over the last year. City is seeking to show B was drunk and careless. Admissible?
A
No. Showing conduct conforms with prior accident history.
4
Q
B and A are in an auto accident. Issue is whether A stopped at a light. B offers testimony of witness who claims to see A was careless sometimes over the past the three months. Is the evidence admissible?
A
No. Character evidence.
5
Q
B sues A for negligence. B claims that after accident, A added a safety control. B wants to admit the evidence. A objects. How should court rule?
A
Sustained, grant A’s strike of evidence. Defendant did not put the issue of safety at issue.
6
Q
B sues A. During settlement, A admits certain facts. In state court, B seeks to introduce evidence. Admissible?
A
No, not in Virginia. Allowed to be excluded in federal court.
7
Q
D is charged with murder. The prosecution has evidence that D previously been convicted for assault. Admissible.
A
Character evidence not admissible.
Violence is not an essential element.
Evidence is relevant.
8
Q
D is charged with murder. D seeks to have a witness testify that D is known for his peacefulness. Admissible.
A
Yes. Criminal - defendant can offer character trait of a good trait.
Opens door to rebuttal by prosecution.
9
Q
D is charged with murder. D seeks to have a witness testify that in their opinion D is peaceful. Admissible.
A
Yes. Character evidence limited to reputation or opinion.
Opinion needs to be relevant.
In Va opinion is not allowed for character.
10
Q
Can prosecutor introduce evidence of prior acts of defendant’s character?
A
Only if defendant opened door with good character either opinion or reputation
Can do it in cross examine or rebuttal case.
11
Q
D is charged with murder. D seeks to have a witness testify that in their opinion D is honest. Admissible.
A
Inadmissible. Not relevant character trait.
12
Q
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Admissible?
A
Yes, character of victim is allowed if self defense is raised.
13
Q
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Can the prosecution offer evidence of the victim’s good character?
A
Yes. Character evidence for victim allowed once defendant raises the issue.
14
Q
D is charged with assault. D seeks to have a witness testify that the victim has a reputation for violence. D claims to have acted in self-defense. Can the prosecution offer evidence of the D’s bad character?
A
Yes. Can offer bad character of defendant or good character of victim.
15
Q
D is charged with assault. D seeks to have a witness testify that the victim previously attacked another person. D claims to have acted in self-defense based on hearing these previous act. Can D present evidence?
A
Yes, offer to prove defendant’s state of mind.
Not character evidence of victim.
Defendant can rely on rumors or hearsay, even if mistakenly.
16
Q
D is sued by C for assault. D seeks to have a witness testify that C has a reputation for violence and C always is starting fights. D claims to have acted in self-defense. Admissible?
A
No. Character evidence not allowed in civil cases.
17
Q
B sues A for defamation. A defends on the ground of truth and offers evidence of prior acts to show plaintiff was dishonest. Admissible in civil case?
A
Yes, exception to general rule that character evidence is not allowed in civil cases.
Goes to essential element of the claim.
18
Q
B sues A for defamation. A defends on the ground of truth and offers evidence of prior acts to show A was honest. Admissible in civil case?
A
No. Not admissible, because only character of plaintiff is an essential element of the case.
19
Q
D sues C for injuries in auto accident. D calls witness who saw the accident. Witness is shown a photograph and testifies that it is accurate representation. Does witness need to be the photographer?
A
No. Witness does need to take photo.
Personal knowledge is needed.
20
Q
Plaintiff calls witness A who testified about an accident. Defendant has no question. Plaintiff calls witness B who testifies that witness A has a good reputation. Defendant objects. Ruling?
A
Yes. Cannot bolster a witness until attacked.
21
Q
Plaintiff calls witness A who testified about an accident and told other people that defendant caused the accident. Defendant objects. Ruling?
A
Yes. Prior consistent statement. Not an identification exception.
22
Q
Witness testifies that defendant is recognized as the perpetrator. In addition, witness said she picked him out of a line up two weeks earlier. Defendant objects. Ruling?
A
Overruled. Allowed as an exception to hearsay rule
Prior consistent statement exception for identification
23
Q
Ways to impeach a witness.
A
Prior inconsistent statement Bias, interest, motivation Sensory deficiency Bad reputation or opinion for truthfulness Criminal convictions Bad acts Contradiction
24
Q
Can extrinsic evidence be used to impeach a witness for bad acts?
A
No. Not allowed.
25
Can extrinsic evidence be used to impeach a witness for contradiction?
No. Not allowed.
26
Defendant is sued for negligence in an accident in which he was driving a car. Plaintiff called a witness to testify about the accident. Defendant crosses and asks witness about a statement to police that witness saw a truck. Objectable?
No. Comes in to impeach, not substantive evidence.
27
Defendant is sued for negligence in an accident in which he was driving a car. Plaintiff called a witness to testify about the accident. Defendant crosses and asks witness about a statement during a deposition that witness saw a truck. Defendant seeks to introduce it as substantive evidence. Objectable?
No. Comes into evidence for impeachment and substantive evidence.
28
Plaintiff testifies about an accident. Defendant does not cross. Defendant calls a witness who testifies that plaintiff gave another account of the accident. Defendant seeks to introduce evidence as substantive evidence. Allowed?
Yes. Statement of party opponent is allowed for impeachment and substantive evidence.
29
Witness testifies that defendant committed a crime. Defendant called another witness who says the first witness has a bad reputation for truthfulness. Admissible?
Yes.
Reputation or opinion is allowed to impeach first witness. Specific acts are not allowed on direct examination.
30
Witness testifies that defendant committed a crime. Defendant called another witness who says in their opinion that the first witness is untruthful and on six times he had lied. Admissible?
Opinion is allowed. Specific acts are not allowed on direct examination.
31
Which is admissible on cross:
1) conviction 8 years ago regarding misdemeanor for tax fraud?
2) conviction 8 years ago regarding misdemeanor for drug possession?
3) conviction 2 years ago regarding misdemeanor thief?
1) yes
2) no
3) no
Criminal convictions are allowed for impeachment of witness.
32
Which is admissible on cross:
1) conviction 11 years ago regarding misdemeanor for perjury?
2) released from jail for a conviction for misdemeanor drug possession?
3) conviction 2 years ago regarding felon larceny?
1) may be in discretion, not automatic.
2) no
3) yes - felony conviction - in court's discretion
33
Must a defendant confront witness prior to introduction of conviction?
No. Can ask or introduce.
34
Witness testifies for defendant. On cross plaintiff ask witness about the witness assaulted a neighbor and was not charged. Objection?
Sustained. Not allowed. Does not reflect on truthfulness.
Bad acts require a good faith basis
35
Witness testifies for defendant. On cross plaintiff ask witness about the witness made false statements on federal benefit application 12 years ago. Objection?
Overruled. Proper question, within discretion of court
Reflects bad on truthfulness of witness
Conviction does not apply.
36
Witness testifies for defendant. On cross plaintiff ask witness about the witness made false statements on federal benefit application 12 years ago. Witness denies. Plaintiff seeks to have another witness testify about the application. Objection?
Sustained, not allowed
No extrinsic evidence.
37
Witness testifies for defendant. On cross plaintiff ask witness about the witness about an arrest for fraud. Objection?
Yes. Arrest is not allowed for bad acts.
38
On redirect can a party use a prior consistent statement for rehabilitation?
Only when creditability of witness is attacked.
Statement must be made before motive to lie.
Come in as substantive evidence.
39
In a federal court in a case under a federal question, which law applies?
Modern common law.
40
In a federal court in a diversity of citizenship, which law applies?
State law.
41
Defendant is sued for negligence. Defendant tells attorney about the accident. Plaintiff asks defendant to what his was doing at the accident. Defendant seeks to raise a privilege. Allowed?
Not allowed. Not a privileged.
42
Who can waive an attorney client privilege?
Only client.
43
Who can waive an attorney client privilege after the client's death?
Only client's estate. Continues after death.
44
If a defendant raises privilege regarding a statement regarding a medical condition in a diversity action. Allowed?
Yes, because state law applies.
Virginia follows doctor-patient applies in a civil case.
45
Can a spouse be compelled to testify about the defendant spouse in criminal case? Who is the holder of privilege?
No. Spousal immunity.
Witness spouse.
46
Can a spouse be compelled to testify about the defendant spouse in civil case? Who is the holder of privilege?
Yes. No spousal immunity in civil case. No holder of privilege.
47
A witness was married to defendant five years ago. While testifying, defendant objects on spousal immunity. Ruling?
Overruled. No privilege, need to be married while testifying at trial. Only applies to criminal case. Witness spouse has privilege.
48
B's estate sues A for an auto accident. Witness testifies that B said "A ran the light." Admissible?
Yes to prove that B was alive after accident to show pain and suffering.
Not hearsay for this purpose.
49
B sues A for breach of an oral contract. Witness testifies that he heard A say to B that I accept your offer. Inadmissible hearsay?
No. Legally operative words.
50
Plaintiff sues store for slip and fall. Before accident, witness testifies that they heard another tell the store manager about a wet floor. Admissible?
Yes. Not hearsay. Gives defendant notice and makes defendant aware of dangerous condition.
51
D is charged with robbery. D testifies that he told the police that he did not do it. Admissible?
No. Hearsay unless an exception applies.
52
D is charged with fraud. Prosecution offers an loan application. Objection by D. Ruling?
Sustained. Non-hearsay. Will be admitted party admission.
53
A, B, and C conspire to rob a bank. Before the robbery B tells C that A also intends to pick up a shipment of drugs whiling robbing the bank. A is on trial on prosecution seeks have to have C testify as to what B said. A objects on hearsay. Ruling?
Overruled non-hearsay. Statements of conspirator are allowed.
54
Prosecution cannot use a hearsay statement against criminal defendant when:
Need all three
1) Statement is testimonial
2) Declarant is unavailable; and
3) Defendant had no opportunity for cross examination.
55
B is charged with murder. Witness made statement during a grand jury makes a statement she heard against B. During trial, witness asserts a fifth amendment privilege. Can the prosecution use the statement?
No. Violation of sixth amendment confrontation. Not admissible.
Grand jury is testimonial.
56
In what cases can dying declaration be used?
Criminal cases for charges of homicide and all civil cases.
When declarant is unavailable.
Need to have no hope of survival.
57
The court takes judicial notice of a fact that the prosecution alleged at trial. The effect of judicial notice is that?
The prosecution burden of producing evidence for the alleged fact is satisfied. Fact is not conclusively established.
58
The court takes judicial notice of a fact that the prosecution alleged at trial. Does this shift the burden to the defendant?
No. Judicial notice does not shift the burden. The prosecution's burden of producing the alleged fact is satisfied.
59
In a property dispute, a daughter claims that the dad gave her the deed to the house. The son claims he is entitled to it but virtue of a will. At trial, the daughter testifies about the deed. The son objects. Ruling?
Admissible if there is a foundation under the best evidence that the judge is satisfied that the deed could not be found after a reasonable search.
60
The prosecution calls a witness to establish that the voice on the tape was the victim. The witness testifies that he heard the same voice on another recording and another person told him that it was the victim's voice. The witness never met the victim. Defense objects. Ruling?
Sustained. Inadmissible. No personal knowledge of witness with victim's voice.
61
D is on trial for murder. D calls witness to testify that D has worked with the witness for 20 years and his business associates regard him to be an honest person. Prosecution objects. Ruling?
Sustained. Evidence is inadmissible because it is not relevant to any character trait on trial.
62
Prosecution calls a juror from a previous trial to testify that the defendant in the previous trial made statements in the previous trail that are now inconsistent. Current defense counsel objects. Ruling?
Overruled, comes in to impeach and substantive evidence. Prior inconsistent statements made under oath is admissible for impeachment and substantive evidence.
63
B's estate is suing XYZ company alleging that an employee was drunk and caused the accident. During trial the employee testifies that he had 2 drinks. B's attorney seeks to introduce a deposition statement that the employee stated he add 4 drinks. Permissible?
Yes for impeachment and substantive evidence. Prior inconsistent statements made under oath (deposition) can be used. Exception to hearsay rule.
64
A witness helps a police artist to make a sketch of the defendant. During trial the witness is unavailable. Can the prosecution enter the sketch into evidence?
No. inadmissible not an exception to the hearsay rule. Not a public record because it does not contain knowledge of the employee.
65
A witness helps a police artist to make a sketch of the defendant. During trial the witness is unavailable. Can the prosecution enter the sketch into evidence under the public records exception to hearsay?
No. not an exception to hearsay because public records does not contain the personal knowledge of the public official who made the statement.
66
B is suing A for serious injuries from an accident. At trial B testifies and is not crossed by A. B calls another witness who helped B and heard B state after regaining consciousness, "I'm dying! Why did A cross over the median?" A objects as hearsay. Ruling?
Overruled. Admissible as an exception to hearsay. Excited utterance because it was made once the plaintiff regained consciousness and relates to a startling event.
Not dying declaration, because the declarant is not unavailable.
67
B is suing a company for dumping waste. B testifies that an driver of the company's trucks told her that he was following the bosses orders and that "she should not go anywhere near the debris." Does B need to show that the driver was authorized to speak to admit the evidence?
No. Statement of employee is admissible as admission of party opponent. Vicarious admission made during course of employment does not need to show that driver was authorized to speak.
68
Husband and wife are charged with transporting stolen goods. While in the lawyer's office, the husband said to the wife "We really knew that those TVs were hot." The secretary was present. Can the husband assert an attorney client privilege in a later trial?
Yes, this is an attorney client relationship. The present of the wife and secretary does not destroy privilege.
69
Husband and wife are charged with transporting stolen goods. While in the lawyer's office, the husband said to the wife "We really knew that those TVs were hot." The secretary was present. Can the wife assert a martial privilege in a later trial?
No. Not a private conversation between the husband and wife. Present of attorney and secretary destroys martial privilege.
It would be an attorney client privilege.
70
In a civil case over embezzlement, plaintiff calls defendant and ask "Isn't true that you embezzled funds?" Defendant refuses and claims privilege against self-incrimination. Criminal charges are being investigated against the defendant. Should the trial court allow defendant to refuse to answer?
Yes. No witness can be compelled to testify to answer questions that may incriminate themselves.
71
In a civil case for negligence, the plaintiff calls the defendant and asks her if she had been drinking before the accident. The defendant refuses and claims a privilege against self-incrimination. The plaintiff seeks to enter a prior conviction 8 years ago for reckless driving while intoxicated. Can the prior conviction be used to impeach?
No. Prior conviction is irrelevant because defendant gave no testimony due to the privilege.
72
In dispute over a contract, who decides whether the document is authentic?
Trier of fact - jury. Before a writing is entered into evidence must be authenticated by sufficient proof to support a jury finding.
73
In criminal trial, prosecution calls a witness to authenticate a voice in the tape recording. The only other time the witness heard the defendant was after the charges were filed. Defendant objects as hearsay, not qualified as expert, and lack of personal knowledge. Ruling.
Overruled. Witness can testify to the voice, because witness if familiar with voice.
74
Defendant is being tried for murder. Defendant denies and calls a witness who testifies that defendant is nonviolent and peaceful man. Can the prosecution offer a neighbor's testimony that the witness beat his wife on multiple occasions?
No. Witness's creditability cannot be attacked by extrinsic evidence of specific instances of misconduct.
75
Defendant is being tried for murder. Defendant denies and calls a witness who testifies that defendant is nonviolent and peaceful man. Can the prosecution offer another's testimony that defendant has a bad reputation for truthfulness?
No. evidence must relate to a trait of the defendant. Truth is not a relevant character evidence, until defendant testifies.
76
Defendant is being tried for murder. Defendant denies and calls a witness who testifies that defendant is nonviolent and peaceful man. Can the prosecution offer evidence of the defendant's conviction for battery?
No.
77
Defendant is on trial charged with battery. Witness for defendant testifies he knew defendant and that defendant performed many charitable acts and is highly responsible person. If the prosecution objects, what is the ruling?
Overruled. This is opinion - not specific acts. Character evidence of good character by defendant is allowed for reputation and opinion (not specific acts). This opens the door to the prosecution - can introduce specific acts.
78
A vehicle driven by B hits A, cause A injury. B rushes to A's aid and says "Look, if you take $500 for the damage, I'm sure my insurance company will cover it." A sues B and wants to enter statement. Is the statement inadmissible to the form of a settlement negotiation?
No. Admissible as admission of party-opponent.
Statement made before plaintiff had a claim against B.
79
In a civil case for battery, the defendant seeks to introduce evidence of the plaintiff's character for violence. Can the defendant use opinion, reputation, or specific acts?
Yes. exception to general rule that character evidence is inadmissible in civil case. Can use all forms of character evidence.
80
A vehicle driven by B hits A, cause A injury. B rushes to A's aid and says "Look, if you take $500 for the damage, I'm sure my insurance company will cover it." A sues B and wants to enter statement. Is the statement admissible to as hearsay exception against interest?
No. This is an admission of a party opponent which is a better ground for admissibility than a hearsay statement.
Statement against interest requires unavailability.
81
On cross, can the prosecution ask a witness about a prior grand jury indictment involving the same defendant on trial.
Yes. can impeach with prior bad acts. shows bias. admissible evidence.
82
In civil case, plaintiff crosses a witness regarding "have you ever cheated on your tax returns?" Defendant objects. Ruling?
Overruled. impeachment with specific acts. shows a tendency to lie.
83
Defendant charged with battery. During trial, victim identified defendant as attacker during testimony. Victim died. Prosecution brought murder charges. Can prosecution use the previous statements in the second trial?
Yes. Hearsay exception for former testimony when the declarant is unavailable.
84
During a civil case, there is a dispute that a document qualifies as a business record. Plaintiff argues that it was made to be a self-serving statement. What is the most appropriate way to handle the issue?
Business exception to hearsay is determined by judge. hearsay questions are questions of law.
May be conducted within the jury's presence.
Once determined, it cannot be further pursued.
85
Defendant charged with rape. Prosecution seeks to have witness testify that in a phone call that victim said that defendant wanted her to stop by on the night in question. Victim is available. Can court allow testimony?
Evidence that the victim was in defendant's company that night is admissible.
Not a present sense impression hearsay exception.
86
Store sued supply for damaged caused by a heater causing a fire. Prior to fire, store owner said to the employee of supplier that "these things get pretty hot." Can the statement be admitted?
No, inadmissible hearsay of the person testifying who made the statement.
87
B sued A for negligence. B wanted a witness to testify, but he died before trial. The spouse of the witness heard him state "My God, B was crossing the street when A hit him." The defendant wants to call a friend of the spouse who heard the spouse say two weeks later "You know that accident, B ran into traffic and A hit him." Is the friend's statement admissible for substantive evidence?
No. only admissible to impeach. Prior inconsistent statements are allowed for impeachment, but cannot be used as substantive evidence unless they are made under oath.
88
During sentencing the judge considers a statement made out of court. Defense objects as hearsay and appeals the ruling. How should court of appeals rule?
Affirm the decision, because it not objectionable for a judge to consider hearsay information during sentencing.
89
During sentencing the judge considers information obtained in violation of the 4th amendment. Defense objects and appeals the ruling. How should court of appeals rule?
Affirm the sentencing because it is not per se objectionable to consider information obtained in violation of the 4th amendment
90
Employer discovers employee was forging company checks and accuses employee of defrauding company. Employee is silent. During a criminal proceeding, prosecution want to offer employee's silence of guilt. Employee objects. Ruling?
Allow evidence as admission non-hearsay - admission by party opponent.
Silence can be an admission if a reasonable person would deny the accusation.
91
Employer discovers employee was forging company checks and accuses employee of defrauding company. Employee is silent. During a criminal proceeding, prosecution want to offer employee's silence of guilt. Employee objects as violating right against self-incrimination. Ruling?
Right against self-incrimination applies after initiation of criminal proceedings.
This evidence is admission as non-hearsay - admission by party opponent (silence)
92
Man and woman were arrested and charged with murder. Trials were split. In woman's trial, she was acquitted. In the later trial for the man, the man calls a witness who is living with man that the woman told her that the woman killed the victim and that the man was not involved. Should the witness testimony be allowed?
No. Inadmissible because it is hearsay not within any exception.
93
If on cross-examination a witness invokes the privilege against self-incrimination, can the cross-examining party strike the testimony on direct?
Yes. Every party has right to cross-examination and is not adequate then the testimony can be stricken.
94
Who can move to enter a writing that was used to refresh a witness's recollection?
Opposing party if the writing was used to refresh the witness's recollection.
95
A witness to a crime cannot remember any details. A hypnotist is used to help witness remember. While hypnotized, the witness recounts two facts about the defendant. During trial the first fact is proven by other evidence. Can the prosecution use the hypnotist's testimony to prove the other fact?
No - inadmissible hearsay evidence.
| Would not be covered by residual or catch-all exception to hearsay.
96
A witness who is unable to speak, is brought into a police lineup to identify the defendant. The witness points at the defendant. Prior to trial, the witness dies. Can a sergeant who was present testify that the witness pointed to defendant during the lineup?
No. inadmissible hearsay evidence.
Prior identification, the witness needs to be available to testify at trial.
Counsel is not needed at pre-indictment lineup.
97
A boy is hit by a car driven by driver and knock unconscious. Parent's bring a civil action and issue is whether driver's car hit the boy. While testifying, defendant on direct is ask "Could the boy have mistaken your car for another?" Objection. Ruling?
Sustain, objection is proper because the answer calls for lay opinion.
98
In a criminal case, judicial notice operates to?
relieve prosecutor of burden of producing evidence on that fact
jury may, but is not required, to accept the fact noticed.
99
Is a jury required to accept the fact that is judicially noticed in a criminal case?
No, jury may accept it.
| Relieves prosecutor of burden of producing evidence on that fact.
100
In a civil case, judicial notice operates to?
the fact judicially noticed is conclusively established
101
Contract negotiations between the plaintiff and a third party is offered into evidence in a civil action before a jury. There is no preliminary determination by the judge that the third party was defendant's agent. Objectionable?
No. existence of an agency relationship is a matter for jury to decided. No need for a preliminary determination by the judge.
102
Opinion testimony of an expert is offered into evidence in a civil action before a jury. There is no preliminary determination by the judge that the witness is an expert. Objectionable?
Yes. Judge decides whether qualification of a witness called as an expert before offering expert testimony.
103
Hospital records are offered into evidence in a civil action before a jury. There is no preliminary determination by the judge that the records are made as a regular activity. Objectionable?
Yes. Preliminary determination must be made regarding hearsay evidence and whether it qualifies under an exception.
104
First responder's testimony of plaintiff's wife at scene of accident is offered into evidence in a civil action before a jury. Wife later died. There is no preliminary determination by the judge that the wife made statements under a sense of impending death. Objectionable?
Yes. Preliminary determination by judge whether hearsay statements qualify under an exception.
105
What can be used to refresh a witness's recollection?
anything, but it is not offered into evidence. Opposing counsel can examine the document used to refresh and may cross-examine the document.
106
What facts are appropriate for judicial notice?
facts of common knowledge in community or are capable of certain verification through easily accessible, well-established sources.
107
Can police officer testify that defendant had a distinctive tattoo that was recognized as a gang tattoo?
Admissible as circumstantial evidence.
108
In a civil cases, character evidence of a party is generally inadmissible, unless the party puts his character at issue?
No, this is standard for criminal case.
109
In a criminal case, can the prosecutor offer evidence of prior crimes, prior bad acts, or bad character of defendant to prove that the defendant acted in conformity?
No. Inadmissible character evidence.
110
In a criminal case, can defendant offer evidence of good character to show that defendant acted in conformity with the good character and did not commit crime?
Yes, but limited to opinion or reputation (not specific acts)
111
In a criminal case, once defendant admits good character, can prosecutor offer bad character of opinion, reputation, prior acts, or specific crimes?
Yes, limited to opinion, reputation, and "have you heard about a [bad act]?"
Cannot introduce evidence of prior crimes.
112
In a criminal case, when the defendant testifies what character trait is automatically at issue in the case?
Truthfulness is at issue and prosecutor can introduce opinion or reputation character evidence.
113
In a civil case involving negligent entrustment, can plaintiff offer character evidence regarding a third party's bad reputation or opinion that defendant entrusted?
Yes, being introduced for any other purpose to show that defendant was negligent in trusting a third party.
- do not need to show that defendant knew of bad reputation (standard is known or should have known)
114
Defendant is at trial for armed robbery, and prosecution has evidence tending to show that the defendant committed two other armed robberies in the preceding year. Prosecution is alleging that defendant committed all the robberies to support a heroin habit. Defendant has not prior convictions and is not testifying. Objectionable?
Yes objectionable, unless court determines probative value of evidence is substantially outweighed by its prejudicial effect.
- used for a motive, intent, or common scheme
- conviction is not required.
115
Witness testifies that defendant said at the scene of an accident, "I was not paying attention. I'll take care of all of your medical bills." Is this admissible?
Statement "I was not paying attention" is admissible
| Statement "I'll take care of your medical bills" is not admissible.
116
Can prior convictions be used to impeach?
Yes, only if:
1) prior crime involves dishonesty or false statement
2) any other felony within 10 years, unless too prejudicial
- cannot use a record of an arrest
117
Statements of past physical condition are admissible as an hearsay exception only when?
Made to doctor for purposes of diagnosis or treatment.
118
In a civil action, plaintiff's witness testified that defendant ran a red light and hit plaintiff. Defendant presented evidence to impeach the plaintiff's witness by a felony conviction of aggravated battery five years ago. Can plaintiff rehabilitate the witness by testimony from another witness regarding the good reputation for veracity of the first witness?
Yes, character for truth and veracity is attacked.
119
In a civil action, plaintiff's witness testified that defendant ran a red light and hit plaintiff. Defendant presented evidence to impeach the plaintiff's witness by showing that witness had a previous dispute with defendant. Can plaintiff rehabilitate the witness by testimony from another witness regarding the good reputation for veracity of the first witness?
No. Bias can be rebutted, but cannot be rehabilitate because attack is too broad.
120
In a civil action, plaintiff's witness testified that defendant ran a red light and hit plaintiff. Defendant presented evidence to impeach the plaintiff's witness by showing that witness was not wearing glasses. Can plaintiff rehabilitate the witness by testimony from another witness regarding the good reputation for veracity of the first witness?
No sensory deficiency does not constitute general attack on character for truthfulness.
121
Witness who saw a loose mud flap of a truck and told someone over the CB radio about the loose mud flap. The mud flap fell off and caused an accident. During the trial, plaintiff seeks to introduce the communicate on the CB. Plaintiff does not know who said it. Admissible?
Yes, admissible as non-hearsay to show knowledge of loose mud flap. Not introduced into substantive evidence.
122
A moving company employees a driver and helper. Moving truck is involved in an accident. Helper makes a written statement that driver was not paying attention at time of accident. Can the written statement be offered into evidence?
Admission by party is admissible if it qualifies as a vicarious admission (Statement made in course of employment)
123
A moving company employees a driver and helper. Moving truck is involved in an accident. Helper makes a written statement that driver was not paying attention at time of accident. Can the written statement be offered into evidence even if it was not made under oath?
Yes.
| Admission by party is admissible if it qualifies as a vicarious admission (Statement made in course of employment)
124
Defendant is charged with arson for hire. On the day of the fire, a neighbor was at defendant's house who burnt a roast in the oven. The neighbor said, choking on smoke, "What did you do, burn that old building down again?" Defendant made no reply. Should evidence be admitted?
Yes admitted, for silence to constitute an adoptive admission of the person's statement if a reasonable person would have responded to statement if untrue.
125
A declaration against interest applies to persons who are _____ at trial.
unavailable
126
Prosecution offers to introduce testimony of officer who was present when witness picked the defendant out of a photographic lineup. Witness is unavailable. Is officer's statements regarding the lineup admissible?
No, inadmissible hearsay.
| Prior identification are removed from hearsay only if witness who made the identification are testifying at the trial.
127
Can a prior inconsistent statement be used to impeach and as substantive evidence?
Yes only if either:
1) statement given under oath, then it is non-hearsay; or
2) statement qualifies under an independent exception to hearsay
128
At trial a pedestrian at an accident testifies about the excited statement made by an eyewitness. Defendant offers testimony of brother of eyewitness who heard eyewitness change the story the next day. Eyewitness is not available. Is the testimony of brother admissible?
Yes, for purposes of impeaching out of court declarant (eyewitness).
129
Can dying declaration be used in an attempted murder case?
No. Dying declarations limited to homicide cases, not attempted murder.
130
Can absence of information in business record be admissible?
If regularly kept in ordinary course and it would be normal to record items, the absence is evidence that it was not present.
131
Defendant is charged with robbing a tavern at 5:30 pm. Defendant calls witness to testify that defendant left witness's house at 9:30 am and stated, "I'm going to my mother-in-laws house this afternoon for a birthday party." Is this statement admissible?
Yes, it is hearsay within a exception for present state of mind
132
Does an authenticating witness to have knowledge before trial to testify about the defendant's voice on a recording?
No. can be become familiar after the dispute arose.
133
Does an authenticating witness to have knowledge before trial to testify about the defendant's handwriting?
Yes.
134
Can an expert based its opinion on hearsay that is not admissible?
Yes, information does not need to be evidence in case or admissible, but the information has to be reasonably relied upon in the field
135
In a criminal case, can a spouse be forced to testify against the other spouse?
No. The spouse may testify.
136
In any case, whether civil or criminal, may one spouse keep the other spouse from disclosing confidential communications?
Yes, if the statement was made in confidential communication made between spouses during marriage.
137
Does grand jury testimony fall within the exception to former testimony for hearsay?
No - there is no opportunity for cross examination.
138
Can prior consistent statements by others be used to rehabilitate a witness who is impeached?
Can only use prior consistent statements of witness not others.
139
Plaintiff sues defendant for destroying an antique table by setting fire the office. At trial, plaintiff seeks to enter the defendant's conviction for arson of the office. Defendant pleaded guilty to the crime and received a suspended sentence. Result?
Admitted as proof that defendant set the fire.
| Felony conviction are admissible to prove any element essential to judgment.
140
How is the extent or scope of cross-examination determined?
Matter of judicial discretion for how long it may proceed
Cross-examination is limited to:
1) items on direct; or
2) impeachment/creditability of witness
141
Does the past recollection recorded exception require that the declarant be unavailable at trial?
No. Can use past recollection recorded regardless of availability.
142
Defendant is on trial for manslaughter and alleges self-defense that the victim lunged at defendant with a knife. After killing victim, a bystander shouted, "You just killed a helpless man." Defense calls witness who was there and testifies that he heard did not hear the statement. Is the testimony proper impeachment?
Yes, this cases an adverse reflection on veracity of witness.
143
Is life tenant personally obligated to pay all ordinary taxes?
Yes, all the taxes to the extent of income or profits from land.
144
If life tenant fails to pay taxes on land, and the county order a tax sale of the land. Does this cut of the rights of the remaindermen?
Yes - tax sale will cut off the rights of the remainderman.
Remainderman can pay taxes to avoid tax sale.
145
Owner devised property to friend so long as dogs are kept on property, and if not, then to charity. The residue estate of owner would go to owner's niece. When owner dies, what are the ownership interest?
Friend - fee simple determinable
Charity - nothing, void under Rule Against Perpetuities (otherwise it would be an executory interest)
Niece - Possibility of Reverter (can be descended from owner)
146
Owner conveyed to developer land "provided that no houses may be built on property for a period of 25 years. If construction, then grantor may terminate and retake." Owner died, leaving estate to son. Son discovers that developer is constructing houses and seeks to eject the development. Who owns the land?
Son - right of entry is valid to enter and eject developer.
These are not subject to Rules Against Perpetuities.
147
Owner conveys land by deed "to my sister, but if sister dies without issue then to Charity." What are the interests?
Sister - defeasible fee simple
Charity - executory interest (not subject to Rule Against Perpetuities because upon sister's death the condition will be determined).
148
Does the open mines doctrine apply to a holder of a defeasible fee simple?
No, only applies to life tenants.
149
Owner devises the land by will to "husband for life, then to my grandchildren in fee simple." When owner died, she had one granddaughter. Three months later a grandson was born. Later husband died. Six months later another grandson was born. A year after husband died, another granddaughter was born. Who owns?
First granddaughter and both grandsons.
| Reminder persons in gestation
150
A owner created a will that stated land to "my widower for life, then to my children to life, then to my grandchildren to life, then to my great-grandchildren to life, and the to my first-born great-great-grandchild in fee simple." Which interest are void under Rules Against Perpetuities if the widower, children, grandchildren and great-grandchildren are living at time of owner's death?
Great-grandchildren and first born great-greatgrandchild interest are void.
Might not vest within 21 year, thus it is void.
151
Is a right of first refusal subject to Rule against Perpetuities?
Yes - no interest in property is valid unless it must vest within 21 years after a life in being at the time interest is created.
152
Owner conveyed land to two people as joint tenants with rights of survivorship, but if they attempt to sell the land during their lifetimes, then my sister has a right of first refusal to purchase the property. One of the people died. Sister seeks to exercise right of first refusal. How should court rule?
For sister, because there is a valid right of first refusal. It must vest during the lifetimes of the joint tenants if at all and does not violate the Rule against Perpetuities.
153
Property was devised to a husband and wife "as joint tenants with right of survivorship." What is the ownership of husband and wife?
Joint tenancy
| NOT A TENANCY BY THE ENTIRETY
154
Property was devised to a husband and wife "as joint tenants with right of survivorship." Wife quitclaimed interest to bona fide purchaser for value. Wife later died and husband seeks to quiet title. Result?
Purchaser and husband are tenants in common and land may be partitioned.
This is only a joint tenancy, not a tenancy by the entirety. Thus, wife can sale interest and severe joint tenancy.
155
Landlord enters into 10-year lease with auctioneer and a term in the contract states that lessor agrees to maintain all structures in good repair. 4 years later, landlord sells property to buyer who did not agree to perform any obligation. Roof needs repair and buyer refuses to pay. Auctioneer pays costs and who can he recover against?
```
Both landlord (privity of contract) and buyer (privity of estate)
Promises to maintain the property run with the land (touches and concerns)
```
156
In a commercial lease, when the tenant continues in possession after the termination of his lease, the landlord may do what? Original lease was for three years.
1) evict
2) hold over for a new periodic tenancy, year-and-year because original lease was more than one year and commercial property
Old rent (if no notice); new rent (if notice)
157
In a commercial lease, when the tenant continues in possession after the termination of his lease, the landlord may do what? Original lease was for 12 months and payment every quarter.
1) evict
| 2) periodic tenancy based on payments in previous lease - 3 months period.
158
Owner of 15 acres of property plans to build a stadium two years from now. In the meantime, the owner wants to keep the property open as a public park for hiking and picnicking. What is the best way to achieve this goal?
Grant government body (city or county) an easement for public recreational use for two years.
Easement - ownership remains
159
Is a buyer of a servient estate bound by the easement appurtenant if the buyer has no notice?
Not bound, need to have notice of easement (actual, constructive or inquiry).
160
Owner took out a second mortgage on house with bank for $100,000. Bank failed to record. Six months later, owner borrowed $5,000 from credit agency to buy a new furnace. Two weeks later after furnace was installed, bank record. Credit agency made a fixture filing the next day. If owner defaults, who has priority in furnace?
Credit agency - fixture filing was made within 20 days after chattel was affixed to land. (PMSI)
Credit agency prevails over bank regardless of when bank recorded or the recording statute
161
Owner has contract to sell land to developer. Before closing, developer died, and had a will leaving real property to son and residual estate to daughter. Owner decided to cancel contract, but son demanded conveyance. What are the rights of son?
1) He can demand conveyance under the doctrine of equitable conversion
2) common law exoneration - he can compel daughter to pay the purchase price from the residual estate.
162
Seller and buyer enter into written contract of $425,000 for sale of a house. Prior to closing, the house is destroyed. Seller and buyer agree the land is worth $185,000 without the house. Seller brings an action for specific performance. Result?
For the seller because risk of loss is on buyer. Amount is the full contract price.
163
In a claim for personal injury, the plaintiff seeks to enter a statement by plaintiff made to another that "I must have sprained my neck when it happened because it hurts so much." Defendant objects. Ruling?
Hearsay, but within the an exception for a present physical sensation.
164
When qualifying an expert, can the opposing party introduce collateral evidence to attack credentials?
Yes. allowed to assist court to determine whether expert is qualified.
165
For former testimony exception to hearsay to apply, what is required?
declarant is unavailable
sufficient similarity of parties and issues for cross-examination
- generally criminal cases are not sufficient similar to civil cases.
166
Should a court allow a statement made by a manager in a criminal case that employee was negligent in a civil case where plaintiff is suing the company that employees both manager and employee?
Yes, as an admission which is not nonhearsay.
| Admission are allowed for substantive evidence.
167
Under the best evidence rule, who determines whether the writing is available through no fault of the proponent?
Judge.
168
Are affidavits summarizing findings of forensic analysis admissible under the business record exception to hearsay?
No. - Violates the conformation clause.
| Prepare of affidavit needs to be unavailable and defendant must have had opportunity to cross.
169
If prosecution seeks to introduce affidavits summarizing findings of forensic analysis how should court rule?
Inadmissible because defendant's rights under the confrontation clause are violated.
170
Driver and passenger seek lawyer's counsel about suing other driver. Paralegal is present during meeting. Driver later files a cross-claim against passenger. Can the paralegal testify to the argument between driver and passenger when seeking lawyer's counsel?
Yes, because it is an admission.
| Attorney client privilege does not apply in suits between parties with the privilege.
171
Is a foundation needed to show a prior conviction for impeachment purpose?
No foundation is needed.
172
In defense to claim of negligently permitting an unfit driver to borrow a car, if the defendant claims a witness who testifies that when the owner loans her car that the owner invariably checks to see whether the driver is careful and law abiding. Plaintiff objects, ruling?
Overruled because it tends to establish the owner's habit.
173
Defendant is charged with theft of a car. On cross the prosecution asks defendant whether she had been convicted of fraudulent business practices six months ago. Is the question proper?
Yes. Proper to show that the defendant is inclined to lie.
174
On cross the defendant denies writing a letter. Plaintiff without releasing the defendant offers the letter which contradicts the defendant into evidence. Is the letter admissible?
Yes for both impeachment and substantive as a present state mind exception to hearsay.
175
In a dispute with a client and the hours billed by an attorney subject to a privilege?
No - not privileged materials in a dispute with the client.
