Evidence (All Bar Topics)

Question 1

Evidence of an offer to settle a claim, and any statements or conduct accompanying the offer, is not admissible to prove:

Answer 1

Liability or the amount of the claim if disputed as to liability or amount. Such evidence may not be used for impeachment through a prior inconsistent statement either.

Question 2

An offer to compromise cannot qualify as such until:

Answer 2

The other party has made a claim so that a dispute exists.

Question 3

Evidence of offering or promising to pay medical, hospital, or similar expenses caused by an injury is not admissible to prove:

Answer 3

Liability for the injury.

Question 4

An offer to plea bargain and statements made in connection therewith are not admissible at:

Answer 4

A subsequent trial.

Question 5

Discuss the rule of admissibility pertaining to Evidence of an offer to settle a claim under 408: Compare with admissibility of Offers to pay Medical Expenses under Rule 409:

Answer 5

FRE 408- Settlement Offer–

Offers to settle claims not in “dispute” are admissible. Admissions are NOT Severed (inadmissible).

FRE 409- Offer to Pay Medical Expense–

Offers to pay medical expenses of another are inadmissible Admissions ARE Severed (admissible).

Question 6

In a criminal case, the prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for the very narrow purpose of proving:

Answer 6

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (“MIMIC” evidence).

Question 7

To approach any Evidence Question, perform the following three steps:

Answer 7

Underline the Cause of Action–

Civil or Criminal?

Situate the Proceeding–

Direct or Redirect
Party or Witness

Purpose for Evidence–

Substantive use
Impeachment use

Question 8

Evidence of the habit of a person, or the routine practice of an organization, is admissible to show:

Answer 8

that conduct on a particular occasion was in conformity with the habit.

Question 9

Habit evidence refers to a narrow range of highly probative traits, namely:

Answer 9

Automatic, invariable patterns of behavior that could be characterized by the words “always” or “invariably.” Actions performed “frequently” or “often” do not constitute habit. A habit is a regular response to a given situation that is done without a high degree of forethought. Habit evidence does not need to be corroborated.

Question 10

Define relevant evidence:

Answer 10

Relevant evidence means evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence.

Question 11

Define the Balancing Test Rule:

Answer 11

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Question 12

In any civil or criminal proceeding involving alleged sexual misconduct, evidence is generally inadmissible to show:

Answer 12

that an alleged victim engaged in other sexual behavior or any alleged victim’s sexual predisposition.

Question 13

In a criminal case, however, such evidence of sexual misconduct or behavior is admissible for three reasons:

Answer 13

To prove specific instances of sexual behavior by the alleged victim, if offered to prove that a person other than the accused was the source of physical evidence; to prove specific instances of sexual behavior by the alleged victim with the person accused of the sexual misconduct, if offered by the accused to prove consent or by the prosecution; if the exclusion of the evidence would violate the constitutional rights of the defendant.

Question 14

Evidence of remedial measures may only be admitted for:

Answer 14

Ownership
Control
Feasibility of Precautionary Measures, if controverted
Impeachment

Question 15

List the four exceptions to Evidence of Subsequent Remedial Measures being inadmissible to prove guilt.

Answer 15

Another purpose, such as negligence, culpable conduct, product defect, or need for warning.

Question 16

Describe the general rule of character evidence:

Answer 16

The general rule is that evidence of a person’s character is inadmissible to prove that he has acted in conformity with that character.

Question 17

In a criminal case, while the prosecution may not initially show the defendant’s bad character traits to make an inference that he is more likely to have committed the crime charged, the accused may introduce evidence of:

Answer 17

Character traits inconsistent with the crime charged (i.e., honesty, peacefulness). However, once the door to character evidence has been opened by the defendant, the prosecution may rebut evidence that has been admitted.

Question 18

When the accused presents testimony of the victim’s character trait(s), the prosecutor may:

Answer 18

cross-examine the reputation or opinion witness and may present witnesses of his own.

Question 19

Specific acts may also be admitted to show character if:

Answer 19

character is an essential element of a charge, claim or defense.

Question 20

A layperson can testify in the form of opinion on matters which are:

Answer 20

rationally based on the perception of the witness, helpful to a clear understanding of his testimony or to the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.

Question 21

The proper scope of non-expert opinion includes:

Answer 21

such perceptions as speed and other measurements; physical states such as intoxication or injury; personal emotions of others (fear, sorrow); sensory descriptions (taste, sound, smell); value of one’s own land; and sanity of the testator (where the opinion is given by a subscribing witness of the will.

Question 22

A layperson may not give:

Answer 22

legal conclusions (i.e., labeling a schizophrenic, or an alcoholic, or testifying that an accident victim fractured his spine). Opinions as to truthfulness are also not allowed.

Question 23

A witness’s testimony in the form of an opinion or inference as to an ultimate issue to be decided by the trier of fact is not objectionable merely because:

Answer 23

the testimony touches on an ultimate issue. However, ultimate issue is usually never a proper objection.

Question 24

An expert witness need not testify from personal knowledge, but instead may draw inferences from:

Answer 24

facts or dates perceived by or made known to him at or before the hearing.

Question 25

An expert may be properly cross-examined as to:

Answer 25

specific instances in his background that bear on his qualification as an expert.

Question 26

Cross-examination should be limited to:

Answer 26

the subject matter of the direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters. (FRE Only)

Question 27

Leading questions should not be used on the direct examination of a witness except:

Answer 27

as may be necessary to develop the witness's testimony (i.e., to jog a witness's memory). Leading questions are permissible on cross-examination.

Question 28

At the request of a party or at its discretion, the court shall order witnesses excluded so that they cannot (Invoking The Rule):

Answer 28

hear the testimony of other witnesses

Question 29

A person formally convicted of a crime may testify, but the opposing party may bring up the witness's past crimes to:

Answer 29

undermine his credibility

Question 30

When can a court admit a criminal conviction against a witness?

Answer 30

A conviction for a crime involving dishonesty or false statements against any witness is always admissible as long as the conviction is within 10 years. A conviction within 10 years for a crime not involving dishonesty or false statements is not admissible if for a misdemeanor. If the conviction is for a felony, it is admissible if the probative value of the conviction on the issue of veracity outweighs the risk of unfair prejudice to a party. For a conviction older than 10 years, for a crime involving dishonesty or false statements, the court may admit the conviction only if it determines that the probative value substantially outweighs its prejudicial effect.

Question 31

The court may admit a recent conviction of the criminal defendant for a crime punishable by death or at least one year imprisonment only if:

Answer 31

the impeaching party first shows that the probative value of the conviction outweighs its prejudicial effect.

Question 32

The court must admit a recent conviction of a witness (other than the accused) for a non-fraud crime punishable by death or at least one year imprisonment unless:

Answer 32

the objecting party shows that the prejudicial effect of the impeachment substantially outweighs the probative value of the evidence.

Question 33

If more than 10 years has elapsed since the later date of the conviction or the release from confinement, the conviction may only be admitted if:

Answer 33

the court determines that the probative value substantially outweighs its prejudicial effect.

Question 34

Evidence of bad acts which show fraudulent conduct may be inquired into on cross-examination concerning:

Answer 34

the witness's character for truthfulness or untruthfulness, but must be done in good faith. Extrinsic evidence of such conduct though cannot be introduced.

Question 35

A witness's credibility may be attacked by opinion or reputation evidence bearing on:

Answer 35

the witness's credibility for untruthfulness.

Question 36

Opinion or reputation evidence of the witness's character for truthfulness be introduced, if and only if:

Answer 36

the witness's credibility for truthfulness is attacked.

Question 37

List seven (7) ways to impeach a witness:

Answer 37

Prior Inconsistent Statement Bias, Interest, or Motive to Misrepresent Sensory Deficiencies Bad Character for Truthfulness: Bad Reputation or Opinion about Witness's Truthfulness Criminal Convictions Bad Acts (without conviction) about Witness's Truthfulness (FRE only) Contradiction

Question 38

The party seeking admission of evidence has the burden to establish:

Answer 38

preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.

Question 39

A prior inconsistent statement is admissible only to impeach unless:

Answer 39

it comes within an exception to the hearsay rule or it was given under oath, in which case it is admissible to prove the matter asserted.

Question 40

In examining a witness concerning his prior statement, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request must be:

Answer 40

shown or disclosed to opposing counsel.

Question 41

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless:

Answer 41

the witness is afforded an opportunity to explain or deny the evidence and the opposing party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

Question 42

Unless otherwise provided in the Rules, every person is competent to be a witness except for the following five categories of persons:

Answer 42

a witness who would be incompetent under state law if state law controls; a witness who lacks personal knowledge, except for an expert witness; a witness who cannot understand that he must tell the truth; the trial judge; a juror.

Question 43

Present memory refreshed occurs when:

Answer 43

the witness has some knowledge of the purported testimony, but whose memory is incomplete. The witness then testifies to what he remembers without having the refreshing evidence present. The rules regarding hearsay and admissibility of writings are inapplicable.

Question 44

List the three instances where a Prior Inconsistent Statement is admissible substantively:

Answer 44

When under oath AND during a formal hearing; As an admission under FRE 801 (d)(2); or If a Hearsay Exception applies.

Question 45

Describe the Rule of Completeness.

Answer 45

If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing or recorded statement that ought, in fairness, to be considered contemporaneously with it.

Question 46

A lay witness may only testify to matters about which:

Answer 46

he has personal knowledge AND | helpful to jury in deciding a fact

Question 47

In general, a juror may not testify as to the manner in which the jury reached its decision. However, a juror may testify as to:

Answer 47

whether extraneous prejudicial information was improperly brought to the jury's attention.

Question 48

If a hearsay statement, or a statement as an exception to hearsay, has been admitted in evidence, the credibility of the declarant may be attacked, and, if attacked, may be supported by any evidence which would:

Answer 48

be admissible for those purposes if declarant had testified as a witness.

Question 49

Define the "Confrontation Clause."

Answer 49

The Confrontation Clause requires that: In a criminal case, Where the declarant is unavailable, "Testimonial" evidence is inadmissible unless the defendant is given a prior opportunity to cross-examine the declarant.

Question 50

Detail the 4-step approach to answering a Hearsay question

Answer 50

Isolate the statement. Determine who is the declarant. Purpose for which the evidence is being offered: For its truth = hearsay; not for its truth = not hearsay. Apply the hearsay exceptions.

Question 51

Define Hearsay.

Answer 51

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Question 52

Define Assertion.

Answer 52

A statement is an oral or written assertion, or nonverbal conduct of a person, if it is intended by the person as an assertion. Examples of assertive conduct include gestures (such as pointing a finger, nodding the head, "thumbs up"), silence where it is intended to communicate, and sign language.

Question 53

The Federal Rules specifically exempt the four following out-of court statements, even though they are offered for their truth:

Answer 53

Admissions Prior sworn inconsistent statements Prior consistent statements Prior identifications

Question 54

Out-of-court statements which are offered for some other non-truth purpose are not hearsay. Four common examples are:

Answer 54

Words of legal significance (tortious words such as slander or libel, or transactional words such as words of offer and acceptance) Verbal acts tending to show notice, knowledge, motive or good faith Statements offered to prove a relevant attitude, belief, or intent of either the declarant or the listener Statements of the witness offered merely to challenge credibility or show perjury.

Question 55

Records kept in the routine course of business are admissible despite the fact that:

Answer 55

the declarant is available.

Question 56

The person who kept a business record is not required to have personal knowledge of the event, but someone with personal knowledge must have:

Answer 56

transmitted the information in the usual course of business.

Question 57

The business record exception is not applicable to:

Answer 57

a business record made in preparation of litigation.

Question 58

Evidence that a matter is not included in a business record is admissible to prove the nonoccurrence or non-existence of the matter, if:

Answer 58

the matter was of a kind of which a record was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

Question 59

Describe the "Former Testimony" exception to hearsay:

Answer 59

The "former testimony" exception to hearsay applies to a now unavailable declarant's former testimony given as a witness, or in a deposition, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct-, cross-, or re-direct examination.

Question 60

A memorandum or record is admissible if:

Answer 60

it concerns a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately.

Question 61

For a past recollection recorded to be admissible, the declarant must:

Answer 61

be on the witness stand.

Question 62

Distinguish between a Present Sense Impression and an Excited Utterance:

Answer 62

A present sense impression requires spontaneity, given the fact that the statement must be made while the declarant perceived the event or immediately thereafter. On the other hand, an excited utterance does not require spontaneity, as long as the statement was made under the stress of excitement.

Question 63

Records, reports, statements or data compilations, in any form, of public offices or agencies, are admissible if:

Answer 63

they set forth the activities of the office or agency or matters observed pursuant to duty imposed by law.

Question 64

Note when a learned treatise can be used on direct and cross-examination:

Answer 64

The learned treatise may only be used after an expert witness has relied on the document, or it has been called to his attention on cross-examination. If used on cross-examination, the opposing expert need not admit the authority of the treatise, but some expert must establish its qualifications.

Question 65

A statement is admissible as a "Statement Against Interest" if:

Answer 65

the declarant is now unavailable and the statement was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Question 66

A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless:

Answer 66

corroborating circumstances clearly indicate the trustworthiness of the statement.

Question 67

In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death, is admissible as an exception to hearsay if:

Answer 67

the declarant is unavailable.

Question 68

"Testimonial" statements include sworn testimonial:

Answer 68

At a grand jury, Prior trial, or Preliminary hearing; and Responses made during police questioning, whether sworn or unsworn

Question 69

A statement for medical treatment is admissible if:

Answer 69

it's made for the purposes of medical diagnoses; treatment; description of medical history, past or present symptoms, pain, or sensation; or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

Question 70

The wording of the Federal Rule is broad enough to admit statements made to a physician consulted for the purpose of:

Answer 70

enabling him to testify even if no treatment is contemplated.

Question 71

A statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) is admissible if

Answer 71

offered to prove that condition.

Question 72

The present mental state exception can be used to prove:

Answer 72

actions in accordance with that mental state.

Question 73

Note the admissibility of statements of present physical conditions and statements of past physical conditions:

Answer 73

Statements of present physical condition are admissible if made to anyone. Statements of past physical condition are admissible only if made to a doctor or the like for purposes of medical diagnosis

Question 74

A statement of then existing state of mind or physical condition is an exception to Hearsay. However, it is not Hearsay when that same state is offered as circumstantial evidence to show any of the following of the declarant listener:

Answer 74

Knowledge Intent Attitude Belief

Question 75

The following four categories to the Hearsay Exception require that the declarant be unavailable:

Answer 75

Former Testimony, Dying Declaration - Statements under Belief of Impending Death, Statements Against Interest; and Statements of Personal or Family History.

Question 76

Also an exception to the hearsay rule, is a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of:

Answer 76

of the witness.

Question 77

A witness is unavailable if the witness is available but persists in refusing to testify about the subject matter of a statement despite:

Answer 77

an order of the court to do so, or is exempted from testifying by ruling of the court on the ground of privilege about the subject matter of a statement.

Question 78

Hearsay is not admissible except as provided by the Federal Rules of Evidence, or by other rules prescribed by:

Answer 78

the Supreme Court pursuant to statutory authority of or by Act of Congress.

Question 79

A statement of a party offered by his opponent is admissible, even if

Answer 79

the statement was not against the party's interest when he made it.

Question 80

Define Adoptive Admissions:

Answer 80

Statements made by others which a party has adopted through his actions are admissions. This most commonly occurs when a party remains silent when a statement is made in his presence which he would deny if it were false.

Question 81

Note whether Post-Arrest Silence and Pre-Arrest Silence may be used as a basis for an Adoptive Admission:

Answer 81

Post-arrest silence may not be used as a basis for an adoptive admission, whereas pre-arrest silence may.

Question 82

Prior consistent statements are admissible as substantive evidence to:

Answer 82

rebut charges against the declarant of recent fabrication or improper influence or motive.

Question 83

An out-of-court statement consistent with testimony on the witness stand is admissible for its truth to rebut an inference of bias if:

Answer 83

the consistent statement was made prior to the time the reason for the bias occurred.

Question 84

A prior identification will be admissible non-hearsay only where:

Answer 84

the declarant (eyewitness) is presently testifying at the trial.

Question 85

Define Prior Inconsistent Statements and distinguish between those that are sworn versus those not made under oath:

Answer 85

Prior sworn inconsistent statements are non-hearsay and are admissible as substantive evidence. "Sworn" means subject to penalty of perjury and includes depositions and grand jury testimony, but not an affidavit. It must be under oath and subject to cross examination.

Question 86

The statement of an employee made during employment and concerning a matter within the scope of employment is:

Answer 86

an admission against his employer; no authority to speak is required.

Question 87

Admissions made by one co-conspirator are only admissible against another co-conspirator if:

Answer 87

made to a third party in furtherance of the conspiracy to commit a crime or civil wrong when participating in the conspiracy.

Question 88

Family records and reputation concerning family history are admissible to prove:

Answer 88

family relationships. If the declarant is unavailable, his own statement concerning his personal history is admissible.

Question 89

A statement in a document in existence 20 years or more, the authenticity of which is established, comes within the:

Answer 89

ancient document exception to the hearsay rule.

Question 90

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of:

Answer 90

facilitating the rendition of professional legal services to the client.

Question 91

A communication is confidential if:

Answer 91

it is not intended to be disclosed to third persons.

Question 92

The privilege applies even if the individual consulted is not an attorney, if:

Answer 92

the client reasonably believed that he was.

Question 93

The privilege also extends to representatives of a lawyer. A representative of a lawyer is:

Answer 93

one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

Question 94

There is no privilege if the services of the lawyer were sought or obtained to:

Answer 94

enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

Question 95

There is no privilege for pre-existing written documents (contracts, leases, memos) merely because:

Answer 95

they are given to an attorney.

Question 96

A police officer may testify at a criminal trial as to statements made, so long as:

Answer 96

the statement does not violate the party's privilege against self-incrimination.

Question 97

The results of breath, urine and blood tests administered pursuant to an accident are:

Answer 97

not confidential and may be admissible at trial.

Question 98

The inter-spousal privilege has two separate and distinct parts:

Answer 98

the spousal testimony privilege, which, in criminal cases, encompasses the right of a witness-spouse not to be forced to testify against their current spouse; and the marital communications privilege, which protects confidential communications made during a legally valid marriage.

Question 99

Federal courts follow the rule that the witness spouse holds the spousal privilege and can choose whether to:

Answer 99

testify against the defendant spouse.

Question 100

Define both Spousal Privilege and Marital Communications Privilege and note the holder(s) of each privilege.

Answer 100

Spousal Privilege - Protects communications before AND during marriage; Privilege lost at divorce; Criminal cases ONLY Holder: Federal Courts (Majority); Witness spouse Marital Communications Privilege - Protects communications ONLY during marriage; Privilege survives divorce; Both Civil and Criminal cases Holder: Both Spouses

Question 101

Other privileges recognized in some jurisdictions include:

Answer 101

a priest-penitent privilege, a social worker-client privilege, and privileges not to disclose one's vote, a news person's sources, and government secrets.

Question 102

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of:

Answer 102

diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.

Question 103

The presence of third parties will not destroy the confidential nature of the communication so long as:

Answer 103

those persons are present to further the interest of the patient in the consultation, examination, or interview; are reasonably necessary for the transmission of the communication; or are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

Question 104

The physician-psychotherapist privilege is waived if the patient, in any proceeding:

Answer 104

puts his physical, mental and/or emotional condition at issue.

Question 105

In criminal cases, any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or that result in a plea of guilty later withdrawn is:

Answer 105

excluded. Withdrawn guilty pleas are also excluded.

Question 106

The privilege against self-incrimination applies only to evidence that is:

Answer 106

testimonial in nature. Presentation of real and demonstrative forms of evidence are not protected (i.e., an accused can be compelled to give writing, hair and blood samples, fingerprints, and to stand in a lineup).

Question 107

Testimony given at a preliminary hearing does not waive:

Answer 107

the privilege of the accused not to take the stand at trial. Furthermore, evidence given at a preliminary hearing is inadmissible at trial, and the prosecution may not comment on it.

Question 108

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by:

Answer 108

evidence sufficient to support a finding that the matter in question is what its proponent claims.

Question 109

Explain the Best Evidence Rule.

Answer 109

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by Act of Congress. This is known as the "Best Evidence Rule" and it applies only where the contents of a writing are at issue.

Question 110

The Best Evidence Rule does not apply when:

Answer 110

first-hand testimony, rather than the record of the event, is used to prove the content of the record.

Question 111

A duplicate is admissible to the same extent as an original unless:

Answer 111

a genuine question is raised as to the authenticity of the original, or it would be unfair to admit the duplicate in lieu of the original.

Question 112

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

Answer 112

1. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; 2. No original can be obtained by any available judicial process or procedure; 3. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or 4. The writing, recording, or photograph is not closely related to a controlling issue.

Question 113

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by:

Answer 113

copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy that complies with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

Question 114

Grounds for Unavailability.

Answer 114

Death, illness, or imprisonment; 2) Absence from jurisdiction; 3) Privilege; 4) Stubborn refusal to testify; and 5) Lack of memory