Evidence and Criminal Procedure

Question 1

What are the 6 conditions that would cause evidence to be excluded according to FRCP Rule 403(b) for their negative effects on a jury?

Answer 1

• Unfair Prejudice
• Confuse the Issue
• Mislead the Jury
• Cause Undue Delay
• Waste Time
• Needlessly Cumulative

Question 2

What are the 5 non-character purposes for introducing evidence of past wrongdoing?

Answer 2

• Establishing Motive
• Establishing Intent
• Proving Mistake (or lack thereof)
• Establishing Identity
• Establishing the existence of a Common plan or scheme

Question 3

What are the 4 non-character methods of impeaching a witness?

Answer 3

• Prior Inconsistent Statements
• Sensory Deficiencies
• Bias
• Contradiction

Question 4

What are the two characteristics that all evidence must have in order to be considered “Relevant”

Answer 4

It must be:
(1) Material (of consequence to the case at issue)
(2) Probative (have any tendency to make the proposition it supports more or less likely)

Question 5

For what purposes may previous similar accidents or occurrences (involving the same defendant but not the present plaintiff) be admitted as evidence?

Answer 5

(1) to prove the existence of a dangerous condition
(2) to show that the dangerous condition was the cause of the present injury
(3) that the defendant had notice of the dangerous condition

Question 6

For what purposes may evidence of subsequent remedial measures be admitted as evidence?

Answer 6

(1) to prove ownership or control (if disputed)
(2) to rebut a claim that precaution was not feasible
(3) to prove that the opposing party has destroyed evidence

Question 7

What are the three generally permissive methods of proving Character?

Answer 7

(1) Evidence of specific acts
(2) Opinion testimony of a witness who knows the person
(3) Testimony as to the person’s general reputation in the community

Question 8

When a criminal defendant has ‘opened the door’ by using character evidence to support their defense, what are the Prosecution’s options to attack this defense?

Answer 8

(1) Cross examine the witness, and test their knowledge of previous bad acts of the defendant (to show if they are knowledgeable)
(2) Call their own character witnesses to provide either reputation or opinion testimony regarding the Defendant

Question 9

If a criminal defendant has introduced evidence of the victim’s bad character, what are the Prosecution’s options to attack this defense?

Answer 9

Reputation or opinion evidence of:
-Victim’s good character regarding the attacked trait
-Defendant’s bad character regarding the attacked trait

Question 10

What are the methods in which handwriting can be authenticated?

Answer 10

(1) Opinion of lay witness who is familiar with the alleged writer’s hand in the course of normal affairs
(2) Expert’s opinion who can compare it to a writing sample
(3) Jury’s opinion when comparing it to a writing sample

Question 11

What must be proven to have a document authenticated as an ‘ancient document’

Answer 11

(1) must be 20 years old when offered into evidence
(2) must not be in suspicious condition
(3) must be found in a place where one would expect to find such a document

Question 12

List the various types of self-authenticating documents:

Answer 12

• Official domestic or foreign documents bearing a seal
• Official publications
• Certified copies of public or private records on file in a public office
• Newspapers and periodicals
• Trade inscriptions and labels
• Notarized documents
• Commercial papers
• Business records: electronically generated, or existing on a database (if certified and the opposing party noticed)

Question 13

When does the Best Evidence Rule apply?

Answer 13

(1) where the writing is a legally operative or dispositive instrument

(2) Where the knowledge of a witness concerning a fact results from having it read into writing

Question 14

List the valid excuses for non-production of an original as evidence (Best Evidence rule)

Answer 14

(1) Loss or destruction of the original (must be good faith)
(2) Original cannot be obtained by judicial process (jurisdiction issues)
(3) In the possession of an adversary who refuses to produce it when noticed

Question 15

Which questions of preliminary fact regarding the admissibility of duplicates under the Best Evidence Rule are reserved for the jury?

Answer 15

(1) whether the original ever existed
(2) Whether a writing produced at trial is an original
(3) Whether the evidence offered correctly reflects the content of the original

Question 16

What are the two methods of authenticating Real Evidence?

Answer 16

(1) Testimony of a witness that they recognize the object as what it claims to be
(2) Evidence of a substantially unbroken chain of possession

Question 17

What are the two fundamental requirements for a witness to be considered competent to testify?

Answer 17

(1) Evidence of personal knowledge of the matter they will testify about
(2) Oath of affirmation to testify truthfully

Question 18

What are the matters to which a juror may properly testify to during an inquest regarding the validity of a verdict?

Answer 18

(1) Whether any extraneous prejudicial information was presented to the jury
(2) Whether any outside influence was brought to bear on any juror
(3) Whether there is a mistake on the verdict form
(4) Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant

Question 19

In which situations will the court generally allow leading questions on direct examination?

Answer 19

(1) To elicit preliminary or introductory matters
(2) When the witness needs help (loss of memory, immaturity, or physical/mental weakness)
(3) When the witness is hostile, an adverse party, or affiliated with an adverse party

Question 20

What are the objectionable forms of questioning

Answer 20

(1) misleading
(2) compound
(3) argumentative
(4) conclusory
(5) cumulative
(6) unduly harassing or embarrassing
(7) call for a narrative answer
(8) assume facts not in evidence

Question 21

What is required to ‘lay the foundation’ for a witness to read a record into evidence?

Answer 21

(1) insufficient recollection to testify fully and accurately (even after refreshing)
(2) personal knowledge of the facts in the record when made
(3) the record was made by witness, directly or indirectly
(4) record was made when the matter was fresh in their mind
(5) witness vouches for the accuracy of the record

Question 22

List the situations in which the opinion of a lay witness is admissible

Answer 22

(1) general appearance or condition of a person
(2) a person’s emotional state
(3) matters involving sense recognition
(4) Voice or handwriting identification
(5) the speed of a moving object
(6) Value of the witness’s own services or property
(7) rational or irrational nature of another’s conduct
(8) whether someone was drunk

Question 23

What must be established to allow opinion testimony by an expert witness?

Answer 23

(1) The matter in question would be assisted by specialized knowledge
(2) opinion is based on sufficient facts or data
(3) the opinion is the product of reliable principals and methods
(4) the opinion reflects a reliable application of the principles and methods to the facts of the case

Question 24

What must a witness possess in order to be considered an expert?

Answer 24

(1) possess special knowledge, skill, experience, and training

• OR -

(2) education

Question 25

What are the proper factual bases on which an expert may support their opinion?

Answer 25

(1) facts based on their own personal observation (2) Facts made known to the expert at trial (3) Facts not known personally but reasonably relied upon by other experts in the field.

Question 26

List the 4 *Daubert* factors curts use to determine the reliability of expert testimony

Answer 26

T.R.A.P. (T)esting of principle or methodology (R)ate of error (A)cceptance by experts in the same discipline (P)eer review and publication

Question 27

What is required for a document to be considered a 'learned treatise' for the sake of being used during expert testimony?

Answer 27

(1) must be established as a reliable authority by the testimony of the expert on the stand, by another expert, or judicial notice (2) must be used in the context of expert testimony (3) must be read into evidence, but cannot be submitted as an exhibit

Question 28

Upon a party's request, a trial judge must order witnesses excluded from the courtroom, EXCEPT

Answer 28

(1) either party, if they are a natural person (2) one designated officer/employee of a party that is not a natural person (3) anyone whose presence is essential to the presentation of a party's claim or defense (4) anyone statutorily authorized to be present

Question 29

What must be established before extrinsic evidence may be used to prove a prior inconsistent statement? What are the exceptions to this rule?

Answer 29

(1) witness must be given the opportunity to explain or deny the statement (2) the adverse party must be given an opportunity to examine the witness about the statment UNLESS (3) the prior inconsistent statement was made by the opposing party (4) the statement was made by a hearsay declarant (5) where justice requires (witness unavailable when inconsistent statement is discovered)

Question 30

Under which circumstance is hearsay by a testifying witness not considered hearsay

Answer 30

(1) prior statement is one of identification (2) an inconsistent sworn statement from a prior proceeding (3) a prior consistent statement offered to rebut a charge of dishonesty or hyperbole due to motive, and the statement was made before the motive arose, or rehabilitate against a claim of faulty memory

Question 31

What are the valid grounds under which a witness will be considered 'unavailable'

Answer 31

(1) Death or physical/mental illness (2) privilege (3) refusal to testify despite a court order (4) lack of memory (5) absent and the proponent is unable to procure their attendance or testimony through reasonable means.

Question 32

What must be established for former testimony to be admissible in lieu of live testimony

Answer 32

(1) a sworn statement that was made at the present or a previous legal action (2) the party against whom it is now being offered (or in civil a predecessor in interest) had an opportunity and similar motive to direct, cross, or redirect examine the declarant

Question 33

Even if hearsay falls within an exception, it will be excluded for violation of the Confrontation clause of the Constitution where:

Answer 33

(1) when offered against a criminal defendant (2) the declarant is unavailable (3) the statement was testimonial in nature (4) the accused has no opportunity to cross-examine the declarant's statement prior to trial

Question 34

What types of statements or articles are "testimonial" in nature

Answer 34

- Sworn Testimony - Statements to Law Enforcement - Affidavits or written reports of forensic analysis

Question 35

When is a declarant's unavailability to testify relevant to the admission of hearsay (when do we let it in anyway)?

Answer 35

(i) The former testimony of the declarant (ii) a statement against interest, (iii) a dying declaration, (iv) a statement of personal or family history, or; (v) a statement offered against a party procuring the declarant's unavailability.

Question 36

State the Automobile Exception to the warrant requirement:

Answer 36

Law Enforcement may search a vehicle without a warrant pursuant to an arrest, if: (i) the arrestee is unsecured and still may gain access to the interior of the automobile, or (ii) the police reasonably believe that the automobile contains evidence of the crime for which the occupant was arrested.