Evidence for the Bar

Question 1

TRUE OR FALSE:

General propensity evidence is admissible to prove conduct in conformity with that propensity.

Answer 1

FALSE

General propensity evidence is NOT admissible to prove conduct in conformity with that propensity.

Question 2

While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:

1. ___________
2. ___________

Answer 2

While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:

1. Frequency
2. Particularity (Specific set of circumstances)

Question 3

Is the below admissible as Habit, or inadmissible as General Propensity?

“X is a very careful person.”

Answer 3

Inadmissible as General Propensity, because the statement is not particular enough or related to specific circumstances.

Question 4

Is the below admissible as Habit, or inadmissible as General Propensity?

“X always wears her seatbelt when she drives.”

Answer 4

Admissible as Habit, because contains frequency (“always”) and specificity (“wears her seatbelt when she drives”).

Question 5

Remedial Measures are generally excluded, but are admissible under what exceptions?

1. ____________
2. ____________
3. _____________
4. _____________

Answer 5

Exceptions

1. Feasibility
2. Destruction of Evidence
3. Impeachment
4. Control

Question 6

Are Remedial Measures taken PRIOR to the accident admissible or inadmissible?

Answer 6

Admissible.

Remedial Measures taken PRIOR to the accident are not excluded under FRE 407.

Question 7

In a disputed claim, evidence of admissions of fault are ___________ (admissible or inadmissible) to impeach a witness with a prior inconsistent statement.

Answer 7

In a disputed claim, evidence of admissions of fault are Inadmissible to impeach a witness with a prior inconsistent statement.

Question 8

In a non-disputed claim, evidence of offers to settle are ___________ (admissible or inadmissible) to prove fault or damages.

Answer 8

In a non-disputed claim, evidence of offers to settle are Admissible to prove fault or damages.

Question 9

If a defendant pleads guilty in a criminal case, the plea is ___________ (admissible or inadmissible) as an admission in a subsequent civil case.

Answer 9

If a defendant pleads guilty in a criminal case, the plea is Admissible as an admission in a subsequent civil case.

Question 10

If a defendant pleads nolo contendere in a criminal case, the plea is ___________ (admissible or inadmissible) in a subsequent civil case.

Answer 10

If a defendant pleads nolo contendere in a criminal case, the plea is Inadmissible in a subsequent civil case.

Question 11

As a general rule, offers to pay medical expenses are___________ (admissible or inadmissible).

Answer 11

As a general rule, offers to pay medical expenses are inadmissible.

Question 12

If a party makes an admission of fault during an offer to pay medical expenses, that admission will be ___________ (admissible or inadmissible).

Answer 12

If a party makes an admission of fault during an offer to pay medical expenses, that admission will be Admissible.

Question 13

HYPO

D crashes into P’s car. D tells P, “That was my fault. I’ll pay your medical bills.”

Is D’s admission of fault admissible in trial?

Answer 13

Yes,

D’s admission of fault is admissible as an opposing-party statement, and is not protected.

However, D’s offer to pay P’s medical bills is not admissible.

Question 14

D is charged with homicide. In D’s defense case, D calls W to testify.

W testifies “I have seen D turn the other cheek when a bar patron slapped D in the face.”

Is W’s statement admissible?

Answer 14

No, W’s statement is inadmisslbe as Specific Acts. Specific Acts are not admissible as character evidence, even by the Defendant.

The Defendant may present either Reputation or Opinion evidence, but not Specific Acts.

Question 15

D is charged with homicide. In D’s defense case, D calls W to testify.

W testifies “I have known D for many years, and in my opinion, D is a very peaceful and soft-hearted person.”

Is W’s statement admissible?

Answer 15

Yes, W’s statement is admissible as Opinion evidence.

A Defendant may introduce evidence of his own pertinent character traits through Opinion or Reputation evidence.

Question 16

A criminal defendant may introduce character evidence of the defendant’s own ___________ character trait.

Answer 16

A criminal defendant may introduce character evidence of the defendant’s own PERTINENT character trait.

Question 17

In a criminal defendant’s defense case, the defendant may call witnesses to introduce evidence of the defendant’s character.

What methods of proving character may the defendant bring?

Answer 17

The defendant may present Opinion evidence or Reputation evidence, but not evidence of Specific Acts.

Question 18

The prosecution may rebut a criminal defendant’s character evidence in two ways:

1. ______________
2. _____________

Answer 18

The prosecution may rebut a criminal defendant’s character evidence in two ways:

1. Call its own witnesses to testify about the defendant’s pertinent bad character
2. Cross-examining Defendant’s character witnesses

Question 19

In her defense case, a criminal defendant calls a witness to testify as to the defendant’s character.

On cross-examination, the prosecution asks the defense witness about numerous bad acts by the defendant. The witness denies knowledge.

May the prosecution introduce extrinsic evidence regarding the criminal defendant, in order to impeach the witness?

Answer 19

No, all extrinsic evidence is inadmissible on cross-examination of the character witness. The prosecutor must accept the witness’s answer.

Question 20

In a Civil Case, evidence of a person’s character is Admissible when such character is an Essential Element.

This includes:

• Defamation
• Negligent Hiring
• Child Custody

What kinds of evidence may be presented, regarding a party’s character evidence in a civil case per the above?

A. Only Reputation evidence
B. Only Opinion evidence
C. Reputation and Opinion
D. Reputation, Opinion, and Specific Acts

Answer 20

In a civil case where a person’s character is an essential element, all kinds of evidence are admissible, so the answer is:

D. Reputation, Opinion, and Specific Acts

Question 21

The Best Evidence Rule (aka Original Writings Rule) requires that a party either:

1. _____________; or
2. _____________

Answer 21

The Best Evidence Rule (aka Original Writings Rule) requires that a party either:

1. Produce the original document; or
2. Account for the Absence of the original

Question 22

A Past Recorded Recollection must meet 5 requirements:

1. Witness once had _______ ______ of the facts in the writing.
2. Witness now ______ ________ …..
3. The writing was either _______ or _________ by the witness.
4. The writing was _____________ or ________ when ________…
5. Witness can ___________ __ ______ of writing.

Answer 22

A Past Recorded Recollection must meet 5 requirements:

1. Witness once had personal knowledge of the facts in the writing.
2. Witness now cannot recall well enough to testify fully and accurately.
3. Writing was either made by witness/adopted by witness.
4. The writing was made or adopted when the event was fresh in the witness’s memory.
5. Witness can vouch for the accuracy of the writing (when it was made or adopted).

Question 23

When impeaching a witness on the basis of Witness’s sensory defects, may extrinsic evidence be permitted?

Answer 23

Yes, extrinsic evidence is permitted in impeaching a Witness for sensory defect.

Question 24

When impeaching a witness on the basis of Criminal Convictions, which of the below does a Court have discretion* to admit or deny?

A. Felony Embezzlement from 8 years prior
B. Misdemeanor Perjury from 6 years prior
C. Felony Battery from 2 years ago
D. B & C.
E. None of the above
F. All of the above

*Discretion: weighs via balancing test: prejudicial vs. probative

Answer 24

C. Felony Battery from 2 years ago

A Court has discretion to admit or deny felony convictions that do not involve dishonesty.

Question 25

When impeaching a witness on the basis of Criminal Convictions, would the below conviction be admissible or inadmissible?

Misdemeanor Theft, convicted 6 months ago, released 2 months ago

Answer 25

Inadmissible.

Convictions not related to dishonesty or false statements must be a felony to be admissible.

Question 26

When impeaching a witness on the basis of Criminal Convictions, would the below conviction be admissible or inadmissible?

Felony Fraud, convicted 12 years ago, released from prison 9 years ago

Answer 26

Admissible.

The general rule for admissibility is that it must be within 10 years, from either conviction or release from prison, whichever is later.

Question 27

TRUE OR FALSE:

Extrinsic Evidence is generally not permitted in Impeachment for Prior Bad Acts; but is permitted if a witness denies the Prior Bad Act.

Answer 27

False.

Extrinsic Evidence is generally not permitted in Impeachment for Prior Bad Acts.

Extrinsic Evidence is still not permitted if the witness denies the bad act. The Examiner is required to accept the Witness’s answer.

Question 28

What is the difference between criminal and civil trials, when a Court takes judicial notice of a fact?

Answer 28

• In a Civil case, when a judge takes judicial notice of a fact, that fact becomes conclusive (binding) on the jury.
• In a Criminal case, the prosecutor’s burden of producing evidence on that fact is satisfied.
  ex: Judge takes judicial notice that to transport drugs from NY to Tampa involves crossing state lines. Prosecutor does not need to present evidence on that point.

Question 29

In what instances may a prosecutor in a criminal case present evidence of a defendant’s prior crimes?

Answer 29

To present proof of one of the ‘MIMIC’ issues

Motive
Intent
Mistake, absence thereof
Identity (aka Modus Operandi)
Common Plan or Scheme

Question 30

What are the 5 standard methods of impeachment?

Answer 30

1. Prior Inconsistent Statement
2. Bias
3. Prior Convictions
4. Prior (Specific) Bad Acts
5. Reputation or Opinion

Question 31

During Impeachment proceedings, when may a testifying witness’s Prior Inconsistent Statement be presented for the truth of the matter asserted?

Answer 31

A witness’s Prior Inconsistent Statement may be offered as substantive truth/proof of the matter asserted ONLY when that Prior Statement was originally given under oath as part of a legal proceeding.

Question 32

A prosecutor seeks to impeach a testifying defense witness on the basis of that witness’s bias.

May the prosecutor present Extrinsic Evidence as to the witness’s bias?

Answer 32

Yes, extrinsic evidence may be presented when impeaching a witness for bias.

Question 33

A prosecutor seeks to impeach a testifying defense witness on the basis of prior specific bad acts by that witness.

May the prosecutor present Extrinsic Evidence as to the prior specific bad acts by that witness?

Answer 33

No, no extrinsic evidence may be presented when impeaching a witness for specific bad acts.

Even if the witness denies the specific bad acts on the stand, the prosecutor is still barred from presenting any extrinsic evidence.

Question 34

In an impeachment proceeding of a testifying criminal defendant, the prosecutor seeks to impeach via Prior Conviction.

Which of the below does a judge have discretion as to admit?

1. Prior misdemeanor conviction involving dishonesty (misdemeanor perjury)
2. Prior felony conviction NOT involving dishonesty (i.e., felony armed robbery)
3. Prior misdemeanor conviction NOT involving dishonesty (i.e., misdemeanor resisting arrest)

Answer 34

1. Judges do NOT have discretion as to convictions involving dishonesty, regardless of whether the conviction is a misdemeanor or a felony. So long as the conviction is related to honesty/dishonesty, the conviction must be admissible.
2. Judges DO have discretion to include or exclude felonies that do not involve honesty or dishonesty. A judge must weigh the probative value vs. the prejudicial effect of the prior conviction.
3. Judges do NOT have discretion regarding misdemeanor convictions that do not involving dishonesty. Misdemeanor convictions not involving dishonesty are not admissible to impeach.

Note: the balancing test if the witness is the criminal defendant is weighed more heavily toward exclusion.

Question 35

If a witness makes a Prior Identification of a suspect out of court, evidence of that prior identification is admissible for the truth of the matter asserted, if ___________.

Answer 35

If that witness is available for cross examination.

If a witness is available for cross examination, then a prior identification of a suspect, made by that witness, is admissible for the truth of the matter asserted.

Question 36

What are the requirements for an out of court statement to be admissible as a Dying Declaration in court?

Answer 36

1. Speaker must have believed that her death was imminent
2. The statement was concerning the cause/circumstances of the speaker’s death
3. The speaker is unavailable to testify
4. The case is a civil case, or a criminal case for homicide

Question 37

What are the requirements for an out of court statement to be admissible as an Excited Utterance in court?

Answer 37

1. The statement must relate to a startling event

2. The statement must be made while the declarant was under the stress/excitement caused by that event

Question 38

Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.

A. Slightly Outweighs
B. Substantially Outweighs
C. Is equal to

Answer 38

B. Substantially Outweighs

Under Federal Rule 404(b), prior misconduct evidence is inadmissible if the danger of unfair prejudice substantially outweighs the probative value. The other statements of the standard are incorrect.

Question 39

The “recorded recollection” exception to the hearsay rule allows the offering party to:

__________________________________

Answer 39

Introduce a writing into evidence by reading it aloud.

Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence by reading it aloud to the jury.

Question 40

A defense lawyer is cross-examining a witness for the plaintiff, and the defense lawyer seeks to admit extrinsic evidence of the witness’s prior bad acts.

In what instances will the Court find that Extrinsic Evidence of the witness’s Prior Bad Acts is admissible?

Answer 40

If the evidence goes to witness’s bias.

If the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible when impeaching a witness on cross-examination.

Question 41

Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:

A) Hearsay, and not admissible
B) Nonhearsay
C) Hearsay, but nonetheless admissible as an exception to the hearsay rule
D) Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement

Answer 41

B
Nonhearsay

Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an “admission by a party-opponent”) is not hearsay at all under the Federal Rules

Question 42

For silence to be an admission the following requirements must be met:

1. _____________
2. _____________
3. _____________

Answer 42

For silence to be an admission the following requirements must be met:

(i) the party must have heard and understood the statement;
(ii) the party must have been physically and mentally capable of denying the statement; and
(iii) a reasonable person would have denied the accusation under the same circumstances.

Question 43

Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:
response - correct

A
Partner; co-conspirator; co-party; principal-agent

B
Authorized spokesperson; partner; co-conspirator; principal-agent

C
Authorized spokesperson; partner; co-conspirator; co-party

D
Co-conspirator; co-party; principal-agent; authorized spokesperson

Answer 43

B

Authorized spokesperson; partner; co-conspirator; principal-agent

Question 44

Generally, evidence is Relevant if it ___________________________________.

Answer 44

Generally, evidence is Relevant if it tends to prove a material fact.

Question 45

A trial judge has broad discretion to exclude relevant evidence if _____________________ by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, etc.

Answer 45

“its probative value is substantially outweighed”

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, etc.

Question 46

When a defendant takes the stand to testify, the defendant puts her __________ at issue.

Therefore, the prosecutor may impeach the defendant based on issues of her ______. (same as above)

Answer 46

When a defendant takes the stand to testify, the defendant puts her credibility at issue.

The prosecutor’s impeachment is limited to the defendant’s credibility, therefore, and the prosecutor may not impeach the defendant generally.

Question 47

Handwriting may be authenticated by an expert who ___________________, or by a non-expert, who _________________.

Answer 47

Handwriting may be authenticated by an expert who has Compared the Writing to Samples of the maker’s handwriting, or by a non-expert, who has Personal Knowledge of the alleged writer’s handwriting.

Question 48

A witness may use any writing or thing for the purpose of Refreshing her Present Recollection.

However, she may not _____ while she testifies.

Answer 48

A witness may use any writing or thing for the purpose of Refreshing her Present Recollection.

However, she may not read from the writing while she testifies.

Question 49

Whenever a witness uses a writing to refresh her memory while on the stand, the adverse party is entitled to:

1. ____________
2. ___________
3. ___________

Answer 49

Whenever a witness uses a writing to refresh her memory while on the stand, the adverse party is entitled to:

1. Have the writing produced at trial
2. Cross-examine the witness thereon
3. Introduce portions relating to the witness’s testimony

Question 50

If a witness cannot recall an event even after attempting to refresh her recollection, the writing itself may be read into evidence if a proper foundation is laid.

However, the writing itself cannot be admitted into evidence unless ___________________.

Answer 50

However, the writing itself cannot be admitted into evidence unless it is offered by an adverse party.

Question 51

Which of the following statements is TRUE regarding the impeachment of a hearsay declarant who is not available to testify at trial?

A An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

B An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement.

C An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

Answer 51

C An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply.

Question 52

In federal courts, spousal immunity __________.

A) May be invoked in both civil and criminal cases

B) Is not terminated upon divorce

C) Can be asserted as to matters that took place before the marriage

D) Can be invoked by both the witness-spouse and the party-spouse

Answer 52

C) Can be asserted as to matters that took place before the marriage

The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.

Question 53

Spousal immunity may be invoked in ___________.

A. Criminal cases only
B. Civil cases only
C. Criminal or Civil cases

Answer 53

A. Criminal cases only

When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.

Spousal immunity may be invoked in criminal cases only.

Question 54

A husband is called to disclose confidential communications between himself and his wife in a criminal trial against the wife.

Which spouse may assert the privilege for confidential marital communications?

A. Only the husband, called as witness
B. Only the wife, as the criminal defendant
C. Either the husband or the wife

Answer 54

Either spouse may prevent anyone from disclosing confidential marital communications.

Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication.

Question 55

A defendant facing criminal charges at trial. Prior to trial, and in reliance of the intimacy of their marital relationship, the defendant made an inculpatory statement to his wife.

After the statement, but before trial began, the wife and defendant divorced.

The prosecution calls the wife to testify as to the defendant’s inculpatory statements to her, during the wife and defendant’s marriage.

May the defendant object and bar the wife from testifying under the privilege of confidential marital communications?

Answer 55

Yes.

At the time that the defendant made the subject statement to his wife, they were married.

The defendant has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married.

Divorce does not terminate the privilege of confidential marital communications retroactively.

Question 56

What is Spousal Immunity?

Answer 56

In federal court, in a criminal case, a spouse cannot be forced to testify against the other spouse.

But, the spouse may testify if they wish. They just may not be forced to testify.

When the spouse learned of the information is irrelevant.

Question 57

What is the Spousal Communications Privilege?

Answer 57

In federal court, civil or criminal, a spouse may either refuse to disclose or prevent the other spouse from disclosing any confidential communications between the spouses during their marriage.

Question 58

How is a ‘Statement by party-opponent’ classified?

A. Inadmissible Hearsay
B. Admissible Hearsay
C. Admissible Non-hearsay

Answer 58

C. Admissible Non-hearsay

A statement by a party opponent is not considered to be hearsay when offered against that party, per the Federal Rules of Evidence.

Question 59

How does the Best Evidence rule apply to the below?

Witness is handed a document to refresh Witness’s recollection. Witness reads the document. Witness returns document to Counsel. Counsel asks Witness question related to information on document.

Answer 59

The Best Evidence rule does not apply.

The Best Evidence rule would only apply if the contents of the document were being entered into evidence.

Here, the Witness’s testimony is being entered evidence, as the Witness’s now-refreshed recollection. The contents of the document are not being entered into evidence. Just Witness’s memory, after Witness viewed the documents.

Thus, the Best Evidence rule does not apply here.

Question 60

What is the Hillmon Exception to Hearsay?

Answer 60

An intention or plan to do something or go somewhere may be admitted as circumstantial evidence that the declarant carried out their intention.

The statement is considered a present state of mind.

As such, the statement is considered Admissible Hearsay.

Question 61

What is required in order for a defendant’s silence to be treated as an adoptive admission of the other person’s statement?

Answer 61

The circumstances must establish that the defendant would naturally have responded to the statement if the statement were not true.

Question 62

May the jury bring a “Learned Treatise” into the jury room in order to read and evaluate it?

Answer 62

The learned treatise exception provides that if the court finds a publication to be a reliable authority, then “statements” may be read into evidence, but that the publication may not be received as an exhibit.

Thus, the jury is not allowed to bring learned treatises into the jury room.

Question 63

What is a “Statement for Purpose of Medical Diagnosis or Treatment” and when is it admissible?

Answer 63

This rule allows not only statements made to treating physicians, but also statements made to other doctors for evaluation or diagnosis.

Question 64

What is a Prior Recollection Recorded and when is it admissible?

Answer 64

The witness once had knowledge but now has insufficient recollection to testify fully and accurately about her investigation.

The Witness made the recording when the matter was fresh in her memory, and Witness has testified that the recording was an accurate reflection of her memory.

Question 65

What is the result if a party destroys evidence?

Answer 65

If a party destroys evidence, it is proper for the jury to draw an inference that the evidence was adverse to that party.

Question 66

May a party assert the Fifth Amendment privilege in a civil case?

Answer 66

Yes, but it is proper for the jury to draw an adverse inference in a civil case from a party’s assertion of the privilege against self-incrimination.

Question 67

In preparation for a personal injury suit, Plaintiff consulted and retained five physicians in search of one who would serve as an expert witness on Plaintiff’s behalf at trial.

Four of the physicians determined that the Plaintiff had suffered no injury. Obviously, the Plaintiff does not intend to use those four physicians as witnesses at trial.

May the Defendant obtain in discovery the opinions of the four physicians whom the passenger does not intend to have testify at trial?

Answer 67

Generally, no.

The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

Question 68

What role may expert witnesses have in establishing the mental state of a criminal defendant, regarding the intent element of a crime?

Answer 68

Under the FRE, in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

Those elements are for the trier of fact alone.