Evidence - Wrongs

Question 1

Is unfair surprise a valid reason for refusing to admit testimony by a witness?

Answer 1

(1) Not under the Federal Rules

(2) Some states have this rule

Question 2

What is the effect of judicial notice to a fact?

Answer 2

(1) Civil cases: judicial notice of a fact conclusively establishes the fact, binding the jury.
(2) Criminal cases: judicial notice of a fact permits the jury to find the facts, but does not require them to do so.

Question 3

If there is an objection while a witness is describing the content of the writing, how should the court rule?

Answer 3

Testimony is admissible if the writing cannot be found after a reasonable search. The Best Evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents.

Question 4

Are jurors from prior related cases permitted as competent witnesses?

Answer 4

Yes, except:

(1) not before the jury on which they are sitting, and
(2) not in post-verdict proceedings as to certain matters occurring during jury deliberations

Question 5

What is a trick to distinguish between an excited utterance exception situation and a dying declaration type situation?

Answer 5

For dying declaration to be admissible, the declarant must be unavailable.

Question 6

Is a party permitted to introduce its own consistent out-of-court statements?

Answer 6

Yes, so long as that statement is relevant and is not inadmissible hearsay.

Question 7

Which hearsay exceptions require that the declarant be unavailable?

Answer 7

(1) Former testimony
(2) Dying declaration
(3) Statement against interest
(4) Statement against a party that wrongfully caused declarant’s unavailability (duh)

Question 8

What is the rule regarding additional parts of statements for the sake of fairness?

Answer 8

When a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the time.

Question 9

For a document to be admissibly authenticated, what must it be supported by?

Answer 9

Proof sufficient to support a jury finding of genuineness.

Question 10

Agent’s statement of wrongdoing is being used against principal. Is this a statement against interest, or a statement attributable to a party-opponent (party admission)?

Answer 10

Party admission via an agent-principle relationship.

Statements against interest are admissible ONLY if the declarant is unavailable.

Question 11

If a witness’s testimony is unresponsive to any question asked, is the statement subject to a motion to strike?

Answer 11

Yes by examining counsel, but not by opposing counsel. Examining counsel may also adopt an unresponsive answer if it is not objectionable on some other ground.

Question 12

Is a record of a misdemeanor conviction ever admissible?

Answer 12

No, it is hearsay not admissible under any exception.

Question 13

If there is a valid exception to allow in hearsay, may prior inconsistent statements by the hearsay declarant be admitted?

Answer 13

For impeachment, yes. The credibility of a hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony

Question 14

What is the former testimony exception to hearsay?

Answer 14

The testimony of a now unavailable witness given under oath at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to cross-examine at the prior hearing was meaningful.

For civil proceedings, parties do not need to be identical, but the party in the original action must be a predecessor in interest to the party against whom the testimony is being offered, so that a similar motive existed to develop or cross-examine the declarant’s testimony.

Question 15

What are the requirements for a courtroom interpreter?

Answer 15

(1) Education/Experience (like EW)

(2) Oath or affirmation that she will make a true translation.

Question 16

What are the requirements for the business records exception to be applicable to a hearsay statement?

Answer 16

Record:

(1) was made in the course of a regularly conducted business activity, and
(2) it was customary to make the type of entry involved (i.e. the entrant must have had a duty to make the entry)

Question 17

What foundation is required for a writing to be read into evidence under the past recollection recorded exception?

Answer 17

(1) witness had personal knowledge of the facts in the writing
(2) the writing was made by the witness, under her direction, or adopted by her
(3) the writing was timely made when the matter was fresh in her mind
(4) the writing is accurate (witness must vouch), and
(5) witness has insufficient recollection to testify fully and accurately

Question 18

May a party introduce the past recollection records of its own witness as an exhibit?

Answer 18

No, but the adverse party may do so.

Question 19

Are offers to compromise admissible?

Answer 19

No, not to prove or disprove the validity or amount of a disputed claim.

Question 20

What are the procedures for determining whether a piece of evidence falls within a hearsay exception? (ex: is this a valid business record?)

Answer 20

(1) It is the judge’s decision
(2) Both sides must be given an opportunity to present evidence with regard to the fact to be determined.
(3) Judge’s discretion determines whether this is in front of jury or not

Question 21

What are the requirements for a party to impeach a witness during cross-examination by asking about misconduct that is probative of truthfulness?

Answer 21

(1) Good faith, and

(2) some reasonable basis for believing that the witness may have committed the bad act inquired about

Question 22

How does the Erie doctrine apply to state laws that have presumptions regarding a fact?

Answer 22

In a civil case, the effect of a presumption regarding a fact is that an element of a claim as to which state law supplies the rule of decision is determined in accordance with state law.

With respect to presumptions, the Feder Rule, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense.

Question 23

How is the physician-patient privilege doctrine applied to cases in federal court under federal question jurisdiction?

Answer 23

Does not apply.

State law does not supply the rule of privilege in federal question cases, thus the privilege does not apply and physician testimony will be admissible.

Question 24

Is the grand jury testimony transcript of a witness who is not testifying in the current trial admissible?

Answer 24

No. This is hearsay and there is no applicable exception.

Question 25

Is a prior conviction record for a felony for the same set of facts (example, arson) admissible to prove that the defendant set the fire, in a subsequent civil case (π’s stuff got burned in fire)?

Answer 25

Yes. This is hearsay, but falls within the exception for records of felony convictions.

Question 26

Is a party admission via the party’s agent (an employee) inadmissible hearsay?

Answer 26

Not if the statement of the employee was made within the scope of his employment and during the agency relationship. Party admissions are not hearsay.

Question 27

Is an expert witness’s qualification a matter that is up to the jury?

Answer 27

No, it is a preliminary matter to be determined by a judge. The judge may consider any relevant evidence to make this determination.

Question 28

How may a learned treatise be used following testimony from an expert witness?

Answer 28

May be used:

(1) to impeach the expert witness’s credibility, or/and
(2) as substantive evidence, if the treatise contents are called to the expert’s attention and he establishes it as a reliable source

Question 29

What are the methods of establishing that a treatise or publication is a reliable source?

Answer 29

(1) direct testimony or cross-examination of the expert,
(2) testimony of another expert, or
(3) by judicial notice

Question 30

Are polygraph test results admissible as evidence?

Answer 30

No, scientific reliability of polygraph evidence is substantially outweighed by its confusing effect on the jury.

Question 31

In a criminal case, what is the effect of the judge declaring to have taken judicial notice of a fact?

Answer 31

The jury may, but is not required to, accept the noticed fact as conclusively proven.

Question 32

What is the hearsay rule regarding personal or family history contained in certain particular writings?

Answer 32

Statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc. are admissible (regardless of whether the declarant is available).

Question 33

What is the rule regarding putting voluminous document information into a chart?

Answer 33

The contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.

Question 34

Does the spousal communications privilege depend on whether one of the spouses is a party/defendant in the case?

Answer 34

No.

Question 35

Does an expert witness need to disclose to the jury the facts on which he relied in forming his opinion?

Answer 35

No.

Question 36

What are the rules regarding legally operative facts and hearsay?

Answer 36

Evidence of legally operative facts via out of court statements is not hearsay.

These are utterances to which legal significance is attached, such as words of contract, bribery, or cancellation.

Question 37

Can a witness’s religious beliefs or opinions be used to assess her credibility?

Answer 37

No.

Question 38

How may a specific act of misconduct be introduced to attack the credibility of a witness?

Answer 38

The witness must be cross-examined about the specific act. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.