Mixed Evidence

Question 1

When are leading questions appropriate?

Answer 1

1. On cross examination
2. Hostile or adverse witnesses
3. Questioning children
4. Refreshing a witness
5. Preliminary background matters

Question 2

When is character evidence admissible in a civil case?

Answer 2

Reputation, opinion, and specific acts evidence are admissible for:

1. Defamation: character of the plaintiff
2. Child Custody: character of the parents
3. Negligent Entrustment: character of the entrustee
4. Negligent Hiring: character of the employee

Question 3

What forms of character evidence come in a civil case?

Answer 3

All three forms are admissible:

1. Reputation evidence
2. Opinion evidence

And

3. Specific acts evidence

Question 4

What is the scope of medical personnel that are covered by the physician-patient privilege?

Answer 4

Privilege only applies to a doctor or personnel that are under the instruction of a doctor.

Question 5

When does the best evidence rule apply?

Answer 5

1. When testimony is reliant on the writing and not on personal knowledge

or

2. When the writing has independent significance
   * More Info:* Best Evidence Rule

Question 6

When can suppressed evidence be used at trial?

Answer 6

To impeach the defendant

Question 7

When is the confrontation clause triggered?

Answer 7

1. Criminal case
2. Declarant is unavailable

And

3. Testimonial evidence is being given. Evidence will only be admissible if the defendant is given an opportunity to cross-examine the declarant.

Question 8

Differentiate:

Testimonial v. Non-testimonial evidence

Answer 8

Non-testimonial: declarant’s primary purpose was to obtain police assistance to meet an ongoing emergency

Testimonial: the declarant’s primary purpose is to establish or prove past events potentially relevant to later criminal prosecution

Question 9

Which privilege is lost upon a divorce?

Answer 9

Spousal Privilege

Question 10

Who is the holder of the marital privilege?

Answer 10

Both spouses

Question 11

The Marital Privilege:

1. Protects who?
2. Ends when?
3. Asserted when?
4. Who is the holder?

Answer 11

1. Protects communications only during marriage
2. The privilege survives divorce
3. The privilege can be asserted in both civil and criminal trials
4. Both spouses hold the privilege.

Question 12

The Spousal Privilege:

1. Protects who?
2. Ends when?
3. Asserted when?
4. Who is the Holder?

Answer 12

1. Protects communications before and during marriage including impressions and observations
2. The privilege is lost at divorce
3. It can only be asserted in criminal cases
4. The witness-spouse is the holder of the privilege

Question 13

When does marital privilege not exist?

Answer 13

1. A suit between the married parties
2. When an intentional tort was committed by one on the other
3. When they are joint participants in a crime

Question 14

When are prior consistent statements allowed?

Answer 14

1. Declarant testifies at trial
2. The declarant is subject to cross examination

And

3. The statement was made before a desire to fabricate arose.
   * More Info:*Prior Consistent Statements

Question 15

When is the death penalty unconstitutional?

Answer 15

When the capital offense was committed before the defendant turned 18 years old.

Question 16

What standard is the appeal for an exclusion of a scientific expert testimony?

Answer 16

Abuse of discretion

Question 17

What can be objected to at depositions?

When can a lawyer instruct a client to refuse to answer a question at a deposition?

Answer 17

1. Objections can be made to anything objectionable at trial
2. A lawyer can instruct their client not to answer only if:
   a. The answer contains privileged information

Or

b. There is an order limiting the scope of the deposition.

Question 18

When can bad act impeachment occur?

Answer 18

Any witness may be questioned during cross-examination about unconnected acts bearing on untruthfulness.

Question 19

Which is a better form of evidence:

Hearsay exclusions v. Hearsay exceptions

Answer 19

Hearsay exclusions

Question 20

Can a lay witness testify that someone was intoxicated?

Answer 20

Yes, if they are familiar with people being intoxicated.

Question 21

What is the effect of a witness who refuses to take an oath or affirmation?

Answer 21

The witness may not testify. The witness is per se incompetent.

Question 22

Who’s statements are covered by doctor-patient privilege?

Answer 22

What a person tells their doctor.

≠ What the doctor says

Question 23

When a defendant is on trial for child molestation, what acts can be brought in?

Answer 23

Specific acts of prior child molestation if the party presenting the evidence gives notice to the other party.

Question 24

When can a police officer search a car after arresting someone?

Answer 24

1. When there is a threat to an officer’s safety

Or

2. To find offense related evidence
   * More Info:* Search Incident to Arrest

Question 25

What **rights** apply at **grand jury** proceedings?

Answer 25

Only privileges apply. All other Federal Rules of Evidence do no apply. *More Info:* [Grand Jury Proceedings - Rights](http://criminal.findlaw.com/criminal-procedure/how-does-a-grand-jury-work.html)

Question 26

At a **criminal** trial, when can a **witness** be **impeached** with specific **acts**?

Answer 26

1. Defendant must open the door to character And 2. Defendant can only be questioned on specific acts on cross examination

Question 27

When can **former** **testimony** be brought into a **trial**?

Answer 27

1. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition 2. The declarant is unavailable And 3. In the prior hearing, there was an opportunity and similar motive to develop the testimony

Question 28

When are **leading** questions **not** **allowed** in a **cross** examination?

Answer 28

When a party is called as an adverse witness by the opposition and their attorney is conducting the cross.

Question 29

What **precludes** **jurors** from being **stricken** on account of their **race** or gender?

Answer 29

The Equal Protection Clause

Question 30

What is a **Batson** challenge?

Answer 30

A challenge in jury selection that someone has to be stricken for race or gender.

Question 31

How many **peremptory challenges** are allowed in **f****ederal** court?

Answer 31

3 strikes

Question 32

When is the **judicial notice** of a fact **mandatory**?

Answer 32

If requested by a party and supplied with the necessary information.

Question 33

**Judicial notice** is **proper** for what **type** of facts?

Answer 33

Facts not subject to reasonable dispute. They must be: 1. Generally known within the jurisdiction And 2. Capable of accurate and ready determination by reliable sources

Question 34

**Jury** acceptance of **judicially** **noticed** **facts** in: **Criminal** Trial v. **Civil** Trial

Answer 34

Criminal: the jury may consider it Civil: the jury must accept the fact as true

Question 35

When does the **completeness** **doctrine** apply?

Answer 35

When Party 1 introduces part of a writing, Party 2 can introduce any other part of the writing which in fairness ought to be brought in. *More Info:* [Completeness Doctrine](https://www.law.cornell.edu/wex/doctrine_of_completeness)

Question 36

Differentiate: Modification v. Novation v. Accord and Satisfaction

Answer 36

Modification: same contract, different terms Novation: same contract, new party or obligation Accord and Satisfaction: new contract

Question 37

Differentiate: Offers to **settle** v. Offer to **pay medical** expenses

Answer 37

Offers to settle: prohibit all admissions made during the offer Offers to pay medical expenses: only the offer to pay medical expenses is excluded from evidence, it does not exclude any additional admissions.

Question 38

What **type** of **evidence** does a jury need to find a **breach** of a **professional duty**? What is the exception?

Answer 38

A jury needs to hear expert testimony unless the negligence is so grossly apparent that the layman would have no difficulty recognizing it.

Question 39

**Procedurally**, when does **merger** **apply** to crimes?

Answer 39

After conviction, at sentencing.

Question 40

When can **prior consistent statements** be used?

Answer 40

To rebut an express or implied charge against a witness of: 1. A recent fabrication 2. Improper influence Or 3. Improper motive * More Info:* [Prior Consistent Statements](http://federalevidence.com/node/1983)

Question 41

What **crimes** can be used to **impeach** a **witness**?

Answer 41

1. Felony or misdemeanors that involve dishonesty that have occurred in the last 10 years 2. A felony that does involve dishonesty that has occurred in the last 10 years and is more probative than prejudicial ≠ Misdemeanors that do not involve dishonesty

Question 42

What does **crimen falsi** mean?

Answer 42

Crimes that involve dishonesty

Question 43

Differentiate the rights of an opposing counsel in: 1. A refreshing recollection 2. A past recollection recorded

Answer 43

**Refreshing**: 1. Inspect the document 2. Cross-examine with the document 3. Introduce relevant portions into evidence only to _impeach_ **Past Recollection Recorded**: 1. Inspect the document 2. Cross-examine with the document 3. Introduce relevant portions into evidence as _substantive evidence_

Question 44

When a party requests information by **interrogatories** that requires **analyzing** **information**, what does the requested party have to **produce**?

Answer 44

The party receiving the request can specify which of its records contain the information and grant the requesting party access to the records for examination, copying, and analysis.

Question 45

How many **interrogatories** does each side have in **Federal Court**?

Answer 45

25