Notes from Practice Questions Flashcards
(5 cards)
6 common examples of preliminary questions:
(1) Expert Testimony: Expert’s qualifications
(2) Lay witness testimony: Competency
(3) Physical Evidence: Chain of custody; legality of search/seizure
(4) Existence of Privilege: Foundational facts for application of privilege
(5) Out-of-court statement: Foundational facts for hearsay exclusion or exception
(6) Criminal Defendant’s Confession: Miranda rights given; voluntariness of confession
A defendant was charged with aggravated assault arising from an altercation following a car accident. The defendant called a witness who testified that, in his opinion, the defendant was a nonviolent person. On cross-examination, the prosecutor asked the witness whether he was aware that the defendant had been involved in a bar fight during the past year. Although the defendant was actually involved in such a fight, the prosecutor herself was not aware of the incident, as the defendant had not been arrested or charged. However, the prosecutor had witnessed the defendant’s short temper during her interactions with the defendant and knew that he was a drinker. As it happened, the witness was aware of the defendant’s involvement in the fight.
Should the court require the witness to answer the prosecutor’s question?
No, because the prosecution did not know the defendant had been involved in a bar fight.
Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant’s past behavior goes to the witness’s credibility. But such questions must be asked by the prosecution in good faith. This means that questions based on a hunch will not suffice—even when the hunch proves accurate.
A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning about the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury.
Is this evidence admissible?
Yes, because the manufacturer began providing the warning before the boat owner’s accident.
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
A defendant is acquitted of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim’s family members object to the introduction of the judgment.
May the defendant introduce the copy of the final judgment from his criminal case?
No, because the judgment is inadmissible hearsay.
Hearsay is an out-of-court statement (here, the judgment of acquittal) offered to prove the truth of the matter asserted therein (that the defendant did not wrongfully kill the victim). Hearsay is inadmissible absent an exclusion or exception. One exception applies to judgments of conviction (see table above).
However, there is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof. Therefore, the defendant may not introduce the copy of the final judgment from his criminal case.
In a civil assault suit between a plaintiff and a defendant, a witness testified that the defendant had been with her on the night of the alleged assault, more than 200 miles away from where the assault was alleged to have occurred. To challenge the witness’s credibility, the plaintiff’s attorney sought to present evidence of the witness’s juvenile conviction for voluntary manslaughter five years ago. The defendant objected to the admission of this evidence.
Should the judge admit the evidence?
No.
Under Federal Rule of Evidence 609, evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness (Choice D). The policy underlying this rule is that juvenile adjudications lack the precision and general probative value of criminal convictions. This is generally attributed to the informality of juvenile proceedings, the diminished amount of proof required for juvenile adjudications, and other departures from accepted standards for criminal trials.
