Practice Set 4

Question 1

What is a collateral matter and what is the legal significance?

Answer 1

Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral matter - the questioning party is bound by the witness’s answer

Question 2

What is a limitation on the prior testimony even if given at a trial, hearing or lawful deposition?

Answer 2

When the party who had the opportunity and incentive to develop the testimony is not the same party (or successor) against whom the prior testimony is used

Question 3

When can victim’s sexual conduct be admissible in a civil proceeding?

Answer 3

When the court determines in camera that the probative value of the evidence substantially outweighs the (1) danger of harm to the victim and (2) unfair prejudice to any party

Question 4

What can a court do if it erroneously admits inadmissible evidence?

Answer 4

The court can allow additional inadmissible evidence to rebut the previously admitted evidence

Question 5

What type of evidence can be used to impeach a hearsay declarant if hearsay is properly admitted?

Answer 5

Any evidence that would be admissible if the declarant had testified as a witness - no need to give declarant opportunity to explain or deny such evidence

Question 6

When is a statement made by an opposing party’s agent admissible as though it was an opposing party statement?

Answer 6

When it was made (1) concerning a matter within the scope of and (2) during the course of the relationship

Question 7

When is a statement (but not entire treatise) contained in a treatise, periodical, or pamphlet not excluded as hearsay?

Answer 7

1. An expert witness relied on the statement during direct examination, OR
2. It was called to the expert’s attention on cross-examination; AND
3. The publication is established as a reliable authority

Question 8

What is the role of the jury with respect to the Best Evidence Rule?

Answer 8

The jury determines whether the document ever existed and, if so, whether other evidence as to the content of that document reflects that content

Question 9

When does inadvertent disclosure of privileged information not constitute waiver of privilege?

Answer 9

1. Took reasonable steps to prevent disclosure; and

2. Promptly took reasonable steps to rectify the error

Question 10

When can a statement in a treatise be admitted despite not having been relied on by an expert in their testimony?

Answer 10

1. Established as reliable authority by testimony of another expert, AND
2. Statement is called to expert’s attention on cross exam