Relevance
When may a court exclude relevant evidence?
When its probative value is substantially outweighed by a danger of:
Does Rule 404 apply to criminal cases, civil cases, or both? Be specific on 404 (1) and 404(b)
404(a) only applies to criminal cases
404(b) applies to both criminal and civil cases – Most often cited rule in FRE – many mistakes are made in the application of this rule.
What are the four factors used to test the reliability of the witness?
Lay witness testimony in the form of an opinion is limited to what? Name 2 of 3.
If evidence is admitted for one purpose, may it be used for any and all purposes?
No. Evidence may be admitted for one purpose without being admissible for another purpose. (Doctrine of limited admissibility).
A home is robbed with no evidence of break-in. The homeowner testifies that she has locked her front door everyday without fail for the last 30 years, so she is certain she locked it on the day of the robbery.
The defendant objects, saying it is only relevant whether the homeowner locked her home on the day of the robbery.
Is the judge likely to sustain?
A. Yes, because this evidence is not relevant.
B. Yes, but because it is not corroborated by an eyewitness.
C. Yes, but because this is a propensity argument.
D. No, because this is allowable evidence of a habit.
D. No, because this is allowable evidence of a habit.
Describe the difference between non-extrinsic evidence and extrinsic evidence.
NON-extrinsic: testimony out of the mouth of the witness on the stand.
Extrinsic: NOT out of the witness's mouth.
May ASK about extrinsic, but may not present as real evidence.
Which hearsay exceptions require that the out-of-court declarant be unavailable to testify? Name 3 of 4.
The Dark Wizard touches Sleeping Beauty, putting her into a 100 year slumber. The moment she awakens, 100 years later, she yells "The Dark Wizard did it!"
Sleeping Beauty sues The Dark Wizard for battery, and offers her statement as an excited utterance. The Dark Wizard objects, claiming an excited utterance must be made at or near the time of the event. Will the objection be sustained?
NO. Although 100 years later, Sleeping Beauty is still under the stress or excitement of the event. 803(2) exception applies.
Note: 803(1) present sense impression requires the statement is made during or immediately following the event, so it would NOT apply.
What are the only two times the Best Evidence Rule should be considered?
1. The terms of a writing are being proven, OR
2. A witness is relying on a document for their testimony
For what charges is a person's character trait an essential element? (Name 3 of 5)
In a criminal case, the accused has "opened the door" to rebuttal character evidence.
What are the two forms this rebuttal evidence may take?
Defense objects on hearsay. Will the judge sustain?
A. Yes, because it is hearsay with no exception.
B. Yes, because Bozos did not testify and is not subject to cross-examination.
C. No, because the statement was made by the opposing party.
D. No, because it is not being used to prove the truth of the matter asserted.
C. No, because the statement was made by the opposing party
Joe is suing his chiropractor, Eric, for malpractice. Joe puts Jake, Eric's receptionist, on the stand. Jake testifies that another patient, Jill, stated that her back felt more pain than ever immediately after an adjustment from Eric.
The judge rules this is a hearsay exception for 803(3) then existing physical condition. Eric objects to Jake's testimony, because Jill is available to testify. Will this be sustained?
No. Like all 803 exceptions, the declarant's availability is immaterial.
May a signature alone determine the authenticity of a document?
No, some additional means beyond the signature itself is required. e.g. testimony by someone familiar with the signer's signature.
A judge allows a criminal defendant to submit evidence that, during plea discussions, the prosecution admitted that there was another suspect. These plea discussions did not result in a plea.
The prosecution now moves to enter the defendant's response from the plea negotiations into evidence for the sake of fairness. Defense objects.
Is the judge likely to overrule the objection?
A. Yes, because the defense introduced the plea first.
B. Yes, because the plea is an admission by a party opponent.
C. No, because defendant's statements made during plea discussions are prohibited by public policy.
D. No, because these statements are impermissible extrinsic evidence.
A. Yes, because the defense introduced the plea first.
per 410(b) when another statement in a plea discussion is admitted, the court may admit statements from plea discussion if it is fair that the statements be considered together. (Rule of completeness)
In a homicide case, the defendant is claiming self-defense. The prosecutor attempts to bring in the victim's Buddhist master to testify about the victim's reputation for embodying the Buddhist oath of peace.
Defense objects, will the objection be sustained?
A. Yes, because this is hearsay and no exception applies.
B. Yes, because the victim's character is not relevant.
C. No, because the victim is not available a hearsay exception applies.
D. Do, because this evidence is appropriate to rebut the self-defense claim.
D. Do, because this evidence is appropriate to rebut the self-defense claim
R404(a)(2)(C) in homicide cases where any sort of evidence has been offered to show that the victim was the first aggressor. In those cases, the prosecutor is allowed to offer character evidence of the alleged victim’s trait for peacefulness.
A customer slipped and fell at Wal-Mart, causing a back injury. Immediately after the incident, the Manager filled out Standard Wal-Mart Form 202 (SWMF 202) after-incident report. Part of this report interviewed a customer on the scene who stated that they did not think the floor was slippery.
At trial, Wal-Mart wants to submit this SWMF 202 as evidence that the floor was not slippery. Plaintiff objects as hearsay. Will it be sustained?
A. Yes, because it is hearsay with no exception
B. Yes, because it is non-extrinsic evidence
C. No, because the Standard Wal-Mart Form is part of regularly conducted business activity.
D. No, because it is not hearsay.
A. Yes, because it is hearsay with no exception.
While this is a "standard form" incidents like this are not part of a regular conducted business activity. Forms created for the purpose of litigation are not subject to the 803(6) exception
Alice, Amanda, and Annie are are sitting at an outdoor coffee shop near their college campus. The observe classmate Connor zoom by in his Camaro and hit a parked car.
Alice very calmly commented "there goes Connor, looking at girls instead of the road again." Annie excitedly shouts "OH MY GOD, CONNOR IS CRAZY."
At trial, Amanda is brought in to testify about both Annie and Alice's statements.
Defense objects on Hearsay. Will either statement overcome the hearsay objection?
Both are subject to hearsay exceptions and will be admitted.
Alice's comment is a 803(1) present sense impression. Annie's comment is a 803(2) excited utterance.
Name 4 of the 5 basic ways a witness may be impeached.
1. Bias or conflicting interest
2. Prior inconsistent statements
3. Bad character/dishonesty
4. Sensory deficiencies
5. Contradiction
A doctor was charged with tampering with syringes containing a powerful painkiller. The prosecution sought to prove the doctor’s motive to tamper with the syringes by introducing evidence that she had previously been convicted for stealing the painkiller from another hospital.
Is the court likely to admit the prior conviction?
A. No, because evidence of other crimes is not admissible to prove a person’s character in order to show action in conformance with that character.
B. No, because a specific instance of conduct cannot be used to prove character.
C. Yes, because the conviction for stealing the painkiller proves the doctor’s motive for tampering with the syringes.
D. Yes, because a specific instance of conduct can be used to prove character.
Answer option C is correct. Prior crimes or misconduct are only admissible for noncharacter purposes. Rule 404(b) of the Federal Rules of Evidence specifies that a person’s previous crimes, wrongs, or other acts are not admissible to prove a person’s character in order to show action in conformance with that character. Prior crimes or misconduct may include arrests, convictions, or even testimony from witnesses who observed unreported crimes. While inadmissible for the purpose of proving character, prior crimes or misconduct may be admissible for relevant, noncharacter purposes, such as proving motive, opportunity, intent, preparation or planning, knowledge, identity, or absence of mistake or accident. Typically, evidence of a prior crime or misconduct may be introduced only if it can be proven and if it was committed reasonably close in time to the relevant action. Here, the court is likely to admit the prior conviction because it shows the doctor’s motive for tampering with syringes containing the painkiller.
A business owner is being sued after a customer trips in a massive pothole in the storefront parking lot.
The business owner claims that because he leases the building, he is not responsible for the parking lot. He successfully enters his lease agreement proving that he is not the legal owner of the parking lot into evidence.
The plaintiff attempts to introduce a contract between the business owner and a contractor, signed after the fall incident. This contract is for the contractor to fix the pothole in question, which has been completed by the time of trial.
Defense objects on the grounds of subsequent remedial measures. Will it be sustained?
No. This evidence is being admitted to show the business owner does have control over the parking lot.
Subsequent remedial measures may not be admitted to prove:
But may be used for another purpose, such as impeachment, or if disputed: proving ownership, control, or feasibility of precautionary measures.
Mike, Joe, and Tom are college friends driving home from a party. Tom is driving, when his car hits and injures Bob. Wilbur the cop shows up 5 minutes later.
Bob sues Tom for negligence, claiming Tom was intoxicated. Bob offers this testimony of Wilbur: "at the scene, while everyone else was out of earshot, Mike told me they were all at a party drinking heavily beforehand."
Tom objects. Will Wilbur's testimony be admitted?
No. This is hearsay with no exception.
801(d)(2) does not apply because there is nothing implying that Tom would adopted Mike's statement.
804(b)(3) does not apply because it is not against the interest of the declarant.
Also, no indication Mike is unavailable.
Larry, Moe, and Curly successfully rob Bucks Bank. Three months later, Curly is pulled over for speeding. As soon as the cop approaches, Curly blurts out "the Bucks Bank job was all Larry and Moe's idea!"
At Larry and Moe's trial, the prosecution seeks to introduce the cop's testimony as to co-conspirator Curly's statement. Is this admissible as a party-opponent admission?
No. The statement of a co-conspirator is admissible as an admission by a party-opponent only when the statement is made during the course and in furtherance of the conspiracy. Because this is 3 months later and not in furtherance, it is inadmissible hearsay.
HARDEST QUESTION ON THE BOARD
Batman sues the Joker for stealing his Batmobile. Batman calls Robin to the stand who testifies: "I saw Joker driving the Batmobile Tuesday at noon while I was on my way to softball practice."
On cross-examination, Joker asks Robin "weren't you on your way to the Batcave to play X-Box with your buddy Batman that day?" Robin denies it.
Joker then offers the testimony of Aquaman, who will say Robin was on his way to play X-Box with Batman that day.
Batman objects, claiming Aquaman's testimony is extrinsic evidence on a collateral matter. Is Batman correct?
No. Because Aquaman's testimony is being used to show Robin's bias.
Extrinsic evidence is barred from being used solely to impeach a witness' general character (collateral issue). Bias is never a collateral issue.