General
What are the seven types of evidence?
1. Oral Testimony
2. Real Evidence
3. Documentary
4. Demonstrative evidence
5. Stipulations
6. Judicial Notice
7. Illustrative Aids
Civil action by P against D. During the direct examination of one of P’s witnesses who claims to have seen the crucial event, D’s attorney raises a specific objection to a question asking the witness to relate what she saw. After extensive argument on the evidentiary point, the court sustains the objection.
Which of the following best reflects what P’s lawyer should do next?
(A) P’s lawyer should move on to the next question.
(B) P’s lawyer should ask the court to have the record reflect P’s disagreement with the court’s ruling, and move on to the next question.
(C) P’s lawyer should cease his examination of the witness because continuing with the examination will create a risk that an appellate court would find that P impliedly waived his right to appeal the court’s ruling.
(D) P’s lawyer should place in the trial record a statement of what the witness would have testified if permitted to answer the question.
(D) is correct. When the court sustains an objection to evidence a party wishes to offer, the party must place on the record an indication of what the evidence would have been, i.e., an offer of proof. See FRE 103(a)(2). Sometimes a reviewing court will need to know what the evidence would have been in order to determine whether the trial court erred. And almost always, a court will have to know what the evidence would have been in order to determine whether any error “affects a substantial right of the party” (FRE 103(a)) (“harmless error” rule). In this case, the evidence would have consisted of a witness’s oral testimony, so the lawyer should make sure the record reflects the answer the witness would have given.
Answer (A) is incorrect because moving on to the next question would not leave any record of what the evidence would have been. This would place a reviewing court in the position of guessing, something it is unlikely to do.
Answer (B) is incorrect because it is not necessary to make a formal “exception” to the ruling. Also, this would not indicate what the evidence would have been.
Answer (C) is incorrect because simply by continuing with the witness’s examination, the party does not waive the right to appeal.
Prosecution of D for murder. D denies involvement. During its case-in-chief, the prosecution calls W, who has lived in the same community as D for many years, and asks W to testify about D’s community reputation for violence or peacefulness. D’s attorney does not object, and W testifies that D has a community reputation for being a very violent person. D is convicted, and appeals, claiming that this evidence should have been excluded under FRE 404(a).
5. Which of the following statements is most accurate?
(A) Because the record clearly reflects that the court violated FRE 404(a) by admitting the evidence, the appellate court will reverse.
(B) Because the record clearly reflects that the court violated FRE 404(a) by admitting the evidence, the appellate court will reverse if the error affected a substantial right of D.
(C) Because the trial court has discretion to admit character evidence that has substantial probative value, the trial court’s error, if any, is
(D) Because D did not state a ground for the objection, the appellate court will not reverse.
Answer (B) is correct. FRE 103(e) sets forth the “plain error” doctrine, which permits the appellate court to take notice of “a plain error affecting a substantial right, even if the claim of error was not properly preserved.” FRE 404(a) categorically forbids the prosecution from offering character evidence during its case-in-chief to prove circumstantially that the defendant acted in a particular way on a
specific occasion. The record clearly reflects the error. If the error affected a substantial right of D, the appellate court will reverse.
Answer (A) is incorrect because it assumes automatic reversal once error is found. Unless the error affected a substantial right of a party, the appellate court will not reverse.
Answer (C) is incorrect because FRE 404(a) is categorical; there is no rule allowing the trial court to admit prosecution character evidence in this situation, even if the evidence has substantial probative value. Thus, the error is plain.
Answer (D) is incorrect because it fails to take account of the plain error doctrine.
What are the 3 Relevance Rules (verbatim)?
Rule 401: Test for Relevant Evidence (Verbatim)
AMO
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence ; AND the fact is of consequence in determining the action
Rule 402: General Admissibility of Evidence
CAN FRED REALLY SHOOT
Relevant evidence is admissible unless the US const., a federal statute, these rules (*federal rules of evidence*), or other rules prescribed by Supreme Court asserts otherwise
Rule 403: Excluding Relevant Evidence for Prejudice, confusion, waste of time, or other reasons (Verbatim)
PISTOLS CAN MISFIRE DURING WILD CROSSFIRES
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
Unfair prejudice
Confusing the issue; misleading the jury
Undue delay, wasting time, or needlessly presenting cumulative evidence
Civil fraud action by P against D arising from a failed real estate deal. P calls W1, who testifies favorably to P’s cause.
Later, D calls W2 to testify that W1 has a poor community reputation for veracity. Which of the following is correct?
(A) W2’s testimony is admissible to impeach W1’s character for truthfulness.
(B) W2’s testimony is inadmissible because this evidence may only be elicited during cross-examination.
(C) W2’s testimony is inadmissible because this is a civil action.
(D) W2’s testimony is inadmissible because only specific instances of conduct may be used under these circumstances.
Answer (A) is correct. Under FRE 608(a), it is permissible to impeach a witness using opinion or reputation evidence to show that the witness has a bad character for truthfulness. That is what P has done here. The rule does not forbid the use of extrinsic evidence.
Answer (B) is incorrect because, as noted above, extrinsic evidence is permitted.
Answer (C) is incorrect because the rule allows the use of character to impeach a witness whether the case is civil or criminal.
Answer (D) is incorrect because specific instances of conduct may not be used for the present purpose except on cross-examination.
What does a motion in limine ask the court to do?
Exclude evidence based on FRE
Negligence action by P against D arising from a car crash. P alleges that D suddenly swerved into P’s lane. D claims it was P who swerved. At trial, P wishes to testify that after P wrote D demanding $20,000, D wrote back offering to pay P $100, “which is all I’ve got.”
P authenticates and offers D’s letter into evidence. D objects on the basis of the compromise rule. Of the following, which is P’s strongest response?
(A) D’s letter is not a compromise offer.
(B) Even if D’s letter is a compromise offer, it is admissible as a party admission.
(C) Even if D’s letter is a compromise offer, it is admissible as a declaration against interest.
(D) Even if D’s letter is a compromise offer, its probative value substantially outweighs any unfair prejudice its admission might
Answer (A) is correct. P’s strongest argument in reply to D’s claim that the letter is inadmissible under the compromise rule (FRE 408) is that there was no dispute as to liability or its amount. That is a strong argument here. The letter doesn’t claim D was not liable; it merely claims that D can’t afford to pay more.
Answer (B) is incorrect because it does not matter that the letter is a party admission. If it is inadmissible under the compromise rule, the fact that it is not barred by the hearsay rule does not matter.
Answer (C) is incorrect for the same reason.
Answer (D) is incorrect because an argument relying on FRE 403 is generally a last resort and usually fails. Nothing in the facts given suggests that there is any “unfair” prejudice that might outweigh the probative value of the evidence.
If it has been more than 10 years since the conviction or release from confinement whichever is later it is only admissible if:
Probative Value supported by specific facts and circumstances substantially outweighs its prejudicial effect; AND
The proponent gives an adverse party reasonable notice of the intent to use it so that the party has a fair opportunity to contest its use
Negligence action by P against D City following an accident in which P’s car was badly damaged when it hit a huge pothole in the middle of the small street on which P was driving. D City claims that the street on which the accident took place was a small private lane over which it had no authority. At trial, P wishes to call W to testify that a day after the accident, a D City road crew repaired the street, covering the pothole.
251. Which of the following statements is most accurate?
(A) The evidence is relevant but inadmissible for reasons of policy.
(B) The evidence is irrelevant and therefore inadmissible.
(C) The evidence is relevant and admissible as an act of independent legal significance
(D) The evidence is relevant and admissible to demonstrate that D city had control over the street
Answer (D) is correct. Evidence of subsequent remedial measures may be admitted if offered to prove the actor’s ownership of or control over the instrumentality of the accident, where the actor denies ownership or control. Here, D has asserted that the road was private and that it had no authority to repair it. Evidence that a city road crew did in fact repair the pothole after the accident tends to show that the city did in fact have such authority.
Answers (A) and (B) are incorrect for the reasons just discussed. Answer (C) is incorrect because the act is only evidence of ownership or control; it does not have “independent legal significance.”
T or F: Cross examination will NEVER go beyond scope of Direct examination
F: The court may allow inquiry into additional matters as if on Direct Examination
What is the difference between abuse of discretion review and De Novo Review?
Prejudicial Error v. Harmless Error?
AOD: assess the judge's discretion
De novo: Assess whether legal interpretation is correct or reasonable or whether the correct legal standard applied
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Prejudicial error:Error that impacted the outcome of the case
Harmless: Admits an error however keeps that it does not effect the outcome
Libel action by P against D after D, the owner of a newspaper, published an article accusing P of committing a string of burglaries in the city. D claims the story was true. To prove P committed the burglaries, D offers evidence that P had been convicted of several burglaries in another city within the past few years. P objects.
Which of the following statements is correct?
(A) The evidence is admissible because character is in issue.
(B) The evidence is admissible because it tends to show D’s good faith.
(C) The evidence is inadmissible because it is offered in the form of specific instances of conduct rather than reputation or opinion.
(D) The evidence is inadmissible because D may not use character evidence to support her defense in this situation.
Answer (D) is correct. In this example, D is trying to show that P committed the burglaries mentioned in the newspaper article by showing that P committed other burglaries. The inference from the older burglaries is being used to show that P has the character of a burglar, and that P committed the burglaries mentioned in the article. That use is forbidden by FRE 404(a). [239]Thus, the evidence is inadmissible. Answer (C) is incorrect because the question of what form of character evidence may be used is never reached; character evidence in any form is forbidden here.
Answer (A) is incorrect because character is not in issue. In many defamation cases, reputation is in issue, and thus reputation may be proven. But D’s defense does not put reputation in issue. D is simply asserting that the story was true. There are many ways D can prove that fact; character is not required. Thus, character is not “an essential element of a charge, claim, or defense.”
Answer (B) is incorrect because good faith is not D’s defense. D claims the article was true, not that she published an untrue article in good faith.
T or F: Any misdemeanor may be automatically admitted under Rule 609 no matter if it is criminal or civil so long as it has not been longer than 10 years since the conviction or release date
For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
What does rule 408 require and what are the exceptions?
Neither party may present evidence of statements, conduct, negotiations of accepting something valuable in a dispute.
Exceptions
1. Bias/Prejudice
2. Negating undue delay
3. Obstruction
4. Breach of Settlement
5. Wrong committed during negotiations
6. Notice
Defamation action by P against D. To prove the defamatory utterance was made, P calls W1, who testifies that she was in a group of P’s business associates when D told the group that P was a “famous liar.” During his case-in-chief, D calls W2, W1’s husband, to testify that W1 suffers from moderate hearing loss and often forgets to wear her hearing aids.
Which of the following statements is correct?
(A) W2’s testimony is admissible only if W1 is given an opportunity to explain or deny the substance of W2’s testimony.
(B) W2’s testimony is admissible to impeach W1’s character for truthfulness.
(C) W2’s testimony is admissible to impeach the accuracy of W1’s testimony.
(D) W2’s testimony is inadmissible because extrinsic evidence may not be used in this situation.
Answer (C) is correct. This is an attempt to impeach the credibility of W1 by showing that W1 has a disability that might have affected her ability to perceive accurately. There is no prohibition on the use of extrinsic evidence when this is the form of impeachment being used.
Answer (A) is incorrect because for this method of impeachment, there is no requirement that W1 be given the opportunity to explain or deny the accuracy of W2’s testimony.
Answer (B) is incorrect because this is not an attack on W1’s character for truthfulness, but only on her capacity to perceive accurately.
Answer (D) is incorrect for the reason given above.
What is the MERC RULE?
M = move initiated by def
E = evidence of pertinent character trait (related to charge)
R = Rebuttal by Prosecution
C = Criminal cases only!
Prosecution of D for the murder of V while both were watching their sons compete in a high school football game. To prove self-defense, D offers the testimony of W that D is a peaceful person. The prosecution does not object. On cross-examination, the prosecutor asks W, “Did you know that D was involved in a barroom brawl just last year?” D objects.
How should the court rule?
(A) The court should overrule the objection.
(B) The court should sustain the objection because specific instances of conduct may not be used in this situation.
(C) The court should sustain the objection because the question is impermissibly leading.
(D) The court should sustain the objection because the circumstances of the barroom brawl were different than the brawl that led to V’s death.
Answer (A) is correct. FRE 405(a) allows a party cross-examining a character witness to refer to specific instances of conduct. The main purpose is to impeach the character witness by demonstrating that she lacks adequate information on which to base her testimony on direct examination. Here, if W was unaware of D’s involvement in a barroom brawl, W’s opinion about D’s peacefulness would carry less value with the fact-finder.
Answer (B) is incorrect for the reasons just given. Answer (C) is incorrect because leading questions are permissible, and usually favored, on cross-examination. Answer (D) is incorrect because for these purposes, the court may admit the evidence even if the two events are not very similar. If the incident in the bar is something a person would use to inform herself about D’s character for peacefulness, W’s possible ignorance of that event casts doubt on W’s assessment of D’s character.
When evidence of a person’s character or character trait is admissible, the character or trait may also be proved by relevant specific instances of the person’s conduct when:
their character or character trait is an essential element of a charge, claim, or defense,
Civil action for battery by P against D. P was attacked from behind as he was leaving a football game. D denies being the attacker. At trial, P wishes to testify that immediately after P was knocked to the ground, D offered to take P to the hospital. D objects.
Which of the following statements is correct?
(A) D’s statement is admissible as a party admission.
(B) D’s statement is inadmissible because of the compromise rule (FRE 408).
(C) D’s statement is a party admission but is inadmissible.
(D) D’s statement is inadmissible because it is irrelevant.
Answer (C) is correct. D’s offer to take P to the hospital constitutes the type of conduct made inadmissible by FRE 409 because it is an offer “to pay medical, hospital, or similar expenses resulting from an injury.”
Answer (A) is incorrect because even if the statement is a party admission, it is still excluded by FRE 409. Answer (D) is incorrect because the evidence is relevant. It is somewhat more likely that a person who offers to pay for another person’s medical or related expenses is responsible for the other’s injuries than is one who does not make an offer.
Answer (B) is incorrect because there is no indication that this was an offer to settle a disputed claim.
When would the court allow leading questions ?
1. on cross examination
2.when a party calls a hostile witness, an adverse party, or a witness identified with a hostile party
Special exceptions:
-To develop a witness's testimony
-establish pedigree
-Redirect
-Help a witness that is confused, hesitant, or has trouble recalling
T or F:
Extrinsic evidence of a prior inconsistent statement is not admissible if the prior inconsistent statement relates to a collateral matter
True. The Hitchcock (Hancock) rule
Prosecution of D for the murder of V in a pet shop. D admits killing V with a sharp stick, but claims she did so accidentally when she was trying to part two fighting puppies. During its case-in-chief, the prosecution calls W to testify that shortly before V’s killing, D and V had been partners in a criminal fraud that had netted the pair more than $2 million.
228. Which of the following statements is correct?
(A) W’s testimony is inadmissible character evidence.
(B) W’s testimony is inadmissible because of lack of similarity between the charged and the uncharged act.
(C) W’s testimony is inadmissible because of the nature of D’s defense.
(D) W’s testimony is admissible.
Answer (D) is correct. Although the evidence reveals another crime, it is relevant for a non-character purpose: to show that D had a motive to kill V (to be able to keep all the loot netted in the fraud). Motive, in turn, tends to show that the killing was not an accident. The probative value of the evidence is high for that purpose, and the risk of unfair prejudice caused by the jury’s misuse of the evidence almost certainly does not substantially outweigh the probative value.
Answer (A) is incorrect for the reasons just given. The evidence does not violate the character ban when used in this way.
Answer (B) is incorrect because similarity of the charged and uncharged acts does not matter in this situation.
Answer (C) is incorrect because the evidence, as explained, tends strongly to undermine D’s defense
What is the Doctrine of Completion?
Rule 106: If one party introduces all or part of a statement, an adverse party may require the introduction at that time of any other part or any other statement that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection
What does Rule 411 cover?
Evidence a person was or was not insured against liability is not admissible to prove whether a person acted negligently
Evidence of a juvenile adjudication is admissible under rule 609 only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.