EVIDENCE - Learning Questions
Which of the following is character evidence, rather than habit evidence?
"Ben is always in a hurry." because it describes a general character trait of Ben, rather than his regular response to a specific set of circumstances. Habit evidence concerns a person's regular response to a specific set of circumstances. Character evidence describes one's disposition with respect to general traits.
Which of the following opinions of a lay witness is likely to be inadmissible?
A person was suffering from malaria. Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert. Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.
A character witness testifies regarding the defendant's good character for peacefulness. The prosecution may rebut this evidence by:
Asking the witness, "Did you know that the defendant beat his girlfriend three weeks prior to this incident?" The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the character witness knows of, as well as whether he has heard of, specific instances of misconduct by the defendant. Therefore, it is proper for the prosecution to ask the witness about the defendant's prior violent act. However, it would not be proper to ask about the defendant's prior dishonest act (embezzling money) because the witness testified about the defendant's character for violence, not his character for truthfulness.
Which statement is true regarding a memorandum used at trial to refresh a witness's present recollection?
It may be offered into evidence by the adverse party. Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence. Unlike the adverse party, the party using a memorandum to refresh the witness's recollection has no right to offer it into evidence. When a memorandum is used at trial to refresh a witness's recollection, it may be used solely to refresh her recollection and need not be authenticated. There is no signature requirement for a memorandum used to refresh the witness's recollection.
A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff's witness would testify that the defendant is known by all his friends as "the Menace." Is the proffered testimony admissible?
No, it is inadmissible to show that the defendant was negligent on this occasion. Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action). Character is not directly in issue here
Proper scope of cross-examination
The scope of cross-x is generally limited to: (i) mattters brought up on direct examination; and (ii) matters concerning the w's credibility (i.e. impeachment).
A defendant is charged with armed robbery. For which purpose is extrinsic evidence that he previously stole a gun inadmissible?
To show that the defendant is violent and therefore criminally disposed. However, evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged (e.g., to show motive, opportunity , intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant. For example, evidence that the defendant previously stole a gun could be brought in to show that the defendant planned to commit the rob
Recorded recollection exception to hearsay rule:
Where a W states that she has insufficient recollection o an event to enable her to testify full and accurately, even after she has consulted a memorandum or other record given to her on the stand, the record itself may be read into evidence if a proper foundation is laid for its admissibility. Recorded recollection may not be received by the jury as an exhibit unless offered by the adverse party, it can only be read into evidence otherwise.
A witness testifies on direct examination that he saw defendant's car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made:
to a police officer The witness's prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination. The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception.
The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man. Which of the following, if offered by the prosecution, would most likely be admissible?
A police officer's testimony that the defendant has a general reputation in the community as a violent person. Testimony of the defendant's reputation as a violent person is admissible to rebut the defendant's character evidence. The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, if the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant, the prosecution may rebut with evidence of the defendant's bad character. One means of rebutting a defendant's character evidence is by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved in the case. Here, the defendant put his character in issue by having his witness testify to the defendant's nonviolent nature, which is relevant to whether he committed the crime charged. The prosecution, assuming that it can show that the police officer has knowledge of the defendant's reputation in the community, can have the officer testify that the defendant had a reputation as a violent person.
A witness in a contract case testified on direct examination that four people attended a meeting. When asked to identify them, she gave the names of three, but despite trying, was unable to remember the name of the fourth person. The attorney who called her as a witness seeks to show her his handwritten notes of the part of his pretrial interview with her in which she provided all four names. What is the trial court likely to consider the showing of the notes taken?
A proper attempt to refresh the witness's recollection. Showing the witness the notes is a proper attempt to refresh her recollection. A witness may use any writing or thing for the purpose of refreshing her present recollection. This is known as "present recollection revived." Under most circumstances, she may not read from the writing while she actually testifies because the writing is neither authenticated nor in evidence. Here, the writing was shown to her solely to refresh her recollection and is, therefore, proper.
There are three requirements for silence in the face of an accusatory statement to qualify as an adoptive statement of an opposing party: (i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) __________.
A reasonable person would have denied the accusation under the same circumstances
A defendant is being tried for the murder of a bank teller, which occurred during the robbery of a bank. At trial, a witness, who knew the defendant, is called to testify that on the day after the robbery he saw the defendant buying some groceries, and when the defendant removed a large roll of money, the witness had asked, "You didn't steal that from someone, did you?" The defendant nodded. This evidence is:
Admissible; not hearsay The nod constitutes nonverbal conduct intended as an assertion and would thus be considered a "statement" for purposes of the hearsay rule. However, this statement constitutes a statement of a party-opponent and hence is not hearsay under Federal Rule 801.
A bank executive was on trial for embezzling $10,000 from the bank where he worked. A key witness for the prosecution was called to testify, but on the stand he had difficulty remembering the specifics of a conversation he had with the executive regarding the executive's accounting procedures. To refresh the recollection of the witness, the prosecutor showed the witness a memorandum that the witness had written for his file, detailing the conversation. The witness reviewed the memorandum, and then testified that he recalled the conversation. He proceeded to testify about the specifics of the conversation. The defense counsel then asked that the memorandum be introduced into evidence. How should the court rule on the memorandum?
Admit the evidence if it was used to refresh the witness's recollection. Because the witness read the notes, and then had an independent recollection of events, this qualifies as a present recollection refreshed. Normally a writing used to refresh is not placed into evidence. However, under Federal Rule of Evidence 612, if a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence.
Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?
An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness. Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant's credibility is impeached, it may also be rehabilitated.
Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:
Authorized spokesperson; partner; co-conspirator; principal-agent Authorized Spokesperson: The statement of a person authorized by a party to speak on its behalf (e.g., statement by company's press agent) can be admitted against the party. Principal-Agent: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this statement may be introduced against her employer even if she was not authorized to speak for the employer. Partners: After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others. Co-Conspirators: The Supreme Court has held that statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.
A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime. Under the Federal Rules, which of the following is an impermissible manner of showing the defendant's good character?
Calling a witness to testify to the defendant's specific acts of conduct to prove the trait in issue. Under Federal Rule 405, the witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify as to specific acts of conduct of the defendant to prove the trait in issue.
The defendant is on trial for assault with a deadly weapon. The sole prosecution witness is the victim, who testifies as to his version of the events leading up to and including the charged assault. The defense's first witness contradicts the victim's testimony that the defendant engaged in an unprovoked attack. The witness testifies that the victim pulled a knife on the defendant and that the defendant, in defending himself, wrested the knife away and accidentally stabbed the victim. The defense's next and final witness intends to testify that the defendant's reputation in the community for honesty and veracity is very good. Aware of the intended testimony, the prosecutor moves in limine to exclude it. How should the court rule?
For the state, because the testimony as to the defendant's honesty and veracity is irrelevant. criminal defendant, to show his innocence of the charged crime, may call a qualified witness to provide reputation or opinion testimony regarding the defendant's good character for a trait involved in the case (i.e., to prove that he acted in conformity with that good trait during the events at issue). Here, however, the defendant is charged with a crime of violence, so his character for honesty and veracity is not pertinent to the case.
A defendant is being tried for the murder of a victim, which occurred during the burglary of the victim's house. In its case-in-chief, the prosecution seeks to offer evidence that the defendant, who was arrested several days after the crime, had been caught with several grams of cocaine in his car. This evidence will most likely be:
Inadmissible, because it has limited probative value and is unduly prejudicial.
A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant's attorney called the clerk's employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him. How should the trial judge rule on the admissibility of this testimony?
Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter. The clerk testified that he could recognize the defendant's face, and so the color of the gun is not material to any issue in the case under the facts given.2
A defendant is charged with beating a victim to death with a set of brass knuckles during the course of a fight in a tavern. The victim was found to have a pistol on his person at the time of the fight. During the course of the trial, the defendant took the stand in his own defense and testified that the victim threatened him with a gun and the defendant had hit the victim with the brass knuckles in self-defense. To rebut the defendant's claim, the prosecution wishes to place the bartender on the stand, who will testify that two years prior to the attack on the victim, she had seen the defendant approach a customer in her tavern from behind, put on a pair of brass knuckles, and strike the customer a severe blow on the side of the face with a brass-knuckled fist. The prosecutor, in accordance with local court rules, has apprised the defense attorney of the general tenor of the bartender's proposed testimony. As soon as the bartender is sworn in, the defense attorney raises an objection. How should the court rule on the admissibility of the bartender's testimony?
Inadmissible, because prior bad acts cannot be admitted to prove the defendant's propensity to commit the specific crime with which he is charged.
The "recorded recollection" exception to the hearsay rule allows the offering party to:
Introduce a memorandum into evidence by reading it aloud Under the "recorded recollection" exception to the hearsay rule (also called "past recollection recorded"), where a witness's memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury. The "recorded recollection" exception is in contrast to "present recollection revived," which allows a party to use any writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence. If admitted under the "recorded recollection" exception, a record may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party. The "recorded recollection" exception only applies when a testifying witness is unable to remember the contents of the record (and when several other foundational requirements are met). It does not apply when a declarant is unavailable.
Which of the following is a civil claim where character evidence may be admissible because character is "directly in issue?"
Negligent hiring claim, to show that the person hired by the defendant is unstable. When a person's character itself is at issue in the case, character evidence is not only admissible, but indeed is the best method of proving the issue. Character is said to be at issue in a civil case when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense. For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case. Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief). However, these types of situations are rare. In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue. Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.
A witness testified against a defendant in a contract action. The defendant then called the witness's neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness's employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago. Is the employee's testimony admissible?
No, because it is extrinsic evidence of a specific instance of misconduct. The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it.
During the defendant's trial for armed robbery, evidence was introduced establishing that a rifle was found in the trunk of the defendant's car when he was arrested. On direct examination, the defendant testified that when he was arrested and the rifle was found, he stated, "I keep that with me for protection." Should the court allow the testimony?
No, because it is hearsay not within an exception. The defendant's testimony is being offered to prove the truth of the matter asserted (i.e., that he keeps the rifle for protection) and is hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay problem can arise even if the out-of-court declarant and the in-court witness are the same person, as is the case here. Because the statement is not within any exception to the hearsay rule, it must be excluded.
The defendant was on trial on a hit and run charge, whereby the prosecution asserted that the defendant's vehicle struck and injured an elderly pedestrian, and then the defendant sped away from the scene of the accident without stopping to assess the pedestrian's injuries or to render assistance. The defendant took the stand and denied the charge. A priest is ready to testify that he has known the defendant for 12 years, and that the defendant is a highly responsible person who would not run away from his obligations by leaving the scene of an accident. If the prosecution objects to the priest's proposed testimony, should the court bar the priest from testifying?
No, because the testimony shows that the defendant is a person of good character. The priest's testimony as to the defendant's responsible nature is admissible as circumstantial evidence that he was not driving the hit-and-run vehicle. The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case. In this case, whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait. The priest, having known the defendant for 12 years, is qualified to give his personal opinion as to the defendant's character. The court should therefore permit the priest to testify.
The plaintiff sued the defendant, alleging that the defendant allowed her dogs to roam onto the plaintiff's land and cause significant damage to his landscaping. The defendant denied the allegations and called a witness to testify on her behalf. The witness testified on direct examination that she visited the defendant every day and that the defendant never allowed her dogs to leave the perimeter of her property. On cross-examination, the plaintiff's counsel presented the witness with a letter written by the witness to a friend in which she expressed her dismay that the defendant allowed her dogs to roam throughout the neighborhood. The plaintiff's counsel requests that the witness read the letter to herself prior to cross-examination. The defendant objects. May the witness refer to the letter?
No, because the witness has not claimed any inability to remember. Generally, a memorandum can be used to refresh the recollection of a witness, to substitute for forgotten testimony, or on cross-examination. Here, the plaintiff's counsel can use the letter to impeach the witness's testimony because it is a prior inconsistent statement. To do so, he can cross-examine her as to the contents of the letter (as opposed to having her read it to herself prior to cross-examination, as he attempted to do) to show that she has made statements contrary to her testimony, thereby discrediting her testimony.
In its lead editorial in the Sunday edition, a suburban daily newspaper characterized a real estate developer as a "common thief." The developer promptly filed suit against the newspaper for defamation. During the course of the presentation of the plaintiff's case, he sought to put a witness on the stand who is prepared to testify that the plaintiff once saved the life of a fellow soldier in combat. If the newspaper's lawyer objects, should the court rule that the testimony is admissible?
No, because the witness's testimony is not probative of any material issue (i.e., whether the plaintiff is a thief). Relevant evidence tends to prove or disprove a material fact in issue. Here, the testimony tends to prove that the plaintiff is brave and selfless, but it is not relevant as to the fact in issue, which is whether he is honest.
Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness's prior inconsistent statement made at a deposition is:
Not hearsay, as long as the witness is subject to cross-examination A testifying witness's prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions). Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.
While a driver was driving someone else's car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence. How should the court rule on the objection?
Overruled as to the case against the owner, but sustained as to the case against the driver. The witness's testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character. Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver's character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself.
A pedestrian sued the driver of a car that hit him, alleging that the driver ran a stop sign. The driver denies this, maintaining that the pedestrian carelessly darted into the street. At trial, the pedestrian calls her husband to testify for her. The husband offers testimony that the pedestrian invariably looks both ways before crossing a street. The driver objects to the admission of this evidence. How should the court rule on the driver's objection?
Overruled, because it tends to establish the pedestrian's habit. The husband's testimony is a classic example of evidence regarding habit-it is a regular response (looking both ways) to a regular set of circumstances (crossing a street). The pedestrian's habit is relevant to the issue of whether she was at fault in the accident.
As a general rule, evidence of a prior bad act or crime is not admissible to prove:
Propensity to commit crime However, Federal Rule 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident).
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
Reputation, opinion, or specific acts When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is "directly in issue." Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.
Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.
Substantially outweighs Additionally, independently relevant uncharged misconduct by the defendant will only be admissible, without a preliminary ruling, if there is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of Federal Rule 104).
In order for a defendant's prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that the defendant committed the prior act.
An attorney wants to cross-examine a witness about the witness's prior bad act that is probative of truthfulness. Which statement best describes the trial court's discretion to allow this inquiry?
The court may allow the inquiry Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court. Thus, the court may allow such inquiry, but because it is discretionary with the court, "must" is a wrong choice. Impeachment by this method is permitted even if the act did not result in a criminal conviction.
Under the "recorded recollection" exception to the hearsay rule, certain records made by a declarant at or near the time of the event in question may be admissible. Which of the following statements regarding this exception to the hearsay rule is true?
The exception applies where the witness's memory of the event cannot be revived by looking at the record. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record. There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness's direction, or adopted by the witness. Thus, the witness must have known about the record before trial. If admitted under this exception, a record may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to "present recollection revived," which allows a party to use any writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence.
In certain instances, a party may prove a witness's prior inconsistent statement by use of extrinsic evidence. Which statement regarding the permissibility of extrinsic evidence is false?
The prior inconsistent statement may concern any matter that casts doubt on the witness's credibility, whether or not it is related to the case. To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party's statement.
If a defendant in a criminal case presents evidence of his own good character for a particular trait, which of the following is a permissible method of rebutting this evidence?
The prosecution calls another witness to testify as to the defendant's bad reputation for the same trait If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.
In which of the following situations may the prosecution introduce evidence of the defendant's bad character to establish she probably committed the crime charged?
Where the defendant first introduces evidence of her good character. If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant's bad character. As a general rule, evidence of a defendant's bad character is inadmissible to prove that the defendant probably acted in accordance with that character and committed the crime. This is true regardless of the nature of the crime charged, with limited exceptions for certain sexual assault cases. (Note that "felony or crime of dishonesty or false statement" is relevant to the separate concept of impeaching witnesses with prior criminal convictions.) The general rule is that the prosecution cannot initiate evidence of the defendant's bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant's bad character. A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.
A large delivery truck collided with a car. At the time of the accident, the driver of the truck said to the car driver, "The accident was my fault; I wasn't paying any attention. Don't worry, my company will make it right." The delivery company had not authorized the truck driver to make that statement. The subsequent investigation of the accident by the delivery company revealed that the truck driver had been drinking on the day of the accident. He was fired. The car driver brings an appropriate action against the delivery company for damages resulting from the accident. The truck driver has disappeared. The car driver now seeks to testify as to what the truck driver said at the time of the accident. Is the evidence admissible?
Yes, as a statement attributable to the defendant. This question raises the issue of whether an employee's out-of-court statement will be attributed to the employer, and thus considered a vicarious statement of an opposing party. The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment The truck driver's statement was made while he was employed by the delivery company, and it related to his employment since it pertained to an accident that occurred when he was driving a company truck, presumably in the course of employment.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff's employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant's home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend. If the employee's letter to his friend is properly authenticated, should the court admit the letter?
Yes, as both substantive and impeachment evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff's employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness's prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee's letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee's statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence
The complainant was robbed by a man wielding an unusual knife with a pearl-studded handle. The defendant was arrested and charged with armed robbery of the complainant. At trial the prosecution calls a witness to testify that, three days after the robbery of the complainant, she was robbed by the defendant with a knife that had a pearl-studded handle. Should the court rule that the witness's testimony is admissible?
Yes, as establishing an identifying circumstance. Given the highly unusual weapon in this case, the court should hold that the evidence is admissible to show that the defendant was the perpetrator.
The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, "Isn't it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?" The waiter responded, "Yes, but I wasn't trying to steal anything. I just forgot to charge them." The defense then asked, "Isn't it a fact that last month you threw a rock through the plate glass window at the restaurant?" The waiter replied, "That's not true; I was there but I didn't throw the rock." The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant's window. Assuming that there have been no criminal charges filed as a result of the broken window, is the witness's testimony admissible?
Yes, as evidence of bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant's window, because such evidence would help establish the waiter's bias against the restaurant.
During the defendant's trial for embezzlement, the defense calls a witness to testify as to the defendant's reputation for honesty and veracity. The prosecution objects. Should the court allow the testimony?
Yes, because it is admissible character evidence. A criminal defendant may introduce character testimony about his good reputation for a pertinent trait to show that he is innocent of the charged crime. Here, the defendant is offering the testimony of a witness as to his reputation for honesty and veracity, which is a trait directly pertinent to his embezzlement charge. Therefore, the testimony should be allowed, and the prosecution will have the opportunity to rebut the testimony on cross-examination.
A plaintiff sued his neighbor over a 10-foot-high stockade fence that the neighbor was building adjacent to the plaintiff's backyard. The local zoning ordinance permitted a fence of this height unless it was a "spite fence," defined as a fence erected solely for the purpose of interfering with neighboring landowners' use and enjoyment of their property. The plaintiff alleged that the neighbor was building the fence to block sunlight to the garden that the plaintiff had planted. The neighbor denied that she was building the fence for that purpose. The plaintiff wishes to introduce evidence that the neighbor had sprayed herbicide towards the garden previously. Should the judge permit the plaintiff's testimony?
Yes, because it pertains to the neighbor's motivation in building the fence. Here, whether the neighbor was motivated by an improper purpose in building the fence is the key issue in the lawsuit by the plaintiff. The neighbor's prior misconduct in spraying herbicide toward the plaintiff's garden is circumstantial evidence that her hostility toward the garden motivated her to build the fence.
A plaintiff sued a defendant for negligence when the tractor that he was driving at a construction site collided with the plaintiff's car. The plaintiff alleged that she was driving in a proper lane when the tractor collided with her car. The plaintiff's counsel called the responding police officer to testify that the defendant's employee made a statement to the police officer, in the defendant's presence, that the defendant "accidentally went too far into traffic," and the defendant did not say anything. Should the trial judge rule that this evidence is admissible?
Yes, because the defendant's silence may qualify as an adoptive statement. The judge should rule the evidence admissible as an adoptive statement of an opposing party. Statements by or attributable to a party and offered against that party are not considered hearsay under the Federal Rules. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an adoptive statement. Although it is arguable that a person who may be liable for negligence would reasonably remain silent when in the presence of a police officer, this is the best answer.
A boater and a water skier were involved in a boating accident. Shortly after the accident, the water skier prepared a written summary of the events surrounding the accident. At trial two years later, the water skier is on the stand and is unable to accurately recall the details of the accident, even after reviewing the aforementioned account of the accident. Assuming a proper foundation is laid, may the summary of the accident be read into evidence?
Yes, because the water skier's memory of the actual event is insufficient. If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, Federal Rule 803(5) permits the introduction of an out-of-court memorandum or other record of the event made by the witness at a time when the witness's memory of the event was fresh. The fact that the witness's memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury, as here.
The plaintiff sued the defendant for injuries suffered when the defendant's car struck the plaintiff as she was crossing a busy intersection. The plaintiff planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, the plaintiff called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, "My God, the woman was crossing on the green light!" Over objection, the statement was admitted as an excited utterance. The defendant now wishes to call the bystander's friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: "You know that accident I saw this afternoon? The driver didn't run a red light. The light was yellow." Should the friend's testimony be admitted over the plaintiff's objection?
Yes, but only to challenge the credibility of the bystander's earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the bystander's hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement.
A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman's car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident. Will this evidence be permitted?
Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a testifying witness's prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted.
Statements by an opposing party (also known as "admissions by a party-opponent") are considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an opposing party's statement, it must __________.
be attributable to a party and offered against that party To qualify as a "statement by an opposing party," a party's statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.) Lack of personal knowledge does not necessarily exclude an opposing party's statement. An opposing party's statement may even be predicated on hearsay. An opposing party's statement need not have been against the party's interest at the time it was made. An opposing party's statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.
In federal courts, spousal immunity __________.
can be asserted as to matters that took place before the marriage Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege. The privilege lasts only during the marriage and terminates upon divorce or annulment. Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.
Character evidence is admissible in a civil case if __________.
character is directly in issue A defendant in a criminal case may "open the door" by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.
A memorandum used by a party at trial to refresh a witness's present recollection:
need not be authenticated The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness's recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness's recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception.
Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:
nonhearsay Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an "admission by a party-opponent") is not hearsay at all under the Federal Rules. It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).
