Multiple Choice Review

A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff's car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony. How should the trial court rule on the admissibility of the court record?

Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached. - Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence. - cannot introduce impeachment evidence before any testimony

Hearsay exception: judgment of a felony conviction

Federal Rules of Evidence provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. The Rules define felony convictions as crimes punishable by death or imprisonment in excess of one year. [Fed. R. Evid. 803(22)]

A state court is LEAST likely to take judicial notice of which of the following? The blood type that occurs with greatest frequency in the population is O-positive. Main Street, upon which the courthouse is situated, runs north and south. The sun rose at 6:52 a.m. on Friday, December 12, of last year. In Australian law, there is no private action for environmental issues.

In Australian law, there is no private action for environmental issues. - Most state courts will not take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court. - blood and Mainstreet get notice bc they are notorious facts (i.e., facts of common knowledge in the community) - Sunrise is manifest fact: fact capable of certain verification by resort to easily accessible sources of unquestionable accuracy)

May a witness testify to imeach D that defendant regularly cheats at cards

No - this is specific act ev through EE - could ask D this himself on cross-exam

The defendant was charged with aggravated assault. The defendant did not testify at trial; however, he sought to offer opinion evidence of his good character for truth and veracity. Should this testimony be admitted?

No, because it is evidence of a trait not pertinent to the case. - he accused in a criminal case may introduce evidence of a pertinent character trait because it may tend to show that he did not commit the crime charged. But here, evidence of the defendant's character for truth is not pertinent to a charge of a violent crime (aggravated assault). - defendant's credibility is not in issue, as he did not testify.

The plaintiff sued the defendant, who had constructed the plaintiff's house, for breach of warranty of habitability. At trial, in cross-examination of the plaintiff, the defendant's attorney asked whether the plaintiff had sued another contractor 30 years earlier, claiming similar defects in another house built for the plaintiff. The question was not objected to and the plaintiff answered that she had had some "water problems" with the first house she ever purchased, but no suit was filed. The defendant then called as a witness the contractor of 30 years earlier to testify that the plaintiff had brought suit against him for defects in the earlier house, many of which were like those now claimed to be found in the home the defendant built, but that the case was settled without trial. Should the trial court rule that the witness's offered testimony is admissible?

No, because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time. - This was collateral issue and extrinsic evidence Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time. An issue is considered collateral if it would not be admissible other than to contradict the testimony. Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim. At best, this evidence shows the plaintiff's tendency toward litigation. Unless there is evidence that the previous claim was false, the probative value of such evidence is deemed outweighed by the risk of confusion of the issues. Because the prior suit would not be the subject of proof independent of impeachment, it is a collateral matter, and extrinsic evidence, such as the witness's testimony, is inadmissible.

A defendant calls a secretary present at a meeting between the defendant and the plaintiff in which attempts were made to negotiate a settlement. The secretary offers to testify that the plaintiff said at the meeting, "Well, maybe it wasn't fraud-I'll settle for refund of the purchase price plus $50,000." The plaintiff objects. Is the offered testimony admissible?

No, because of public policy.

During the trial of a personal injury case, the plaintiff calls a witness to testify that he saw the defendant spill a slippery substance in the roadway. Following the testimony of the witness, the defendant calls the witness's neighbor, who testifies that the witness has a poor reputation for truthfulness in the community. The plaintiff's attorney then cross-examines the neighbor, asking her, in good faith, if she committed the crime of false pretenses last year. Last year, the neighbor had in fact been charged with and convicted of the crime of false pretenses. The defendant's attorney objects to this question. Should the objection be sustained?

No, because the plaintiff's attorney asked the question in good faith. - The question by the plaintiff's attorney should be allowed because he was acting in good faith. A witness may be impeached by means of being interrogated upon cross-examination, in the discretion of the court, with respect to any act of misconduct that is probative of truthfulness (i.e., an act of deceit or lying). The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about, but it is not required that the witness have been convicted of a crime. Here, the plaintiff's attorney is attempting to cast an adverse reflection on the truthfulness of the neighbor. The commission of the crime of false pretenses involves the making of a false representation and is therefore an act of misconduct that is probative of the actor's truthfulness. Thus, because the plaintiff's attorney inquired as to this matter in good faith, his question is a permissible method of impeachment, and the objection of the defendant's attorney should be overruled

A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff's attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff's attorney. The state recognizes only the common law privileges. Should this testimony be admitted?

No, because the plaintiff's statements are protected by the attorney-client privilege. - The communication between the doctor and the attorney's client is necessary to help the client convey his condition to the attorney. - physician patient privilege is a statutory privilege, not a CL privilege

In an accountant's trial for filing fraudulent tax reports, the prosecution calls a former colleague of the accountant, and she testifies that the accountant's reputation in the community is for frequently participating in very questionable reporting, often resulting in unnecessary risk for his clients. She testifies further that she thinks the accountant is dishonest. Should the trial court admit this evidence over the accountant's objection?

No, because the prosecution cannot initiate evidence of the defendant's character.

During the trial of her personal injury action against a chemical company, the plaintiff testifies in response to a question by her own counsel that, shortly after she and her family were forced to leave their home because of fumes from its plant, the president of the chemical company telephoned her motel room and said, "If you or any member of your family requires medical treatment, our company will pay all medical expenses in full. We will not have it said that our company's negligence resulted in the illness of a local family." The company's counsel makes a motion to strike all of the plaintiff's testimony, and the court does so. Was the court's action correct?

No, because the statement includes an opposing party's statement that it was negligent. - this was not a factual admission made along alongside an offer to compromise, because company merely said that it would pay medical expenses, without bargaining for anything in return. In addition, if it were an offer to compromise, a statement made in connection with the offer would not be admissible

A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate. Is the foreman's proposed testimony hearsay?

No, because the statement is not offered for its truth. - A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement's effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire.

At a products liability trial, a critical issue is whether the temperature was below freezing on January 16. A local man who works for a civil engineering firm is also an avid amateur meteorologist. One of the man's weather detection instruments in his backyard records temperature by markings from a stylus on a round barograph. The man's record of the day in question indicates that it was unseasonably warm and that the temperature never fell lower than 48 degrees Fahrenheit, 16 degrees above the freezing mark. The plaintiff offers into evidence the man's barograph record of the temperature on January 16. Is the barograph record admissible?

No, unless foundation testimony is given as to the accuracy and good working order of the man's instrument on the day in question. - Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof showing that the writing is what the proponent says it is. In general, a writing may be authenticated by any evidence that serves to establish its authenticity. One means of authentication under Federal Rule 901(b) is by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Hence, for the man's barograph record to be admissible, evidence must have been offered that the instrument is accurate and that it was in good working order when the record was produced. - the barograph record is not hearsay. Under the Federal Rules, 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 "statement" under the Federal Rules is an oral or written assertion or nonverbal conduct by a person intended as an assertion. A machine such as the barograph is not making or intending to make an assertion when it creates a record of an event; hence, the record is not a "statement" for purposes of the hearsay rule.

An antiques purchaser who did not speak English sued a dealer for breach of contract, alleging that he had agreed to sell her an antique chair for $15,000 but had refused to accept her certified check when she came to pick up the chair. At the trial, the purchaser, through an interpreter, testified that she asked her brother to communicate to the dealer her offer to purchase the chair. She wishes to testify that her brother told her, "The dealer has agreed to sell you the chair for $15,000." The agreement was not reduced to writing and the brother died a few days after that conversation. If the jurisdiction has a typical "Dead Man Act," what effect will the Act have upon the admissibility of the purchaser's conversation with her brother?

None, because the dealer is not a protected party. - Such statutes are designed to protect those who claim directly under the decedent from perjured claims. Here, the dealer is not a representative or successor in interest of the brother, such as an executor, administrator, heir, legatee, or devisee. Therefore, the dealer is not a protected party for purposes of a Dead Man Act. Because the testimony of the purchaser is not being offered against a representative or successor in interest of the decedent (her brother), the Dead Man Act is inapplicable.

Mimic: how is identity shown?

Other crimes are admissible on identity when they are committed in a unique way that shows what amounts to a "signature" of the perpetrator. 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.

A merchant sued a company for breach of contract, alleging that the products she purchased failed to conform to contract specifications. Shortly before the trial was to begin, the merchant suffered a stroke that left her paralyzed and virtually unable to communicate. Her guardian was properly substituted as the plaintiff in the lawsuit. At trial, following presentation of the plaintiff's case, the company calls as a witness a priest to question him about a conversation he had with the merchant at a church fundraiser. In this conversation, the merchant told the priest in confidence that the products she received were actually quite functional, but that she had become aware of a lower price being offered by another vendor, and thus wanted to get out of her contract with the company. The plaintiff's attorney immediately objects on the basis of clergy-penitent privilege. How should the court rule on the objection?

Overruled, because the circumstances under which the merchant made the statement take it outside the scope of the privilege. - Pursuant to the clergy-penitent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member's capacity as a spiritual adviser. The operation of this privilege is very similar to that of the attorney-client privilege. Here, the merchant made the statement to the priest during a conversation at a social occasion. There is no indication that this was a communication made to the priest in his capacity as a spiritual adviser, as would be the case, for instance, with a statement made in the confessional or during a counseling session. Thus, the matters stated to the priest by the merchant do not come within the clergy-penitent privilege, and the priest cannot be prevented from disclosing the contents of the conversation on the basis of this privilege.

A pedestrian brought suit against the driver of a car that struck him and caused him serious injuries and amnesia. During case preparation, the pedestrian's attorney was frustrated by his client's inability to remember any of the facts surrounding the accident. He therefore hired a qualified hypnotist to question the pedestrian. While hypnotized, the pedestrian described details of the accident, stating that the car that struck him ran a red light, and the car's license plate number was XYZ356. It so happens that XYZ356 is the license number of the driver's vehicle. At trial, the driver stipulated that his car struck the pedestrian, but asserts a defense that he was not negligent and that the light was green when he entered the intersection. Because the pedestrian's amnesia persists at the time of trial, the pedestrian's attorney wishes to call the hypnotist to the stand to testify as to the statements made by the pedestrian under hypnosis. The driver's attorney objects. How should the court rule on the objection?

Sustained, because the hypnotist's testimony would be hearsay not within any recognized exception to the hearsay rule. - It would be recounting an out-of-court statement (the pedestrian's hypnotically induced recollection of the accident) for the purpose of establishing the truth of the matter asserted in the statement. Therefore, the issue in deciding upon the admissibility of the hypnotist's testimony is to ascertain whether it fits within a hearsay exception. There is no hearsay exception for out-of-court statements given under hypnosis. The only hearsay exception that seems possibly applicable is the residual or "catch-all" exception. Before evidence can be admitted under this exception, however, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence. No such notice was given in this case

A plaintiff sued a defendant over a claimed debt. At the trial, the plaintiff established the existence of the debt and testified that he never received payment. In response, the defendant presents evidence sufficient to establish that she took her check to the post office and sent it to the plaintiff's proper address by certified mail. The defendant offers a certified mail receipt with an illegible signature, which she claims is the plaintiff's signature. The defendant also presents evidence that her basement flooded on March 28, and she claims that she cannot produce a canceled check because her box of canceled checks was destroyed from the water damage. Evidence is also presented that, due to a computer glitch, the defendant's bank cannot reproduce her checking account records for the months of February and March. After the defendant's testimony, which of the following is correct?

The burden of persuasion and the burden of going forward with the evidence are on the plaintiff. - The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant's testimony raises a rebuttable presumption that the check had been delivered in the mail. The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives. The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Here, when the plaintiff made out a prima facie case of the defendant's debt, the burden of going forward with the evidence shifted to the defendant. The defendant met this burden through the use of a presumption. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption. The defendant's evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check).

A victim was struck by a car and taken to the emergency room ("ER") immediately after the accident. He was treated by an ER doctor and released 30 minutes later. The victim later went to his own physician for a follow-up. The victim filed suit against the driver of the car that struck him. At trial, the victim testified that he suffered from lower back pains and sought damages from the driver therefor. The defense attorney subpoenaed the ER doctor and put her on the witness stand. After a line of questioning establishing who the ER doctor is and where she is employed, the defense attorney asked the ER doctor to describe the victim's condition when she examined the victim immediately after the accident. The victim's attorney objected on the grounds that his client wished to invoke the jurisdiction's physician-patient privilege.How should the court rule on the objection?

The court should overrule the objection because the victim is suing for personal injuries. A person cannot invoke the physician-patient privilege, which prohibits the doctor from divulging information acquired while attending a patient, where that person has put his physical condition in issue (e.g., by suing for personal injuries). The victim is suing the driver for personal injuries allegedly incurred as a result of being struck by the car driven by the driver. Therefore, the victim himself has put his physical condition in issue and cannot avail himself of the physician-patient privilege

In a suit between the drivers of two cars involved in a collision, the plaintiff's attorney calls a witness to the stand. On direct examination, the witness testifies that, while walking down the street, she heard a horn sounding, looked up, and saw two cars enter an intersection and collide. On cross-examination, the defense attorney goes over the same ground with the witness. He asks her whether there was any broken glass on the pavement, to which she responds, "Yes, lots of it," and before the defense attorney can ask his next question, the witness blurts out, "They had to be going over 50!" The defense attorney moves to strike the statement.How should the court rule?

The court should strike the statement as unresponsive to any question asked. An unresponsive answer by a witness is subject to a motion to strike by examining counsel, but not by opposing counsel. Thus, examining counsel can adopt an unresponsive answer if it is not objectionable on some other ground. Here, the defense attorney asked the witness a question that was very specific and called for a specific answer (i.e., whether there was broken glass on the pavement at the time and place of the accident). Thus, the witness should only have stated whether there was any glass. Her volunteered information regarding the speed of the cars bore no connection to the question posed and was totally unresponsive to that question (or to any other question asked). Therefore, the defense attorney, as examining counsel, is entitled to move to strike the statement, and this motion should be granted.

In litigation over whether an uncle conveyed a parcel of land to his nephew, the nephew wishes to offer into evidence a tape recording of his uncle made by a well-known oral historian at the nearby state university. The voice on the tape is discussing various conveyances of the parcel of land and other property owned by the uncle. The nephew wishes to have the historian testify that the voice on the tape is the uncle's. If the court allows the historian to testify, it will be because:

The historian has heard the uncle speak before. - A voice, whether heard firsthand or through a tape recording, may be identified by the opinion of anyone who has heard the voice at any time. As long as such a foundation is laid to show familiarity with the voice, a lay opinion as to the identity of the speaker is permissible. Thus, because the historian became familiar with the uncle's voice when he made the tape recording, he will be permitted to testify that the voice on the tape was the uncle's - in contrast to the rule for handwriting verification, a person can become familiar with a voice after litigation has begun and for the sole purpose of testifying. Hence, the fact that the historian became familiar with the uncle's voice before the dispute arose is not critical to admissibility of his testimony - does not matter if he is an expert or not: Because the historian's testimony is based on his previous familiarity with the uncle's voice and is needed to authenticate the tape recording, it will be admissible as opinion testimony under Federal Rule 701

May EE of bias be used to impeach a witness?

Yes

The plaintiff instituted suit against a development firm for injuries suffered by the plaintiff when a basement stair collapsed as he was being shown one of the firm's buildings that it was leasing. At trial, an employee for the firm claims that he told the plaintiff about the defective stair. The plaintiff then offers evidence that after his fall, the CEO of the development firm called him at home and offered to pay all of the plaintiff's medical expenses, saying, "I guess I owe you that much after our employee didn't warn you about the broken stair." Is the statement regarding the lack of warning admissible?

Yes, as a statement attributable to an opposing party. - The offer to pay medical expenses in itself is not admissible, because such offers are excluded from evidence for public policy reasons. However, statements made in connection with offers to pay medical expenses do not fall within the public policy exclusion and are admissible. Here, there is a statement that follows the CEO's offer. The CEO is clearly authorized to speak for the development firm, so the CEO's statement is attributable to the firm. Because this is an opposing party's statement, it is not hearsay under the Federal Rules, and is admissible as evidence that the employee had not warned the plaintiff about the dangerous condition of the stairs.

A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion, each time telling the operator that he wanted to "end it all." Is the testimony admissible?

Yes, because it tends to show that the husband intended to commit suicide. - Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. Here, the husband's statements to the operator tend to show that the husband intended to commit suicide, so they are admissible to prove that he did so

A sportscaster on a local television show interviewed the parent of a child on a high school football team. The interviewee told the sportscaster that the head football coach "openly condones the use of steroids by team members." The coach, who had always conducted a strong anti-drug program for his football players, watched and recorded the show daily. He was outraged when he saw the live broadcast, and filed suit for defamation against the interviewee, the sportscaster, and the television station. At the trial of the suit, the coach wishes to testify as to what the interviewee said on the television show. The defense objects. Should such testimony be admitted?

Yes, because the coach saw the live television broadcast. - To be a competent witness, the witness must have personal knowledge of the matter and be willing and able to testify truthfully. The first requirement is satisfied if the witness observed the matter and has a present recollection of his observation. Thus, the coach would be a competent witness if he observed the publication of the defamation, which occurred through the television broadcast.

A lawyer sued a client for his fee, based on an agreed hourly rate. The client subpoenaed the lawyer's time records for the days on which he purported to have worked for the client to show that the lawyer had billed an impossible number of hours to the client and others on those days. The client's subpoena provided that any information concerning the matters handled for other clients be deleted or masked. The lawyer moved to quash the subpoena on the ground of attorney-client privilege. Should the subpoena be upheld?

Yes, because the information about hours billed is not within the privilege. - There is no privilege regarding a communication that is relevant to an issue of breach of duty by the lawyer to his client or by the client to her lawyer. Thus, the billing data does not fall within the ambit of the privilege - If ACP, were applicable, the lawyer would be able to invoke the privilege on behalf of his clients. The lawyer's authority to do this is presumed in the absence of any evidence to the contrary

A plaintiff who was a citizen of State A was traveling to adjoining State B to visit his relatives. While still in State A, the plaintiff's auto was struck in the rear by a vehicle driven by the defendant, a citizen of State B. The plaintiff suffered personal injuries and damage to his vehicle amounting to approximately $90,000. The plaintiff filed suit in the federal district court for State A and obtained proper service of process on the defendant. Under the laws of State A, the driver of a vehicle that strikes another vehicle in the rear is presumed to have acted negligently, regardless of the surrounding circumstances. Neither the law of State B nor the federal statutes or case law has adopted such a rule. Should the court apply the presumption in question?

Yes, because the presumption at issue operates upon elements of the prima facie case. - Under the Erie doctrine, in a case based on diversity of citizenship, the federal court must apply the substantive law of the state in which the court sits. However, the court will apply federal law to procedural issues. Federal Rule of Evidence 302, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. The presumption at issue here, by presuming negligence on the part of a driver who strikes another vehicle in the rear, impacts on the prima facie case elements of duty and breach of duty. Matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters. Consequently, the presumption of negligence recognized by State A should be applied by the court on this issue

A plaintiff sues her employer for sexual harassment. During the trial, the plaintiff attempts to introduce into evidence company records that include written complaints from other employees alleging that they too were sexually harassed by the employer. The defense objects to the admission of the records on the basis of hearsay. Should the objection be sustained?

Yes, because the records are hearsay not within any recognized exception. - The business records exception applies to records or writings made in the course of a regularly conducted business activity by one who was under a duty to do so. Here, because the employees were not under a business duty to file their claims, the business records exception does not apply to their statements.

During the course of their marriage, a husband told his wife that he stole a famous painting from a federal museum. Six months after the admission, the couple divorced. Shortly after the divorce, the husband was killed in an automobile accident. Later, the wife read in the paper that a man had been charged with the theft of the painting her husband admitted to stealing and was about to be tried in federal district court. She told her friend that the man was probably innocent because the husband told her that he had stolen the painting himself. The friend told several other people what the wife had told her, and eventually the story got back to the defense attorney. The attorney now wants the wife to testify in court to the husband's statement. Can the wife be compelled to testify?

Yes, but only because the husband is dead and cannot invoke his privilege.

A trial judge presiding over a lawsuit plans to call a witness to the stand and question her. May the judge do so?

Yes, but the parties are entitled to cross-examine the witness. A party may also object to the court's examining or calling a witness either at that time or at the next opportunity when the jury is not present (to spare counsel the potential embarrassment of objecting to the judge's questions in front of the jury)

A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years' imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident. Upon proper objection, should the court rule that the witness's statement before the grand jury is admissible?

Yes, for impeachment and as substantive evidence.

The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant's spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant's spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver's seat until the police arrived. Is the testimony admissible?

Yes, for impeachment purposes only. - She has an opportunity to explain or deny it AFTER. Need not explain or deny before

Burden of persuasion

burden of a party to persuade the jury to decide an issue in its favor - if, after all proof is in, the issue is equally balanced in the jury's mind, the party w burden of persuasion MUST LOSE - burden of persuasion NEVER shifts parties - ex: P sues D over a claimed debt. P had burden of persuaiding via producing sufficient ev to show debt existed and unpaid

When is evidence of a rape victim admissible?

- Although Federal Rule 412 generally excludes evidence of an alleged victim's sexual behavior, evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent. Thus, if the director raises consent as a defense to the rape charge, evidence of his previous consensual sexual encounters with the worker is admissible. - The Federal Rules also contain an exception for specific instances of the alleged victim's sexual conduct tending to show that someone other than the accused was the source of semen, injury, or other physical evidence.

A plaintiff suffered injuries when her car was struck by the defendant's car. The police arrived on the scene and required the defendant to take a breathalyzer test. The defendant was cited for driving while intoxicated, tried in traffic court, and duly convicted. He received the maximum sentence for driving while intoxicated, which is 90 days' imprisonment in the county correctional facility. The plaintiff brought a civil action against the defendant, seeking compensation for her personal injuries. At the trial of the plaintiff's suit, the plaintiff's attorney offers a properly authenticated photocopy of the court judgment showing that the defendant was convicted of driving while intoxicated.Is the evidence admissible?

- No, because the crime was punishable by imprisonment of at most 90 days -Despite the fact that copies of judgments are hearsay (because they are out-of-court statements used to prove the truth of the matter asserted), the Federal Rules of Evidence provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. The Rules define felony convictions as crimes punishable by death or imprisonment in excess of one year. [Fed. R. Evid. 803(22)] Here, the crime for which the defendant was convicted carries a maximum term of imprisonment of 90 days. Thus, the defendant's conviction is not a felony conviction for purposes of the Federal Rule, and the conviction is inadmissible hearsay as proof of the fact asserted (i.e., that the defendant was driving his car while intoxicated when he struck the plaintiff's car). (A) is incorrect because the copy of the judgment of conviction is not a record, report, statement, or data compilation of a public office or agency, setting forth: (i) the activities of the office or agency, (ii) matters observed pursuant to a duty imposed by law, or (iii) factual findings resulting from an investigation made pursuant to authority granted by law. Therefore, the copy of the judgment is not deemed to be a public record for purposes of the hearsay exception for public records and reports.

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim's car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, "I don't think I'm going to make it. I tried to slow down, but my brakes didn't work. My former partner must have tampered with them to get back at me." With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant. At trial, can the motorist testify as to the statement made by the victim?

- No, because the victim did not know that the defendant tampered with the brakes. - Dying declaration is not available because the victim's statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception.

In a property dispute, a granddaughter claims that her grandfather gave her a deed to his home just before he died. The grandfather's son claims that the property is rightfully his by a previously executed will. At issue is the authenticity and content of the deed. The granddaughter begins to testify as to the content of the deed, but the son's attorney objects. Should the court sustain the objection?

- No, if judge is satisfied that the deed could not be found after a diligent search - When a proponent is attempting to prove the contents of a document, the best evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents. A proper foundation for the admissibility of secondary evidence may be laid by a showing that the original has been lost and cannot be found despite diligent search

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?

- The letter is admissible as substantive evidence as well as for impeachment purposes. - 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.

The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner's lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened. Whose testimony is necessary to introduce the photograph into evidence?

- The witness's testimony is necessary and the employee's is unnecessary. - To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible. -Generally, a photographer's testimony is not necessary to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene

In a claim for damages in a personal injury action, a plaintiff's attorney sought to introduce evidence of the plaintiff's testimony made to her boyfriend several days after her accident that "I must have sprained my neck when it happened because it hurts so much." The plaintiff is also planning to offer medical evidence that her neck was sprained. Is the testimony admissible?

- admissible as a then existing state of mind/statement of physical condition - she said it HURTS, not it hurt. Its present sense

What can and cannot prosecutor do if witness denies prior bad act ever occurring (in an impeachment)?

- cannot admit extrinsic evidence - can continue to ask questions in good faith in hope witness will change their answer

When is character evidence admissible in a civil case? Criminal Case?

- civil: when character is in issue. May then use R/O or specific act. otherwise, no R/O, or SA - criminal: D can use R/O of pertinent character trait of him or victim in self-defense. Prosec can respond (not in case in chief) w/ R/O of other witnesses, or specific acts questions to test D's witness' knowledge of D - civil/criminal: can use MIMIC for not-for-char purpose in case in chief

How does one properly impeach a witness with prior bad act evidence that weighs on their character for untruthfulness

- cross-examine witness directly - cannot call another witness to testify to that event (impermissible EE)

Against whom is specific act evidence in civil negligent entrustment case admissible against?

- inadmissible against entrustee/hiree - admissible against person who entrusted them or who hired them - 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

Does the prosecutor have a right to ask D about specific prior bad acts on crossexamination?

- no - Under Federal Rule 608, the trial court is given the discretion to allow counsel to inquire, during cross-examination, about specific instances of bad conduct on the part of the witness which show a lack of credibility

The plaintiff was injured when she slipped at the defendant restaurant. The defense attorney asked the manager on duty at the time of the incident to prepare a report of the accident. This report was given to the defense attorney prior to trial. During discovery, the plaintiff demands that a copy of the report be produced.Will the court order the defendant to produce the report?

- no, because its protected by ACP - The court will not order the defendant to produce the report. Communications between an attorney and client, made during professional consultation, are privileged from disclosure. A business report prepared as a communication from client to attorney is privileged. Here, the manager prepared the report at the request of the restaurant's attorney. As such, the report constitutes a privileged communication between an attorney and client and its production is not required.

The son of a famous author who has not been seen in two years brings an action against an insurance company to compel payment of the proceeds of the author's insurance policy, for which the son is the sole beneficiary. The son introduced evidence that, on the day the author disappeared, a plane left from the city where she lived and was lost while traveling over the ocean. The manifest of the airline was introduced showing that a passenger with a name similar to hers was aboard the airliner. The son wants to testify that his mother told him that she was going to be on that plane and, to preserve her privacy, was going to travel under the name that matches the name in the manifest. Is the son's testimony admissible?

- yes, as a statement of then existing state of mind

A driver was driving north on a local road when his car went out of control, crossed the center line, and struck the vehicle of another driver who was driving south on the same road. Immediately after the accident, an off-duty officer came by and photographed the accident scene for the police report. In a suit between the drivers, the plaintiff seeks to introduce the photograph taken by the officer. The officer is present in court but has not been called as a witness. Is the photograph of the scene of the accident admissible?

-No, because a proper foundation has not been laid. - To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted. Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible.

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state. Is the testimony of the witness admissible?

-No, because the plaintiffs were not parties to the criminal proceeding. - Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs.

A defendant is on trial for the murder of the victim, who was found beaten to death in his home. Evidence already presented has shown that the victim was killed when no one was at home except for the victim and his dog. The prosecution wishes to call a neighbor to the stand who is prepared to testify that she went to the victim's home the day after his murder and that when the defendant came by, the dog ran to a corner, where he cringed and whimpered. The neighbor is also prepared to testify that the dog is normally a very friendly dog, usually greeting visitors to the house, including the defendant, by approaching them with his tail wagging. The defense objects to the neighbor's proposed testimony. How should the court rule on the neighbor's testimony regarding the dog's behavior?

Admissible, as circumstantial evidence against the defendant. - Generally, all relevant evidence is admissible unless it is barred by a specific exclusionary rule or by the general balancing test of Rule 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc. The neighbor's testimony is relevant because the dog's behavior when the defendant came by tends to prove circumstantially (i.e., indirectly) the prosecution's contention that the defendant beat the victim to death (in the dog's presence). The neighbor is competent to testify as to the dog's behavior toward the defendant both before and after the murder, and no other competency rule warrants excluding the testimony; hence, it should be admitted.

A decedent died without having executed a will, leaving a substantial estate to be distributed by the probate court. The jurisdiction's applicable statute provides that where a decedent leaves neither issue nor spouse, nor parents, his estate goes to his brothers and sisters and their descendants. The decedent was never married, had no children, and both of his parents are dead. A woman whose birth certificate was destroyed by fire seeks to establish that she is the daughter of the decedent's only sibling, who is now also deceased. The woman offers into evidence a statement in a properly recorded trust instrument. The instrument was executed by the decedent's father and recited that certain specified real property conveyed by the decedent's father into the trust should be held for her benefit, as "my loving granddaughter." The document actually offered is an enlarged print photocopy of microfilm records, authenticated by an employee of the county. What should the trial court do?

Admit the evidence, because it is a record of a document affecting an interest in property. - no BER issue: properly authenticated copies of recorded writings may be used in lieu of originals

Unresponsive answers by a witness

An unresponsive answer by a witness is subject to a motion to strike by examining counsel, but not by opposing counsel. Thus, examining counsel can adopt an unresponsive answer if it is not objectionable on some other ground.

Is a prior inconsistent statement made at a grand jury proceeding admissible as substantive evidence, for impeachment, or both?

Both - A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated).

The plaintiff sued the defendant on a breach of contract theory. A witness testified for the plaintiff. On cross-examination, which of the following questions is the trial judge most likely to rule improper? A: "Weren't you convicted last year of forgery?" B: "Isn't it true that you and the plaintiff have been best friends for many years?" Correct C: "Isn't it true that you are known in the community as an alcoholic?" D: "Didn't you cheat your business partner out of a large amount of money last month?

C - C: alcoholic has no bearing on truthfulness - A: conviction involving fraudulent statement or dishonesty - B: bias - D: bad act bearing on truthfulness

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:

non-hearsay, as long as subject to cross-examination

Statement of Family History

statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc., are admissible (regardless of whether the declarant is available).

Burden of Going Forward

the obligation resting upon a party to produce prima facie evidence on a particular issue - if P makes prima facie case, he met burden of going forward w ev, and burden shifts to D - when P shifts burden to D, D can invoke a presumption; if presumption invoked, burdenof going forward with the evidence shifts back to P

May a lay witness testify a party seemed drunk?

yes - Testimony about whether a person was intoxicated is likely admissible because it is based on the perception of the witness rather than on specialized knowledge