Bar Prep: Evidence

Front 1

What questions should you ask about any evidence being introduced?

Back 1

1) Is it Relevant?
2) Why is the evidence being introduced?
3) How is it being introduced?

Front 2

What are the two types of Relevance?

Back 2

1) Logical Relevance: which has a tendency to make a material fact more or less probable than it would be without it
2) Discretionary Relevance: even if it is logically relevant a judge may keep it out

Front 3

What are the three important considerations for a piece of Evidence in determining its Logical Relevance?

Back 3

Evidence may not be logically relevant if it involves another:
1)Time
2)Event
3)Person
…than the one involved in this litigation.

Front 4

For what reasons may a judge choose to keep evidence that is logically related to the case out for other reasons? (Discretionary Relevance):

Back 4

1) Unfair Prejudice
2) Confusion of Issues
3) Misleading the Jury
4) Undue Delay
5) Waste of Time
6) Cumulative Evidence

Front 5

Is Unfair Surprise a reason for keeping out a piece of evidence?

Back 5

NO!

Front 6

What are the exceptions to the general rule that evidence involving some other time, place or person is not relevant?

Back 6

Evidence introduced to show:
1)Causation
2)Prior Accidents to show plan schem or fraud or when relevant to damage to plaintiff
3) Intent or State of Mind in Issue
4)Rebuttal Evidence 5)Comparable Sales to establish Value
6) Habit Evidence
7) Business Routine
8)Industry Trade or Custom

Front 7

When Evidence is being introduced about prior accidents or Claims of the Plaintiff, what is required?

Back 7

The prior accidents or claims (since they involve another time and place) must only be used to show:
1) A common plan or scheme of fraud; OR
2) That the damage to the plaintiff was caused by something else

Front 8

When evidence is being introduced about the prior accidents or claims of the Defendant, what is required?

Back 8

The prior accidents or claims (since they involve another time and another person) must only be introduced IF:
-They involve the same instrumentality
-they occurred under the same or similar circumstances
-they are being introduced to show:
-Notice or Knowledge
-That the instrumentality is dangerous or defective

Ex: people keep driving into the same bridge abutment.

Front 9

What is required to introduce evidence of the Habit of a person in order to show that person acted in the same way on the occasion in question?

Back 9

The action must be:
1) A Specific Response
2) Must have Recurrence of the response

Look for "always", "invariably", "automatic".

Front 10

What is Business Routine?

Back 10

It is the same as habit evidence but for a business.

Front 11

What is Industry Trade or Custom evidence allowed to be introduced for?

Back 11

To show NON-CONCLUSIVE evidence of the standard of care

Ex: even though 98% of companies act in a certain way it is not conclusive of the proper standard of care because they could all be negligent.

Front 12

Is evidence of Liability Insurance admissible?

Back 12

Generally, NO.

Exceptions:
- To show Ownership or Control
- To impeach the credibility of witness by showing interest or bias

Front 13

Is evidence of Subsequent Remedial Measures taken by the Defendant admissible?

Back 13

Generally NO, not to show negligence, culpable conduct, a defect in the product, a defect in a product's design or need for a warning or instruction.
*Kept out for policy reasons, to encourage people to fix dangerous things*

Exceptions:
-To show Ownership or Control
- For impeachment to show the feasibility of precautionary measures

Front 14

Is evidence of Settlement admissible?

Back 14

NO.
Settlements, offers to compromise, offers to plead guilty, actual compromises or withdrawn offers of guilty are not admissible to show fault, liability or amount of damage.
**Admissions of fact or liability or damage made IN THE COURSE of offer to compromise a claim are not admissible.
***THERE MUST BE A CLAIM or person has said or indicated there will be a claim to settle
****The claim must be DISPUTED as to either liability or amount

Front 15

Are offers to pay the medical expenses of another admissible?

Back 15

NO.
The offer to pay the medical expenses is not admissible
BUT admissions of fact are admissible if they accompany an offer to pay medical expenses that is not made during Settlement negotiations.
Ex: "Let's settle, it was my fault, let's agree on the amount of damage." Not admissible
Ex: "It was all my fault. Let me pay your Hospital bills." IS ADMISSIBLE

Front 16

What questions should you ask when Character Evidence is being offered as evidence?

Back 16

1) purpose of the character evidence
2) method of proving character
3) type of case - civil or criminal; and
4) what trait of character is involved?

Front 17

What are the three techniques that can be used to introduce Character evidence?

Back 17

1) Specific acts of conduct
2) Opinion
3) Reputation

Front 18

When is Character evidence admissible in a civil case?

Back 18

Character Evidence is ONLY admissible in a civil case when the character of a person is itself a material issue in the case.
Ex: Defamation or Child Custody case.

Evidence may be introduced using Specific Acts, Opinion or Reputation evidence.

Front 19

What is the general rule applying to Character Evidence in a Criminal case?

Back 19

Bad Character evidence is not admissible by the prosecution if the sole purpose is to show criminal disposition in order to infer guilt.

Front 20

When may the prosecution offer evidence about the bad character of the accused?

Back 20

The prosecution may show the bad character of the accused in response to the accused offering evidence of good character to show disposition in order to infer innocence.

The prosecution may also offer evidence of bad character (criminal activity) in oder to impeach the credibility of the accused if he testifies.
*Must be relevant, such as perjury conviction for honesty.

Front 21

When may the accused in a criminal case offer evidence of his good character?

Back 21

At any point, to show disposition in order to infer innocence.

Good character evidence of the accused may be proved by Reputation or Opinion, NOT specific acts.

Front 22

If testimony is given by a witness about the Good Character of the accused, how may the prosecution respond on cross examination?

Back 22

The prosecution may inquire on cross-examination about any Specific Acts which would tarnish the accused's reputation or would affect the opinion of the witness.

Front 23

Specific Acts: Bad Reputation evidence

May the prosecution ask a "good character witness" in cross-examination "have you heard that the accused was arrested six times for Robbery?"

May the prosecution call a witness to testify that the accused has in fact been arrested six times for Robbery?

Back 23

Yes, the prosecution can ask about specific acts on cross if the witness was testifying about the good character of the accused.

NO. The prosecution cannot have a bad character witness testify about specific acts, he may only ask about them on cross.

Front 24

When may the prosecution in a criminal case call a witness to testify about the Bad Character of the accused?

Back 24

Only after the accused has offered evidence of good character.

Front 25

In a criminal case, may character evidence be offered about the victim?

Back 25

Yes, but only in special situations.

May be offered in:
Homicide or Assault cases, as part of a self-defense plea.
**This would open the door for the prosecution to show character evidence about the victim or bad character evidence about the accused (both only by reputation or opinion, no specific acts).
Special rules for Sexual Assault Cases!

Front 26

In a sexual assault case, may the accused offer evidence about the character of the victim?

Back 26

Yes, but his ability to do so is limited.
Opinion and Reputation evidence may not be introduced to show consent.

Specific instances of sexual behavior are admissible only if:
1- offered to prove that a third party was the source of semen, injury or other physical evidence
2- to show prior acts of consensual intercourse between alleged victim and the accused
3- exclusion would violate constitutional rights of the accused

**Defense must give notice before offering and in camera hearing must be held.**

Front 27

What is an important exception that would allow the bad character of the victim to be introduced, even though it could not be introduced to infer the victim acted according to it?

Back 27

When bad reputation is being introduced to show knowledge of the reputation or specific acts of the victim by the accused, and the IMPACT knowledge of the reputation or specific acts had on the accused.

**To show state of mind.**

Front 28

Other than to prove Character or Disposition, when may prior crimes or acts of miscoduct of the accused be introduced by the prosecution?

Back 28

For any relevant purpose, other than showing character for the purpose of provint action in conformity therewith.

Generally, for these purposes (MIMIC):
M - Motive
I - Intent
M - Mistake, absence of
I - Identity (particular way of doing something)
C - Common Plan or Scheme

Front 29

What is the ONE type of case where prior similar acts may be used to show propensity?

Back 29

Prior similar acts may be used to show propensity in caes charging the Defendant with Sexual Assault or Child Molestation.

Front 30

What must be done before a Writing may be introduced into evidence?

Back 30

The writing must be authenticated.

Must show that the writing is what it purports to be.

**Writings are not self-authenticating, must be authenticated by Testimony.**

Front 31

What Direct methods may be used to authenticate a writing?

Back 31

1) Admission ("that's my signature")
2) Eyewitness Testimony ("I saw him sign it")
3) Handwriting Proof (Lay witness, Expert witness or Jury Comparison)

**Lay witness can't compare signatures and can't be familiar with signature only for the purpose of litigation**

Front 32

What Circumstantial Evidence may be used to authenticate a writing?

Back 32

1) Ancient Document Rule: 20 or more years old, Regular on its face, Found in place of natural custody

2) Solicited Reply Doctrine: Proof that disputed document came in reply to prior communication

Front 33

How much evidence is necessary (quantum of proof) to lay a proper foundation for the introduction of a document?

Back 33

Only sufficient evidence to justify a jury finding of genuineness.

Front 34

Contrary to the general rule that writings aren't self-authenticating, what types of documents may be admitted without a foundation or testimonial sponsorship (self-authenticating)?

Back 34

1) Certified copies of public or business records
2) Oficial Publications (ex: a pamphlet from the DMV)
3) Newspapers and Periodicals
4) Trade Inscriptions or Labels
5) Acknowledged Documents
6) Signatures on certain commercial documents as provided by the U.C.C.

Front 35

How do you authenticate a photo?

Back 35

Anyone can testify that it is a fair and accurate depiction of the scene.

**You don't need the testimony of the person who took the picture.**

Front 36

What is the Best Evidence Rule?

Back 36

It requires that a person who seeks to prove the content of a writing (letters, photos, xrays, recordings) must either:
1) Produce the original document; or
2) Account for the absence of the original and if the absence is justified a copy or oral testimony may be given

**Must be seeking to prove the content**
**Watch out for situations where only being used to show effect on a person and not content of letter**

Front 37

What does the Best Evidence Rule apply to?

Back 37

Either:
- Legally operative documents (deed, will, written contract); or
- When the witness's sole knowledge comes from a document

Front 38

What does the Best Evidence Rule specifically not apply to?

Back 38

1) Facts independent of the writing: where an individual had knowledge of facts independent of the writing and the writing just happened to contain them

2) Collateral Documents: writings of minor importance won't require the original

Front 39

Modifications have been made to the Best Evidence Rule to allow what 3 exceptions to be admitted in place of an original document?

Back 39

1) Public Records (certified copies

2) Voluminous Documents (summaries, charts, or calculations in place of voluminous records as long as copies are made available to opposing party

3) Duplicates (ex: photocopies)

Front 40

What is required for a person to be Competent to give Testimonial Evidence?

Back 40

The person must:
1) Have Personal Knowledge
2) Must be able to test the person's:
a) Memory
b) Communication
c) Sincerity (oath or affirmation)

Front 41

What common law disqualifications are no long used, which one is still used?

Back 41

Lack of religious belief;
Infancy (no longer automatic disqualification);
Mental Incompetency
Prior Convictions
Interest (almost all gone)
…are all no longer used

State Dead Man Statutes are still around in about half of states
There is no Federal Dead Man Statute
May apply a state Dead Man Statute in Diversity Cases

Front 42

What is a Dead Man Act?

Back 42

Typically, a dead man statute says:
An interested survivor cannot testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver.

****USUALLY A WRONG ANSWER ON THE MBE****
(because there are too many elements to meet)

Front 43

What are the elements of a Dead Man Statute?

Back 43

1) Witness must be "interested" (have a direct stake)
2) Interested witness must be testifying for his interest
3)The interested witness has to be testifying "against" the dead man
4) The subject matter has to be about matters that are transactions or communications with the decedent
5) Only applies to Civil cases
6) Waiver is available (such as if the representatives offer deposition testimony of the decedent and they thereby waive the right to object).

Front 44

What four types of questions are generally objectionable when examining a witness?

Back 44

1) Questions that call for a Narative answer
2) Leading Questions
3) Misleading or Compound Questions (usually assume as true something in dispute)
4) Argumentative Questions

Front 45

When are leading questions permitted when examining a witness?

Back 45

1) on Cross Examination
2) Preliminary Matters
3) If you are having difficulty eliciting testimony (child, old, dumb)
4) When examining the adverse party, someone under the control of the adverse party or a genuinely Hostile Witness

Front 46

When may a witness use a writing to aid his/her testimony?

Back 46

Witnesses generally cannot read testimony from a previously prepared document but may use a writing in aid of oral testimony in two situations, both of which require the witness to draw a blank:

1) Refreshing recollection

2) Recorded Recollection

Front 47

What is Refreshing Recollection?

Back 47

When a witness's memory fails, ANYTHING can be used to jog the memory of the witness.

**No foundation required except "I can't remember"

**Any writing can be used, even someone elses's statement
**Opposing counsel may see it, use it, or offer it into evidence

Front 48

What is Recorded Recollection?

Back 48

If a witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing show to be reliable may be admitted in place of her testimony

**You must have a proper foundation**

Front 49

What foundation is required to admit a Recorded Recollection?

Back 49

Must show that:
1) At one time the witness had personal knowledge
2) The writing was made by the witness, under his direction, or adopted by the witness (not someone else's statement)
3) The writing was timely made (when memory was fresh)
4) Must show writing was reliable
5) Necessity (must be unable to remember all or part of details).

Front 50

What are the two requirements in order to allow a lay witness to give an opinion?

Back 50

Opinion must be:
1) Rationally based on the perception of the witness
("I saw the car and it was going about 25mph")

2) Helpful to the trier of fact
("in my opinion he was negligent" is not admissible even if rationally based upon perception)

Front 51

Can an Expert Witness give testimony about things that he has not percieved?

Back 51

Yes.

Front 52

What are the four basic requirements for expert testimony?

Back 52

1) Subject matter must be appropriate for Expert testimony
2) The witness must be qualified as an expert
3) Must have reasonable certainty or probability
4) Must be supported by a proper factual basis.

Front 53

Are there any special qualifications that make someone an expert?

Back 53

NO.
Any person can be qualified as an expert solely based on experience, no formal or acedemic qualifications are required.

Front 54

What does it mean that an expert's testimony must be based on a proper factual basis?

Back 54

The facts must be:

1) Within his personal knowledge (ex: treating physician); or

2) Facts supplied to the expert in court by the evidence (ex: hypo given to expert); or

3) Facts not within the expert's knowledge so long as the facts are of a type that experts in that field would reaonably rely on in makeing an opinion.

Front 55

When may a treatise be used as evidence?

Back 55

A treatise is admissible as an exception to the rule against hearsay if established as reliably by
(a) reliance by your expert on direct examination,
(b) admission on cross-examination of your opposing expert,
(c) testimony of any expert or
(d) judicial notice

Front 56

How must a treatise be admitted into evidence once it has been established as reliable?

Back 56

The treatise may be read by an expert, but the text itself is NOT received as evidence

Front 57

What are the limitations of cross-examination?

Back 57

1) Cross must be limited to the scope of the direct examination (any issues raised impliedly or expressly)

2) Impeachment by contraciction of the witness is limited; the cross-examiner is bound by answers given by the witness about collateral matters

**No extrinsic evidence is allowed to impeach a witness about a collateral matter**

Front 58

When can you bolster the credibility (offer good character evidence) of your own witness?

Back 58

You may not bolster the credibility of your own witness unless the witness's character (credibility) has first been attacked.

Front 59

When can a prior identification be used?

Back 59

A prior identification can be used if the prior statement of identification was made by a witness.

I.e. if they aren't testifying at trial, you can't use their previous identification because it is Hearsay.
**If they are present, then it is an exception to the rule against Hearsay**

Front 60

What five techniques are available for impeaching your adversary's witness?

Back 60

1) Prior Inconsistent Statements

2) Showing of interest, bias, or motive

3) Prior conviction of crime

4) Specific acts of deceit or lying

5) Bad reputation / opinion for truth

Front 61

How may you impeach an advesary's witness using a prior inconsistent statement?

Back 61

A prior inconsistent statement of the witness may be admissible ONLY to impeach the credibility - not for its truth - unless it was given under oath at a trial hearing etc…

**Extrinsic evidence IS admissible to prove the prior inconsistent statement**
**Witness must be given opportunity to explain**

Front 62

How may you impeach an advesary's witness to show Bias, Interest or Motive?

Back 62

All that is required is that you lay the foundation by inquiry on cross examination, then you just ask "isn't it true you are getting a reduced sentece for testifying here today?"

Front 63

When may prior convictions be used to impeach?

Back 63

Evidence of prior convictions may be used for:
1) ANY crime if it involves dishonesty (fraud, larceny by trick, embezzlement, perjury)
2) A felony not involving dishonesty or false statement at the discretion of the court

**Misdemeanors are not admissible to impeach if they do not involve deceit or false statement**

**Convictions can't be too remote (10 years)**

Front 64

When may you use specific acts of deceit or lying in cross-examination?

Back 64

Any time in cross-examination

**You simply ask…"did you lie about X?"**

**Good Faith is required**

Front 65

How do you introduce evidence about a witness's bad reputation for truth?

Back 65

By using opinion or reputation testimony

Front 66

What can be done to rehabilitate the reputation of your witness once it has been impeached?

Back 66

1) Good reputation testimony may be used if the impeachment involved a character attack;
2) Prior consistent statement may be used, BUT ONLY to rebut an express or implied charge of recent fabrication or improper motive.

**You can't use a prior consistent statement to rebut a prior inconsistent statement**
***The prior statement must have been made before the motive to lie.***

Front 67

What is the Attorney-Client privilege?

Back 67

Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.

**The privilege survives the death of the client**

Front 68

In order for the attorney-client privilege to exist, when must the communications have been made?

Back 68

The communications must have been made during a professional legal relationship
I.e. the client must have shown intent to establish a professional legal relationship.

**Retainer negotiations are covered**

Front 69

Does the attorney client relationship protect physical evidence?

Back 69

NO.
Only communications, not a gun, not existing documents.

Front 70

What specific situations are not covered by the Attorney client privilege?

Back 70

There is no privilege:
1) to facilitate future or continuing crime or fraud
2) When the client or patient affirmatively puts the content of the professional relationship in issue
3) Disputes between the parties to the professional relationship
4) Joint Client exception (no privilege between them, only as to others)

Front 71

What is the physician/psychiatrist patient privilege?

Back 71

The patient has a privilege against disclosure of confidential information acquired by the physician in a professional relationship entered into for the purpose of obtaining treatment.
-Patient must be seeking treatment
-information must be for that purpose

**Can be waived and is impliedly waived in cases where patient sues doctor**

Front 72

What are the two Husband/Wife Spousal Privileges?

Back 72

1) Spousal Immunity Privilege

2) Confidential Marital Communications Privilege

Front 73

What is the Spousal Immunity privilege?

Back 73

One spouse can't be forced to give adverse testimony against the other in a criminal case.

**ONLY APPLIES IN CRIMINAL CASES**

Applies to any testimony about anything so long as a valid marriage at time of trial.

****The witness spouse is the privilege holder, NOT the party spouse****

Front 74

What is the confidential marital communiccations privilege?

Back 74

A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

**Holder of privilege is EITHER spouse**
***Protects only confidences, not all testimony, spouse must testify and claim privilege about communications***
****Marriage must have been at time of communication****

Front 75

In what three situations does state evidence law apply in federal court?

Back 75

If State substantive law applies, then State evidence law will apply regarding:

1) Presumptions and burdens of proof
2) Competency of Witnesses
3) Privileges

Front 76

What is Hearsay?

Back 76

1) An out of court statement

2) Offered to prove the TRUTH of the matter asserted in the statement

**Applies to statements and Writings**

Front 77

What is the rationale for exclusion of Hearsay?

Back 77

It denies the opponent the opportunity to cross-examine the person whose perception, memory and sincerity are in issue.

Front 78

What are some specific sitations where an out of court statement is not Hearsay because it is not being offered for its truth?

Back 78

1) Verbal Acts or Legally Operative Facts
- where the words spoken or written have relevant legal significance n the case by virtue of being spoken or written (offer, acceptance, defamation, conspiracy, bribery, waiver, permission)
2) Statement offered to show its effect on the person who heard or read the statement (notice, good faith, reason for action or inaction
3) Statement offered as circumstantial evidence of state of mind.

Front 79

Can a witness's own prior statement be Hearsay?

Back 79

YES.

Front 80

When is a witness's own prior statement not Hearsay?

Back 80

1) Prior inconsistent statements given under oath at trial etc…
2) Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive
3) Prior Statement of Identification made by a witness
4) Admissions

**These are EXCLUSIONS from the definition, not exceptions**

Front 81

What are the 10 Major exceptions/exclusions to the rule against Hearsay?

Back 81

1) Admissions
2) Former Testimony
3) Statements against interest
4) Dying Declarations
5) Present Sense Impression
6) Excited Utterance
7) Statement of existing intent to do something (to show it was done)
8) Statement of then existing mental, physical or emotional condition
9) Statements for the purpose of medical diagnosis or treatment
10) Business Records

Front 82

What is an Admission?

Back 82

It is a declaration OF A PARTY being offered AGAINST A PARTY.

**No special reliability, introduced on an estoppel rationale**

Front 83

What is a Vicarious Admission?

Back 83

A statement by the party's agent or servant, CONCERNING A MATTER WITHIN THE SCOPE OF THE AGENCY or employment, MADE DURING THE EXISTENCE OF THE RELATIONSHIP.

Front 84

What is required for Former Testimonay to be admissible?

Back 84

1) Party who gave testimony at previous trial etc… must be UNAVAILABLE

2) There must have been MEANINGFUL OPPORTUNITY TO CROSS in order to fully develop testimony in the prior proceeding.

Front 85

What is required in order for a Statement Against Interest to be admissible?

Back 85

1) Party must be UNAVAILABLE
2) Statement must have been against the person's pecuniary, proprietary or penal interest AT THE TIME the statement was made.

**Requires personal knowledge it was against his interest at the time**

Front 86

Does an admission have to be against the interest of the party at the time it was made?

Back 86

NO

Front 87

What is a dying declaration and when can you use it?

Back 87

A dying declaration is a statement made under a sense of impending death. (doesn't have to actually die)

**Statement must be about the cause or circumstances of the impending death**

ONLY admissible in a Homicide or Civil Case about the cause of death

Front 88

Can you impeach the testimony of a Hearsay declarant, even if they aren't in court?

Back 88

YES

You can impeach anyone giving testimony against you

Front 89

Who decides preliminary questions about the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence

Back 89

The Judge, NOT the jury.

The rules of evidence don't apply to this determination, anything can be considered.

Front 90

What is the business records exception to the rule against Hearsay?

Back 90

Records made at or near the time by or from information transmitted by a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record, unless the source of information or circumstances of preparation indicate a lack of trustworthiness.

Front 91

What is the rationale for the business records exception?

Back 91

Employees are under a business duty to be accurate in observing, reporting and recording business facts.

**Allows the record to substitute for the employee's testimony, if the emplyee couldn't testify, neither can the record**

Front 92

How does the Sixth Amendment Confrontation Clause affect the admissibility of evidence?

Back 92

Even though an out of court statement may qualify under an exception to the Hearsay rule, it may be excluded because of the accused's Sixth Amendment right to confront his accusers.

Front 93

According to Crawford v. Washington, when will statements be inadmissible because of the confrontation clause?

Back 93

IF:
1) the out of court statement is offered against the accused in a criminal case
2) the declarant is unavailable at the trial
3) the out of court statement was testimonial
4) the accused had no opportunity to cross-examine the declarant's "testimonial" statement when it was made
5) the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying

Front 94

For the purposes of the Confrontation Clause, what is the definition of "testimonial"?

Back 94

If the declarant makes the statement that he/she anticipates will be used in the prosecution or investigation of the crime.

Also, if statements are made in response to questions by a 911 operator that are intended to collect information for a later prosecution (not to respond to an emergency), then the statements are testimonial.

Front 95

When will the defendant's own conduct prevent him from raising a confrontation clause challenge?

Back 95

If the defendant acts with the intent (and is succesful) of making the declarant unavialable.

**EX: The defendant could use the confrontation clause if he just so happened to murder the declarant, but couldn't use the confrontation clause if he murderd the declarant with the specific intent of preventing his testimony**