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31 Cards in this Set

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  • Back
What is the procedural process for a court to determine whether a document qualifies under the Business Record Exception to hearsay?
1. The issue will be decided by the judge;
2. After hearing evidence from both sides; AND
3. May be conducted in from of the jury-judge's discretion.
Who can conduct an in-court comparison of handwriting or signature to determine its authenticity?
1. Trier of Fact, i.e., jury; OR
2. Expert Witness, i.e., handwriting expert.
W testifies before a grand jury in regards to criminal charges involving P and D. In a later civil case btw P and D, can D question W about his prior gand jury statements?
Yes, the grand jury statement is admissible both as impeachment and substantive evidence. A prior inconsistent statement made under oath at a prior proceeding or deposition is admissible nonhearsay.
Can B's grand jury testimony, which gave S an alibi, be used in a subsequent proceeding, to again give S an alibi, if B is unavailable?
No, the grand jury testimony of a person who is not nit testifying is deemed neither nonhearsay not does it fall within any recognized exceptions. Grand jury testimony does does not within the former testimony exception, because it does afford cross.
Can D's guilty plea in a prior criminal proceeding, be introduced as evidence in a subsequent civil proceeding to prove his culpability?
Yes, the records of D's conviction falls within the hearsay exception for records of felony convictions are admissible in both criminal and civil proceedings to prove any fact essential to the judgment and may also be admissible as an admission of a party opponent.
A, an employer, has B, its employee, generate a report after one of A's trucks causes injury to P. P sues A for negligence, and at trial questions B about the report he generated. Can the report be admitted into evidence?
Yes, the report is admissible nonhearsay as an admission by a party-opponent, because it was made by B, and agent, concerning a matter within the scope of his agency, made during the employment relationship.
Can B assert the Physician-Patient privilege if B knew that the doctor she consulted had lost his license to practice prior to her visit?
No, the privilege requires that a licensed physician be present for purposes of treatment, that the information be obtained while attending the patient, and that the information be necessary for treatment or diagnosis.
Can A's guilty plea to a traffic violation be admitted into evidence at a subsequent civil trial, whereby B is sueing A for negligence?
Yes, A's guilty plea is an admission by a party-opponent and thus admissible by B.
When can a motion to strike be made?
A motion to strike is effective only where there was no basis or opportunity for an earlier objection. An objection ordinarily must be made after the question is asked, but before the witness answers. If the question is not objectionable, but the answer is, a motion to strike is appropriate.
What acts may a witness be interrogated upon under cross-examination in regards to impeachment?
A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness.
What is the proper methods for using a specific act to attack a witness's character for truthfulness?
A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence, i.e., no extrinsic evidence.
When a judge considers whether testimony falls within an exception for hearsay, is he bound by the rules of evidence?
No, in considering preliminary facts, which involve whether evidence is competent, the trial court may consider any nonprivileged relevant evidence, even though it would not otherwise be admissible under the rules of evidence.
Under what theory can D seek to exclude the testimony of a police officer who plans to testify that a document containing the address of a victim was found of D at the time of his arrest.
The document is a writing within the meaning of the best evidence rule. Thus, secondary evidence as to its existence could only be introduced if the original is shown to have been lost or destroyed, unobtainable, or within the control of D.
D is arrested for DUI. P seeks to introduce a videotape that police took of D at the time of his arrest, taking a field sobriety test. Is it admissible?
Yes, it is not excludable under any rule. The tape is not hearsay because it is not being offered for the truth of the matter. It's a nonassertive conduct offered to show D's mental and physical condition.
If D withdraws his guilty plea in a criminal case, can it be used is a subsequent civil proceding?
No, a plea of guilty which is later withdrawn, generally may not be used against D who made the plea, except in special cases.
Can a certified copy of a record of D's misdemeanor conviction be admitted into evidence in a subsequent civil proceeding?
No, it is excluded as inadmissible hearsay. A misdemeanor conviction is hearsay not admissible under any exception.
Can an expert's testimony be based upon another witness's testimony, recounting of the facts of an accident, at trial?
Yes, expert testimony can be based on knowledge gain by him at trial. Facts or data upon which expert opinions are based may be dreived from presentation at trial, i.e., have the expert attend the trial & hear testimony establishing the facts. Under FRE a hypothetical question is not required to elicit an expert's opinion.
What qualifies a present sense impression?
A statement made by D regarding a condition she observed, made while she was observing it, or immediately thereafter. Cal-requires that the statement be made while D was observing it (narrow).
Can D's deposition testimony be used in a subsquent proceeding, if it contradicts D?
Yes, prior inconsistent statement. made under oath and subject to the penalty of perjury in a depo or prior hearing, are admissible as nonhearsay to impeach or as substantive evidence.
What is required for a statement against interest exception?
1. Declarant is unavailable; and
2. Statement must be against financial interest or subjects D to civil or criminal liability.
3. Cal-against social interest, i.e., ridicule, social disgrace, etc..
4. Fed-if offered to exculpate accused, there must be corroborating evidence.
Must questions posed to an expert during direct-examination be posed in the form of a hypothetical, if counsel has not provided the basis for the expert's opinion?
No, hypothetical questions need not be asked. Examining counsel may ask the expert for an opinion and then immediately allow the opposing side to cross-examine, without disclosure of the data underlying the opinion, unless required by the court.
Can D's silence, in the face of a question by a Co-D tending to suggest culpability, be considered an admission?
Yes, silence may be deemed an admission (or adoption) in a situation in which a reasonable person would have responded to an accusation.
In support of her claim for damages, can D testify, as to a statement she made 3 days earlier, that "I must have sprained my head, it hurts so much?"
Yes, although hearsay, D's testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation.
Is evidence of a partys' reputation in the community admissible in a civil trial to prove culpability?
No, character evidence as proof of conduct in the litigated event is not admissible in civil case, unless character is directly at issue, i.e., defamation, negligent entrustment, etc.
Are limiting instructions required if opposing counsel objects to evidence is irrelevant?
No, an objection based on grounds of relevance does not require a limiting instruction.
can counsel impeach its own witness of direct-examination by refering to, but not presenting, previous deposition testimony?
Yes, either party may impeach a witness with prior inconsistent statements, and leading questions are permitted whan a witness is hostile.
If a judge takes judicial notice of a fact because it's a matter of common knowledge, must the jury accept as conclusive?
No, the jury is not required to accept an judicially noticed fact as conclusive in a criminal case.
In a civil trial will the burden of persuasion and the burden of going forward shift from one party to another?
The burden of persuasion does not shift, the party that brought suit has the burden of persuasion throughout the trial. However, the burden of going forward does shift, starting off with the P who must make out a prima facie case, then to D who meets the burden through presumption, and then P must rebut the presumption.
W, testifies as to a what A said, it was hearsay, but was an excited utterance. D wants to call a witness, S, to testfify as to an inconsistent statement gave aftwards by A. If A is dead and can't explain or deny, can S still testify?
Yes, generally extrinsic evidence of a prior inconsistent statment of a witness is inadmissible unless the witness was given a chance to explain or deny the inconsistent statement, but Ct. generally allow inconsistent statements by hearsay declarants to be used to impeach in spite of lack of foundation, in the interest of justice.
Can an interpreter from the prosecution's office intepret for an eyewitness to a crime?
Yes, she must meet the qualifications required of an expert witness & take an oath or affirmation that she will make a true translation.
Does the FRE prohibit the introduction of evidence that D took out 2 lfull coverage iability insurance K on the same building, during a D's criminal prosecution for arson?
No, although FRE prohibits the admission of evidence of liability insurance to show a person acted negligently or worngfully, it does not apply here. The evidence is admissible to show that D had a motive to destroy the building.