Presentation of evidence
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The Open-Book Floor: Putting Exhibits on the Record
Presentation of evidence is NOT starred. Under the NextGen UBE, an unstarred entry may be tested with legal resources supplied. If it is tested without resources, you need only demonstrate recognition that the topic is at issue. You are not required to hold this topic cold because resources may be supplied. Your floor is faster and more practical: recognize the trigger, identify the governing doctrine, find the operative language, and map the facts onto it.
The governing law is the Federal Rules of Evidence. Presentation of evidence asks how an exhibit or witness gets into the record, whether the proof has the required foundation, whether the original or another form is required, whether an objection was preserved, whether the court may judicially notice a fact, and whether evidence admitted for one use must be restricted to that use. Whether proof is logically relevant, hearsay, privileged, or credible is a separate admissibility question.
You should hold the vocabulary and sequence, not exact rule wording. The usable floor includes authentication, self-authentication, the best-evidence rule, original, duplicate, loss or unavailability, witness competency, oath, personal knowledge, refreshing recollection, recorded recollection, timely and specific objection, offer of proof, judicial notice, and limited admissibility. You should recognize which facts activate each doctrine and which supplied provision to reach for.
Authentication is a threshold showing, not a final finding that the exhibit is genuine. The proponent must offer enough evidence for a reasonable factfinder to find that the item is what the proponent claims.
Use this exhibit-foundation checklist:
- Identify precisely what the proponent claims the item is.
- Ask how the witness knows: personal observation, familiarity with handwriting or voice, distinctive features, surrounding circumstances, or a chain of custody.
- Match the foundation to the item. A witness who saw a contract signed can identify the contract; a witness who merely recognizes a logo may not establish every fact about its contents.
- For an email, text, photograph, or social-media post, examine the surrounding details: recipient, sender’s address, distinctive language, timing, attachments, metadata, or a witness’s familiarity with the account or voice.
- For physical or fungible evidence, trace custody from collection through testing and production. The proponent need not eliminate every theoretical possibility of substitution, but must provide a reasonable basis to identify the item.
- Check for self-authentication. Certain certified or official records, acknowledged documents, commercial papers, newspapers, trade inscriptions, and certified electronic records need no extrinsic foundation merely to authenticate them. An opponent may still raise a genuine challenge to genuineness or another admissibility problem.
Authentication and the best-evidence rule answer different questions. Authentication asks, “Is this the item claimed?” Best evidence asks, “If the content of a writing, recording, or photograph is being proved, what form of that item is required?”
Originals and Copies: When Content Demands the Best Evidence
The best-evidence rule is triggered when a party seeks to prove the content of a writing, recording, or photograph. It is not triggered merely because a document exists. A witness may testify that a contract was signed, for example, if the fact of signing is being proved independently rather than the contract’s words.
An original is generally required to prove content, unless the Federal Rules or a federal statute provides otherwise. An accurate duplicate is ordinarily admissible to the same extent as the original. A duplicate may be rejected when a genuine question exists about the original’s authenticity or when admitting the duplicate would be unfair under the circumstances. A mere preference for the original is not enough.
If the original cannot be produced, ask why. Other evidence may be used when the original was lost or destroyed without bad faith by the proponent, cannot be obtained through available judicial process, was controlled by the opponent who received notice and failed to produce it, or concerns a collateral matter. The proponent must still authenticate the substitute evidence.
A party may also use a summary of voluminous writings, recordings, or photographs when the underlying materials are too extensive to examine conveniently in court. The underlying materials must be made available to the other parties for examination or copying, and the court may require their production. The summary proves the compilation of information; it does not eliminate the need for a reliable foundation.
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A common error is to stop at “photocopy.” First determine whether it is an acceptable duplicate. If not, determine whether the original is unavailable for a recognized reason. Authentication remains a separate foundation question at every branch.
The Witness at the Threshold: Who May Testify
The Federal Rules generally presume a person competent to testify. Competency is the threshold question whether the person may serve as a witness at all. Accuracy, memory, perception, or honesty ordinarily concern the weight assigned to testimony rather than basic competency.
Before testifying, a witness must give an oath or affirmation designed to awaken the witness’s conscience and impress the duty to testify truthfully. The form may vary, but the witness must understand the obligation.
The personal-knowledge requirement asks whether evidence supports a finding that the witness has personal knowledge of the matter testified about. Personal knowledge may come from seeing, hearing, touching, or otherwise perceiving the event. A witness cannot supply facts learned only from an unidentified source while presenting them as personal observation.
The threshold checklist is:
- Competency: Is any Federal Rule disqualifying this person?
- Oath: Did the witness make an oath or affirmation carrying the duty of truthfulness?
- Personal knowledge: What did the witness actually perceive?
- Perception: Could the witness observe, hear, or otherwise experience the fact asserted?
- Role limitations: A judge may not testify as a witness at the trial. A juror may not testify as a witness before the other jurors during the trial.
- Jury deliberation limitations: After a verdict, jurors generally cannot testify about deliberations, mental processes, or the effect of evidence on their votes. The limited permitted inquiries concern matters such as outside information, outside influence, or an error on the verdict form.
Memory on the Stand: Refreshing Without Replacing Recall
A witness who cannot presently remember may have memory refreshed with almost anything: a document, photograph, object, sound, or prior statement. The refreshing item is a stimulus, not automatically the evidence being offered for its truth.
The procedure is direct:
- Establish that the witness’s memory is insufficient.
- Show the item to the witness and allow review.
- Remove or set aside the item.
- Ask whether the witness now remembers.
- Obtain testimony from the witness’s present memory.
The opposing party may inspect the refreshing item, cross-examine about it, and introduce relevant portions when fairness requires. If the witness’s memory returns, the witness testifies from present recollection. The writing does not become evidence merely because it refreshed memory.
Recorded recollection is different. It applies when the witness once knew the matter but now cannot recall well enough to testify, the record was made or adopted when the matter was fresh, the record accurately reflected the witness’s knowledge, and the witness can vouch for its accuracy when made. The record may then be read into evidence; it is received as an exhibit only when the opposing party offers it. That is a recorded-recollection hearsay exception, not ordinary memory refreshing.
The decisive fact is what happens after the witness reviews the item: present memory restored means refreshing recollection; no sufficient present memory, despite a qualifying accurate record, points toward recorded recollection.
Objection and Notice: Preserving the Ruling and Controlling Use
An objection must be timely and specific. State the presentation defect before the answer when possible: lack of authentication, no personal knowledge, failure to produce an original, or an incompetent witness. “Objection” alone usually does not tell the judge what to decide. If the answer comes before the objection, move to strike and state the ground.
When the court excludes evidence, make an offer of proof unless the substance is already apparent. The offer can be testimony outside the jury’s presence, a proffered exhibit, or counsel’s description of the expected evidence. Its purpose is to show what was excluded and preserve meaningful review.
| Courtroom event | Immediate move | Record needed |
|---|---|---|
| Exhibit offered without foundation | Object before admission and identify the missing foundation | Specific ground and ruling |
| Witness answers before objection | Move to strike promptly | Ground and ruling on the motion |
| Court excludes proposed testimony or exhibit | Make an offer of proof | Substance of the excluded proof |
| Evidence has a permitted use and a forbidden use | Request a limiting instruction | Permitted use, forbidden use, and instruction |
| Party seeks judicial notice | Request notice and supply reliable information | Fact noticed and opportunity to be heard |
Rule 103 supplies the preservation mechanics. A timely objection or motion to strike must state the specific ground, unless the ground is apparent from context. When evidence is excluded, the substance must be made known through an offer of proof unless apparent. A reviewing court may consider a substantial right affected by plain error even without ordinary preservation, but do not plan on that exception.
Judicial notice concerns an adjudicative fact, meaning a fact about the parties, events, or circumstances of the particular dispute. The court may notice a fact that is generally known within the court’s territorial jurisdiction or capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned. A party may request notice and provide the necessary information. The court may also take notice on its own.
The court must give a party a timely opportunity to be heard about the propriety of taking notice and the nature of the fact. The opportunity may occur before or after notice is taken. In a civil case, the jury must accept a judicially noticed adjudicative fact. In a criminal case, the jury may accept or reject it.
Use judicial notice for facts such as an undisputed calendar date, a location, or a reliably established public record. Do not ask the court to notice a disputed inference merely because it would help your side. Notice establishes the fact without ordinary proof; it does not decide contested meaning or credibility.
Limited admissibility arises when proof is admissible for one purpose but not another. On a timely request, Rule 105 requires the court to restrict the evidence to its permitted use and instruct the jury accordingly. Make the request concrete:
- Identify the permitted use.
- Identify the forbidden use.
- Ask for the instruction before the evidence is received or as soon as the problem appears.
- If necessary, request redaction, a separate exhibit, or a clear instruction at admission and again in final instructions.
- Confirm the ruling and instruction in the record.
Run this sequence on a presentation problem:
- Identify whether the problem concerns an exhibit, a witness, a judicially noticed fact, or a restricted use.
- For an exhibit, ask what the proponent claims it is and locate the authentication foundation.
- If a writing, recording, or photograph is involved, ask whether its content is being proved.
- If content is being proved, decide original, duplicate, unavailability, or summary.
- For testimony, check competency, oath, personal knowledge, and perception before considering the testimony’s force.
- If the court receives or excludes proof improperly, object or move to strike specifically and request a ruling; if excluded, make an offer of proof.
- If a fact is indisputable from a reliable source, request judicial notice; if proof has both permitted and forbidden uses, request a limiting instruction.
Use the following supplied provisions for the item:
Rule 901(a): To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Rule 901(b)(1): Testimony of a witness with knowledge that an item is what it is claimed to be.
Rule 1002: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
Rule 1003: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate instead of the original.
Rule 1004(a): An original is not required, and other evidence of the content is admissible, if all the originals are lost or destroyed, and not by the proponent acting in bad faith.
At trial, a manufacturer sues a distributor for unpaid invoices.
The manufacturer offers a photocopy of a signed invoice to prove the payment terms and amount stated in it.
The original was destroyed when a storage facility flooded before suit. The manufacturer did not cause the flood and did not act in bad faith.
The manufacturer’s billing manager saw the distributor sign the invoice, recognizes the signature and invoice format, and testifies that the photocopy is an accurate copy.
The distributor objects that no original is produced and says the photocopy is not authentic, but offers no evidence of alteration or mismatch.
Practice
Which ruling is most consistent with the supplied provisions?
High-Yield Points - ⚡ Biggest Takeaways
Authentication asks whether the exhibit is what the proponent claims. Best evidence asks whether content requires an original, duplicate, or permitted substitute. Refreshed present memory differs from a record read because memory remains insufficient. Timely specific objections preserve rulings, while excluded proof requires an offer of proof. Rule 105 requires a limiting instruction when evidence has both permitted and forbidden uses.
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Practice Questions: Presentation of evidence
1. A pedestrian sued a delivery company after being struck by one of its vans. At a pretrial deposition, the van's employee-driver testified under oath that he had been reading a dispatch message immediately before the collision. At trial, the employee testified for the company and stated that he had not looked away from the road. The pedestrian's lawyer asks the employee about the deposition testimony and offers the relevant certified transcript both to impeach him and to prove that he was reading the message. The employee remains on the stand and is available for cross-examination. How should the court treat the deposition statement?
- A. Exclude the statement because a witness's prior statement is admissible only to impeach the witness.
- B. Exclude the statement because the employee did not adopt it while testifying at the current trial.
- C. Admit the statement only if the employee is unavailable and the defendant previously cross-examined the employee.
- D. Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination.
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Answer: D. Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination.
Admit the statement substantively because it was inconsistent, given under oath at a proceeding, and the employee is subject to cross-examination. - The employee’s sworn deposition statement that he was reading a message conflicts with his trial testimony that he did not look away from the road. - Because he is testifying and subject to cross-examination, the prior inconsistent statement is not hearsay and may be used both to impeach him and to prove he was reading the message. Exclude the statement because a witness's prior statement is admissible only to impeach the witness. - A prior inconsistent statement can be used substantively when it was given under oath at a deposition and the witness is subject to cross-examination at trial. - The pedestrian may therefore offer the certified transcript to prove the employee was reading the dispatch message, not merely to challenge his credibility. Exclude the statement because the employee did not adopt it while testifying at the current trial. - The rule does not require adoption of the earlier statement at trial. - The employee’s denial creates the inconsistency, and his presence on the stand allows questioning about what he said at the deposition. Admit the statement only if the employee is unavailable and the defendant previously cross-examined the employee. - Unavailability and a prior opportunity to cross-examine are requirements associated with the former-testimony hearsay exception, not this rule for prior inconsistent statements. - Here, the employee is on the stand and subject to cross-examination about his sworn deposition testimony.
2. In a criminal prosecution arising from a nighttime collision, the government calls a pedestrian who testifies that the defendant drove through a green light. The prosecutor asks whether the pedestrian told an investigating officer immediately after the collision that the light was red. The pedestrian denies making that statement. The government proposes to call the officer, who would testify that the pedestrian said, "The defendant entered against the red light." The pedestrian was not under oath when speaking to the officer, and the government offers the statement both to impeach the pedestrian and to prove that the light was red. The pedestrian remains available for further examination. Which of the following is the court's most appropriate ruling?
- A. Admit the officer's testimony for both purposes because every prior inconsistent statement of a testifying witness is nonhearsay.
- B. Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding.
- C. Exclude the officer's testimony because extrinsic evidence of a prior inconsistent statement is permitted only when the witness admits making the statement.
- D. Exclude the officer's testimony because a witness may be impeached only with evidence concerning the witness's character for truthfulness.
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Answer: B. Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding.
Admit the officer's testimony for impeachment only because the statement was inconsistent but was not made under oath at a qualifying proceeding. - The officer may testify to the pedestrian’s contrary statement for impeachment because the pedestrian remains available to explain or deny it and for further examination. - The statement cannot prove that the light was red: it was not under oath at a trial, hearing, other proceeding, or deposition. Admit the officer's testimony for both purposes because every prior inconsistent statement of a testifying witness is nonhearsay. - A prior inconsistent statement is admissible for its truth under this rule only if it was made under oath at a qualifying proceeding or deposition. - The pedestrian’s statement to the investigating officer was unsworn, so its permissible use here is impeachment, not proof of the light’s color. Exclude the officer's testimony because extrinsic evidence of a prior inconsistent statement is permitted only when the witness admits making the statement. - The pedestrian’s denial does not bar the officer’s testimony; extrinsic evidence can establish that the inconsistent statement was made. - The pedestrian remains available for further examination, satisfying the opportunity to address the statement. Exclude the officer's testimony because a witness may be impeached only with evidence concerning the witness's character for truthfulness. - A witness may be impeached through a prior inconsistent statement, not just evidence about general character for truthfulness. - The claimed red-light statement directly contradicts the pedestrian’s green-light testimony, making it relevant to impeachment.
3. In a civil trial arising from a warehouse fire, a maintenance technician testified for the defendant that he inspected the building's electrical panel on the morning of the fire and found no damaged wiring. At his deposition in the same action, while under oath and subject to questioning by both parties, the technician testified that he had not inspected the panel that day. The plaintiff confronts the technician with the deposition testimony and offers the relevant portion of the deposition for its truth as well as to challenge his trial testimony. The technician remains on the stand and can be cross-examined. How should the court rule?
- A. The deposition testimony is admissible both substantively and to impeach the technician.
- B. The deposition testimony is admissible to impeach the technician but not for its truth.
- C. The deposition testimony is inadmissible because the technician is available and testifying at trial.
- D. The deposition testimony is admissible substantively only if the technician claims a lack of memory.
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Answer: A. The deposition testimony is admissible both substantively and to impeach the technician.
The deposition testimony is admissible both substantively and to impeach the technician. - The technician’s sworn deposition statement that he had not inspected the panel contradicts his trial testimony that he had inspected it that morning. - Because he is testifying and subject to cross-examination, the inconsistent statement made under oath at a deposition is not hearsay under Federal Rule of Evidence 801(d)(1)(A) and may also impeach him. The deposition testimony is admissible to impeach the technician but not for its truth. - An inconsistent statement can impeach a witness, but this deposition statement also qualifies for substantive use because it was made under oath in a deposition. - The plaintiff may therefore offer the statement as evidence that the technician did not inspect the panel, not merely to challenge his credibility. The deposition testimony is inadmissible because the technician is available and testifying at trial. - The technician’s presence on the stand supports admission: Rule 801(d)(1)(A) requires that he testify and be subject to cross-examination about the prior statement. - His availability does not bar use of the sworn deposition testimony, which directly contradicts his account of the morning of the fire. The deposition testimony is admissible substantively only if the technician claims a lack of memory. - The technician has given conflicting accounts of whether he inspected the electrical panel; a claimed lack of memory is not required. - His sworn deposition statement qualifies for substantive use because it is inconsistent with his trial testimony and he is subject to cross-examination about it.
4. A corporation’s general counsel asked an outside accounting consultant to help counsel understand technical billing records so that counsel could provide legal advice concerning a threatened fraud suit. Employees sent the consultant records and explanations at counsel’s direction, and the consultant sent counsel a confidential analysis. After suit was filed, the corporation voluntarily produced the consultant’s analysis to the opposing party to support a settlement position but withheld the employees’ underlying communications. The opposing party moves to compel those communications, arguing that production of the analysis waived attorney-client privilege for all communications concerning the billing dispute. The governing waiver rule provides that an intentional disclosure in a federal proceeding extends to undisclosed communications only when they concern the same subject matter and fairness requires consideration together. Which of the following is the corporation’s strongest response?
- A. The underlying communications remain protected because communications involving nonlawyer consultants cannot fall within attorney-client privilege.
- B. The underlying communications remain protected because voluntary disclosure can waive privilege only if made during testimony at trial.
- C. The underlying communications must be produced because disclosure of any privileged communication automatically waives privilege over the entire dispute.
- D. The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis.
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Answer: D. The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis.
The underlying communications remain protected unless they concern the same subject matter and fairness requires their consideration with the disclosed analysis. - Counsel engaged the consultant to help provide legal advice, so the consultant’s involvement does not necessarily defeat privilege for the employees’ communications. - Producing the analysis does not automatically waive privilege for those communications: the governing rule requires both the same subject matter and fairness requiring consideration together. The underlying communications remain protected because communications involving nonlawyer consultants cannot fall within attorney-client privilege. - A nonlawyer consultant working at counsel’s direction to help counsel understand technical records may participate in privileged communications. - The corporation’s stronger argument concerns the limited scope of waiver after it produced the analysis, not a categorical exclusion of consultants from privilege. The underlying communications remain protected because voluntary disclosure can waive privilege only if made during testimony at trial. - The corporation voluntarily produced the analysis to the opposing party, so waiver is not limited to trial testimony. - The issue is whether that disclosure also reaches the withheld employee communications under the governing subject-matter-and-fairness rule. The underlying communications must be produced because disclosure of any privileged communication automatically waives privilege over the entire dispute. - Disclosure of the analysis does not automatically waive privilege over every communication about the billing dispute. - The opposing party must show that the withheld communications concern the same subject matter and that fairness requires considering them with the disclosed analysis.
5. A business owner privately consulted an attorney about a threatened fraud suit and described potentially damaging negotiations with the claimant. The attorney gave legal advice and warned the owner to keep their communications confidential. The next day, the owner voluntarily sent a detailed email to a trade-association mailing list containing 40 unrelated business owners. The email quoted the attorney's advice and summarized the facts the owner had disclosed during the consultation. After litigation began, the claimant sought testimony from the attorney concerning the same disclosed communications. The owner asserted attorney-client privilege. Which of the following is the claimant's strongest argument for compelling the testimony?
- A. The privilege never attached because communications concerning business negotiations cannot request legal advice.
- B. The privilege was lost because the claimant placed the negotiations at issue by filing the fraud action.
- C. The privilege was lost because the attorney warned the owner that the communications might later become discoverable.
- D. The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties.
Show answer
Answer: D. The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties.
The owner waived the privilege by voluntarily disclosing the substance of the communications to unrelated third parties. - The private consultation for legal advice was initially privileged, but the owner’s voluntary email to 40 unrelated business owners disclosed the attorney’s advice and what the owner had told the attorney. - That disclosure waived confidentiality as to the disclosed communications, supporting the claimant’s request for testimony about them. The privilege never attached because communications concerning business negotiations cannot request legal advice. - The owner described the negotiations while consulting the attorney about a threatened fraud suit, so their business subject matter did not prevent the consultation from seeking legal advice. - The issue is the owner’s later disclosure, not whether the negotiations themselves were privileged facts. The privilege was lost because the claimant placed the negotiations at issue by filing the fraud action. - The claimant’s complaint put the negotiations in dispute, but an opposing party cannot waive the owner’s attorney-client privilege by filing suit. - The relevant waiver came from the owner’s email to unrelated third parties, not from the claimant’s allegations. The privilege was lost because the attorney warned the owner that the communications might later become discoverable. - The attorney’s warning to keep the communications confidential did not disclose them or waive the owner’s privilege. - The owner’s subsequent email, rather than the attorney’s warning, revealed the substance of the consultation to unrelated third parties.
6. In a civil action arising from a collision, a mechanic testified for the defendant that the defendant's brakes were in good working order two days before the accident. During cross-examination, the plaintiff's lawyer asked whether the mechanic was being paid a monthly retainer by the defendant's insurance company to serve as an expert witness in litigation matters. The mechanic admitted receiving such payments. The plaintiff then proposes to call the insurance company's claims manager to testify about the amount and frequency of these payments, to show the mechanic's bias. The defendant objects on the ground that the mechanic already admitted the payments. Which ruling is most appropriate?
- A. Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias.
- B. Admit the testimony only if the plaintiff first asks the mechanic about the specific amounts on cross-examination.
- C. Exclude the testimony because the mechanic's admission renders further extrinsic evidence cumulative and impermissible.
- D. Exclude the testimony because bias may only be shown through cross-examination, not extrinsic evidence.
Show answer
Answer: A. Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias.
Admit the testimony because extrinsic evidence of bias is admissible even after a witness admits the underlying facts showing bias. - The claims manager’s testimony about the amount and frequency of the retainer could help the jury assess how strongly the mechanic was motivated to favor the defendant. - A witness’s admission of payments does not bar extrinsic evidence of bias that shows their extent. Admit the testimony only if the plaintiff first asks the mechanic about the specific amounts on cross-examination. - The plaintiff already asked the mechanic about the retainer, but there is no strict requirement to ask about each amount before offering extrinsic evidence of bias. - The claims manager can supply details relevant to the mechanic’s financial incentive even though the mechanic admitted receiving payments. Exclude the testimony because the mechanic's admission renders further extrinsic evidence cumulative and impermissible. - Admitting receipt of a retainer does not establish its size or frequency, which may affect the strength of the mechanic’s bias. - The admission therefore does not make the claims manager’s testimony categorically impermissible, though the court retains ordinary discretion over needlessly cumulative evidence. Exclude the testimony because bias may only be shown through cross-examination, not extrinsic evidence. - Bias may be proved through extrinsic evidence, including testimony from the insurance company’s claims manager. - Cross-examination established that the mechanic received payments; the manager’s testimony can further show their extent.
7. In a civil negligence action arising from a highway collision, the plaintiff calls an eyewitness who testifies that the defendant entered the intersection against a red light. On cross-examination, the defendant seeks to impeach the eyewitness with a three-year-old conviction for felony aggravated assault. The offense was punishable by five years of imprisonment but did not require proof of a dishonest act or false statement. The eyewitness completed the sentence two years ago. The defendant has a certified copy of the conviction and does not seek to use the underlying conduct as substantive evidence about the collision. The plaintiff objects that assault is unrelated to truthfulness. Which of the following best states the applicable rule?
- A. The conviction is inadmissible because only crimes involving dishonesty may be used to impeach a witness.
- B. The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment.
- C. The conviction is automatically admissible because every felony conclusively demonstrates a witness's untruthfulness.
- D. The conviction is inadmissible because the witness was convicted before observing the disputed collision.
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Answer: B. The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment.
The conviction is admissible subject to balancing because it was punishable by more than one year of imprisonment. - Under Federal Rule of Evidence 609(a)(1)(A), a felony conviction may be used to impeach a witness in a civil case, subject to Rule 403 balancing. - Aggravated assault was punishable by five years, and the conviction and sentence completion are both within the usual ten-year limit. The conviction is inadmissible because only crimes involving dishonesty may be used to impeach a witness. - Crimes requiring proof of a dishonest act or false statement are a separate category under Rule 609(a)(2). - This assault conviction may qualify under the felony provision even though dishonesty is not an element. The conviction is automatically admissible because every felony conclusively demonstrates a witness's untruthfulness. - A qualifying felony conviction is not automatically admissible against this eyewitness; Rule 403 balancing applies. - The conviction is offered to assess the eyewitness’s credibility, not as substantive evidence about the collision. The conviction is inadmissible because the witness was convicted before observing the disputed collision. - Rule 609 does not require the conviction to postdate the event the witness observed. - The relevant timing limit concerns the conviction or release from confinement, and both occurred within ten years.
8. Immediately after a driver struck a cyclist in a crosswalk, the driver approached the cyclist and said, “I was reading a text and did not see you. I will pay all your hospital bills.” No one had yet discussed litigation, the amount of any claim, or whether the driver was legally responsible. The cyclist later sued the driver for negligence and seeks to introduce the entire statement. The driver objects based on the rules governing offers to pay medical expenses and compromise negotiations. Which of the following best states how the court should treat the statement?
- A. Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses.
- B. Exclude both parts because the statement and payment offer together constitute compromise negotiations.
- C. Admit both parts because the driver made them before the cyclist asserted a disputed legal claim.
- D. Exclude the texting statement as hearsay, but admit the payment offer as evidence of the driver's responsibility.
Show answer
Answer: A. Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses.
Admit the driver's statement about texting, but exclude the accompanying offer to pay the cyclist's medical expenses. - The driver's statement that he was reading a text is an opposing party’s statement, so it is not hearsay when the cyclist offers it against him. - The accompanying offer to pay hospital bills is inadmissible to prove liability under the rule governing offers to pay medical expenses, but that rule does not exclude the separate factual admission. Exclude both parts because the statement and payment offer together constitute compromise negotiations. - No one had discussed a disputed claim or litigation, so the driver’s immediate remarks were not compromise negotiations. - The medical-expense rule excludes the payment offer as proof of liability, not the accompanying admission that the driver was texting. Admit both parts because the driver made them before the cyclist asserted a disputed legal claim. - The absence of a disputed claim means the compromise-negotiation rule does not bar the driver’s remarks. - It does not override the separate rule excluding an offer to pay the cyclist’s hospital bills when offered to prove liability. Exclude the texting statement as hearsay, but admit the payment offer as evidence of the driver's responsibility. - The texting statement is not hearsay when offered against the driver because it is his own opposing-party statement. - The offer to pay hospital bills cannot be admitted as evidence of responsibility under the medical-expense rule.
Flashcards: Presentation of evidence
1. What are the limits on closing argument?
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Closing argument may discuss admitted evidence and reasonable inferences, but counsel may not introduce new evidence, misstate the law, or appeal improperly to passion or prejudice. The court has discretion to control argument and remedy improper remarks.
2. What authority does a trial judge have to question witnesses or allow juror questions?
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Under the majority federal rule, the judge may call and question witnesses, and may allow jurors to submit questions through the court, subject to evidentiary rules and the parties’ opportunity to object. The judge must remain impartial and may not assume the role of an advocate.
3. What is the proper role of an opening statement?
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An opening statement is a preview of the evidence counsel reasonably expects to present, not an argument or evidence itself. Counsel may not assert facts that lack a good-faith basis or improperly refer to inadmissible matters.
4. What is the usual scope of redirect examination and recross-examination?
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Redirect generally addresses matters raised on cross-examination, while recross generally addresses matters raised on redirect. The court may permit broader questioning in its discretion, subject to relevance and other evidentiary limits.
5. How are demonstrative aids treated when used during testimony?
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A demonstrative aid, such as a diagram or model, must be relevant and adequately authenticated as a fair and accurate aid to understanding the testimony. It is not substantive evidence unless the court admits it for that purpose.
6. What is an offer of proof, and when is it required?
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An offer of proof informs the court of the substance and relevance of excluded evidence and preserves the issue for appellate review. It is required unless the substance of the evidence is apparent from the context or the court has otherwise made a clear ruling.
7. When are leading questions permitted under the Federal Rules?
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Under FRE 611(c), leading questions ordinarily are permitted on cross-examination but generally not on direct examination, except as needed to develop testimony or when examining a hostile, adverse, or identified adverse-party witness.
8. What is the permissible scope of cross-examination under the majority federal rule?
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Under FRE 611(b), cross-examination ordinarily is limited to the subject matter of direct examination and credibility, although the court may allow inquiry into additional matters in its discretion.
9. What factors guide a court’s control over the mode and order of presenting evidence?
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Under FRE 611(a), the court should exercise reasonable control to make procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
10. When must the court exclude witnesses from the courtroom, and who is exempt?
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Under FRE 615, on a party’s request the court must order witnesses excluded so they cannot hear other testimony, except for a party who is a natural person, a designated party representative, a person whose presence is essential to presenting a claim or defense, or a person authorized by statute to be present.
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