CO Bar Evidence 3 — Questions and Answers
Question 1: A police officer testifies from a report she wrote the night of an arrest, reading portions aloud because she now has no memory of the event, and she affirms the report was accurate when made. The report is being used as:
- A recorded recollection, which may be read into evidence but not received as an exhibit unless offered by the adverse party (Correct answer)
- Present recollection refreshed, so the report itself is admitted
- A business record admissible as a prosecution exhibit
- Improper bolstering, and it must be excluded
Correct answer: A recorded recollection, which may be read into evidence but not received as an exhibit unless offered by the adverse party
Under FRE 803(5), a recorded recollection may be read to the jury but may be received as an exhibit only if offered by the adverse party.
Question 2: In a fraud trial, the prosecution offers evidence that the defendant committed a similar uncharged fraud two years earlier, to show a common plan or scheme. Before admitting it, the judge must find:
- Sufficient evidence for a reasonable jury to conclude the prior act occurred, and that probative value is not substantially outweighed by unfair prejudice (Correct answer)
- Clear and convincing evidence that the prior act occurred
- That the defendant was convicted of the prior act
- That the defendant has placed his character in issue
Correct answer: Sufficient evidence for a reasonable jury to conclude the prior act occurred, and that probative value is not substantially outweighed by unfair prejudice
Other-acts evidence under FRE 404(b) requires only sufficient evidence to support a jury finding under the Huddleston standard, subject to Rule 403 balancing.
Question 3: A defendant is charged with sexual assault. The defense seeks to introduce evidence of the victim's past sexual behavior with third parties to prove consent. Under the rape shield rule, this evidence is:
- Generally inadmissible in a criminal case, subject to narrow exceptions such as prior conduct with the defendant offered to prove consent (Correct answer)
- Admissible if relevant to the victim's credibility
- Admissible whenever consent is a defense
- Admissible only through reputation or opinion testimony
Correct answer: Generally inadmissible in a criminal case, subject to narrow exceptions such as prior conduct with the defendant offered to prove consent
FRE 412 bars evidence of a victim's other sexual behavior, with limited criminal-case exceptions including specific acts with the accused to prove consent and source-of-injury evidence.
Question 4: A civil plaintiff calls an expert who bases her opinion on interviews with witnesses who did not testify. The interview statements are inadmissible hearsay. The expert's opinion is:
- Admissible if experts in the field reasonably rely on such interviews, though the underlying statements are disclosed to the jury only if their probative value substantially outweighs prejudice (Correct answer)
- Inadmissible, because an expert may rely only on admitted evidence
- Admissible, and the interviews automatically come in as the basis of the opinion
- Inadmissible unless the witnesses are shown to be unavailable
Correct answer: Admissible if experts in the field reasonably rely on such interviews, though the underlying statements are disclosed to the jury only if their probative value substantially outweighs prejudice
FRE 703 permits opinions based on inadmissible facts if reasonably relied upon by experts in the field, but the proponent may disclose those facts to the jury only under a reverse-403 balancing.
Question 5: During cross-examination, defense counsel asks a prosecution witness, 'Isn't it true you lied on your mortgage application last year?' There was no conviction. If the witness denies it, counsel may:
- Not introduce extrinsic evidence to prove the lie; counsel is stuck with the answer (Correct answer)
- Call the mortgage lender to prove the lie occurred
- Introduce the mortgage application as a business record
- Move to strike the witness's entire testimony
Correct answer: Not introduce extrinsic evidence to prove the lie; counsel is stuck with the answer
Under FRE 608(b), specific instances of conduct probative of untruthfulness may be inquired into on cross but may not be proven by extrinsic evidence.
Question 6: A witness to a car accident is unavailable at trial. Her deposition testimony from the same case, where the opposing party had an opportunity and similar motive to cross-examine, is offered. The deposition is:
- Admissible as former testimony under FRE 804(b)(1) (Correct answer)
- Inadmissible hearsay, because depositions are out-of-court statements
- Admissible only if both parties stipulate
- Admissible as a present sense impression
Correct answer: Admissible as former testimony under FRE 804(b)(1)
Former testimony given under oath in the same or a different proceeding is admissible against a party who had an opportunity and similar motive to develop it, when the declarant is unavailable.
Question 7: In a criminal trial, the prosecution offers a certified lab report identifying a substance as cocaine, without calling the analyst who performed the test. Under the Confrontation Clause, this is:
- Improper, because the testimonial report requires the analyst to testify absent unavailability and a prior opportunity for cross-examination (Correct answer)
- Proper, because certified public records are self-authenticating
- Proper, because lab reports are nontestimonial business records
- Improper only if the defense subpoenaed the analyst first
Correct answer: Improper, because the testimonial report requires the analyst to testify absent unavailability and a prior opportunity for cross-examination
Under Melendez-Diaz, forensic lab certificates prepared for prosecution are testimonial, so the analyst must testify unless unavailable and previously cross-examined.
CO Bar Evidence 3
A police officer testifies from a report she wrote the night of an arrest, reading portions aloud because she now has no memory of the event, and she affirms the report was accurate when made.
The report is being used as: