FREE TX Bar Evidence Questions and Answers

Question 1

A witness sees a murder in the park and is called to testify in the criminal case. Can the defense attorney ask her on cross examination about her habit of feeding the pigeons? The defense knows that she was cited several times for illegally feeding the pigeons.
Defense counsel tries to ask, "You have a longtime habit of feeding the pigeons, don't you? You have in fact been ticketed several times for feeding pigeons, haven't you, and yet you persisted in doing it, isn't that so?"
Will the trial court likely allow the witness to be questioned on these matters?

Accepted Answer

No, because the question has no probative value regarding the credibility of the witness or the guilt of the defendant.

Answer

No, because a witness can never be asked about personal prior bad acts.

Answer

Yes, because the statement indicates that the witness' attention was always focused on feeding the pigeons.

Answer

Yes, because feeding pigeons in the park and persisting in it after being ticketed may show an antisocial trait of the witness.

Question 2

A man sued a manufacturer of video and home theater equipment after his home theater started a raging fire, destroying the equipment and part of his home. He sued the manufacturer in federal court. At trial, the defendants filed a motion to preclude the report and testimony of the plaintiff's expert under Fed.R.Evid. 702. The defendants claim bias, lack of scientific support, failure to conduct testing, divergence of opinion among experts, and that the expert was trained for large commercial fires.
The expert had investigated over 500 fires, wrote a book that was used in courses nationwide and taught a course in forensic fire investigations in a university. Her report ruled out all other possible causes. The court did a gate-keeping review as required by Rule 702 and ruled that the expert was highly qualified and that she used accepted scientific methodologies in arriving at her opinion.
The defendants appealed the ruling. Is the appellate court likely to go against the ruling under these facts?

Accepted Answer

No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies.

Answer

Yes, because the charge of bias against an expert witness requires a "trial within a trial" and that was not done.

Answer

Yes, because whenever the expert does not back up her conclusion with experimental testing, an expert's opinion will be insufficiently reliable to be allowed.

Answer

No, the court has absolute discretion in deciding the competency of the expert for purposes of giving expert trial testimony and evidence.

Question 3

A college student attended a fraternity party. He noticed a young woman flirting with him in a sexually suggestive way. He took her home and ended up forcefully raping her against her will. She escaped after the rape and went directly to the authorities.
The police filed charges of rape. The student-defendant found several men willing to testify that the woman was promiscuous, that they had relations with her and that she was very prolific in her sexual life.
Will the trial court likely permit the witnesses to testify to the woman’s sexual predisposition under the Federal Rules of Evidence?

Accepted Answer

No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions.

Answer

Yes, because the rules permit evidence of a victim's sexual predisposition to trust credibility.

Answer

Yes, because the evidence will help the jury see that there may be two sides to the story and that the women was thus the sexual predator instead of the man.

Answer

No. because the rules of evidence prohibit all evidence of a victim's prior sexual history.

Question 4

An elderly woman was mugged and robbed on a public street. At the time of the offense, the victim only saw her assailant's eyes. A hooded sweatshirt and bandana concealed the rest of his face.
A few days later, while the victim waited to be interviewed, she observed the defendant being escorted through the courthouse, in jail clothing, and restrained by handcuffs and leg irons. She identified him as the perpetrator shortly thereafter.
Will the court allow that identification into evidence?

Accepted Answer

No, because it is not reliable enough and there was too much suggestion to make a reasonably accurate identification.

Answer

No, because prior statements of identification are considered hearsay and never allowed into evidence.

Answer

Yes, if the witness perceived the perpetrator by seeing his eyes, and made the identification on the basis it was reliable enough to be admitted.

Answer

Yes, because the witness' recognition of someone is all that is needed; the reliability or credibility of it is subject to cross examination.

Question 5

A witness in a murder case does not make the same statement faithfully, but rather he has given different versions of his observations at different times to different persons and investigators. The prosecution put the witness on the stand at trial to tell what he observed. The defendant’s counsel impeached his testimony by bringing up prior inconsistent statements and accusing him of changing his story for trial.
The prosecution then attempted to rehabilitate his credibility by referencing prior consistent statements. Prior consistent statements are not generally admissible because they are said to be repetitive, cumulative and to unfairly bolster the witness’s credibility.
Will the court likely allow the prosecution to rehabilitate the witness using prior consistent statements under these facts?

Accepted Answer

Yes, because it is being used to rehabilitate a witness whose credibility was attacked.

Answer

No, because the witness cannot be rehabilitated once a successful impeachment has occurred.

Answer

No, because it would tend to confuse the jury with too much conflicting evidence.

Answer

Yes, because all repetitive prior statements are important to show the consistency of the witness' testimony.