FREE TX Bar Evidence Questions and Answers
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?
The question about the witness's habit of feeding pigeons doesn't have any probative value regarding either the credibility of the witness or the guilt of the defendant. In legal terms, "probative value" means that the evidence is relevant and has the ability to prove something important in the case. In this scenario, whether the witness feeds pigeons or has been cited for it doesn't relate to their truthfulness or the facts of the murder case. It's considered a trivial and immaterial issue that wouldn't help the court make any decisions about the case. Bringing up such a point would be considered an unnecessary diversion that could disrupt the flow of the trial.
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?
The key issue with eyewitness testimony is its reliability. If an identification is deemed reliable, it can be admitted as evidence without violating due process. In this case, the circumstances of the identification were highly suggestive. The victim saw the defendant in a courthouse, dressed in jail clothing, and restrained by handcuffs and leg irons. This setting is inherently suggestive and could easily influence the victim's identification. Courts have recognized that such suggestive circumstances create a significant risk of misidentification. To admit this kind of identification, it needs to be shown that it does not result in a "very substantial likelihood of irreparable misidentification." Given the suggestive nature of the setting, the court would likely find the identification unreliable. This understanding has been reinforced by cases like Manson V. Brathwaite and State V. Henderson, which highlight the dangers of eyewitness misidentification as a leading cause of wrongful convictions.
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?
Under Federal Rule of Evidence 702, a court must conduct a gatekeeping role to ensure that expert testimony is both relevant and reliable. This involves assessing whether the expert is qualified, whether their testimony is based on sufficient facts or data, whether it is the product of reliable principles and methods, and whether those principles and methods have been reliably applied to the facts of the case.
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?
In general, prior consistent statements are not admissible because they can be seen as repetitive and unfairly bolster a witness's credibility. However, there's an important exception to this rule. When a witness's credibility is attacked, such as through impeachment by prior inconsistent statements, the opposing party (in this case, the prosecution) is allowed to use prior consistent statements to rehabilitate the witness. This helps to counter the impression that the witness's testimony is unreliable or fabricated. Here's how the rule works: 1. Impeachment: If the defense attacks the witness's credibility by pointing out prior inconsistent statements, it suggests that the witness's testimony might not be trustworthy. 2. Rehabilitation: To counter this, the prosecution can introduce prior consistent statements to show that the witness's story has been consistent at other times, thereby supporting the witness's reliability. The basis for this exception is found in Rule 801(d)(1)(B) of the Federal Rules of Evidence, which was amended in 2014. It states that prior consistent statements can be used: - To rebut a charge that the witness recently fabricated their testimony or acted under an improper influence or motive. - To rehabilitate the witness's credibility when it has been attacked on another ground. In your case, since the witness's credibility was attacked by bringing up prior inconsistent statements, the prosecution is allowed to use prior consistent statements to rehabilitate the witness.
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?
Under the Federal Rules of Evidence, specifically Rule 412, evidence of a victim's sexual predisposition or prior sexual behavior is generally prohibited. This rule is often referred to as the "rape shield law." It's designed to protect victims of sexual misconduct from having their past sexual behavior unfairly scrutinized and used against them in court. There are narrow exceptions where such evidence might be admissible, but these are very limited. For example, it might be allowed if the evidence is directly relevant to proving the defendant's innocence or if it concerns specific instances of the victim’s sexual behavior with respect to the person accused if it is offered to prove consent. In this case, the testimony of the men about the woman's sexual history does not fall under these exceptions. It does not directly relate to the incident in question or the defendant’s innocence, and it is not relevant to the issue of consent in the specific instance of the alleged rape.