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

The appellate court is unlikely to go against the ruling because the trial court properly performed its gate-keeping function under Fed.R.Evid. 702, as established by *Daubert v. Merrell Dow Pharmaceuticals, Inc.* The court found the expert highly qualified, using accepted scientific methodologies, and ruled out other causes, indicating reliability. Appellate courts generally give deference to a trial court's *Daubert* ruling unless there is a clear abuse of discretion.

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

The trial court will likely not permit witnesses to testify about the woman's sexual predisposition because such 'sexual predisposition' evidence is generally prohibited by Federal Rule of Evidence 412, also known as the 'rape shield law.' This rule aims to protect victims in sexual assault cases by limiting the admissibility of evidence concerning their past sexual behavior or sexual predisposition, except under very narrow and specific exceptions not met here.

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

The court will likely not allow the identification into evidence because it is not reliable enough due to the highly suggestive circumstances. The victim only saw the assailant's eyes during the crime, and then later observed the defendant in jail clothing, handcuffed, and leg-ironed, which strongly suggested he was the perpetrator. This procedure created a substantial likelihood of misidentification, violating the defendant's due process rights.

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

The court will likely allow the prosecution to rehabilitate the witness using prior consistent statements because the witness's credibility was attacked with prior inconsistent statements and an accusation of recent fabrication. Under Federal Rule of Evidence 801(d)(1)(B), a prior consistent statement is admissible not only for rehabilitation but also as substantive evidence if it is offered to rebut a charge of recent fabrication or improper influence or motive, and was made before the motive arose.

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

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.

(TX Bar) Texas Bar Exam Practice Test

(TX Bar) Texas Bar Exam Practice Test

FREE TX Bar Evidence Questions and Answers