1999 evidence exam – Essay 1 1. Relevancy – testimony tending to show that the RD truck was going too fast would make it more likely that the truck was speeding and was at fault for the accident. Personal Knowledge – Eve will testify that she saw the truck speeding, thus she has personal knowledge as to the speed of the vehicle and she can give her opinion as to its effects. Lay opinion – a lay witness may give their opinion if they meet a set of tests a. it was rationally based on the perception of the witness – in this case, we know that the testimony was actually based on the perception of Eve that the truck was going too fast. Thus it meets the rational test b. that it is helpful to a clear understanding of the witness’ testimony or the determination of fact in issue. The fact in issue here is whether or not the truck was speeding such that the RD truck was at fault. Her perception should be admissible for this reason. c. Not based on scientific, technical or specialized knowledge – Eve is allowed to estimate in her mind how fast she though that the truck was going. This does not take any specialized knowledge, and is not scientific or technical. Thus the lay opinion should be admissible as testimony. 2. Relevancy – the testimony that Charles said that “albert should not have made the turn” suggests that it is more likely that albert would be at fault for the accident. Statement of Charles – Does charles have personal Knowledge as to the turn albert tried to make, yes! Is this hearsay, yes. This is an out of court statement that is being offered for the truth of the statement, that albert should not have tried to make the turn. This can be admissible as a dying declaration. In a civil case one may admit evidence of a dying declaration if it concerns the cause or circumstances of the death. Here the statement concerned how Charles felt that he was imminently going to die, because of the turn that Albert attempted to make. Statement of Young woman to the police – Personal knowledge – she spoke to the passenger (charles) and he told her that he “did not think he would make it, and that charles should not have turned” the personal knowledge is that she was personally told (what am I supposed to say here?) Hearsay exception – this is admissible as an excited utterance – it is a statement relating to the startling event and it was made while under the stress caused by the condition. Statement on the police report – This is hearsay because it is a compilation of out of court statements. This should be able to come in under the public records exception as a report that was made as an activity of the agency, observed pursuant to duty. Thus there are 3 levels of hearsay, and it seems that there is an exception for each one, which would allow the hearsay to be admissible on the police report if it can be authenticated
Authentication – a police report can be authenticated if it was from the public office and it was found where items of this nature are kept. Here the police record was probably kept sufficiently to keep its reliability, and thus it can be authenticated and the evidence presented on it is admissible as an exception to the Hearsay rules. This testiomony should be admissible 3. Relevancy – it is relevant that the truck came out of nowhere and the driver was not looking, because it tends to show that the driver was not paying attention and was speeding and was thus more likely the cause of the accident. Personal knowledge – The issue is whether Albert has personal knowledge as to the fact that the driver was not watching. If he was driving his car and he saw the truck approach and he saw that the driver was not looking at the road, the he would have personal knowledge as to the fact that the driver was not watching. Lay opinion – as the the opinion that the driver was not even watching, a lay witness is allowed to testify as to their opinion as long as the opinion is based on 1. facts that the witness perceived – this is what Albert perceived 2. helpful to a clear understanding - the understanding that the fact in issue is whether or not the other driver was paying attention is at issue. Thus the fact that he was not paying attention would show that the other driver was not looking at the road. 3. not based on science – this is not based on a scientific or technical skill, this is based on the actual perception of Albert – This testimony should be admissible 4. (I cant remember how to deal with this exactly – I remember in class a discussion about it being relevant for Impeachment, but also for something else makes it admissible???) Relevancy – this will tend to show that people convicted of felony crimes are less reliable in their testimony, this is relevant to impeach the character of the witness to make him less reliable. Authentication of Document – A certified copy of a judgment is a self authenticating document – Hearsay on document – The document contains hearsay in the fact that the judgment is an out of court assertion. This hearsay is admissible as a public record exception Impeachment of character by felony – Impeachment is allowed of any witness by a prior conviction if it is a conviction of dishonesty and of a felony, but a impeachment is only allowed of the accussed if it is a conviction of dishonesty. Here Albert is a plaintiff in a civil case, this any type of conviction may come in 1. felony – this is a felony. 2. if is less than 10 years old – this is only 7 years ago. 3. not pardoned – Albert has not been pardoned for this offense.
Thus this evidence would be allowed in as to the effect of impeaching the character of Albert Admissibility as to the propensity for the act – Specific acts are not allowed unless it is in the cross and it concerns the truthfulness of the witness. Here the statement would not be admissible for the propensity to be intoxicated and to be in accidents. 5. Relevancy – it is relevant that at the time of the accident there was such fog that it limited the visibility and it makes it more likely than not that someone that was driving too fast in these conditions was driving recklessly. This is also relevant that Alber could not see the driver to clearly see if he was looking, and it is relevant as to the fact that neither party could see the other until they were less than 30 yards apart, thus it is less likely that the parties could see how fast they were going etc. (Not sure what to say on this, on exam I would have stated only the first sentence) Judicial notice – A fact not subject to reasoanable dispute that is 1. generally known in the territory – this might be known in the territory that this area usually has dense fog. 2. capable of accurate and ready determination. Probably not capable of accurate and ready determination that the fog was bad at that exact moment. Here the accuracy could reasonably be questioned. This should not be taken under judicial notice.