EVIDENCE ESSAY SERIES
ESSAY QUESTION #3
MODEL ANSWER
Phil's car and Don's car collided in the intersection of Main and Elm Streets. Phil sued Don for his injuries and for
damage to his car. Phil alleged that Don went through the stop sign at Main and Elm Streets. In the jury trial of
Phil's suit against Don, Phil called Officer Jones as his witness. The following questions were asked and answers
given:
Q. Tell us your name.
A. Joe Jones.
Q. Your business?
A. Police officer.
[1] Q. You've been assigned to the traffic division for sixteen years?
A. Yes.
Q. Did you go to the intersection of Main and Elm on July 1, 1993?
A. Yes.
Q. What did you see?
A. A red car and a blue car in the intersection.
Q. Describe the condition of the cars.
A. The front of the blue car was smashed up against the driver's side of the red car.
Q. Did you later learn the identity of the drivers of the cars?
[2] A. Yes. Phil drove the red car and Don drove the blue car.
Q. Were any persons present?
A. Yes, Phil and Don.
Q. Did you hear them say anything?
[3] A. Yes. Don said to Phil, "I'm sorry I blew the stop sign. Let me pay your hospital bills."
Q. Did you observe Phil at that time?
[4] A. Yes. He had a concussion, a bloody nose and a cut lip.
Q. What did you do next?
A. I checked out the cars and made some measurements, using my tape measure.
Q. Based on what you heard and what you did, what did you think occurred?
[5] A. Don ran the stop sign and plowed into Phil.
Q. What did you next do at the scene?
[6] A. I issued a ticket to Don for failing to obey the stop sign.
Q. By the way, did you know what happened to that ticket?
[7] A Yes. Don was found guilty and his license was suspended for six months.
[Cross-examination by Don's attorney]
Q. Didn't you make a police report about this incident?
A. Yes.
Q. Isn't this the report?
(Tendering document)
[8] Q. In your report where you refer to Don's statement, all you have written is, "Don said, `Let me pay your
medical expenses."' Isn't that correct?
A. Yes. That's all that's there.
[9] Q. Isn't it true that you have received four departmental reprimands for using excessive force?
A. Yes.
What objection or objections could Phil's attorney or Don's attorney reasonably have made to the question or answer
at each of the places indicated above by the numbers in the left-hand margin, and how should the court have ruled in
each instance? Discuss.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
MODEL ANSWER
1. ASSIGNMENT OF OFFICER TO TRAFFIC DIVISION FOR 16 YEARS.
RELEVANCE.
FRE 401 requires that any evidence to be admissible must have some tendency to make a
fact of consequence more / less likely to be true. Any evidence that tends to prove or
disprove any relevant fact is legally relevant. This is relevant to establish Officer Jones's
credentials, and it goes to his qualifications to make opinions later, as part of qualifying him
as expert. His experience also relates to his competence as a witness as related to his
observation skills.
LEADING QUESTION.
This question may be a leading question, which is one that suggests the answer to the witness.
Leading questions are generally impermissible on direct examination. In this situation, Jones is
not hostile to Phil. However, the court may allow the leading question as a quick way to get out
preliminary evidence.
FACTS NOT IN EVIDENCE / ATTORNEY TESTIFYING.
It appears that that Phil is testifying rather than the witness, and that the question assumes facts
not in evidence, mainly that Jones is assigned to a traffic division. However, this relates to a
preliminary matter, and as with leading questions, this is within the judge's discretion, and the
court would probably allow the statement.
IMPROPER CHARACTER EVIDENCE / BOLSTERING.
The credibility of Jones has not been attacked, so it appears that Phil's real motive is to bolster
the credibility of the witness, so that the jury is more likely to believe his testimony. Here, since
Jones is an experienced officer his testimony may be more reliable in the eyes of the jury.
However, since this is also preliminary information about his job and arguably helps establish his
qualifications for later potentially expert testimony about the accident, it should be allowed.
403 BALANCING TEST, PREJUDICE V. PROBATIVE VALUE.
Due to the bolstering, and the fact that the evidence is only marginally relevant, the evidence
may be more prejudicial than probative. However, as stated above, the information establishes
the experience prong for later expert testimony, and will be allowed.
CONCLUSION. The evidence will be allowed.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
2. Phil DROVE the RED CAR and Dan DROVE the BLUE CAR.
RELEVANCE.
Normally, car color would be incidental to an analysis, however, car color in this context is used
to establish the identity of who drove which car, which is important to the facts of the accident.
COMPETENCE, Lack of Personal Knowledge.
At the time Jones arrived, he apparently did not know the identities of the drivers, and who drove
each car. Jones only learned this information at a later time. Therefore, his lack of personal
knowledge, or competence, is in question. A witness is only allowed to testify as to information
within his personal knowledge. It is quite possible that Jones only learned of the identities of the
driver through a third party, which would make the information hearsay evidence.
HEARSAY.
Here, Jones is offering the content of his statement to prove the truth of the matter asserted by
whomever told him who was driving each car through an out of court statement. In order to
allow this evidence, more information would be needed to establish either that Jones was
aware of the identity of the drivers through direct personal knowledge, in which case there
would be no hearsay, or that the information is not hearsay such as a non-hearsay admission
of a party opponent, or that Jones may have an appropriate hearsay exception to allow the
evidence in such as a business records exception.
NON-RESPONSIVE.
Non-Responsive Answer/Beyond Scope of Question.
Here, the question was effectively answered when Jones said 'Yes.' All of his following
information constitutes testimony that was not asked for, and thus it is both non-responsive to the
question, and beyond the scope of the question. However, any objection here would be rejected,
because Jones was merely responding through common language usage to answer about the
substance of what was later learned. The answer encompassed what was most likely Phil's next
question, and was not so off-base as to indicate that Jones was testifying in narrative form.
CONCLUSION. The court would probably overrule any objection, because the information
would be asked for in a follow-up question, and there are no prejudicial aspects to the
information.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
3. I'M SORRY I BLEW SIGN / OFFER TO PAY MEDICAL BILLS.
RELEVANCE.
Both parts of the statement show Don's awareness of his fault for the accident.
NON-RESPONSIVE.
Non-Responsive Answer/Beyond Scope of Question.
The response of Jones went beyond the scope of the question, because only a 'yes or no' answer
was needed. The court would probably warn Jones only to answer the question to prevent
another such mishap
POLICY CONSIDERATIONS.
OFFER TO PAY MEDICAL EXPENSES.
The federal rules of evidence bar the entry of evidence of a party's offer to pay the medical
expenses of another for reasons of public policy. The rules do not, however, bar the entry of
evidence of admissions made during the course of such an offer. Here the statement that Don
would pay Phil's medical bills should not be admitted, but the first sentence admitting liability
should be admitted into evidence.
OFFER TO SETTLE.
Because of the limit on medical offers, Don could try to argue that the offer was actually an offer
to settle, which would exclude all statements made from entry into evidence also on the grounds
of public policy. This argument will fail because the facts do not suggest that there was a quid
pro quo offer to settle, but merely a simple offer to pay bills, absent settlement talks this does not
apply especially considering the proximity in time to the accident. Therefore, it is admissible.
The court would not exclude the evidence based on this objection.
HEARSAY.
The statement here is an out of court statement being offered to show the truth of the matter
asserted, that Don blew through the sign and was willing to pay the medical bills. Nonetheless
this is not hearsay because it was a statement made by the defendant which is non-hearsay as an
admission of a party opponent under the federal rules.
Declaration Against Interest / Present Sense Impression / Excited Utterance
The above exceptions, in any event, would not apply if Phil tried to argue for them because, in
order, Don was available at trial / Declaration Against Interest, and there is no evidence that the
statement was made contemporaneous with event / PSI, or while under stress of accident / EU.
CONCLUSION. The evidence would be admitted.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
4. CONCUSSION / BLOODY NOSE / CUT LIP.
RELEVANCE.
The evidence goes to show injury to Phil. Phil's condition at the accident is relevant to his
damages.
NON-RESPONSIVE.
The answer does not directly respond, but does respond to what an ordinary listener would
understand the question to be asking for, and should probably be allowed.
COMPETENCE.
A witness is allowed to testify as to what he has personally observed. Here Jones could
reasonably have observed that Phil had a bloody nose and a cut lip, but it appears dubious that he
was able to personally determine that P had a concussion, and as such he cannot testify to the
concussion.
IMPROPER OPINION.
Arguably the testimony about the concussion is a lay opinion about his condition. Although lay
witnesses are allowed to testify as to the physical condition of a person they have observed if it is
reasonably likely to aid the jury and is rationally based on perceptions, the use of the medical
term concussion should take this out of the scope of proper lay opinion.
CONCLUSION. The evidence would be excluded.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
5. D RAN STOP SIGN AND PLOWED INTO P.
RELEVANCE.
Whether or not Don ran the stop sign is relevant.
COMPETENCE.
Witnesses are only allowed to testify as to what they have personal knowledge of. Jones
may have lacked personal knowledge of what happened at the accident since he arrived
after the accident took place.
LAY OPINION.
Lay opinion is proper where a person is able to testify in a manner likely to help the jury about
an opinion formed from direct observation. Here it does not seem that the observations of the
officer are sufficient to justify admission as lay opinion, because it is not based on his own
perceptions
EXPERT OPINION.
An expert opinion is proper if it is a subject on which expert opinion is proper, the opinion will
be helpful to the jury, the expert is qualified to give the opinion, and the expert can state with
reasonable probability that his opinion is correct.
QUALIFICATION.
Jones has testified that he has been in traffic division for 16 years, but he has not testified as to
any special training. This testimony should not be admitted until Jones can provide sufficient
evidence of his qualifications.
BASIS FOR OPINION.
The federal rules allow an expert to testify to his opinion based on facts in his observation or
made known to him outside of the court, even if these facts are not admissible and are not
presented to the jury. The only requirement is that they be the type of facts relied on by experts
in that field. Here, the measurements at the sight of the accident appear to be the type of
evidence which would be relied on by an accident expert, and the testimony should not be
excluded on this ground.
ULTIMATE ISSUE.
Here, expert opinion on what happened based on the physical evidence seems of a type that
could help jurors. Some jurisdictions bar the entry of an opinion of an expert on the ultimate
issue to be decided by the jury, however, the federal rules have abolished this requirement, so it
should not bar the entry of this opinion. Under FRE, witnesses can voice opinions as to
ultimate facts if helpful to the jury.
403 BALANCING TEST, PREJUDICE V. PROBATIVE VALUE.
The phrasing of the response, "plowed," may constitute undue prejudice, especially coming from
a police officer.
CONCLUSION. The evidence would be excluded.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
6. GAVE TICKET TO J.
RELEVANCE.
This evidence seems to indicate that Don likely ran the stop sign, and it shows that Jones
formulated that belief at the time of the accident. Don might argue being issued a traffic ticket
is irrelevant because it is merely an accusation of violation, not evidence that a violation
occurred.
COMPETENCE.
Jones was not at the scene when the accident took place, so he did not personally view Don
running the stop sign, and therefore may not be competent to testify.
403 BALANCING.
The federal rules allow the judge the discretion to exclude evidence where its probative value is
substantially outweighed by its prejudicial impact. This has minimal probative value, but it may
have a substantial impact on the jury, because an officer gave the man a ticket. The evidence
should be excluded.
CONCLUSION.
The evidence will be excluded.
7. FOUND GUILTY / SUSPENDED SENTENCE.
RELEVANCE.
The evidence has some tendency to show that he indeed did run the stop sign.
CHARACTER, IMPROPER EVIDENCE OF THE CONVICTION.
The federal rules of evidence allow the entry of evidence of a prior felony conviction to show
that the elements of the crime occurred. The rule is limited to serious crimes because people
may plead guilty to minor crimes for reasons other than their actual guilt. Such a traffic ticket is
the equivalent of a misdemeanor. Thus, the evidence that he was convicted of a traffic citation
should not be admitted into evidence.
PREJUDICIAL IMPACT.
For the same reasons as it is improper under the rule for entry of evidence of a conviction, the
probative value here is probably substantially out-weighed by the prejudicial impact.
CONCLUSION. The evidence will be admitted.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
8. REPORT WITH MEDICAL EXPENSES STATEMENT.
RELEVANCE. The report helps to possibly establish the impeachment of Jones.
LEADING QUESTION. Leading questions are proper on cross examination.
HEARSAY. The statement in the report is hearsay because it is an out of court statement and
Don's attorney is attempting to prove the truth of what the officer wrote, that Don only said he
would pay the medical bills.
HEARSAY EXCEPTIONS.
PRIOR INCONSISTENT STATEMENT.
Arguably this is inconsistent because Jones now asserts that Don said more than what the report
says he said. Because of the substantial difference in effect of the two statements, the court
should consider them in conflict and let in the testimony.
BUSINESS RECORD.
Lack of Foundation for Report.
The statement of the police officer was an official report made about the time of the events, and
he was under a duty to properly record the statements of what happened.
PAST RECOLLECTION RECORDED.
This cannot qualify as the use of a past recollection recorded, because the exception is only
available where the witness does not remember what occurred. Since Jones has testified as to
what he remembers, this exception is not available.
BEST EVIDENCE RULE.
Phil will argue that the question calls for Jones to testify as to the contents of the police report.
This is impermissible because the original document, or a duplicate, must be produced in order
to prove the contents of a writing. Here a duplicate is available, inasmuch as Don gave copy to
Jones, and the issue is the contents of what Jones put into the report, not merely what Jones
knows about the report.
IMPEACHMENT.
Don might argue the report is being offered not as substantive evidence, but as an inconsistent
statement for impeachment purposes. For this, the writing of the report would be a prior
inconsistent statement by Jones, and this is admissible not for substantive purposes but for
impeachment, despite the best evidence rule or any hearsay issues. The court will allow the
question for the limited purpose of impeaching Jones on cross-examination, but will not allow it
for substantive evidence, nor admit the report. Phil will ask for, and likely get a limiting
instruction.
CONCLUSION. The evidence will be admitted.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
9. DEPARTMENT REPRIMANDS.
RELEVANCE.
The evidence here is offered to impeach the witness, arguably his misconduct makes him a less
believable witness.
LEADING QUESTION.
Leading questions are allowed on cross-examination.
IMPEACHMENT.
A witness's bad character can be attacked as showing he is unreliable as a witness on the basis of
certain bad acts. Special instances of conduct may be inquired of on cross examination. Since the
acts here are not felonies, they are only admissible if they are acts that tend to show that the
witness is dishonest. While beating suspects with excessive force is certainly evidence of less
than admirable character, the evidence affects his character for violence, not his character for
truthfulness. This is improper impeachment of the witness and should be excluded.
CONCLUSION. The evidence will be excluded.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.