All Evidence MCQs (complete) Flashcards
Which of the following questions is least likely to be objectionable under Rule 611?
A. Prosecutor asks the defendant on cross-examination: “While you were hiding behind the dumpster, isn’t it true that you took the gun and threw it in the dumpster and then took off your hat and stuffed it down your shirt?”
B. Defense counsel asks an eyewitness: “Isn’t it true that you and the defendant have never liked each other?”
C. Prosecutor asks a defense witness: “So it sounds like you have lied about everything that matters in this case. Are you the type of person who lies all the time?
D. Plaintiff’s counsel asks his client on direct examination: “You saw the defendant’s car halfway into the intersection when you entered the intersection, is that correct?”
B. Defense counsel asks an eyewitness: “Isn’t it true that you and the defendant have never liked each other?”
This is a perfectly acceptable impeachment question, asking about bias against the defendant. A leading question is appropriate and permissible on cross-examination.
Bernard was on trial on ten counts of conspiracy to sell narcotics and for arranging the murder of an undercover police officer. The chief investigator in the case, Detective Mums, has been investigating the case for six months and has helped the prosecutor prepare and coordinate the seventeen witnesses necessary to prove their case. The prosecutor tells the court that the detective is essential to her presentation. Detective Mums also plans on testifying in the case herself. Bernard intends to testify in his own defense. He also intends on calling his brother as a character witness. Before the trial begins, the judge issues a ruling under Rule 615 to sequester the witnesses. Who of the following is required to leave the courtroom?
A. Bernard.
B. Detective Mums.
C. Bernard’s brother.
D. The widow of the murdered undercover police officer, who wishes to watch the entire trial even though she will not be called as
C. Bernard’s brother.
Rule 615 requires most witnesses to be excluded from the courtroom, and there is no exception for character witnesses or family members of parties.
Which of the following is permissible?
A. In a jury trial, the judge asks questions of one of the witnesses after the direct and cross-examination.
B. In a bench trial, the trial judge interviews one of the witnesses outside of court over the weekend in order to gather more information about the case.
C. In a jury trial, a juror visits the scene of the crime over the weekend when the court is not in session.
D. In a bench trial, the judge admits hearsay evidence even though it does not meet any exception. The judge explains that she will consider the evidence but give it very little weight.
A. In a jury trial, the judge asks questions of one of the witnesses after the direct and cross-examination.
Rule 614(b) allows a judge to ask questions of a witness.
A leading question is one that suggest to the witness the answer desired by the examiner. Rule 611(c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?
A. When the direct examination is conducted during a videotaped deposition of a witness.
B. When counsel is attempting to rehabilitate the testimony of the witness on re-direct examination.
C. When the witness being examined on direct is an adverse party or a hostile witness.
D. When both counsel stipulate that they’ll not object to any leading questions during trial.
C. When the witness being examined on direct is an adverse party or a hostile witness.
Under Rule 611(c)(2), Mode . . . of Examining Witnesses . . .; Leading Questions, when the witness is hostile or adverse, leading questions as if on cross-examination may be used.
At trial, a party wishes to prove the following two facts
(i) Drinking alcohol can result in a state of intoxication;
(ii) Individuals who are between the ages of eighteen and twenty drink alcoholic beverages at a greater rate than any other age group.
What are the permissible ways to get these facts into evidence?
A. The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence.
B. The trial court should take judicial notice of both facts.
C. The trial court should use expert testimony for (i) and (ii).
D. There is no way to prove these facts at trial.
A. The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence.
Rule 201 states that a court should take judicial notice of any fact that is not subject to reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The fact that drinking alcohol can result in a state of intoxication is a fact that is generally known. It can also be readily determined from a source whose accuracy cannot reasonably be questioned, such as a medical treatise. However, the proportion of people in a certain age group that drink alcohol is a matter that may be open to dispute, and there is no unimpeachable source that could provide that information. Therefore, the state would have to prove this fact using an expert witness.
Barry is on trial for possession of heroin with intent to sell. The prosecutor proves that Barry was caught in possession of sixty small baggies of heroin. The prosecutor asks the judge to take judicial notice of the fact that anyone with sixty bags of heroin intends to sell the heroin because that amount is far more than anyone would personally use. Should the judge take judicial notice of this fact?
A. No, because a judge may not take judicial notice of a fact in a criminal case.
B. Yes, if the judge has sufficient personal experience with individuals using or buying heroin so that she knows herself that sixty bags must mean that the defendant intended to sell the heroin.
C. Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area.
D. Yes, if the judge has tried so many heroin cases that she knows herself that sixty bags must mean that the defendan
C. Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area.
Rule 201(b) states that a judge should take judicial notice of a fact if it is not subject to reasonable dispute and (1) is generally known or (2) can be accurately or readily determined from an unimpeachable source.
Which of the following facts would a court be most likely to take as judicially noticed?
A. The fact that an individual who is carrying various credit cards that each have a different name on them has an intent to commit credit card fraud.
B. The fact that a witness had been previously convicted of a crime.
C. The fact that Barack Obama was re-elected President of the United States in 2012.
D. The fact that drinking alcohol is
C. The fact that Barack Obama was re-elected President of the United States in 2012.
A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. The fact of Obama’s reelection in 2012 is both beyond dispute and is generally known (and can also be verified by any number of unimpeachable sources).
In U.S. v. Rollin, Rollin is being charged with robbery of a federal post office. At the trial, the Government asks the court to take judicial notice of the fact that at Metro City’s latitude, the sun remained in the sky at 5:30 pm EST on June 21, 2004, the date of the robbery. The trial judge takes judicial notice of this fact. Therefore, the effect of the judicial notice of the fact is that:
A. The Government’s burden of production of evidence for the fact judicially noticed is now satisfied.
B. The fact judicially noticed is established beyond a reasonable doubt.
C. The fact judicially noticed is conclusively established.
D. The burden of persuasion has now shifted to the defendant Rollin to prove beyond a reasonable doubt a fact contrary to the Government’s contention.
A. The Government’s burden of production of evidence for the fact judicially noticed is now satisfied.
When a court takes judicial notice, then the party that requested judicial notice has met its burden of production of evidence for the fact judicially noticed.
In a personal injury action, plaintiff requests the court to take judicial notice of a 1910 city ordinance prohibiting the riding of bicycles in the park after dark. Defendant, while riding his bicycle, hit plaintiff at 11 p.m.
A. This is a legislative fact not covered by the Federal Rules of Evidence.
B. This law may be judicially noticed even if it is not commonly known.
C. This is an adjudicative fact not noticeable because it is not a commonly known fact.
D. This is an adjudicative fact but is not judicially noticeable.
A. This is a legislative fact not covered by the Federal Rules of Evidence.
Ascertainment of the governing law involves judicial notice of a legislative fact; only adjudication facts—the what, when, where, how, why, who aspects of the litigation—are encompassed by Rule 201.
A state court is LEAST likely to take judicial notice of which of the following?
A. In Australian law, there is no private action for environmental issues.
B. Main Street, upon which the courthouse is situated, runs north and south.
C. The blood type that occurs with greatest frequency in the population is O-positive
D. The sun rose at 6:52 a.m. on Friday, December 12, of last year.
A. In Australian law, there is no private action for environmental issues.
The state court is least likely to take judicial notice of the Australian law. Most state courts will not take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court.
Which of the following statements regarding judicial notice is most accurate?
A. Once a court takes judicial notice of a fact in any proceeding, the jury is required to accept that fact as conclusive.
B. If a court on its own authority takes judicial notice of a fact, a party is not entitled to a hearing as to the propriety of the action.
C. Judicial notice of a fact may be taken for the first time during the appellate stages of litigation.
D. A court may take judicial notice of a fact only when requested by one of the parties.
C. Judicial notice of a fact may be taken for the first time during the appellate stages of litigation.
Judicial notice may be taken at any stage of the proceedings, including during appellate review.
In a civil case, a plaintiff must demonstrate that gold is denser than silver. After consulting a textbook on metallurgy, the judge took judicial notice of the fact at the plaintiff’s request.
What is the effect of the judge’s ruling?
A. While the ruling is evidence that the jury might consider on the issue, they are not required to accept it as conclusive.
B. It shifts the burden of production on the issue to the defendant.
C. It shifts the burden of persuasion on the issue to the defendant.
D. The fact is conclusively established.
D. The fact is conclusively established.
The fact that gold is denser than silver is an appropriate subject for judicial notice because it is a fact capable of accurate and ready determination by resorting to sources that have unquestionable accuracy (i.e., the metallurgy textbook).
Dana is on trial for child abuse. The prosecution’s theory is that on October 5th, Dana got angry at her six-year-old son for having stained the carpet in her bedroom, and so she struck him multiple times, causing significant bruising to his face and body. Which of the following evidence (if any) should be excluded as IRRELEVANT to the prosecutor’s case?’
A. On October 12th, Dana’s son told his teacher at school that a week before his mother had hit him and made him cry.
B. One year ago, Dana’s son was removed from her by the state for six months because Dana hit him in the face with a coffee mug and broke his jaw.
C. All of the above facts are relevant to the case.
D. Dana did not send her son to school for five days after October 5th.
C. All of the above facts are relevant to the case.
All of the above facts are relevant because they have a tendency to make a material fact (that Dana did indeed strike her son) more probable than it would be without the evidence. Some of this evidence is barred as propensity evidence or by the hearsay rule, but the question asks about relevance, not admissibility.
The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He callsa witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man.
Which of the following, if offered by the prosecution, would most likely be admissible?
(A) A neighbor’s testimony that the witness has beaten his wife on several occasions.
(B) A police officer’s testimony that the defendant has a general reputation in the community as a violent person.
(C) A neighbor’s testimony that the defendant has a reputation for being untruthful.
(D) Evidence that the defendant has a conviction for aggravated battery.
(B) A police officer’s testimony that the defendant has a general reputation in the community as a violent person.
Criminal = Reputation, Opinion ONLY
1) Did D open the door? YES
2) Is the character trait relevant? YES (violence)
The defendant put his character of nonviolence at issue by having his witness testify to the defendant’s nonviolent nature, which is relevant to whether he committed the crime charged.
Note: The D’s reputation for truthfulness is not relevant to whether he has committed the crime for which
he is charged. (And because the defendant has not placed his credibility in issue by taking the stand as a witness, his reputation for truthfulness cannot be offered for impeachment purposes.)
A lawyer represented a sole proprietor in a federal income tax refund case in U.S. district court in which the sole proprietor was claiming certain additional business expense deductions based on sales expenses that had inadvertently been left off of his tax return for the year.
What is most likely protected from admission into evidence under the attorney-client
A) An employment contract between the sole proprietor and a salesperson drafted by the lawyer.
B) Sales records created by the sole proprietor, and provided to the lawyer to enable the lawyer to prepare for the litigation.
C) A letter sent to the lawyer by the sole proprietor detailing business expenses.
D) The sole proprietor’s tax return for the tax year in question, which was prepared by the lawyer.
A letter sent to the lawyer by the sole proprietor detailing business expenses.
The letter is a communication by a client to his attorney about a matter under litigation.
Note: The letter protected by the attorney-client privilege, the information contained in the letter, i.e., the sole proprietor’s business expenses, is not protected by this privilege
Note: B is incorrect because, even though the records were provided by the client to the lawyer and pertained to the legal matter at hand, the records were not prepared in order to obtain legal advice.
A telecommunications company retained a lawyer to represent it in a commercial dispute in which it was the plaintiff. The fee agreement provided that the lawyer would bill the company on an hourly basis but would not collect anything except costs “unless and until the telecommunications company received a recovery or settlement in the action.”
Due to disagreements with the lawyer’s strategy for the trial, the telecommunications company discharged the lawyer and hired a new law firm on a contingency basis to represent it in the case. The company was ultimately awarded a large judgment.
The original lawyer sued the company for her uncollected fees. The company denied owing the lawyer anything, asserting that no money was due yet because the judgment had not actually been collected. The lawyer wants to introduce evidence that the judgment has been collected by showing disbursements from the new law firm’s trust account to the telecommunications company.
Is this evidence admissible?
A) No, because the evidence is protected by the attorney-client privilege.
B) No, because the evidence is irrelevant.
C) Yes, because the evidence does not constitute a confidential communication covered by the attorney-client privilege.
D) Yes, because the attorney-client privilege does not apply to disputes between the client and the attorney.
C) Yes, because the evidence does not constitute a confidential communication covered by the attorney-client privilege.
The attorney-client privilege prevents anyone from testifying about confidential communications made to an attorney for the purpose of obtaining legal services.
BUT the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.
Note: Although there is an exception to attorney-client privilege when there is a dispute between the attorney and the client, the dispute at issue is between the company and the original lawyer, not the company and the law firm that made this disbursement. Moreover, the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.
A governmental inspector of a construction project was struck and injured by a truck. The inspector brought a negligence action against the construction firm, alleging that the driver of the truck was an employee of the firm. At trial, the head of the construction firm testified that the truck driver was an independent contractor. The inspector’s lawyer, in cross-examining the head of the construction firm, sought to ask whether the construction firm had purchased liability insurance for the truck.
Can the judge permit this question over the objection of the lawyer for the construction firm?
A) No, because evidence of liability insurance is inadmissible in a negligence action.
B) No, because whether the construction firm had liability insurance can only be proved by extrinsic evidence.
C) Yes, because evidence of liability insurance is subject to disclosure during discovery under the Federal Rules of Civil Procedure.
D) Yes, because the evidence tends to show that the truck driver was an employee of the construction firm.
D) Yes, because the evidence tends to show that the truck driver was an employee of the construction firm.
Other purpose: proving control
A plaintiff sued a defendant for injuries he suffered while shaving with a razor manufactured by the defendant. The plaintiff alleged that the razor was defectively designed. The plaintiff’s expert witness testified that the manufacturer should have used certain safeguards in the razor’s design that would have made the razor safer. In his testimony, the defendant did not deny that the safeguards urged by the plaintiff’s expert were feasible, but he argued that they were unnecessary and that the razor was not defectively designed. The plaintiff seeks to cross-examine the defendant about a safety modification the defendant has made to the razor since the plaintiff’s injury.
For which of the following substantive purposes may evidence of this modification be used?
A) Both to prove that the razor was defectively designed and to prove that the safeguards described by the expert were feasible.
B) Only to prove that the razor was defectively designed.
C) Only to prove that the safeguards described by the expert were feasible.
D) Neither to prove that the razor was defectively designed nor to prove that the safeguards described by the expert were feasible.
D) Neither to prove that the razor was defectively designed nor to prove that the safeguards described by the expert were feasible.
Plaintiff may not introduce evidence of remedial measure – feasibility unless the feasibility of such measures is disputed
A woman took out a loan from a large bank in order to start a new business. After she missed several payments, the bank sued the woman to collect the outstanding balance. In pre-trial settlement negotiations, the woman explained that she was unable to make the payments because her business was struggling. She noted that she should have listened to her boyfriend, who believed that debt would be the downfall of the country and that people should do whatever necessary to destroy big banks.
The parties eventually reached a compromise whereby the bank would extend the time to repay the loan, but would retain the right to sue under the original terms if the woman missed any payments. When the woman failed to make the payments, the bank properly reinstituted its suit against the woman.
At trial, the woman claimed that the loan contract was invalid because she was heavily medicated at the time she made the contract, and was thus incompetent. The woman has called her boyfriend to the stand to testify to these facts. The bank seeks to introduce the woman’s statements about her boyfriend made during the earlier settlement negotiations.
Are the woman’s statements about her boyfriend likely to be admitted?
A) No, because the statements were made during settlement negotiations.
B) No, because the statements are inadmissible hearsay.
C) Yes, because the statements prove bias or prejudice of a witness.
D) because the negotiations at issue resulted in a settlement agreement.
C) Yes, because the statements prove bias or prejudice of a witness.
Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim. Such statements may be admitted for other purposes, however, such as to prove the bias or prejudice of a witness. In this case, the bank intends to introduce the woman’s statements about her boyfriend to show his bias against banks. Accordingly, they are admissible even though they were made during a settlement negotiation.
A customer sued a home improvement store for damages due to an alleged back injury that occurred when an employee driving a forklift backed into the unsuspecting customer who was facing the opposite direction. The store asserted that the forklift accident had not caused the customer’s injury. At trial, the customer seeks to introduce an affidavit of a physician, who has since died, that she examined the customer the day after the incident and concluded that the customer had suffered a back injury within the past 36 hours. Is this affidavit admissible?
A) No, because of the physician-patient privilege.
B) No, because it is inadmissible hearsay.
C) Yes, because it is recorded former testimony.
D) Yes, because it is a statement regarding a present physical condition.
B) No, because it is inadmissible hearsay.
Out of court statement? Yes
Used for the truth of the matter asserted? Yes
Is it hearsay (exemptions)? No
Exceptions? No
Note: * statement was not made by the customer about his own physical condition but by the physician – medical treatment exception does not apply
In a murder trial, the prosecutor planned to call an eyewitness to the stand to testify that he saw the defendant kill the victim. However, the witness recently suffered a severe head injury that seriously affected his memory. The witness can no longer remember witnessing the murder. Prior to the witness’s injury, he testified to what he saw before the grand jury.
The prosecutor would like to introduce the witness’s grand jury testimony as substantive evidence that the defendant committed the murder. The defendant objects to the introduction of the evidence. Should the court admit the witness’s grand jury testimony into evidence?
A) Yes, because the witness is unavailable to testify.
B) if used to refresh the witness’s recollection.
C) No, because the witness does not meet the “unavailability” standard.
D) No, because the former testimony exception does not apply to these facts.
D) No, because the former testimony exception does not apply to these facts.
Although the witness is “unavailable” for the purposes of the hearsay rules (as will be discussed below), and there is a “former testimony” exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony.
Note that this WOULD be OK for prior inconsistent statement, but that’s not happening here.
A defendant was sued in civil court for assault. The defendant, as his first witness in his case in chief, called a friend to testify that, on the day before the day in question, the defendant had told her that he was leaving town that afternoon to drive across the country.
Is this testimony admissible to show that the defendant was not in town when the assault allegedly occurred?
A) Yes, because the defendant is available to testify.
B) Yes, because it is a declaration of the defendant’s present mental state.
C) No, because it is hearsay.
D) No, because the witness is biased.
B) Yes, because it is a declaration of the defendant’s present mental state.
A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Consequently, the defendant’s statement to his friend may be introduced into evidence to show that the defendant was not in town when the assault allegedly occurred.
A woman and her sister walked into the woman’s house. The woman went into her bedroom to say hello to her husband, while the sister waited in the other room. As soon as the woman walked into the bedroom, her sister heard her exclaim, “Where did you get all that money? There must be several thousand dollars on this dresser!” The woman came out of her bedroom shortly thereafter, and told her sister that the sister should leave immediately. That night, the woman called her sister and told her that her husband had robbed a bank. The husband was later arrested for bank robbery. At trial, the woman refused to testify against her husband, and the prosecution called the sister as a witness. The sister testified that the woman had said there was several thousand dollars on the dresser, and that the woman called her to tell her that the husband had robbed a bank. The husband objected to both pieces of testimony.
How should the judge rule regarding the sister’s testimony?
A) The judge should admit both pieces of testimony.
B) The judge should admit the testimony regarding the woman’s statement about the money on the dresser only.
C) The judge should admit the testimony regarding the woman’s statement about her husband robbing a bank only.
D) The judge should exclude both pieces of testimony.
B) The judge should admit the testimony regarding the woman’s statement about the money on the dresser only.
Excited Utterance/Present Sense Impression: woman made the statement immediately upon noticing the money on the dresser.
No exception for the later phone call.
A defendant was on trial for having committed a murder in 1995. Taking the stand, the defendant denied being present in the city where the murder occurred at the time of the killing. The prosecution sought to admit into evidence a copy of the local newspaper published the day after the killing. The newspaper contained an article in which the defendant was quoted as stating that he had heard shots on the day of the murder from inside his apartment. The defendant objected to the introduction of this evidence. Should the judge admit the newspaper article into evidence?
A) Yes, both to impeach the defendant’s credibility and to prove that he was in the city on the day of the murder.
B) Yes, but only for the purposes of impeaching the defendant’s credibility.
C) No, because the article is hearsay not within any exception.
D) No, because the article was not properly authenticated.
A) Yes, both to impeach the defendant’s credibility and to prove that he was in the city on the day of the murder.
Is it hearsay? No, inconsistent statement and opposing party statement
Newspaper exception: Ancient document
quote exception
In the prosecution of a defendant for murder, the state seeks to qualify a forensic analyst as an expert in order to have her testify as to her professional opinion of the crime scene. The defense has objected on the ground of inadequate qualifications. The prosecution now seeks to introduce a letter written by the editor-in-chief of a well-respected academic journal of forensic science, stating that the forensic analyst has published a number of well-reviewed papers on the subject of crime-scene analysis and is generally acknowledged in her field as very qualified.
On the issue of the forensic analyst’s qualifications, may the judge consider the editor’s letter?
A) Yes, because the letter is not hearsay.
B) Yes, because the judge may consider the letter without regard for the hearsay rule.
C) No, because the letter is hearsay not within any exception.
D) No, because it is the role of the jury to determine the credibility of the evidence of the forensic analyst’s qualifications.
B) Yes, because the judge may consider the letter without regard for the hearsay rule.
Whether a witness is qualified to offer expert opinion testimony is a preliminary question for the court—not the jury. The court is not bound by the rules of evidence when determining such questions.
A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property. A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen. On cross-examination, the prosecutor asked the defendant, “Didn’t you also previously buy a stolen stereo from the same man who sold you this television?” The defendant’s attorney immediately objected.
What is the strongest basis for the defense attorney’s objection?
A) The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
B) The prosecutor’s question was irrelevant because it does not establish an element that the prosecutor must prove.
C) The relevance of the prosecutor’s question depends upon whether the defendant knew the stereo was stolen, and the prosecutor has not offered sufficient proof to support that finding.
D) The risk of unfair prejudice is not substantially outweighed by the probative value of the prosecutor’s question.
A) The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
A court may exclude relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence.
Note: An FRE 403 objection requires that the court decide if the proffered evidence’s probative value is substantially outweighed by one of the above-listed dangers—not vice versa.
In his criminal trial for battery, a defendant sought to introduce evidence of his peaceful character. He had met the leader of a local animal rights group once during a recent animal rights demonstration in front of the mayor’s office, during which the defendant succeeded in calming down an angry group of protestors. The defendant planned to ask the group leader to testify about this incident to the jury. The prosecution objected to the introduction of this evidence.
How should the court rule on the objection?
A) Sustain the objection, because this testimony constitutes an inappropriate use of character evidence.
B) Sustain the objection, because the leader of the animal rights group only met the defendant once.
C) Overrule the objection, because the defendant may introduce evidence of his good character if relevant to the crime charged.
D) Overrule the objection, because specific acts are admissible in criminal cases if introduced by the defendant.
A) Sustain the objection, because this testimony constitutes an inappropriate use of character evidence.
A criminal defendant may introduce evidence that his/her character is inconsistent with the crime charged. But the defendant may only do so through reputation or opinion testimony—not specific acts of conduct.
A politician on trial for the misdemeanor assault and battery of a reporter asserts that the reporter started the altercation by shouting questions in his face and shoving him. At trial, the politician did not take the stand and did not introduce evidence of his own character, but he did call the reporter’s neighbor to testify that the reporter has a reputation among neighbors for violent outbursts. After the neighbor testified, the prosecution moved to introduce testimony by a community leader that the politician has a reputation for violence in the community as evidence that the politician started the altercation.
Is the prosecution’s evidence regarding the politician’s reputation admissible?
A) No, because the politician did not “open the door” to the introduction of evidence of his bad character by introducing evidence of his own good character.
B) No, because the politician’s character is not at issue, as he did not testify.
C) Yes, because the politician “opened the door” to the evidence of his bad character for violence by introducing evidence of the reporter’s character for violence.
D) Yes, because violence is an essential element of battery.
C) Yes, because the politician “opened the door” to the evidence of his bad character for violence by introducing evidence of the reporter’s character for violence.
A criminal defendant opens the door for the prosecution to introduce evidence of the defendant’s bad character by introducing:
(1) evidence of his/her own good character for a trait pertinent to the charged crime or
(2) evidence of the alleged victim’s bad character.
A defendant was charged with battery following a bar fight with his neighbor. At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense. In addition to testifying about the event in question, he sought to testify that the preceding night, he and a coworker had gone out for a drink at the same bar, and that the evening had passed peacefully. Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak. After testifying, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person. Following testimony introduced by the prosecution that impeached the defendant’s truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual.
Which of the proffered testimony is most likely to be successfully challenged by the prosecution?
A) The testimony of the lifelong acquaintance of the neighbor regarding the neighbor’s violent streak.
B) The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
C) The testimony of the defendant’s pastor as to the defendant’s reputation as a nonviolent person.
D) The testimony of the defendant’s employer that the defendant was a truthful individual.
B) The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through reputation or opinion testimony—not specific instances of conduct.
A defendant was charged with burglary. One of the key pieces of evidence in the case was a note left by the burglar that read, “It’s just 2 easy.” At trial, the defendant testified in his defense, asserting that he did not commit the crime. On cross-examination, the prosecutor, having a proper factual basis, asked the defendant if he had been convicted of felony burglary five years ago after having left a note at the crime scene that read, “It’s just 2 easy.” The defendant’s attorney, having received proper notice from the prosecutor regarding use of the prior conviction, objected to the prosecutor’s question as seeking to elicit improper criminal-propensity evidence. The court, after determining that the probative value of this evidence and its prejudicial effects were equal, overruled the objection and instructed the defendant to answer the question.
Has the court acted properly?
A) No, because evidence of the defendant’s prior conviction constitutes improper criminal-propensity evidence.
B) No, because the court did not find that the probative value of the conviction outweighed its prejudicial effects.
C) Yes, because the defendant may be impeached by a prior conviction of burglary within the last 10 years.
D) Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.
D) Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.
Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
A defendant was charged with aggravated assault arising from an altercation following a car accident. The defendant called a witness who testified that, in his opinion, the defendant was a nonviolent person. On cross-examination, the prosecutor asked the witness whether he was aware that the defendant had been involved in a bar fight during the past year. Although the defendant was actually involved in such a fight, the prosecutor herself was not aware of the incident, as the defendant had not been arrested or charged. However, the prosecutor had witnessed the defendant’s short temper during her interactions with the defendant and knew that he was a drinker. As it happened, the witness was aware of the defendant’s involvement in the fight.
Should the court require the witness to answer the prosecutor’s question?
A) Yes, because the witness’s knowledge of defendant’s past behavior goes to the witness’s credibility.
B) Yes, as a specific instance of the defendant’s conduct.
C) No, because the defendant was not arrested or charged in connection with the bar fight.
D) No, because the prosecution did not know the defendant had been involved in a bar fight.
D) No, because the prosecution did not know the defendant had been involved in a bar fight.
A criminal defendant may call a witness to testify that the defendant’s character is inconsistent with the charged crime.
The prosecution may then
(1) ask the witness about a specific act committed by the defendant or
(2) call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.
Here, the prosecutor asked the defendant’s character witness about a bar fight (specific act) the defendant had within the past year. This question would affect the witness’s credibility because it raises a doubt about the witness’s opinion that the defendant was a nonviolent person. But since the prosecution did not know the defendant had been involved in a bar fight, she asked the question on a hunch. Therefore, the question was not asked in good faith, and the court should not require the witness to answer it
A defendant was charged with assault. Upon learning that the defendant intended to testify in his own defense, the government gave the defense proper notice of its intent to introduce as impeachment evidence the defendant’s conviction for embezzlement nine years prior. The defense filed a motion to exclude all evidence of the defendant’s conviction, arguing that it would prejudice the defendant. In a pretrial hearing, the judge noted that the conviction would likely have little prejudicial effect.
Is the judge likely to grant the defendant’s motion?
A) No, because the conviction relates to a crime involving dishonesty and occurred within the last 10 years.
B) No, because the probative value of such a conviction outweighs its prejudicial effect.
C) Yes, because a prior conviction may not be used to impeach a defendant who testifies in his own defense.
D) Yes, because the conviction for embezzlement is not probative in determining whether the defendant committed an assault.
A) No, because the conviction relates to a crime involving dishonesty and occurred within the last 10 years.
Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.
Note: The embezzlement conviction is not probative in determining whether the defendant committed an assault. But the conviction may still be used to impeach the defendant’s character for truthfulness
A defendant is on trial for bank robbery. In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller on her first day of work. The teller testified that the note presented to her on the witness stand was the note that she had received from the robber. The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the defendant, who was a bank customer, based on her comparison of the note with 10 customer signature cards, including the defendant’s, presented to her by the prosecutor after the robbery.
Is the teller’s testimony that the handwriting on the note matches that on the defendant’s customer signature card admissible?
A) No, because a lay witness may not testify as to whether a document is in a person’s handwriting.
B) No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
C) Yes, because the process was not unduly suggestive since the prosecutor presented the teller with 10 customer signature cards.
D) Yes, because a lay witness may testify as to whether a document is in a person’s handwriting.
B) No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
A lay witness with personal knowledge of a claimed author’s handwriting may testify as to whether a document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements. In fact, the defendant had no medical training. The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician. The sole issue in dispute is whether the defendant made such representations.
At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant. The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the ground that the prosecution was required to introduce an original contract under the best evidence rule. The court sustained the defendant’s objection.
Did the court err in making its ruling?
A) Yes, because the best evidence rule allows for the introduction of an original or duplicate document.
B) Yes, because the best evidence rule is not implicated in this case.
C) No, because the best evidence rule applies to a document that has a legal effect, such as a contract.
D) No, because a photocopy is not admissible when the absence of the original is not explained.
B) Yes, because the best evidence rule is not implicated in this case.
*Duplicates are admissible unless original’s authenticity is questioned or it would be unfair to admit them.
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the contents of the document are at issue.
A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning about the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury.
Is this evidence admissible?
A) No, because evidence of the manufacturer’s warning is inadmissible as a remedial measure.
B) No, because the remedial-measures exclusion is limited to negligence cases.
C) Yes, because the manufacturer began providing the warning before the boat owner’s accident.
D) Yes, because evidence of the need for a warning is not subject to the remedial-measures exclusion.
C) Yes, because the manufacturer began providing the warning before the boat owner’s accident.
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
Two officers, a veteran and a novice, brought an experienced drug-sniffing dog on patrol one evening. They properly pulled over a driver on a bridge for erratic driving, and the veteran waited in the car to let the novice handle the stop. As the novice officer questioned the driver through the driver’s window, the dog circled the car and began barking and pawing desperately at the passenger-side door. The novice officer noticed that the driver had a package sitting on his passenger seat. When asked about the package, the driver responded that it was just meat from a butcher shop. As the novice officer stepped away from the window to write a ticket, the driver grabbed the package and threw it out of the passenger window and over the railing of the bridge. The dog immediately stopped barking. The veteran officer saw the whole event.
Assuming that the parties stipulate that the veteran is an expert in the training and reactions of drug-sniffing dogs, is the veteran officer’s testimony describing the dog’s reactions to the package admissible in a trial of the driver for possession of illegal drugs?
A) No, because the dog’s behavior was assertive conduct, making it hearsay not within any exception.
B) No, because the dog’s presence at the stop resulted in an improper search.
C) Yes, as evidence that the package contained illegal drugs.
D) Yes, because evidence generated by a machine or animal falls under an exception to the hearsay rule.
C) Yes, as evidence that the package contained illegal drugs.
The rule against hearsay bars the admission of an out-of-court statement made by a person—not a machine or animal—that is offered to prove the truth of the matter asserted therein.
Here, the prosecutor seeks to introduce the veteran officer’s testimony describing the dog’s reactions to the package. Although the dog’s behavior was assertive conduct, the veteran officer’s testimony does not implicate the hearsay rule because it relates to evidence generated by an animal
A witness to an armed robbery identified a suspect in a proper police lineup that was not attended by the suspect’s attorney. Charges were brought against the suspect, but the witness, a tourist from out of the country, had returned to her home country before the trial began. At trial, the prosecutor seeks to introduce the witness’s prior statement of identification into evidence. The defendant objects to the introduction of the evidence.
Should the court allow the prior statement of identification into evidence?
A) Yes, because it is admissible as nonhearsay.
B) Yes, because the witness is unavailable, so the statement of identification falls under a hearsay exception.
C) No, because the defendant’s attorney was not present at the identification.
D) No, because the witness is unavailable.
D) No, because the witness is unavailable.
A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.
Here, the witness’s statement identifies the defendant as someone the witness perceived earlier. But since the witness returned to her home country before trial, she is unavailable to testify and is not subject to cross-examination about her statement.
In a criminal trial for arson, a prosecution witness testifies under oath that she saw the defendant set fire to the victim’s home. The defendant’s attorney does not cross-examine the witness but seeks to introduce testimony that the witness gave at a deposition several months before the trial. At the deposition, the witness testified under oath that she did not see the defendant set fire to the victim’s home.
Should the court admit the deposition testimony?
A) The court should admit the witness’s deposition testimony for impeachment purposes but not as substantive evidence.
B) The court should admit the witness’s deposition testimony for impeachment purposes and as substantive evidence.
C) The court should not admit the witness’s deposition testimony because the defendant’s attorney did not allow the witness the chance to explain her inconsistent testimony.
D) The court should not admit the witness’s deposition testimony because it is hearsay.
B) The court should admit the witness’s deposition testimony for impeachment purposes and as substantive evidence.
A prior inconsistent statement is admissible nonhearsay if
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and
(2) the declarant testifies and is subject to cross-examination.
It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about the statement.
Here, the witness’s prior inconsistent statement—that she did not see the defendant set fire to the victim’s home—was given under penalty of perjury at a deposition. And since the witness testified and was subject to cross-examination at trial, her deposition testimony is admissible nonhearsay and can be used as substantive evidence
A defendant is acquitted of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim’s family members object to the introduction of the judgment.
May the defendant introduce the copy of the final judgment from his criminal case?
A) No, because a judgment in a criminal case is inadmissible in a subsequent civil action.
B) No, because the judgment is inadmissible hearsay.
C) Yes, because the copy of the judgment satisfies the original document rule.
D) Yes, because the level of proof in a civil action is less than that in the murder case.
B) No, because the judgment is inadmissible hearsay.
Hearsay: One exception exists for judgments of conviction. However, no such exception exists for judgments of acquittal
A defendant was charged with and tried for a crime. During the presentation of its case-in-chief, the prosecution introduced an inculpatory statement made by the defendant in an email regarding the commission of the crime. The defendant requested the immediate introduction of a subsequent related email sent by the defendant that contained an exculpatory statement. The defendant established that fairness requires that the two statements be considered at the same time.
Should the court honor the defendant’s request?
A) No, because the exculpatory statement was not made at the same time as the inculpatory statement.
B) No, because the statement the defendant seeks to introduce is exculpatory.
C) Yes, as a matter of judicial notice.
D) Yes, because fairness requires that the two statements be considered at the same time.
D) Yes, because fairness requires that the two statements be considered at the same time.
Rule of completeness = a party may introduce any part of a previously admitted writing or recorded statement, or any other writing or recorded statement, that in fairness should be considered at the same time
Note: The rule of completeness does not require that the responding writing or recorded statement be part of or made at the same time as the previously admitted statement.
A plaintiff sued a defendant under a disabilities discrimination statute, alleging that the defendant refused to hire the plaintiff because of her physical disability. The defendant has asserted that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant sought to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to work productively for more than three hours each day.
Is the defendant’s testimony admissible?
A) No, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
B) No, because the former employer’s statement is hearsay not within any exception.
C) Yes, as evidence of the defendant’s reason for refusing to hire the plaintiff.
D) Yes, as evidence that the plaintiff would be unable to work longer than three hours each day.
C) Yes, as evidence of the defendant’s reason for refusing to hire the plaintiff.
Non-hearsay purpose: effect on the listener. Even if the former employer’s statements were not true, they had an effect on the defendant.
A plaintiff sued a defendant for libel after the defendant published an article on his website calling the plaintiff an adulterer. At trial, the defendant’s attorney called the plaintiff’s wife, who testified that on two separate occasions, the wife had found the plaintiff in a hotel with another woman. The plaintiff objected to the wife’s testimony.
Should the court sustain the plaintiff’s objection?
A) No, because character may be proven by specific instances of conduct in civil cases.
B) No, because the plaintiff’s infidelity is directly at issue in the trial.
C) Yes, because the wife’s testimony is barred by spousal privilege.
D) Yes, because the wife’s testimony is improper character evidence.
B) No, because the plaintiff’s infidelity is directly at issue in the trial.
Character evidence is admissible if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense.
While driving through her neighborhood, a woman was involved in a car accident with her neighbor. The neighbor alleged that the woman failed to stop at a stop sign. The neighbor brought an action for negligence against the woman. At trial, the woman intends to call a witness to testify that the woman stops at the stop sign each time she encounters it. The witness is the woman’s coworker and frequently carpools with the woman to work, driving on a route with the same stop sign. However, the witness was not present for the accident with the neighbor.
Should the court admit the witness’s testimony?
A) No, because the testimony is improper character evidence.
B) No, because the witness did not observe the accident.
C) Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.
D) Yes, because the woman’s character for careful driving is an essential element of her defense.
C) Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.
Evidence of a person’s habit is admissible to prove that the person acted in accordance with that habit on a particular occasion.
Note: A witness who is familiar with the person—and his/her habit—may testify to prove the existence of that habit The witness need not have been present at the event in question to do so
The driver of a car was involved in an accident with a bicyclist. The bicyclist died as a result of his injuries, and the state has brought a vehicular manslaughter case against the driver, alleging that the driver caused the accident when he failed to stop at a red light. At trial, the driver calls his friend, who was not present at the scene of the accident, as a witness. The friend plans to testify that he knows that the driver is a safe driver, and that the driver could not have failed to stop at a red light on the day of the accident. The prosecution objects, seeking to exclude the friend’s testimony.
Which of the following is the best basis for the prosecution’s objection?
A) The friend is biased in favor of the driver.
B) The friend is not an expert on the issue of traffic accidents.
C) The friend lacks personal knowledge of the accident.
D) The friend’s testimony offers character evidence in a criminal case.
D) The friend’s testimony offers character evidence in a criminal case.
A lay witness may testify to any relevant matter of which he/she has personal knowledge.
This requires that the witness
(1) perceived the matter firsthand and
(2) have a present recollection of that observation
Note that the friend is likely biased in favor of the driver BUT OC can impeach the witness for bias at a later time, if the court allows the friend to testify
In a civil assault suit between a plaintiff and a defendant, a witness testified that the defendant had been with her on the night of the alleged assault, more than 200 miles away from where the assault was alleged to have occurred. To challenge the witness’s credibility, the plaintiff’s attorney sought to present evidence of the witness’s juvenile conviction for voluntary manslaughter five years ago. The defendant objected to the admission of this evidence.
Should the judge admit the evidence?
A) No.
B) No, but only if the judge concludes that the probative value of this evidence is outweighed by its prejudicial effect to the witness.
C) Yes, but only if the judge concludes that the probative value of this evidence outweighs its prejudicial effect to the witness.
D) Yes.
A) No.
Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.
A pedestrian was struck by a school bus while crossing a major intersection. The pedestrian brought suit against the bus company for negligence. At trial, the pedestrian testified that he always waits for the pedestrian-crossing signal before crossing major intersections. On cross-examination, the bus company asked the pedestrian about a ticket he had received for jaywalking at a major intersection three months before the accident in question.
Is the bus company’s question likely permissible?
A) No, because the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
B) No, because the receipt of a ticket for jaywalking is not probative of the truthfulness of the recipient of the ticket.
C) Yes, because the evidence contradicts the pedestrian’s testimony that he always waits for the pedestrian-crossing signal.
D) Yes, because the prior ticket demonstrates that the pedestrian did not wait for the crossing signal when the accident occurred.
C) Yes, because the evidence contradicts the pedestrian’s testimony that he always waits for the pedestrian-crossing signal.
A witness may be impeached by evidence that directly contradicts the witness’s testimony on a material issue. Both intrinsic and extrinsic evidence may be used for this purpose.
Note: The receipt of a ticket for jaywalking does not, in and of itself, relate to the truthfulness of the recipient. But in this instance, the ticket calls into question the pedestrian’s truthfulness as to his statement that he always waits for the pedestrian-crossing signal.
During the filming of an action movie, a stuntman was injured when he jumped out of a window and fell onto a negligently installed safety net. A cameraman, who had been hired to shoot behind-the-scenes footage, taped the stuntman falling onto the safety net and the net collapsing beneath him, causing him serious injury.
The stuntman has sued the movie producer for negligence and seeks to enter a digital copy of the cameraman’s video footage into evidence at trial. The stuntman also plans to call an expert witness to testify that, based upon the video, the stuntman’s jump out of the window followed all safety protocols and that the safety net could only collapse if it was not installed properly. The cameraman has already testified that, based on his personal knowledge, the video that the stuntman seeks to admit is an accurate digital copy of the video the cameraman recorded of the accident.
Assuming there is no genuine question as to the authenticity of the original video recording, is the digital copy of the video admissible?
A) No, because the digital copy violates the best evidence rule.
B) No, because the digital copy is not a reliable form of evidence as it can be easily manipulated.
C) Yes, because the cameraman has properly authenticated the digital copy.
D) Yes, because the expert witness can guide the jury through the video and explain how and why the stuntman was injured.
C) Yes, because the cameraman has properly authenticated the digital copy.
Here, there is no question about the authenticity of the original recording and no indication that circumstances make it unfair to admit a copy. Therefore, admission of the copy does not violate the best evidence rule.
Note: The expert witness can likely guide the jury through the video and explain how and why the stuntman was injured. But this has no bearing on the admissibility of the recording.
A defendant was charged with theft of merchandise from a store. On the witness stand, the defendant admitted to taking the merchandise on the day in question but contended that she lacked the intent to do so. A rebuttal witness testified that she was standing outside the store after purchasing something, and she saw the defendant outside the store furtively removing the merchandise from her coat. When asked about her recollection of the date, the witness testified that she knew that it was the day in question because that date was on her receipt. The defendant objected, asserting that the prosecution must produce the receipt.
How is the court likely to rule on this objection?
A) Overrule the objection, because the date is a collateral issue.
B) Overrule the objection, because the date is irrelevant.
C) Sustain the objection, because the receipt is the most reliable evidence of the date.
D) Sustain the objection, because the witness’s knowledge of the date is based on the receipt.
A) Overrule the objection, because the date is a collateral issue.
Under the best evidence rule, an original or reliable duplicate is not required, and other evidence of content is admissible, when the contents go toward a collateral issue.
Note: Here, the witness relied on the date on the receipt when testifying about the date of the theft. But the date of the theft is collateral (i.e., undisputed) because the defendant has already admitted to taking the merchandise on the day in question. This means that the prosecution need not produce the receipt (or a reliable duplicate) for the witness to testify about it.
A plaintiff brought a defamation action against his friend, an internet blogger, for the publication of defamatory accusations against the plaintiff that the friend allegedly published on his internet blog. The plaintiff testified that because he had always been a daily reader of the friend’s writing, he read the defamatory remarks on June 10, the same day they were published. When the plaintiff’s attorney asked the plaintiff how he remembered the date, the plaintiff answered, “When I called his house to demand that he take down the post, his girlfriend answered the phone and said that he was out seeing a movie that had come out that day.” The friend’s attorney objected and moved to strike the testimony.
Should the court strike the plaintiff’s testimony about the girlfriend’s statement on the phone?
A) No, because the court may take judicial notice of the movie release date.
B) No, because the statement is not being offered for its truth.
C) Yes, because a court may refuse to admit evidence related to a collateral issue.
D) Yes, because the plaintiff has not established that the girlfriend is unavailable to testify.
B) No, because the statement is not being offered for its truth.
An out-of-court statement implicates the rule against hearsay only when it is offered to prove the truth of the matter asserted therein. Therefore, a statement offered for some other purpose is not barred by this rule.
Here, the plaintiff is offering the girlfriend’s statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day. Since the statement is not being offered for its truth, it is not barred by the hearsay rule.
A defendant is on trial for embezzling $50,000 from his former employer. The prosecution wishes to offer into evidence an anonymous letter, in its entirety, that was received by the defendant’s former supervisor. The supervisor testified that the letter was written in the defendant’s handwriting, which the supervisor knew from their years of working together. The letter reads, “I am consumed by guilt for what I have done. Here is half the money I took from you, and if you promise not to prosecute, I will send you the rest later this year. If you accept this arrangement, please post a personal ad in the local paper using the phrase ‘All is forgiven.’” The note was accompanied by $25,000 in cash. The defense objects to the admission of the letter.
Is the letter admissible?
A) No, because public policy calls for the exclusion of statements made in a negotiation to settle a claim.
B) No, because the letter has not been properly authenticated.
C) Yes, because the letter contains statements by an opposing party to the current litigation.
D) Yes, because statements of the declarant’s present intent, motive, or plan are excepted from hearsay.
C) Yes, because the letter contains statements by an opposing party to the current litigation.
Note: The prosecution authenticated the letter when it had the supervisor, a lay witness with personal knowledge of the defendant’s handwriting, testify that the letter was written by the defendant.
A woman sued her neighbor for conversion, alleging that the neighbor and his nephew took the woman’s vintage automobile from her garage and sold it on the black market. Prior to trial, the nephew was in a car accident in which his leg was badly broken. The nephew was rushed to the hospital for emergency surgery. On his way into surgery, the nephew told a nurse that he and the neighbor had taken and sold the woman’s automobile. The nephew later died in surgery due to unforeseen complications.
Which of the following hearsay exceptions will allow admission of the nurse’s testimony as to the nephew’s statement?
A) Dying declaration.
B) Excited utterance.
C) Statement against interest.
D) Statement of then-existing state of mind.
C) Statement against interest.
The statement against interest exception applies to hearsay statements
(1) that are contrary to an unavailable declarant’s proprietary or pecuniary interest;
(2) tend to invalidate the declarant’s claim against someone else, or
(3) expose the declarant to civil or criminal liability.
Note: The “dying declaration” exception applies to statements that (1) were made while an unavailable declarant believed his/her death was imminent and (2) concerned the circumstances of that impending death. But here, there is no indication that the nephew believed his death was imminent, and his statement did not pertain to the circumstances of his death.
A plaintiff filed suit against a supermarket for injuries that he sustained when he slipped on a piece of lettuce in the supermarket’s produce aisle. A supermarket employee who witnessed the plaintiff’s fall immediately prepared a written summary of the events that had occurred in order to alert the supermarket’s management. At trial, the supermarket’s lawyer called the employee as a witness. The employee testified that she could not recall the events, even after looking through her written summary while on the witness stand. The supermarket’s lawyer then asked her to read her summary to the jury. The plaintiff objected to the testimony.
May the court admit the testimony at this time over the plaintiff’s objection?
A) No, because it is hearsay not within any exception.
B) No, because such testimony may only be offered into evidence by an adverse party.
C) Yes, because the employee is on the witness stand and can be cross-examined.
D) Yes, because the employee is unable to remember the actual events even after referencing her summary.
D) Yes, because the employee is unable to remember the actual events even after referencing her summary.
Recorded recollection: allows a record to be read into evidence if it (
1) concerns a matter that a witness once knew but cannot recall at trial; (2) was made or adopted by the witness when the matter was fresh in his/her mind, and
(3) accurately reflects the witness’s personal knowledge at the time it was made.
Note: The employee is on the witness stand and can be cross-examined. But this is not a basis to admit a witness’s hearsay statement. Instead, the statement must fall under a hearsay exclusion or exception—e.g., the recorded recollection exception
A defendant is on trial for burglary. The jurisdiction has a statute that a charge of burglary may be elevated to aggravated burglary if the crime is committed with a firearm. An eyewitness, who is the burglary victim’s neighbor, called the police on the night in question and reported that she saw the defendant climb out of the victim’s window and that he was carrying a gun. The eyewitness wrote a detailed description of the incident and the weapon in her diary soon after she called the police.
During the trial, the prosecutor put the eyewitness on the stand, but she could no longer recall whether the defendant was holding anything. The prosecutor asked her to read the diary entry to herself to see if it refreshed her memory. When the eyewitness admitted that it did not, the prosecutor sought to have the eyewitness read the diary entry to the jury and to introduce the diary entry as an exhibit. The defendant objects to both.
How should the court rule?
A) The court should sustain both objections.
B) The court should sustain the objection as to the eyewitness’s reading of the diary entry but overrule the objection as to entering it as an exhibit.
C) The court should overrule the objection as to the eyewitness reading the diary entry to the jury but sustain the objection as to entering it as an exhibit.
D) The court should overrule both objections.
C) The court should overrule the objection as to the eyewitness reading the diary entry to the jury but sustain the objection as to entering it as an exhibit.
Recorded recollection: only an adverse party may introduce the record
Here, the eyewitness’s memory was not refreshed by having her read the diary entry to herself. And since the diary entry satisfies the criteria for admission under the recorded recollections hearsay exception, the court should allow the eyewitness to read the diary entry into evidence
A defendant is on trial for armed robbery and felony murder. The prosecution seeks to admit testimony by the first witness to arrive at the scene of the crime. The witness discovered the victim just before he died of a gunshot wound, and the victim identified the defendant as his assailant only moments before he died. The defense asserts that the victim was too delirious from blood loss to know that he was dying and hopes to present a statement from the victim’s widow to support this assertion. However, both parties agree that the widow’s statement is privileged under federal law.
In what manner should the court determine whether the victim’s statement is a dying declaration?
A) Allow the prosecution to admit the testimony only if the judge determines that the witness is credible.
B) Allow only the unprivileged evidence from both sides at the jury trial so the jury may decide whether the victim believed he was dying.
C) Consider all of the evidence from both sides outside the presence of the jury.
D) Consider only the unprivileged evidence from both sides outside the presence of the jury.
D) Consider only the unprivileged evidence from both sides outside the presence of the jury.
The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified.
Any hearing on these matters must be conducted outside the jury’s presence if
(1) the matter involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests: OR
(3) justice so requires.
The court may only consider unprivileged evidence when making this determination, so the widow’s privileged statement may not be considered. And since the victim’s statement identifying the defendant as the assailant would clearly prejudice the defendant, the hearing should be conducted outside the jury’s presence.
Note: the court must decide the preliminary question of whether the victim knew that he was dying before ruling on the admissibility of the victim’s statement as a dying declaration.
A woman is on trial for a burglary that took place at about 6:00 p.m. on November 1. A surveillance video from a local gas station shows that the woman visited the gas station at 7:00 p.m. on November 1. The woman alleges as an alibi that she was actually at the gas station at 6:00 p.m. She argues that the gas station failed to change the time display on its camera to reflect the end of Daylight Savings Time on the morning of November 1. The judge, on his own initiative and after first giving the prosecutor the opportunity to object, took judicial notice of the fact that Daylight Savings Time did end in the year in question on November 1. The judge instructed the jury that it may or may not accept any judicially noticed fact as conclusive.
Were the judge’s actions with regard to judicial notice of this fact proper?
A) No, because the court should have instructed the jury that it is required to accept the noticed fact as conclusive.
B) No, because the fact is not one that is generally known within the territorial jurisdiction of the trial court.
C) Yes, because the court gave the prosecution an opportunity to be heard on the propriety of taking judicial notice before doing so.
D) Yes, because the court may take judicial notice on its own initiative.
D) Yes, because the court may take judicial notice on its own initiative.
A court may take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it
(1) is generally known within the territorial jurisdiction of the trial court or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
But this fact can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned (e.g., calendar, almanac), so the court may take judicial notice of this fact on its own initiative.
Note: a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact.
A female and a male candidate were both competing for a junior coaching position with a college football team. Although the female candidate was more qualified and experienced, the head coach chose the much less competent male candidate for the coaching position. The female candidate subsequently sued the head coach for employment discrimination. At trial, the female candidate’s lawyer sought to introduce testimony by a football player on the team claiming that the head coach had told him that “women don’t belong on the football field unless they are wearing a cheerleading uniform.”
Is the head coach’s statement admissible?
A) No, because the probative value of the statement is substantially outweighed by its prejudicial effect.
B) No, because the statement is hearsay that does not fall within an exception.
C) Yes, because it is relevant to the claim of employment discrimination against the head coach.
D) Yes, because the statement falls within the state of mind exception to the hearsay rule.
C) Yes, because it is relevant to the claim of employment discrimination against the head coach.
Non-hearsay: illustrate the declarant’s world view or belief system.
Note: The then-existing state of mind exception to the hearsay rule allows statements of a declarant’s then-existing mental state—e.g., motive, intent, or plan—to be admitted as substantive proof that the declarant later acted in accordance with that mental state. But here, the coach’s statement is not hearsay, so no exception is needed. Additionally, the statement is not one of motive, intent, or plan.
A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building. The prosecution called a female witness who lived in the defendant’s prior apartment building to testify that she also received a number of unidentified but identical threatening phone calls while the defendant lived in her building. The defense objected to the testimony on the ground of relevance. The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant.
Is the witness’s testimony admissible?
A) No, because calls by an unidentified caller are not relevant to the case.
B) No, because the witness’s statement cannot be admitted prior to the production of evidence establishing that the defendant made the calls to the witness.
C) Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
D) Yes, on the condition that the court finds by a preponderance of the evidence that the caller was the defendant.
C) Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
Conditional relevance: When the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence. However, the court may admit the proposed evidence on the condition that such proof be introduced later.
A plaintiff manufacturer brought an action for breach of contract against a defendant retailer for the amount due under a contract for a shipment of widgets. The contract, which was admitted into evidence, indicated that the plaintiff was entitled to payment of the contract price once the widgets were delivered to a commercial carrier. The plaintiff called a witness who has worked in the plaintiff’s shipping warehouse for many years. The witness testified that the shipment of widgets ordered by the defendant was delivered to the commercial carrier with instructions to deliver the widgets to the defendant’s shipping address. The receipt for this delivery to the commercial carrier was entered into evidence.
When the defendant’s attorney asked the witness how he knew the defendant’s shipping address, the witness stated, “We keep all of our customers’ addresses in our shipping records, but I know that one by heart because they have been a regular customer for years. They order a lot of widgets, and they always call to make sure I used the right address.” The defendant’s attorney then objected to the witness’s testimony about the defendant’s shipping address and asked that the testimony be stricken from the record on the ground that the shipping records had never been shown to the defense or offered as evidence.
Should the court sustain the defendant’s objection to the witness’s testimony?
A) No, because the witness can testify about the plaintiff’s regularly conducted business with the defendant.
B) No, because the witness had personal knowledge of the shipping address used to send the shipment of widgets.
C) Yes, because the defense has not been given the opportunity to examine the plaintiff’s shipping records.
D) Yes, because the plaintiff must offer its original shipping records to establish the defendant’s shipping address.
B) No, because the witness had personal knowledge of the shipping address used to send the shipment of widgets.
A witness may testify to any relevant fact about which he/she has personal knowledge—i.e., firsthand experience or observation—even when other evidence may contain the same information.
Note: The mere fact that the witness can testify about the plaintiff’s regularly conducted business with the defendant is not sufficient for the witness to testify about the defendant’s shipping address. Instead, the witness can testify about the shipping address because he has personal knowledge of it
A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. At trial, the only witness to the accident testified that he clearly remembered that the car’s traffic light had been red and that the car ran the light. However, in the investigating officer’s report, which was made hours after the accident, the witness is quoted saying, “I saw the whole thing. The car had the green light.” The car driver did not cross-examine the witness, and the witness was dismissed and left the jurisdiction.
After the truck driver presented his case, the car driver moved to introduce the witness’s statement from the investigating officer’s report solely to impeach the witness’s testimony. The truck driver objected.
How should the court rule?
A) Overrule the objection, and admit the statement as impeachment evidence only.
B) Overrule the objection, and admit the statement as substantive evidence that the car driver did not run the red light.
C) Sustain the objection, because extrinsic evidence may not be used to impeach a witness under these circumstances.
D) Sustain the objection, because the statement is inadmissible hearsay.
C) Sustain the objection, because extrinsic evidence may not be used to impeach a witness under these circumstances.
Note: Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires).
The defendant in a civil fraud case plans to testify regarding the sale of land at issue in the case. The plaintiff seeks, for the sole purpose of impeaching the defendant’s character for truthfulness, to introduce evidence of the defendant’s recent conviction for felony assault. The defendant has filed a motion to exclude evidence of the conviction, and the judge has scheduled a hearing on the defendant’s motion.
Which of the following accurately describes each party’s burden regarding introduction of the conviction?
A) The defendant must show that the probative value of the conviction is outweighed by the prejudicial effect in order to prevail.
B) The defendant must show that the probative value of the conviction is substantially outweighed by the prejudicial effect in order to prevail.
C) The plaintiff must show that the probative value of the conviction outweighs its prejudicial effect in order to prevail.
D) The plaintiff must show that the probative value of the conviction substantially outweighs its prejudicial effect in order to prevail.
B) The defendant must show that the probative value of the conviction is substantially outweighed by the prejudicial effect in order to prevail.
Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness unless the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect.
Note: The burden is on the defendant—as the party opposing the admission of the conviction—to show that the probative value of the felony assault is substantially outweighed by its prejudicial effect.
A landowner sued a defendant for trespass and destruction of property. The defendant called a witness to testify that at the time of the alleged trespass, the defendant was with the witness miles away from the landowner’s property. On cross-examination, the landowner asked the witness if he was the defendant’s best friend.
Is this question proper?
A) No, because it exceeds the scope of the defendant’s direct examination of the witness.
B) No, because it is not relevant to the issue of whether the defendant trespassed on and destroyed the landowner’s property.
C) Yes, because character evidence is admissible in a civil action to prove conformity.
D) Yes, because it impeaches the witness’s testimony.
D) Yes, because it impeaches the witness’s testimony.
Impeachment = bias
A man sued his neighbor for assault. The man testified that on the three nights that his neighbor had threatened to hurt him, his wife had recorded the events in her diary. However, the man could not remember the dates of the events or the reasons that the neighbor made the threats. The man’s attorney permitted the man to examine his wife’s diary while on the stand. After a brief examination of the diary, the man then testified to the exact dates of the threats and the reasons that the neighbor made the threats. The neighbor seeks to introduce the relevant portions of the diary into evidence to prove that the man was lying.
Can the diary be entered into evidence?
A) No, because it can only be used to refresh the man’s recollection while testifying.
B) No, because it is hearsay not subject to an exception.
C) Yes, because a writing used to refresh a witness’s recollection may always be admitted for substantive purposes.
D) Yes, because the neighbor is entitled to enter into evidence any portion of the diary relevant to the assault claim to impeach the man.
D) Yes, because the neighbor is entitled to enter into evidence any portion of the diary relevant to the assault claim to impeach the man.
Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to (
1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness’s testimony.
Here, the man examined his wife’s diary on the stand for the purpose of refreshing his recollection. As a result, the neighbor is entitled to introduce any relevant portions of the diary into evidence to prove that the man was lying—i.e., to impeach the man. Accordingly, the diary can be entered into evidence.
A plaintiff hopes to introduce an original x-ray image of his broken arm at trial to help prove the injury element of his negligence claim against the defendant. The plaintiff called a doctor to lay the foundation in order to enter the image into evidence. The doctor testified that the image was an accurate depiction of the plaintiff’s arm taken the day after the alleged injury. The doctor also testified that he had taken the x-ray image himself.
If the above testimony is the only testimony presented about the x-ray image, is the image admissible?
A) No, because the best evidence rule bars the image’s admission.
B) No, because the image has not been properly authenticated.
C) Yes, because the doctor authenticated the image.
D) Yes, because the image is self-authenticating.
B) No, because the image has not been properly authenticated.
Here, the doctor merely testified that the x-ray image was an accurate depiction of the plaintiff’s arm taken the day after the alleged injury and that he had taken the image. But since the x-ray image is a physical representation of something that cannot otherwise be seen, this testimony was insufficient to properly authenticate the image
(1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.
A client sued a lawyer for malpractice for recording the wrong property deed with the county register of deeds. At trial, the attorney representing the client seeks to introduce into evidence a certified copy of the deed that was recorded with the register, who is the proper officer with whom to record deeds pursuant to state law. The defendant-lawyer objected to the introduction of the evidence.
Should the judge admit the evidence?
A) No, as it is hearsay not within any exception.
B) No, because the original should be presented since the contents are at issue.
C) Yes, if a representative of the register of deeds testifies to lay a foundation for admissibility.
D) Yes.
D) Yes.
Copies of documents recorded and filed in a public office as authorized by law are self-authenticating if certified as correct.
The best evidence rule generally requires that an original document be produced when the contents of the document are at issue. This rule is not implicated here because the contents of the deed are not at issue. What is at issue is whether the defendant-lawyer filed the correct deed with the register
An animal rights activist is on trial for the burglary of a pharmaceutical lab. The prosecution’s theory of the case is that the activist broke into the lab using a maintenance access tunnel connecting the lab to a neighboring building. The tunnel was difficult to locate by anyone unfamiliar with its existence. The prosecution hopes to call an intern who works for the architect of the lab to testify that the activist visited the architect’s office on several occasions to interview the architect, who is now out of the country, for a story. The prosecution further hopes to have the intern testify that the activist had ample time to inspect a three-dimensional model of the lab that sat in the architect’s office and clearly depicted the access tunnel. The model has since been recycled as part of the architect’s regular business practices and cannot be retrieved to be entered as evidence. The intern has no knowledge of the lab or access tunnel independent of the model. Although the intern was included on the prosecution’s witness list, the prosecution did not provide advance notice of the intern’s testimony.
Can the intern properly testify as to the appearance of the model?
A) No, because the prosecution did not establish that no other reproduction of the model exists.
B) No, because the prosecution did not give advance notice of this oral testimony.
C) Yes, because the best evidence rule does not apply.
D) Yes, because the model was not destroyed in bad faith.
C) Yes, because the best evidence rule does not apply.
Real or physical evidence is not subject to best evidence rule, only recordings, writings, or photographs
In a probate proceeding, the beneficiary of a purported holographic will sought to introduce a photocopy of that will as evidence of the contents of the missing original holographic will. An heir of the testator opposed the introduction of this photocopy into evidence. Contending that the testator was not of sound mind when the original will was written, the heir demanded that the beneficiary produce the original will. The applicable jurisdiction recognizes the validity of a holographic will and has adopted a dead man’s statute.
Is the photocopy of the will admissible without an explanation of the unavailability of the original?
A) No, because the will is a document that has legal effect.
B) No, because there is a question as to the authenticity of the will.
C) Yes, because the dead man’s statute permits the introduction of the photocopy.
D) Yes, because the photocopy is a duplicate of the original.
D) Yes, because the photocopy is a duplicate of the original.
Best evidence rule: a duplicate is admissible to the same extent as the original unless (1) a genuine question is raised about the original’s authenticity or (2) the circumstances make it unfair to admit the duplicate.
A defendant was charged with the murder of her own child. Two months prior to trial, the prosecutor interviewed a family friend who had known the defendant her whole life. During the interview, the prosecutor asked if the defendant had ever committed violent acts against animals as a child. The friend responded with a nod of his head up and down. He then stated, “I often saw bruises on [the defendant’s] child but figured they were from playing.”
During the defendant’s trial, the prosecution sought to introduce into evidence the statement from the friend, as well as the fact that the friend nodded in response to the prosecutor’s question, to demonstrate that the defendant had a violent history against animals and that the defendant’s child often had bruises. The friend died just prior to the start of the trial. The defendant has objected to this evidence on hearsay grounds.
How should the court rule on the admissibility of the aforementioned evidence?
A) Admit the evidence of the nod only as nonhearsay.
B) Admit the evidence of the nod and the statement as nonhearsay.
C) Admit the evidence of the nod and the statement as hearsay falling under an exception.
D) Refuse the admission of both the nod and the statement.
D) Refuse the admission of both the nod and the statement.
Here, the prosecution seeks to admit the family friend’s nonverbal affirmative head nod as substantive proof that the defendant committed violent acts against animals as a child. Therefore, the head nod is hearsay and is inadmissible unless excluded or excepted from the hearsay rule. The friend is unavailable as a witness since he died prior to trial, which broadens the possible hearsay exceptions that could apply to his assertion. But since no exclusion or exception applies, the court should refuse its admission
The owner of an electronics store brought a civil suit for the value of stolen electronics against one of his former employees, who had previously been convicted in a criminal court for the theft of the same goods. During the civil trial, the plaintiff-owner called a witness whom he hoped would testify that she saw the defendant in possession of the stolen goods the day after the electronics store was robbed. The witness, however, testified that she did not see the defendant in possession of the goods and that she was actually out of town the day after the robbery. The plaintiff seeks to introduce the witness’s testimony from the criminal case, in which she testified that she saw the defendant in possession of the goods the next day. The defendant objects to the introduction of the testimony.
Should the court allow the testimony into evidence?
A) Yes, for impeachment only.
B) Yes, as substantive evidence only.
C) Yes, both for impeachment and as substantive evidence.
D) No, not for any reason.
C) Yes, both for impeachment and as substantive evidence.
Here, the witness’s prior inconsistent statement was given under penalty of perjury at the defendant’s criminal trial.
And since the witness testified and was subject to cross-examination at the civil trial, her prior inconsistent testimony is admissible non-hearsay and can be used as substantive evidence
A man witnessed a hit-and-run accident in which a pickup truck struck and killed a child. The next day, the witness gave police a signed, handwritten statement with a description of the truck, including the make and model, as well as a description of the driver of the truck. After several months, the authorities identified and charged a man who fit the witness’s description, although the truck was never located. In the interim, however, the witness had suffered a brain injury that left his memory spotty.
At the man’s trial, the prosecutor called the witness to testify about the accident but the witness had difficulty remembering key details. The prosecutor first showed the witness a photo of a vehicle of the same make and model as the truck in an attempt to refresh the witness’s memory. The defense objected but was overruled by the judge. When this failed to refresh the witness’s memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again, the defense objected and was overruled. The witness testified that he still could not remember the details of the accident, but that he recognized his handwriting on the statement and that the statement accurately reflected what he witnessed at the time. The prosecutor then moved to introduce the photo and statement into evidence as exhibits, and the defense again objected.
How should the judge rule?
A) The judge should admit both the photo and the statement into evidence as exhibits.
B) The judge should admit the photo, but not the statement, into evidence as an exhibit.
C) The judge should admit the statement, but not the photo, into evidence as an exhibit.
D) The judge should not admit the photo or the statement into evidence as exhibits.
D) The judge should not admit the photo or the statement into evidence as exhibits.
A witness’s memory can be refreshed by allowing the witness to review any item before or while testifying. The item need not be admissible to be used for this purpose. But if a party seeks to admit the item, then the item must satisfy all evidentiary rules—e.g., relevance, authentication, hearsay.
Here, the prosecutor seeks to admit a photograph of a vehicle of the same make and model as the truck allegedly involved in the hit and run. To be admissible, the photograph must be relevant—i.e., have any tendency to make a material fact more or less probable. But since the photo merely depicts a truck similar to the man’s alleged truck, it is not relevant. Therefore, the court should not admit the photo
A defendant, his cousin, and a friend planned to rob a convenience store. The friend watched the defendant and his cousin put on ski masks and enter the convenience store. Moments later, the friend heard a gunshot and watched as the defendant fled the convenience store. The cousin stumbled out of the convenience store, pointed at his bleeding foot, and told the friend, “He shot me! The moron dropped his gun and shot me. I’m going to kill that idiot!” The cousin ran after the defendant. The next day, the cousin was found dead from a bullet wound to the chest. Police later charged the defendant with murder.
At trial, the defendant claimed self-defense and seeks to introduce the cousin’s statement to the friend as evidence that the cousin was the initial aggressor. The prosecution objects.
What is the defendant’s best argument for the court to find that the statement is admissible?
A) The declarant is unavailable as a witness.
B) The statement indicated the cousin’s present intent.
C) The statement was a dying declaration.
D) The statement was made by a coconspirator.
B) The statement indicated the cousin’s present intent.
Statements of the declarant’s then-existing state of mind—e.g., statements of motive, present intent, or plan—are excepted from hearsay. This is true regardless of whether the declarant is available as a witness
In a civil trial for professional malpractice, the plaintiff sought to show that the defendant, an engineer, had designed the plaintiff’s flour mill with inadequate power. The plaintiff called an expert witness who based his testimony solely on his own professional experience but also asserted, when asked, that the book Smith on Milling Systems was a reliable treatise in the field and consistent with his views. On cross-examination, the defendant asked the witness whether he and Smith were ever wrong. The witness answered, “Nobody’s perfect.” The defendant asked no further questions. The defendant later called his own expert witness and asked, “Do you accept the Smith book as reliable?” The witness said, “It once was, but it is now badly out of date.” The plaintiff requested that the jury be allowed to examine the book and judge for itself the book’s reliability.
Should the court allow the jury to examine the book?
(A) No, because the jury may consider only passages read to it by counsel or by a witness.
(B) No, because the plaintiff’s expert did not rely on the treatise in his testimony but on his own experience.
(C) Yes, because an expert has testified that the treatise is reliable.
(D) Yes, because the jury is the judge of the weight and credibility to be accorded both written and oral evidence.
(A) No, because the jury may consider only passages read to it by counsel or by a witness.
Learned treatise rule: if the court finds a publication to be a reliable authority, then “statements” from it may be read into evidence, but the publication may not be received as an exhibit.
Note: There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case
At a defendant’s trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against self- incrimination.
If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit?
(A) Evidence that the gang member had three misdemeanor convictions for assault.
(B) Testimony by a psychologist that persons with the gang member’s background have a tendency to fabricate.
(C) Testimony by a witness that, at the time the gang member testified, the gang member was challenging the defendant’s leadership role in the gang.
(D) Testimony by a witness that the gang member is a cocaine dealer.
C) Testimony by a witness that, at the time the gang member testified, the gang member was challenging the defendant’s leadership role in the gang.
This is evidence of “bias.” It shows that the gang member had a motive to implicate the defendant falsely, because by doing so he would remove the defendant from the position that he wanted to have,
Note: Expert testimony on credibility is usually found inadmissible because credibility issues are for the jury, not for the imprimatur of an expert.
A defendant was charged with aggravated assault. At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident. The prosecutor then called a witness to testify that when the beating stopped, the victim screamed: “I’m dying—don’t let [the defendant] get away with it!”
Is the testimony of the witness concerning the victim’s statement admissible?
A) No, because it is hearsay not within any exception.
(B) No, because the victim was not asked about the statement.
(C) Yes, as a statement under belief of imminent death, even though the victim did not die.
(D) Yes, as an excited utterance.
(D) Yes, as an excited utterance.
In this case, the assault was a startling event, and the victim made the statement immediately after the beating, trying to identify the perpetrator
Note: NOT a dying declaration for two reasons
1) the declarant has to be unavailable, as the dying declaration is one of the “unavailability-dependent” exceptions of Rule 804. Here, the victim testified and so obviously is not unavailable.
2) dying declaration is admissible only in homicide prosecutions and civil cases.
A woman who is a computer expert decided to dedicate herself to exposing persons who trafficked in child pornography. She posted a number of sexually oriented photographs on her website. The file for each photograph contained an embedded Trojan horse program (a program that would allow the woman to enter the computer of anyone who downloaded the photograph). A man downloaded one of those photographs onto his personal computer. Using the embedded program, the woman entered the man’s computer and found a file containing a pornographic photograph of a child. She copied the file and turned it over to a federal law enforcement agency. A federal agent told her that a successful prosecution would require more than one photograph and offered her a monetary reward for additional photographs leading to the man’s conviction. The woman entered the man’s computer again, and this time she found hundreds of child pornography photographs, which she turned over to the federal agency.
The man was charged with multiple counts of violating federal child pornography statutes. He has moved to suppress the photographs that the woman discovered on his computer. The motion is based on both the Fourth Amendment and a federal statute forbidding interception of electronic communication without permission. The parties have stipulated that the woman’s conduct in downloading photographs from the man’s computer violated the interception statute.
How should the court rule on the defendant’s motion to suppress?
A) Deny the motion as to all photographs.
(B) Grant the motion as to all photographs, because the woman acted without probable cause.
(C) Grant the motion as to all photographs, because the woman violated the federal interception statute.
(D) Grant the motion only as to the second set of photographs.
(D) Grant the motion only as to the second set of photographs.
Because authorities encouraged and offered to reward the woman for the second computer search, the woman was acting as a government agent with regard to that search, which violated the Fourth Amendment because it was conducted without a warrant.
In a personal injury case, the plaintiff sued a retail store for injuries she sustained from a fall in the store. The plaintiff alleged that the store had negligently allowed its entryway to become slippery from snow tracked in from the sidewalk. Before the lawsuit was filed, when the plaintiff first threatened to sue, the store’s manager said, “I know that there was slush on that marble entryway, but I think your four-inch-high heels were the real cause of your fall. So let’s agree that we’ll pay your medical bills, and you release us from any claims you might have.” The plaintiff refused the offer. At trial, the plaintiff seeks to testify to the manager’s statement that “there was slush on that marble entryway.”
Is the statement about the slush in the entryway
admissible?
(A) No, because it is a statement made in the course of compromise negotiations.
(B) No, because the manager denied that the slippery condition was the cause of the plaintiff’s fall.
(C) Yes, as a statement by an agent about a matter within the scope of his authority.
(D) Yes, because the rule excluding offers of compromise does not protect statements of fact made during compromise negotiations
(A) No, because it is a statement made in the course of compromise negotiations.
Note: protects not only offers of compromise, but also conduct or statements made in the course of compromise negotiations. The rationale is to allow the parties and counsel to speak freely during settlement negotiations, without having to worry that their statements will be used against them at trial.
At a civil trial for slander, the plaintiff showed that the defendant had called the plaintiff a thief. In defense, the defendant called a witness to testify, “I have been the plaintiff’s neighbor for many years, and people in our community generally have said that he is a thief.”
Is the testimony concerning the plaintiff’s reputation in the community admissible?
(A) No, because character is an essential element of the defense, and proof must be made by specific instances of conduct.
(B) Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed.
(C) Yes, to prove that the plaintiff is a thief, but not on the issue of damages.
(D) Yes, to reduce or refute the damages claimed, but not to prove that the plaintiff is a thief.
B) Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed.
In slander cases, where the defendant makes a statement that the plaintiff has an unsavory character, the plaintiff’s character is considered “in issue” (i.e., an essential element of the claim or defense under the substantive law) in two respects:
1) the plaintiff’s actual character will determine whether the defendant was incorrect in his assessment, and thus liable for slander, because truth is a defense.
2) the plaintiff will allege that he has been damaged by the statement, which is another way of saying that his true character has been besmirched; but if the plaintiff actually has a bad reputation anyway, then damages are limited.
The director of a company that produces organic products was being sued by the minority shareholders of the company for allegedly breaching his duty of care and unwisely investing corporate funds into an organic clothing venture. During the trial, a witness for the minority shareholders testified that the director had been accused of battery three years ago, although he was never charged or arrested for the crime. The director’s lawyer then attempted to call a witness to testify that the witness heard the individual who had accused the director of battery verbally retract his accusation. The lawyer for the minority shareholders objected to the introduction of this evidence. The court overruled the objection and allowed the testimony.
Did the court err by overruling this objection?
A) No, because the admission of additional evidence refuting the battery accusation was necessary to remove any unfair prejudice.
B) No, because a court can always allow additional evidence to rebut previously admitted inadmissible evidence.
C) Yes, because the evidence of the retraction of the battery accusation was not relevant to the lawsuit.
D) Yes, because the individual’s retraction of the battery accusation constitutes hearsay.
A) No, because the admission of additional evidence refuting the battery accusation was necessary to remove any unfair prejudice.
Under the doctrine of curative admission, when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.
Note: Here, the testimony that the director was once accused of battery was improper because it is not relevant to whether he breached his duty of care to the minority shareholders.
The director then offered testimony from a witness who heard the alleged battery victim recant his accusation. Although that evidence is hearsay—and also not relevant to the lawsuit—it was necessary to remove the unfair prejudice caused by the initial improper evidence
A man is on trial for the misdemeanor crime of public lewd conduct for allegedly streaking through a gym in the early evening of May 5. This crime is not classified as a sexual offense in the jurisdiction. At trial, a trainer at the gym identified the man as the streaker and testified that, as the man ran through the gym, he cheered for a professional football team that had recently made the playoffs. The man, however, testified that he was nowhere near the gym on the day in question. In rebuttal, the prosecution seeks to call the manager of another local gym to testify that on the afternoon of May 4, the man had streaked through her gym while cheering for the same football team. The defense has objected to the manager’s testimony.
Should the manager’s testimony be admitted?
A) No, because a prior bad act is not admissible to show that the man possessed a character trait in accord with which he acted on May 5.
B) No, because character may generally be proven only by reputation or opinion evidence, not specific acts.
C) Yes, to demonstrate the man’s propensity for streaking through gyms.
D) Yes, to identify the man as the person who streaked through the gym on May 5.
D) Yes, to identify the man as the person who streaked through the gym on May 5.
MIMIC: Evidence of a criminal defendant’s prior crimes or bad acts is inadmissible to show the defendant’s propensity to commit the charged crime. But it may be admissible for other purposes, like his identity
A defendant was charged with possession of prescription drugs without a prescription. At trial, the defendant testified that he received the drugs from a friend and believed they were an acceptable over-the-counter medication. The prosecutor intends to ask the defendant about his previous three misdemeanor convictions in the last five years for possession of the same type of prescription drugs without a prescription.
Should the court allow the prosecutor to ask about the defendant’s previous convictions?
A) No, because the convictions are inadmissible character evidence.
B) No, because the convictions were misdemeanors.
C) Yes, to impeach the defendant’s character for truthfulness.
D) Yes, to show that the defendant knew the prescription drugs were not an over-the-counter medication.
D) Yes, to show that the defendant knew the prescription drugs were not an over-the-counter medication.
Evidence that a criminal defendant previously committed a similar crime or bad act is inadmissible character evidence if it is offered to show the defendant’s propensity to commit the charged crime. But that evidence may be admissible for other relevant, noncharacter purposes—e.g., proving absence of mistake.
A defendant was charged with illegal possession of a firearm by a felon. At trial, a prosecution witness testified that he and the defendant were involved in a verbal altercation during which the defendant pulled a pistol. The witness further testified that the defendant shot at him with the pistol and that he returned the defendant’s fire. On cross-examination, the defendant’s attorney asked the witness if it was true that he, and not the defendant, fired first. The witness maintained that the defendant shot first. While the witness was subject to recall, the defendant called a police officer to the stand in order to impeach the witness by testifying that the witness told her that he, not the defendant, had fired first. The prosecution has objected to the officer’s testimony.
Should the court exclude the officer’s testimony as to the witness’s prior statement?
A) No, because it relates to the witness’s prior inconsistent statement.
B) No, because the witness is subject to recall.
C) Yes, because it involves a collateral matter.
D) Yes, because it is inadmissible hearsay
C) Yes, because it involves a collateral matter.
A party generally may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness’s testimony.
Here, the defendant sought to impeach the witness by introducing his prior inconsistent statement through the officer’s testimony (extrinsic evidence). The witness was subject to recall, so he could explain or deny the statement and the prosecution could question him about it. However, the issue of who fired first is collateral to the crime with which the defendant was charged—illegal possession of a firearm by a felon
A defendant is alleged to have been the getaway driver in a bank robbery. The prosecution has introduced evidence that a bystander made the following excited utterance as the bank robbers fled the scene: “They jumped into that black car and drove away like maniacs!” The defendant wants to call a valet from the hotel across from the bank to testify that when the bystander and the valet discussed the event the next day, the bystander told the valet that the bank robbers got into a gray car. The bystander died of natural causes shortly after speaking to the valet.
Should the bystander’s statement to the valet be admitted?
A) No, because it was not made under penalty of perjury.
B) No, because the bystander is unavailable to testify.
C) Yes, but only to impeach the bystander.
D) Yes, to impeach the bystander and as substantive evidence that the getaway car was gray.
C) Yes, but only to impeach the bystander.
A hearsay declarant’s credibility may be attacked using any method allowed to impeach a testifying witness, including offering evidence of the declarant’s inconsistent statement. But that statement may not be used as substantive evidence unless it is also excepted or excluded from the hearsay rule.
Note: A hearsay declarant’s inconsistent statement need not have been made under penalty of perjury to be admitted for impeachment purposes.
A church is being sued for negligent hiring after its bus driver got in a drunk-driving accident while driving a bus full of parishioners to a church retreat. Evidence discovered by the plaintiff suggests that the bus driver had a well-documented drinking problem. The defense called a witness from the bus driver’s last employer, who testified that no one at the driver’s last job was aware that the bus driver had a drinking problem. The plaintiff’s attorney asked on cross-examination whether the witness is a member of the defendant-church. The defense objects to the question as an improper impeachment question.
Is the plaintiff’s attorney’s question proper?
A) No, because evidence of a witness’s religious belief is not admissible to impeach the witness’s credibility.
B) No, because it would violate the witness’s First Amendment rights.
C) Yes, as proper impeachment evidence.
D) Yes, because the witness’s religious belief is relevant to her credibility under oath.
C) Yes, as proper impeachment evidence.
Bias: One method of establishing bias is showing that the witness is affiliated with the opposing party outside the context of the litigation. Such affiliation can be established through intrinsic or extrinsic evidence.
An attorney represented both a retailer and a manufacturer in a pending products liability action against them. An investigator employed by the attorney attended a meeting between the attorney, retailer, and manufacturer regarding the upcoming trial. At trial, the plaintiff called the investigator to testify regarding statements made by the manufacturer to the investigator during the meeting in which the manufacturer had admitted liability. The manufacturer objected to this testimony on the grounds that the testimony was hearsay and the statements were protected by the attorney-client privilege.
How should the court rule on this objection?
A) Overrule the objection, because the manufacturer is an opposing party.
B) Overrule the objection, because the manufacturer’s statements were made to the investigator.
C) Sustain the objection, because of the attorney-client privilege.
D) Sustain the objection, because the statements are hearsay.
C) Sustain the objection, because of the attorney-client privilege.
Statements made by and offered against an opposing party are nonhearsay. Additionally, the attorney-client privilege protects confidential communications made for the purpose of obtaining or providing legal assistance for the client and extends to the attorney’s agents.
Here, communications made before a coclient (the retailer) remain protected BUT the manufacturer’s statements to the investigator would not be protected by the attorney-client privilege in a subsequent action between the manufacturer and the retailer.
A consumer filed a products liability action in federal court on the basis of diversity jurisdiction. In complying with a discovery request, the defendant’s lawyer inadvertently, despite the lawyer’s reasonable efforts to protect privileged material, included a report prepared at the lawyer’s request by an investigator who was employed in anticipation of the litigation and was not expected to be called as a witness at trial.
Immediately upon learning of the mistake, the defendant’s lawyer sought to retrieve the report from opposing counsel, but the plaintiff’s lawyer refused, asserting that the defendant’s lawyer’s inclusion of the report in the discovery material constituted a waiver of the protection for the material. The defendant’s lawyer contended that the federal inadvertent-waiver rule applied to this disclosure.
Is the defendant’s lawyer correct?
A) No, because the federal inadvertent-waiver rule applies only to disclosures made to a federal office or agency.
B) No, because the federal inadvertent-waiver rule does not apply to a federal case based on diversity jurisdiction.
C) Yes, because the federal inadvertent-waiver rule applies to the disclosure of communications protected by the attorney-client privilege.
D) Yes, because the federal inadvertent-waiver rule applies to the disclosure of information covered by the attorney work-product doctrine.
D) Yes, because the federal inadvertent-waiver rule applies to the disclosure of information covered by the attorney work-product doctrine.
Federal inadvertent-waiver rule, an inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if:
(1) the disclosure was in a federal proceeding or to a federal agency and
(2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.
Here, the report was inadvertently disclosed in a federal case, and the defendant’s lawyer had taken reasonable steps to prevent disclosure and immediately sought to retrieve it. This satisfies the four requirements of the federal inadvertent-waiver rule. Therefore, the defendant’s lawyer correctly contended that this rule applied to his disclosure of the report.
Note: The federal inadvertent-waiver rule does apply to the disclosure of communications protected by the attorney-client privilege
n a sexual harassment action brought by an employee against her employer, the employee alleged that her supervisor had created a hostile work environment by making repeated crude and explicit sexual comments that were unwelcome. The employer filed a motion to admit evidence that the employee had a sexual relationship with her previous supervisor to show that the employee welcomed the employer’s advances.
How should the court rule on the admissibility of this evidence?
A) The court should admit evidence of the relationship because the exclusion of evidence offered to prove a victim’s sexual conduct or predisposition applies only to a criminal case.
B) The court should admit evidence of the relationship only if its probative value substantially outweighs the danger of harm and unfair prejudice to the employee.
C) The court should refuse to admit evidence of the relationship because evidence offered to prove a victim’s sexual conduct or predisposition is inadmissible in a civil case.
D) The court should refuse to admit evidence of the relationship only if its probative value is substantially outweighed by the danger of harm and unfair prejudice to the employee.
B) The court should admit evidence of the relationship only if its probative value substantially outweighs the danger of harm and unfair prejudice to the employee.
Evidence of a victim’s other sexual behavior or sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct. But such evidence may be admitted if the court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
Note: the default position is that this evidence is inadmissible, and the court need not determine that its probative value is substantially outweighed by the relevant dangers before excluding the evidence.
A woman sues a jewelry company for injuries stemming from an allergic reaction she had to a metal in a bracelet that she believes was manufactured by the jewelry company. The jewelry company alleges that the bracelet is a forgery made by another manufacturer and that the company is not liable. The woman seeks to introduce the following pieces of evidence: (1) trademark registrations with accompanying photographs indicating that the bracelet that allegedly caused her injuries bears the jewelry company’s trademark, (2) a bracelet the jewelry company acknowledges as its own for the jury to compare with the woman’s bracelet, (3) purchase orders for the jewelry company’s bracelets from the store from which the woman purchased her bracelet, and (4) a judgment obtained by another plaintiff against the jewelry company for a similar reaction to a bracelet made by the jewelry company.
Which of these is LEAST likely to be admissible on the issue of whether the bracelet is a forgery?
A) The evidence concerning the jewelry company’s trademark on the bracelet.
B) The evidence that the store purchased bracelets from the jewelry company.
C) The jewelry company’s bracelet, for comparison to the woman’s bracelet.
D) The judgment against the jewelry company obtained by another plaintiff
D) The judgment against the jewelry company obtained by another plaintiff
There is no specific hearsay exception for civil judgments.
Note: The public records exception applies to records of a public office that set out a matter observed pursuant to a legal duty to report. Since trademark registrations are required by law to be recorded in a principal registry by the U.S. Patent and Trademark Office, the registrations are admissible.
A plaintiff who had been injured in a car accident with a truck brought an action against the employer of the truck driver for negligent hiring. Prior to trial, the employer filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law. In her response, the plaintiff submitted an affidavit by a former secretary of the employer stating that the secretary overheard the truck driver tell the employer that he had a history of accidents while interviewing for the job.
Can the court properly consider the driver’s statement in the affidavit in ruling on the employer’s summary-judgment motion?
A) No, because the affidavit constitutes double hearsay.
B) No, because the statement constitutes hearsay.
C) Yes, because it is an opposing party’s statement.
D) Yes, because it is not hearsay.
D) Yes, because it is not hearsay.
An out-of-court statement is not hearsay if offered for a purpose other than to prove the truth of the matter asserted.
Here, the secretary’s affidavit stated that the secretary heard the driver disclose a history of accidents to the employer. That statement is hearsay if offered for the truth of the matter asserted—because no exclusion or exception applies. But it is not hearsay if offered to show that the employer had notice of the driver’s history and may have been negligent in hiring him
An artist is on trial for arson of an art dealer’s gallery containing a number of pieces of artwork by the artist. The artist had a contract with the art dealer making the art dealer liable to the artist for any damage to her artwork under his care. The prosecution wants to admit the artist’s notarized contract with the art dealer. The prosecution also wants to have a bartender testify that the artist told him, “I know I’m a terrible artist. Maybe the art dealer can sell a piece or two, but I’ll make more money by burning the place to the ground.” The artist has moved to exclude the contract for lack of notice and the statement to the bartender as inadmissible hearsay.
How should the court rule on the artist’s motions?
A) Exclude both pieces of evidence.
B) Exclude only the contract.
C) Exclude only the statement to the bartender.
D) Admit both pieces of evidence.
D) Admit both pieces of evidence.
Notarized documents are self-authenticating and can be introduced without advance notice to an adverse party. Additionally, statements made by and offered against a party-opponent are excluded from the hearsay rule.
A plaintiff and a defendant were involved in a car accident in an intersection. Both parties sustained minor injuries in the accident, and the plaintiff subsequently brought an action for negligence against the defendant. Although there was evidence that both parties may have been negligent, the plaintiff sought to establish that the defendant’s vehicle did not slow down when it entered the intersection.
The plaintiff’s attorney called a passenger who was in the defendant’s vehicle at the time of the accident. The passenger testified that when she and the defendant got out of the car after the accident, the defendant told her, “It felt like the brakes failed, but that’s not possible, my mom just had the car serviced.” The defendant objected to the admission of this testimony.
Should the court sustain the defendant’s objection to the passenger’s testimony?
A) No, because the testimony can be offered by the plaintiff as a statement of a party-opponent.
B) No, because the testimony is only admissible for impeachment purposes.
C) Yes, because the defendant’s statement to the passenger was not based on personal knowledge.
D) Yes, because the defendant’s statement was not against his interest at the time it was made.
A) No, because the testimony can be offered by the plaintiff as a statement of a party-opponent.
Here, the statement was made by and offered against the defendant, so it constitutes a nonhearsay statement by a party-opponent. As a result, it is admissible substantively to prove that the defendant’s car did not slow down when it entered the intersection
In a medical malpractice case, a patient sued her surgeon for allegedly causing organ damage during a routine surgery. In a previous case, the patient sued her medical insurance company for not covering some of the medical expenses associated with the complications from the organ damage. During that trial, the patient testified that she overheard a nurse assisting the surgeon tell another assisting nurse during the surgery that it appeared the patient’s kidney had been pierced. Before the patient could testify about this statement in the medical malpractice trial, she died from complications stemming from the surgery.
Is the patient’s testimony from the previous trial admissible in the medical malpractice trial?
A) No, because the defense did not have an opportunity to question the patient in the previous trial.
B) No, because the testimony was given during a previous trial, not the current proceeding.
C) Yes, because the patient is not available and the surgeon caused the patient’s unavailability.
D) Yes, because the patient is not available and the testimony was given as a witness at trial.
A) No, because the defense did not have an opportunity to question the patient in the previous trial
The former testimony hearsay exception allows admission of testimony (1) given at a trial, hearing, or deposition in the same case or a different proceeding and (2) offered against a party who—or whose predecessor in interest— had an opportunity and similar motive to develop that testimony.
Here, the patient died before she could testify in the medical malpractice trial and is therefore unavailable. But the surgeon did not have the opportunity to examine the patient during the previous trial. And the insurance company—whose objective at trial was to justify its denial of coverage and not to clear the surgeon of liability—is not the surgeon’s predecessor in interest.
At the trial of a contract dispute, the plaintiff has offered to testify to what she heard the defendant say in a private conversation between the two of them, which the plaintiff secretly recorded on an audiotape that she did not offer in evidence.
Is the plaintiff’s testimony admissible?
(A) Yes, because the plaintiff has personal knowledge of the statement of a party-opponent.
(B) Yes, because the original document rule does not apply to audiotapes.
(C) No, because the statement must be proved by introduction of the audiotape itself.
(D) No, because of the plaintiff’s deception, even if the recording was not illegal.
(B) Yes, because the original document rule does not apply to audiotapes.
What the defendant said to the plaintiff, even in a private conversation, is a statement of a party-opponent and is admissible.
The plaintiff has personal knowledge of what the defendant said and can testify about it. The fact that the audiotape might be better evidence of what the defendant actually said makes no difference. The best evidence rule applies only when a witness testifies about the content of a writing or recording. Here the plaintiff would not be testifying about the content of the audiotape but rather about what she personally heard.
A plaintiff sued a defendant for wrongful death arising out of a traffic collision between the plaintiff’s decedent and the defendant. At trial, the investigating police officer authenticated a tape recording of her shift-end dictation of comments used in preparing the written report of her factual findings. She has testified that the tape recording was accurate when made and that she currently has no clear memory of the details of the investigation.
Is the tape recording admissible as evidence?
(A) Yes, under the recorded recollection exception to the hearsay rule.
(B) Yes, under the public records exception to the hearsay rule.
(C) No, because it is hearsay and is a police report being offered against the defendant in a wrongful death case.
(D) No, because the police report itself is the best evidence.
(A) Yes, under the recorded recollection exception to the hearsay rule.
The witness once had knowledge but now has insufficient recollection to testify fully and accurately about her investigation. She made the recording when the matter was fresh in her memory, and she has testified that the recording was an accurate reflection of her memory.
Note: Although the officer’s formal written report would qualify as a public record, the informal, dictated comments she made to help her prepare the report would not. The tape recording is admissible, however, under the recorded recollection exception to the hearsay rule.
A plaintiff sued an individual defendant for injuries suffered in a collision between the plaintiff’s car and the defendant’s truck while the defendant’s employee was driving the truck. The plaintiff sought discovery of any accident report the employee might have made to the defendant, but the defendant responded that no such report existed. Before trial, the defendant moved to preclude the plaintiff from asking the defendant in the presence of the jury whether he had destroyed such a report, because the defendant would then invoke his privilege against self-incrimination.
Should the court allow the plaintiff to ask the defendant about the destruction of the report?
(A) No, because a report that was prepared in anticipation of litigation is not subject to discovery.
(B) No, because no inference may properly be drawn from invocation of a legitimate privilege.
(C) Yes, because a party in a civil action may not invoke the privilege against self-incrimination.
(D) Yes, because the defendant’s destruction of the report would serve as the basis of an inference adverse to the defendant.
(D) Yes, because the defendant’s destruction of the report would serve as the basis of an inference adverse to the defendant.
If a party destroys evidence, it is proper for the jury to draw an inference that the evidence was adverse to that party’s case. It is also proper for the jury to draw an adverse inference in a civil case from a party’s assertion of the privilege against self-incrimination. Thus, the court should allow the question to be asked, because it is proper regardless of how the defendant responds.
Note: The privilege against self-incrimination may be asserted in both civil and criminal cases so long as the statement made in response to the question posed could tend to incriminate the person in a criminal prosecution.
A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant’s business property. At trial, without asking that the defendant’s property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell. On cross-examination of the manager, the defendant’s attorney sought to establish that the defendant had taken reasonable precautions to make the property safe for business invitees.
Should the defendant’s cross-examination of the manager be permitted over the plaintiff’s objection?
(A) No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
(B) No, because the court has not declared the manager hostile.
(C) Yes, because the cross-examiner is entitled to explore matters relevant to any issue in the case, including credibility.
(D) Yes, because the manager is the agent of a party, as to whom the scope of cross-examination is unlimited.
(A) No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
Note: cross-examination should be limited to the subject matter of the direct examination and matters affecting credibility. Although the court has discretion under this rule to permit inquiry into additional matters, the defendant is not “entitled” to a wider scope of cross- examination.
A defendant was charged with assault after being involved in a barroom fight in the middle of the day. The defendant admitted to being at the bar at the time of the fight, but claimed that he was only a bystander. At the defendant’s trial, the prosecutor intended to call the defendant’s former employer. The employer was to testify that the defendant had been fired and was not working at the time of his arrest. The defendant objected to the employer’s testimony.
How should the court rule?
A) Overrule the objection, because it tends to make it more likely that the defendant was at the bar in the middle of the day and involved in the fight.
B) Overrule the objection, because the employer will be testifying based on his personal knowledge of the defendant’s employment.
C) Sustain the objection on the basis that the employer’s testimony is unfairly prejudicial.
D) Sustain the objection on the basis that the employer’s testimony is not probative of a material fact.
C) Sustain the objection on the basis that the employer’s testimony is unfairly prejudicial.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Here, the employer’s testimony includes the fact that the employee was fired. This fact is highly prejudicial, as it would tend to discredit the defendant in the minds of the jury. Moreover, the probative value of the employer’s testimony is somewhat minimal.
Note: the employer’s testimony regarding the defendant’s unemployment is relevant to whether the defendant was present at the bar (and therefore potentially involved in the fight). The mere fact that the defendant has stipulated to his presence at the bar does not automatically preclude the prosecution from presenting the employer’s testimony, which also suggests the defendant was at the bar.
While on her morning run, a runner was struck by a driver’s vehicle as she crossed the street, suffering a broken arm in the resulting fall to the ground. The driver was allegedly exceeding the speed limit because he was late for work. In a civil action for negligence against the driver, the runner alleges that the driver’s speeding at the time of the accident constitutes negligence per se, but the driver denies that he was speeding. The runner intends to introduce the testimony of the driver’s neighbor that the driver has a reputation for speeding regularly in their neighborhood.
Should the court allow the runner to introduce the proposed testimony of the driver’s neighbor?
A) No, because it constitutes improper character evidence.
B) No, because the driver’s tendency for speeding can only be established through specific instances of conduct.
C) Yes, because the testimony is admissible to show that the driver was likely speeding at the time of the accident.
D) Yes, because the driver’s reputation for speeding is an essential element of the runner’s claim against the driver.
A) No, because it constitutes improper character evidence.
In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. In this case, the runner is attempting to admit testimony regarding the driver’s reputation for speeding in order to show that the driver was likely speeding at the time of the accident
defendant was on trial for murder. The pastor of his church was called as a character witness. The pastor testified that the defendant has a reputation in the community for peacefulness. On cross-examination, the prosecutor, seeking to impeach the pastor and having a good-faith basis for his question, asked the pastor if he had a violent temper.
Of the following, which is the defense attorney’s best basis for objecting to this impeachment question?
A) The question exceeds the scope of the direct examination of the pastor.
B) The question does not relate to the defendant’s character.
C) The question calls for impermissible character evidence.
D) The question violates the limitation imposed on evidence of a witness’s religious beliefs or opinions.
C) The question calls for impermissible character evidence.
The prosecutor is attempting to show that the pastor, a violent person, is a bad person and therefore should not be believed. Because this is not directly related to the pastor’s truthfulness, it is impermissible character evidence.
Note: any witness may be impeached by certain types of character evidence
At his trial for larceny, a defendant called his brother as a character witness. The brother testified that the defendant had a reputation in the community for being an honest man. During rebuttal, the prosecutor called the defendant’s former employer to testify that the defendant lied on his job application. The defense attorney objected, arguing that the testimony is an improper use of character evidence.
How should the judge rule on the defense attorney’s objection?
A) Sustain the objection, because the evidence has no probative value on any issue in the case.
B) Sustain the objection, because the evidence can be inquired into only during cross-examination of the brother.
C) Overrule the objection, because the defense has “opened the door” to the prosecutor’s admission of this evidence.
D) Overrule the objection, because the evidence offered involves dishonesty.
B) Sustain the objection, because the evidence can be inquired into only during cross-examination of the brother.
on cross-examination, the prosecution may question a defendant’s character witness about specific instances of the defendant’s conduct. Here, the prosecution could only introduce the specific instance of conduct by **asking ** the brother about the conduct on cross-examination. This evidence cannot be introduced by extrinsic evidence
Note: Although the defendant “opened the door” by having his brother testify as to his character, thus permitting the prosecution to rebut that testimony, the prosecution is limited to asking the brother about the specific instance of conduct on cross-examination, and cannot introduce extrinsic evidence of the defendant lying on a job application
A baker and a chef ran a catering business as a limited liability company (LLC) with the two as the only members of the LLC, and the chef as the managing member. Recently, the chef sought an equitable accounting of the assets of the LLC. The court referred the matter to a referee to hear evidence and make findings of facts with regard to the matter. One matter of contention was how much money the baker had received from the business’s proceeds in cash. The baker testified that each time he took money from the business, he logged the withdrawals in a notebook, which was offered into evidence by the baker without objection from the chef. On the witness stand, the chef admitted that she had access to the notebook, which was kept in a safe on the premises of the business, and never made nor altered any entries in it. She further testified that on several specific dates, she remembers watching the baker take $500 cash from the business. This was a larger sum of money than the amount recorded in the notebook admitted into evidence. The baker immediately objected.
Is the chef’s testimony admissible?
A) No, because the best evidence rule will not allow the baker to contradict the notebook.
B) No, because the contents of the notebook are at issue.
C) Yes, because the notebook is not a document with legal effect.
D) Yes, because the testimony is based on the chef’s firsthand knowledge.
D) Yes, because the testimony is based on the chef’s firsthand knowledge.
A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness’s own testimony as well as through other means.
Note: Whether the contents are at issue does not impact the chef’s ability to introduce evidence based on his personal knowledge that contradicts the document.
A defendant in a federal securities case introduced the testimony of a witness who had claimed on direct examination that the defendant had no prior knowledge of a change within a corporation’s executive board; the defendant’s knowledge of this fact was a central issue in the case. The prosecutor did not cross-examine the witness. On rebuttal, to impeach the defendant’s witness, the prosecutor called a witness who testified that she had heard the defendant’s witness say that the defendant knew of the change. Further, the prosecutor introduced a properly authenticated email that the defendant’s witness had sent to the witness containing the same information. The defendant’s attorney objects on the grounds that the testimony of the prosecutor’s witness and the email are inadmissible to impeach the defendant’s witness.
Should the court admit the testimony of the prosecutor’s witness and the email?
A) Yes, because the defendant’s witness may be properly impeached with them.
B) Yes as to the testimony, but no as to the email, because the prosecutor did not present the email to the defendant’s witness on her cross-examination of him.
C) No, because the defendant’s witness was not given an opportunity to explain the evidence before introduction of the prosecutor’s witness.
D) No, because the testimony and email are immaterial.
A) Yes, because the defendant’s witness may be properly impeached with them.
Because these statements are being used to impeach the witness and not to prove the truth of the matter asserted, they are not hearsay. Also, because the statements were not made under oath in a prior proceeding, they may not be considered as substantive evidence
A customer filed suit against a coffee maker’s manufacturer for injuries she sustained when the coffee maker exploded and severely injured her, under both negligence and strict liability theories. The judge granted summary judgment in favor of the manufacturer on the negligence claim and granted summary judgment in favor of the customer on the strict liability claim. The case then proceeded to jury trial on the issue of damages only. At trial, the customer qualified an expert witness who opined that there was a reasonable alternative design for the coffee maker and that the manufacturer’s failure to use that design probably rendered the product not reasonably safe. The manufacturer objects to the expert’s testimony.
What is the strongest basis for the manufacturer’s objection?
A) The testimony needlessly presents cumulative evidence.
B) The testimony concerns an ultimate issue in this case.
C) The testimony is irrelevant.
D) The expert does not possess the requisite degree of certainty in his opinion.
C) The testimony is irrelevant.
The judge has already ruled on the negligence and strict liability issues, and the only remaining issue is the amount of damages to which the customer is entitled. Consequently, the expert’s testimony as to whether there was design defect in the coffee maker is not relevant to this issue
Note: The issue of whether there was a reasonable alternative design was never before the jury because of the judge’s ruling at the summary judgment stage. Because the jury has not heard any other evidence on this issue, the expert’s testimony on the subject is not cumulative.
A plaintiff sued a defendant for fraudulent representations allegedly made by the defendant in selling an automobile to the plaintiff. At trial, the plaintiff testified that he received a letter from the defendant the day before the sale occurred in which the defendant wrote that the brakes on the automobile had just been replaced the week before. The defendant objected to the testimony.
May the court properly admit the testimony over the defendant’s objection?
A) No, because the statement constitutes hearsay.
B) No, because the letter was not properly authenticated.
C) No, because the best evidence rule applies.
D) Yes, because the statement does not constitute hearsay.
C) No, because the best evidence rule applies.
Here, the plaintiff is attempting to prove the contents of the letter sent by the defendant. There is no indication that the original is lost, destroyed, or in the possession of the defendant. The matter is not collateral, but central to the question of whether fraud occurred.
Note: the plaintiff was not actually trying to put the letter into evidence. Only when a document is being placed into evidence would it have to be authenticated.
A defendant was convicted of cocaine distribution. At the defendant’s sentencing hearing, the prosecution called the defendant’s wife to testify regarding a statement made by the defendant about the amount of cocaine the defendant had purchased from a supplier. The amount of cocaine possessed by the defendant was relevant to the length of defendant’s sentence. The defendant objected on the grounds that the statement was made during a private conversation on their honeymoon.
Should the court permit the defendant’s wife to testify as to his prior statement?
A) No, because the statement is hearsay.
B) No, because the statement is privileged.
C) Yes, because the Federal Rules of Evidence do not apply to sentencing proceedings.
D) Yes, because the testifying spouse holds the privilege not to testify regarding the communication.
B) No, because the statement is privileged.
Note: While the Federal Rules of Evidence generally do not apply to sentencing proceedings, the rules regarding privileges apply to all federal court cases and proceedings, including sentencing proceedings.
A lawyer represented both an internist and a hospital that employed him in a pending action against them based on the alleged negligence of the internist in treating a patient. A stenographer employed by the attorney attended a meeting between the lawyer, the internist, and the hospital. The stenographer recorded what was said at the meeting. Subsequently, the hospital filed a cross-claim against the internist seeking indemnity for any damages assessed against it. The lawyer was compelled to withdraw her representation of both parties before trial. At trial, the internist called the stenographer to testify regarding a statement made by the hospital’s president during the meeting that the hospital would “back the internist 100 percent.” The hospital, asserting the attorney-client privilege, objected to this testimony.
Should the court overrule this objection?
A) Yes, because the lawyer no longer represents either party.
B) Yes, because the dispute involves the hospital and the internist.
C) No, because the stenographer was an employee of the lawyer.
D) No, because the presence of the stenographer did not eliminate the confidentiality of the statement.
B) Yes, because the dispute involves the hospital and the internist.
Confidential communications made by a client for the purpose of obtaining or providing legal assistance for the client is generally protected by the attorney-client privilege. BUT this privilege does not apply to communications between former co-clients who are now adverse to each other.
During a defendant’s criminal trial for assault, a witness for the defendant testified that the defendant had told her that he had never even met the victim. The defendant was acquitted. Subsequently, the victim brought a civil assault claim against the same defendant based on the same alleged assault. The same witness was called as a witness for the victim, and she testified that, shortly after the assault took place, the defendant had admitted to her that he did assault the victim. On cross-examination, the defendant’s counsel asked the witness whether she had testified in the defendant’s prior criminal prosecution that the defendant told her that he had never even met the victim. The victim’s attorney objected to the defendant’s question.
May the court allow the question over the objection?
A) Yes, but only to prove that the defendant did not commit the assault.
B) Yes, but only to impeach the credibility of the witness.
C) Yes, both to prove that the defendant did not commit the assault and to impeach the credibility of the witness.
D) No, because the defendant did not first allow the witness the opportunity to explain or deny the statement.
C) Yes, both to prove that the defendant did not commit the assault and to impeach the credibility of the witness.
The witness’s prior inconsistent statement is admissible to impeach the witness’s credibility. The witness’s prior testimony is also admissible substantively as non-hearsay because her statement was made under oath at the prior criminal proceeding.
At a criminal trial for rape, the prosecution seeks to admit into evidence a statement made by the defendant to his friend, acknowledging that he raped the victim. The defendant made the statement shortly after the rape, but before he knew he was a suspect. The defendant testified at trial that he did not rape the victim.
Is the statement the defendant made to his friend acknowledging the rape admissible?
A) Yes, the statement is admissible as non-hearsay.
B) Yes, the statement is admissible because it falls within the statement against interest exception to the hearsay rule.
C) No, the statement is inadmissible hearsay not within any exception.
D) No, because the statement was not against the defendant’s interest at the time he made it.
A) Yes, the statement is admissible as non-hearsay.
Opposing Party Statement: a statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
Here, the defendant is a party to the current litigation, and the prosecution is seeking to use the defendant’s own statement against him.
Note: statement against interest exception to the hearsay rule only applies if the declarant is unavailable to testify at the present trial
A defendant was charged with involuntary manslaughter. The defendant testified that he did not shove the victim, but that instead she had tripped and fell down the stairs. Subsequently, the prosecution called a police officer who had talked with the defendant at the scene of the incident. The police officer testified that, on the day of the incident, the defendant told the officer that he had shoved the victim before she fell down the stairs. The prosecution had not asked the defendant about this statement when he was on the witness stand.
Is this statement admissible as substantive evidence of the defendant’s actions?
A) No, because the prosecution did not ask the defendant about the statement when the defendant was on the witness stand.
B) No, because the statement was not made under oath.
C) Yes, because it contradicts the defendant’s testimony.
D) Yes, because the defendant made the statement to the police officer.
D) Yes, because the defendant made the statement to the police officer.
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party, even though the statement is being offered to prove the truth of the matter asserted. Consequently, the defendant’s statement to the police officer that the defendant shoved the victim before she fell down the stairs is admissible, even though if made by someone else, it would be inadmissible hearsay
Note: Although a prior inconsistent statement made by a witness generally must have been made under oath in order to be admitted as substantive evidence, this is not the case with regard to an opposing party’s statement
The owner of a dog was inside while her dog was outside in a fenced-in yard. Hearing a child crying, the owner looked out a window and noticed her neighbor’s three-year-old child inside the owner’s yard. The owner went outside and discovered that the child’s face had been deeply scratched by the owner’s dog. The owner took the child to the neighbor’s home, telling the child’s mother, “My dog scratched your child’s face. I’m liable for his injuries.”
Are either of the owner’s statements admissible at trial in an action brought by the child’s parents on the child’s behalf against the owner to recover damages?
A) No, as to both statements.
B) Yes, but only the first statement because the second statement is an opinion by a lay witness about the ultimate issue in the case.
C) Yes, but only the second statement because the owner did not personally witness the event.
D) Yes, both statements are admissible because they were made by the owner.
D) Yes, both statements are admissible because they were made by the owner.
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
Note: An opposing party’s statement in the form of an opinion may be admitted even if the statement is about a matter that normally would be beyond the scope of lay witness opinion testimony, such as an opinion regarding the ultimate issue in the case.
A man was on trial for bank robbery and felony murder. The prosecution alleged that while the man went into a bank wearing a ski mask and wielding a gun, his getaway driver waited in a car outside. The man shot a bank patron during the robbery then got into the getaway car with the money. In the high-speed chase that followed, the getaway car crashed and the getaway driver died.
At trial, the defense called a bartender who talked to the getaway driver the night before the robbery. The bartender testified that the getaway driver had told him that because the man refused to join him in the robbery unless they used a fake gun, the getaway driver had given him a real gun to use and told him it was fake. The court ruled that the statement was admissible as a statement against the getaway driver’s interest.
The prosecution now wishes to call a woman to testify that the getaway driver had told her a week before the robbery that the man had purchased a gun and was planning on robbing a bank.
Is the woman’s testimony admissible?
A) No, because the getaway driver had no opportunity to explain or deny the statement.
B) No, because the getaway driver’s statement was not made under oath.
C) Yes, to impeach the getaway driver.
D) Yes, under a hearsay exception for an unavailable declarant.
C) Yes, to impeach the getaway driver.
Here, the getaway driver’s hearsay statement—that he gave the man a real gun but told him it was fake because the man had demanded that they use a fake gun—was admitted as a statement against interest. Therefore, the prosecution can offer testimony regarding the getaway driver’s inconsistent statement to the woman—that the man had purchased a real gun to use during the robbery—for the purpose of impeaching the getaway driver.
A defendant is on trial for felony assault. Eleven years ago, the defendant was convicted of rape. He was sentenced to three years imprisonment and served the full term. The defendant decided to testify at his current trial for felony assault, and on cross-examination, the prosecution seeks to admit evidence of the defendant’s rape conviction to impeach him.
Which of the following best states the standard that must be met to determine the admissibility of this conviction?
A) The conviction is admissible only if its probative value outweighs the prejudicial effect to the defendant.
B) The conviction is admissible only if its probative value substantially outweighs its prejudicial effect.
C) The court has discretion to exclude the conviction if the defense shows that its probative value is substantially outweighed by its prejudicial effect.
D) The court must exclude the conviction if the defense shows that its probative value is substantially outweighed by its prejudicial effect.
A) The conviction is admissible only if its probative value outweighs the prejudicial effect to the defendant.
A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the conviction’s probative value outweighs its prejudicial effect.
The user of a power tool sued the tool’s manufacturer in state court. The action was based on a strict product liability claim that the manufacturer’s failure to adequately warn the user of a defect in the power tool caused the user’s injury. The manufacturer properly removed the case to federal court. The applicable law of the state that governs the existence of the strict product liability claim also recognizes a rebuttable heeding presumption. This presumption assumes that an injured plaintiff would have heeded an adequate warning if one had been given. Under state law, this presumption does not shift the burden of persuasion on this issue to the manufacturer.
The manufacturer did not present evidence that the user would not have heeded a different warning had it been given. The court instructed the jury that it must apply the presumption that the warning, if given, would have been heeded.
Is the court’s instruction correct?
A) No, because the jury may, but is not required to, apply the presumption.
B) No, because state law presumptions are not recognized in a federal diversity action.
C) Yes, because the manufacturer failed to offer evidence to rebut the presumption.
D) Yes, because the Federal Rules of Evidence apply the bursting-bubble approach to presumptions.
C) Yes, because the manufacturer failed to offer evidence to rebut the presumption.
A rebuttable presumption: conclusion that can be overcome if the opposing party produces sufficient contrary evidence. However, if no contrary evidence is produced, the judge should instruct the jury that it must apply the presumption
In federal cases in which state law supplies the rule of decision for a claim or defense (i.e., in diversity cases), it also governs the effect of presumptions related to the claim or defense.
Because the manufacturer failed to offer evidence to rebut the presumption that the user would have heeded a warning on the power tool, the court correctly instructed the jury that it must apply the presumption.
A security guard was charged with criminal battery of a student. The prosecution alleged that the security guard used excessive force when he removed the student from a campus event after the student became disruptive. The security guard’s only argument in his defense was that he exerted lawful force to remove the disruptive student from the event pursuant to his duties as a security guard. The security guard testified that the student had a reputation on campus for disrupting campus events by starting physical fights with other students.
Is the security guard’s testimony regarding the student’s reputation admissible?
A) No, because the prosecution has not presented evidence of the security guard’s bad character.
B) No, because the security guard has not asserted a theory of self-defense.
C) Yes, because the security guard has personal knowledge of the student’s reputation for violence.
D) Yes, because the student’s reputation for violence is relevant to whether the student was the initial aggressor.
B) No, because the security guard has not asserted a theory of self-defense.
A criminal defendant may introduce evidence of an alleged victim’s character—but only if it is pertinent to the case.
Here, the security guard’s only defense to the criminal battery charge is that he exerted lawful force to remove the disruptive student from the campus event. In support of that defense, the guard sought to testify that the student has a reputation for disrupting campus events by starting physical fights with other students. Although that character evidence would be pertinent to a self-defense claim, it is not pertinent to whether the guard’s level of force was lawful
A property owner constructed a fence along what he thought was the boundary to his property. A year later, a neighbor who was selling adjoining property had a survey conducted. As a consequence of the survey, the neighbor brought an action against the property owner seeking removal of the fence.
At trial, the neighbor testified that he had orally objected to the property owner about the placement of the fence at the time it was constructed. After the neighbor left the witness stand, the property owner sought to introduce into evidence a certified copy of the official judgment and conviction of the neighbor for perjury. The neighbor was convicted 11 years ago and released from prison nine years ago. The property owner had not asked the neighbor about the conviction while the neighbor was on the stand.
Should the court permit the introduction of the judgment for the purpose of impeaching the neighbor’s testimony?
A) No, because the neighbor was convicted of perjury more than 10 years ago.
B) No, because the neighbor was not questioned about the conviction while the neighbor was on the witness stand.
C) Yes, because a conviction used to impeach a witness’s character for truthfulness may be proved by extrinsic evidence.
D) Yes, because a witness in a civil case may not be impeached with a previous conviction.
C) Yes, because a conviction used to impeach a witness’s character for truthfulness may be proved by extrinsic evidence.
Convictions for crimes of dishonesty are automatically admissible to impeach any witness if the conviction—or the release from incarceration—is not more than 10 years old, and use of extrinsic evidence is allowed for that purpose. Therefore, the court should permit the introduction of the judgment.
A plaintiff brought suit against a defendant for injuries she sustained in a car accident that she accused the defendant of negligently causing. Prior to filing suit, the plaintiff’s attorney had the plaintiff visit a physician to determine the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit. After the plaintiff’s examination, while the attorney, plaintiff, and physician were discussing the extent of the plaintiff’s injuries, the plaintiff admitted that she “may have had a few beers” right before the accident. At trial, the defendant’s counsel sought to call the doctor to testify about the statement. The plaintiff properly objected to the introduction of this testimony.
How should the judge rule on the plaintiff’s objection?
A) Sustain the objection, as the attorney-client privilege is applicable.
B) Sustain the objection, as the physician-patient privilege is applicable.
C) Overrule the objection, as the statement was made by an opposing party.
D) Overrule the objection, as the physician would constitute an expert witness.
A) Sustain the objection, as the attorney-client privilege is applicable.
Here, the plaintiff’s attorney had the plaintiff visit a physician (an expert) to ascertain the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit.
This means that the physician was hired to assist the attorney in the rendition of professional legal services by providing medical consultation. And since there is no indication that the physician was hired to testify at trial, the plaintiff’s statement in the physician’s presence remains protected by the attorney-client privilege
A plaintiff was shot by the defendant while the two were hunting. The plaintiff filed a negligence action against the defendant to recover damages for injuries suffered as a result of the incident. In his case-in-chief, the plaintiff seeks to introduce the testimony of a mutual friend of both the plaintiff and the defendant that, in the friend’s opinion, the defendant is habitually a careless person. Is this evidence admissible?
A) Yes, because it is has a tendency to make it more probable that the defendant was negligent in shooting the plaintiff.
B) Yes, as habit evidence.
C) No, because it is inadmissible character evidence.
D) No, because character evidence may not be presented in the form of opinion testimony.
C) No, because it is inadmissible character evidence.
Here, evidence that the defendant was a careless person is not admissible to prove that the defendant was careless at the time the plaintiff was shot.
Note: Although the fact that the defendant is careless may be probative in that it has a tendency to make it more probable that the defendant was negligent in the matter at hand, character evidence is inadmissible to prove that a person acted in accordance with that character on a particular occasion – improper purpose.
A customer at a grocery store slipped and fell on a wet spot on the floor. The customer sued the store to recover for the resulting injuries to her back. At trial, the store’s lawyer sought to prove that the damage to the customer’s back was not serious, and called the customer’s neighbor to testify regarding the severity of the customer’s injuries. The neighbor testified that on the morning after the fall, the customer walked to her car wearing a tennis dress and carrying a tennis racket. The neighbor then added, “I told my sister, ‘There goes [the customer] off for her weekly tennis match.’” The customer’s lawyer moves to the strike this statement as inadmissible hearsay.
How should the court rule on this motion?
A) Deny the motion, because, since the declarant is testifying, the statement is not hearsay.
B) Deny the motion, because the neighbor was describing an event as it was taking place.
C) Grant the motion, because the statement is being offered for its truth.
D) Grant the motion, because the sister can testify to the neighbor’s statement.
B) Deny the motion, because the neighbor was describing an event as it was taking place.
Present Sense Impression Exception: DESCRIBING event while perceiving it
The defense attorney in a criminal rape case wants to introduce testimony that the alleged victim has a reputation in the community for promiscuity. The testimony will come from one of the victim’s past sexual partners. The prosecutor objects to the introduction of the testimony, but the defense maintains that because consent is at issue in the case, the testimony is relevant.
Should the court allow the testimony?
A) Yes, because reputation testimony is an admissible form of character evidence.
B) Yes, because the victim’s past sexual behavior can be used to prove consent.
C) No, because evidence of a victim’s past sexual behavior is inadmissible.
D) No, because this evidence of the victim’s other sexual behavior is not relevant.
D) No, because this evidence of the victim’s other sexual behavior is not relevant.
Some instances in which a victim’s past sexual behavior may be relevant and admissible:
1) evidence of a victim’s past sexual conduct is admissible to show the victim’s past sexual behavior with the defendant in order to prove consent
2) to prove an alternate source of semen or injury
3) when the constitutional rights of the defendant require admission of the evidence
4) Civil cases –> when the probative value substantially outweighs danger of harm to the victim
5) Civil Cases –> when the victim herself has placed her reputation in controversy.
A few weeks before the beginning of a murder trial, a witness to the murder identified the defendant in a photo array as the person who killed the victim. Between the time of the photo array and the trial, the witness died. The witness was the only eyewitness to the crime, aside from the victim and the murderer, so the prosecution wants to admit at the trial the witness’s identification of the defendant from the photo array. The defendant’s attorney objects to the introduction of the statement, but the prosecutor claims that as a prior statement of identification, it is admissible.
Is the statement admissible as a prior statement of identification?
A) Yes, because prior statements of identification are admissible as non-hearsay.
B) Yes, because the witness is unavailable to testify.
C) No, because the witness did not testify at the present trial.
D) No, because the witness did not testify under oath at a previous trial, hearing, or deposition as to the identity of the murderer.
C) No, because the witness did not testify at the present trial.
A previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification
Prior to trial, a criminal defendant filed a motion to prevent the prosecution from introducing statements by an alleged co-conspirator. At the hearing on the motion, the court definitively ruled that the statements could be admitted into evidence. At the jury trial, the prosecution called the alleged co-conspirator to testify about the statements. The defendant did not object to the introduction of the statements into evidence. On appeal, the defendant claimed that the trial court erred in admitting the statements.
Should the appellate court decide the merits of this claim of error?
A) No, because the defendant failed to object at trial when the prosecution introduced the statements.
B) No, because the admissibility of evidence is properly a question for a trial court.
C) Yes, because the court made a definitive ruling on the record admitting the statements.
D) Yes, because an objection was unnecessary under the plain error rule.
C) Yes, because the court made a definitive ruling on the record admitting the statements.
Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began.
Note: Plain error rule allows a party to appeal after failing to object to the introduction of evidence.
It does not apply in this case because the defendant did object to the introduction of the statements before trial. Consequently, the appellate court’s review of the admissibility of the statements is not confined to the plain error rule.
In a negligence action tried before a jury, a neighbor of the defendant who witnessed the plaintiff slip on the defendant’s sidewalk is called to testify as to what he saw. The neighbor, who normally wears glasses, did not have them on at the time of the incident. The neighbor is first questioned about the weather conditions at the time that the plaintiff slipped and about the plaintiff’s behavior before doing so. The neighbor is then asked whether the plaintiff’s conduct was negligent.
Of the following, which is the best ground upon which the opposing party can object to this question regarding negligence?
A) As a lay witness, the neighbor cannot testify as to an opinion.
B) The neighbor was not wearing his glasses at the time of the incident.
C) The neighbor’s opinion is not helpful to the jury’s clear understanding of his testimony.
D) The neighbor’s opinion is not rationally based on his perception.
C) The neighbor’s opinion is not helpful to the jury’s clear understanding of his testimony.
Here, the neighbor is being asked to give a legal conclusion without an understanding of the legal criteria for that conclusion. As such, the neighbor’s opinion is not helpful to the jury.
A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher’s character for violence, objected to this testimony. Should the court admit this testimony?
A)Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait.
B) Yes, because character evidence may be introduced through reputation testimony.
C) No, because the plaintiff had not introduced evidence of the teacher’s character for violence.
D) No, because such evidence is not admissible in a civil action.
D) No, because such evidence is not admissible in a civil action.
Student SUED the teacher = civil, not criminal case
Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense. Since the defendant’s character for peacefulness is not an element of either battery or self-defense, the principal’s testimony is not admissible.
Pertinent civil traits: negligent hiring, defamation, fraud, child custody
Note: a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case.
A plaintiff brought an action against a defendant for damages to her vehicle resulting from a car accident. To prove her damages, the plaintiff introduced a dated and authenticated invoice from the mechanic who repaired her car after the accident. After the invoice was admitted into evidence, the woman sought to enter into evidence a printout of a digital photograph of her vehicle at the scene of the accident. If admitted, she plans to testify that she called her brother immediately after the accident so he could meet her at the scene and take photographs. She will also testify that her brother took this photograph the day of the accident, and that the photograph fairly and accurately represents the condition of her vehicle and its position in the intersection after colliding with the defendant’s vehicle. Should the court rule that the photograph is admissible?
A) No, because the photograph is needlessly cumulative following the admission of the invoice.
B) No, because the plaintiff must call her brother to authenticate the photograph.
C) Yes, because a digital photograph is self-authenticating.
D) Yes, because the plaintiff has personal knowledge of the accuracy of the photograph.
D) Yes, because the plaintiff has personal knowledge of the accuracy of the photograph.
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. Here, because the plaintiff was at the scene of the accident, she has personal knowledge to support her testimony that the photograph fairly and accurately represents the condition of the vehicle and its position in the intersection after colliding with the defendant’s vehicle.
Note: Although the plaintiff has already admitted the invoice as evidence of her damages, the photograph of her vehicle at the scene of the accident could include additional evidence not available on the invoice that may be relevant to her claim for damages.
An attorney represents a corporation in a federal securities case. As the attorney reviewed her files before court, she discovered that—despite her diligence—a memo marked “PRIVILEGED AND CONFIDENTIAL” had inadvertently been included in a folder containing public financial documents. The attorney knew that she had copied this folder and produced it in its entirety to opposing counsel during discovery. However, the memo is detrimental to her client’s case. The attorney immediately contacted opposing counsel and requested that the memo be returned to her, that all copies be destroyed, and that the information within the memo not be used at trial; she included the judge on this correspondence. Opposing counsel refused to return the memo, and informed the attorney that they did plan to use it at trial. The memo in question was from the corporation’s chief executive officer to the attorney, and contained the chief financial officer’s thoughts and questions regarding the attorney’s trial strategy. Should the court allow opposing counsel to introduce the memo into evidence at trial?
A) Yes, because the attorney waived the privilege when she disclosed the memo to opposing counsel.
B) Yes, because the memo was not privileged to begin with.
C) No, because the attorney did not waive the privilege.
D) No, because all documents from clients to attorneys are privileged.
C) No, because the attorney did not waive the privilege.
FRE: disclosure of a protected communication does not operate as a waiver if
(i) the disclosure was inadvertent, (ii) the holder of the privilege took reasonable steps to prevent disclosure, and (iii) the holder promptly took reasonable steps to rectify the error, including contacting the party to whom the communication was disclosed and requesting that they return, sequester, or destroy the information.
Here, the disclosure was inadvertent and that the attorney had acted diligently during discovery. Further, the facts indicate that the attorney immediately notified opposing counsel of her error. As such, the privilege was not waived by her inadvertent disclosure, making answer
An expert witness was called by the defendant to testify in a murder trial. The expert was to testify that the defendant was not responsible for his actions due to a specific mental defect. On cross-examination, the prosecutor brought to the expert witness’s attention an authoritative book on psychological conditions, judicially noted to be a reliable authority in the field. The book described the symptoms of the mental defect at issue differently than the expert witness had described them, and the prosecutor read the book’s description into evidence. The prosecutor wanted the jury to be able to consider the book’s description as substantive evidence, but the defendant objected that the description could be used for impeachment purposes only, and not as substantive evidence. The prosecutor further wanted to introduce the book itself into evidence; the defendant objected to this as well. Should the court allow the jury to consider the description in the book as substantive evidence, and should the book itself be introduced as evidence?
A) The description should be considered for impeachment purposes only, and the book should not be introduced into evidence.
B) The description should be considered as substantive evidence, and the book should not be introduced into evidence.
C) The description should be considered as substantive evidence, and the book should be introduced into evidence.
D) The book should be introduced into evidence, though the description may be used only for impeachment purposes.
B) The description should be considered as substantive evidence, and the book should not be introduced into evidence.
Hearsay Exception: Treatises: A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if
(i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and
(ii) an expert relied on it during direct examination or it was brought to the expert’s attention on cross-examination.
May be used for substance and impeachment
In a pre-trial hearing, a judge determined that a defendant’s confession was given voluntarily to a police detective after the detective had given Miranda warnings to the defendant. At this hearing, the defendant testified. At trial, the defense did not contest the defendant’s receipt of Miranda warnings, but sought to question the police detective about the manner in which the defendant was interrogated after receiving the warnings in order to call into question whether the confession was voluntary. The defense does not plan to call the defendant to the witness stand. Should the court permit this line of questioning?
A) No, because there had been a judicial determination that the confession was voluntary.
B) No, because the defense did not challenge the defendant’s receipt of Miranda warnings.
C) Yes, because a party may introduce evidence that is relevant to the weight and credibility of other evidence.
D) Yes, because a defendant may testify at a hearing regarding a preliminary question without being required to testify at trial.
C) Yes, because a party may introduce evidence that is relevant to the weight and credibility of other evidence.
Even though a judge has decided that evidence, such as a confession, is admissible, a party may nevertheless introduce other evidence that is relevant to the weight and credibility of the admitted evidence
A plaintiff initiated a libel action against her former boyfriend after he posted a written statement on his web site accusing the plaintiff of being able to afford a new car only because she was a con artist. At trial, the defendant called a neighbor of the plaintiff to testify that he and the plaintiff had run several cons together to earn money. The plaintiff objected to the testimony. Should the court admit this testimony for the purpose of proving that the plaintiff is a con artist?
A) No, because the introduction of specific bad acts in a civil action is prohibited.
B) No, because the testimony is inadmissible character evidence.
C) Yes, because the evidence is relevant to the defendant’s defense.
D) Yes, because character evidence must be in the form of specific acts rather than reputation or opinion testimony.
C) Yes, because the evidence is relevant to the defendant’s defense.
In a defamation action involving a private person and a matter that is not of public concern, as is the case here, truth is a defense. Evidence that the plaintiff has run cons would support the truthfulness of the defendant’s statement that the plaintiff is a con artist.
Note: Truth is a defense to this defamation action, and thus the plaintiff’s character is an essential element of the defense
Civil case relevant traits: negligent hiring, fraud, defamation
A defendant on trial for forging checks took the stand in his own defense. On direct examination, the defendant denied having forged any checks; he stated that before he graduated from college the year before, he worked in his university’s academic records office, indicating that he was “a trustworthy person.” On cross-examination, the prosecutor asked the defendant if he had falsified records while working in the academic records office. The defendant denied that he had done so. The prosecutor then wanted to call to the stand his former supervisor from the university to testify that she had to investigate the defendant after allegations of misconduct, and that when questioned, he had admitted to her that he had falsified records. The defendant was removed from his position, but no formal charges had been brought against him. Should the prosecutor be allowed to call the defendant’s former supervisor to the stand to testify as to the falsified records?
A) Yes, in order to impeach the defendant and to present propensity evidence.
B) Yes, but only to impeach the defendant.
C) No, because the testimony would contain hearsay.
D) No, because the testimony would be extrinsic.
D) No, because the testimony would be extrinsic.
The former supervisor may not testify about the falsified records because it would be impeachment by extrinsic evidence of a specific instance of conduct. A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.
Note: when a person is charged with one crime, extrinsic evidence of a specific instance of conduct is inadmissible to establish that the defendant had a propensity to commit that crime. Since the facts do not indicate that the prior bad act is being used as evidence for something circumstantial and relevant, such as motive, common plan or scheme, or identity, the supervisor’s testimony is not admissible as substantive evidence.
A plaintiff sued a defendant for injuries she sustained when she slipped on a wet floor in the defendant’s restaurant. The plaintiff saw a physician and underwent physical therapy sessions to treat her injuries. During one session, the plaintiff said to her physical therapist, “You know, I saw the ‘Caution, Floor is Wet’ sign before I fell, but I was in such a hurry to get back to my table that I ignored it.” Another patient undergoing physical therapy with another therapist overheard the statement, and informed the defendant, who happened to be his friend. The defendant wants to introduce the testimony of his friend, as whether the plaintiff had notice of the wet floor is at issue in the case. The plaintiff objects to the testimony. Should the court allow the friend to testify as to the plaintiff’s statement?
A) No, because the statement is inadmissible hearsay.
B) No, because the statement is privileged.
C) Yes, because the statement is not hearsay.
D) Yes, because the statement was made for the purposes of medical diagnosis or treatment.
C) Yes, because the statement is not hearsay.
Opposing party statement: Exemption (non-hearsay)
The woman was with her physician, but did not make the statement in relation to seeking medical treatment. Thus, it is not privileged.
In a criminal trial for attempted murder, the prosecutor seeks to introduce a statement made by the victim immediately after he was attacked by the defendant. The victim, very seriously injured, shouted the defendant’s name and said, “I can’t believe you shot me! I’m dying!” At the time of the trial, the victim has mostly recovered from his injuries, but suffered permanent memory loss, has no recollection of the incident at all, and has no recollection of making the statement. The prosecutor seeks to introduce the statement as a dying declaration, but the defendant objects. Should this statement be admissible under the “dying declaration” exception to the hearsay rules?
A) No, the statement is not admissible as a dying declaration.
B) No, because the victim did not die.
C) Yes, because the victim is unavailable due to his inability to remember.
D) Yes, because the proceeding in which the statement will be introduced is a criminal trial.
A) No, the statement is not admissible as a dying declaration.
Dying declaration = only available in homicide cases (or civil cases) This was an attempted murder case.
- A customer at a fish market was leaving the store after purchasing an assortment of shrimp, oysters, and scallops. He was walking along the sidewalk in front of the store when he slipped on a piece of eel. He brought suit against the owner of the market claiming that he suffered leg and back injuries. The owner, although admitting that the customer was injured by slipping on the eel, denied negligence and claimed that the customer was contributorily negligent.
At trial, the owner calls a witness to testify that before the fall he heard someone call out to the customer, “Watch it, buddy, you’re going to step on that piece of fish.”
The witness’s testimony is
(A) admissible, because it is relevant as to the customer’s contributory negligence.
(B) admissible, as a statement of the declarant’s present state of mind.
(C) inadmissible, as hearsay not within any exception.
(D) inadmissible, because it was not a spontaneous utterance.
i. (A) Proof of utterances and writings may be made with an almost infinite variety of other purposes, not resting for their value upon the veracity of the out-of-court declarant and, hence, falling outside the hearsay classification. Here, choice (A) is correct because the witness’s testimony rests on the non-hearsay ground of evincing knowledge to show circumstantially that the customer had notice or awareness that he was about to step on the fish. Thus, the customer’s knowledge is sought to be used as the basis for a further inference that he was contributorily negligent in failing to heed the warning. Choice (B) is incorrect because the “state of mind” hearsay exception covers only statements that reveal the present mental attitude or physical condition of the declarant. Here, the statement of the declarant reveals nothing about the declarant’s own mental state or physical condition. Choice (C) is not the best answer, because choice (A) identifies a non-hearsay use for the statement. Choice (D) is a trap. The words “spontaneous utterance” tempt one to choose the excited utterance exception of FRE 803(2). The excited utterance exception requires that the declarant speak while under the stress or excitement of a startling event. There is no information in the fact pattern about the declarant’s state of mind.
- While shopping at a grocery store, a customer tripped over a broken tile, fell, and suffered a concussion. A few months after the accident, the customer’s attorney deposed a store employee. In the deposition, the employee testified, “I’d been telling the store manager for years to get that broken tile fixed, but he wouldn’t do it.” The employee died in an automobile accident after being deposed.
At trial, the deposition should be
(A) admitted, as a dying declaration.
(B) admitted, as former testimony.
(C) not admitted, because it is hearsay not within any exception.
(D) not admitted, because the employee is not available for cross-examination.
- (B) Under FRE 804(b) (1), testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding is admissible as a former testimony hearsay exception. McCormick points out that the courts and textwriters generally favor the wider admission of former testimony because of its elements of special reliability, such as the oath, the solemnity of the occasion, and in the case of transcribed testimony, the accuracy of reproduction of the words spoken. Choice (A) is incorrect because the dying declaration hearsay exception of FRE 804(b)(2) requires that the hearsay statement be (1) made while the declarant’s death was imminent; and (2) concern the cause or circumstances of what the declarant believed to be impending death. Here, the statement has nothing to do with the declarant’s death. Choice (C) is incorrect. The answer meets the definition of hearsay as an out-of-court statement offered for the truth of the matter asserted, and it fits the admissibility criteria of FRE 804(b)(1). Choice (D) seems like an attractive answer, but it is deceptive:
if testimony meets the requirements of FRE 804(b)(1), it is not necessary for the declarant to be present at triaL for cross-examination. The opportunity for cross- examination would have occurred at the deposition.
- A plaintiff was hit and injured by a falling branch on a sidewalk in front of a convenience store. The plaintiff calls a woman to testify. The woman proposes to testify that a witness who is now deceased told the woman that when he was walking past the convenience store one week before the plaintiff was hit by the branch, the witness saw an employee of the convenience store shoveling snow from the sidewalk in front of the store.
The woman’s testimony is
(A) admissible, because the witness is unavailable to testify.
(B) admissible, as relevant for the limited purpose of proving that the convenience store owner retained control over the sidewalk where the accident occurred.
(C) inadmissible, because it is hearsay not within any recognized exception.
(D) inadmissible, because of the Dead Man’s Statute.
- (C) According to FRE 801(c) hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The woman is attempting to testify to what the witness alLegedly told her. Choice (C) is correct because the witness’s statement is (1) an out-of-court statement that is (2) offered for the truth of the matter asserted. The statement does not, however, fit within any recognized hearsay exceptions. This is an extremely popular Multistate Evidence example because the test maker knows many students will incorrectly choose choice (B). This choice would be correct if the woman were testifying that she saw an employee of the convenience store shoveling the snow. Rather, the woman is proposing to testify to what the witness alLegedly told her he saw. Since it is being offered to prove the truth (i.e., the convenience store owner retained control over the area in front of his store) of the matter asserted, it is inadmissible hearsay. Choice (A) is incorrect because, regardLess of the fact that the witness is unavailable to testify, his out-of-court statement fails to satisfy any recognized hearsay exceptions. Although interesting, choice (D) is wrong because Dead Man’s Statutes apply only to a limited circumstance: they prohibit claimants against estates from testifying about conversations or transactions with the decedent.
- A defendant is on trial for attempting to cash a forged check at a bank. A teller at the bank is called to testify.
The teller testified that she was on duty when the defendant came to her station and handed her a check drawn on the account of another customer. She recognized the forgery because she knew the other customer’s signature since he was one of her regulars. The teller further testified that after becoming suspicious, she placed the check down on the counter and turned to talk to her supervisor. As she did so, the defendant picked up the check and left the bank before she could say anything. The check that the defendant presented at the bank was not recovered by law enforcement authorities and was not offered as evidence.
The teller’s testimony regarding the forged signature on the check is
(A) inadmissible, because the witness is at fault in allowing the loss of the original by failing to secure the check.
(B) inadmissible, because it is not possible for the jury to compare the signature on the check since it was not presented as evidence.
(C) admissible, because it is rationally related to the witness’s perception.
(D) admissible, because the witness was familiar with the alleged victim’s handwriting.
- (D) Under FRE 901 (b)(2), authentication or identification as a condition precedent to admissibility is satisfied by “Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.” The teller’s testimony recognizing the forgery will be admissible because she was familiar with the other customer’s signature, since he was one of her regulars. Choice (D) is correct. FRE 701 provides for lay opinion that is rationally based on the perception of the witness. Included within the proper scope of lay testimony is familiarity with handwriting. Nonetheless, choice (D) is a more specific answer than choice (C). Choice (B) is incorrect because comparison of handwriting specimens by the jury is not required as a requisite for admissibility, although it is one way to authenticate a person’s handwriting. Choice (A) alludes to FRE 1004, which allows admissibility of other evidence of contents (i.e., the teller’s testimony) where the original is lost or destroyed, unless the proponent lost the original in bad faith. Choice (A) is incorrect because the teller was not acting in bad faith when the defendant took the check from her possession and ran out of the bank.
- A plaintiff was the varsity basketball coach of the boys’ team at a high school. After the second game of the season, the plaintiff was suddenly dismissed as the coach for undisclosed reasons. After the dismissal was made public, the local newspaper ran an article discussing the plaintiff’s tenure as coach. The article, which was written by the sports editor, stated that “The plaintiff was a bad role model and morally unfit for the coaching job.”
The plaintiff brought suit against the newspaper for defamation. At trial, the plaintiff called a player on the basketball team to testify that “the plaintiff was a good role model and respected by the players.” In presenting its evidence, the newspaper called a witness to testify. He proposes to testify that he saw the plaintiff give beer to players on three occasions after victories. Upon objection by the plaintiff’s attorney, witness’s testimony is
(A) admissible, for impeachment purposes only.
(B) admissible, as substantive evidence.
(C) inadmissible, because specific instances of conduct is an improper method of proving character.
(D) inadmissible to prove character, but admissible for the purpose of showing intent or common scheme.
- (B) Choices (C) and (D) are wrong because FRE 405(b) provides that “in cases in which character or a trait of character of a person is an essential element of a charge, cLaim or defense, proof may be made by specific instances of that person’s conduct.” The key question is whether the witness’s testimony is limited for impeachment or may be admitted substantively as proof of character. According to McCormick, a person’s character may be a material fact that, under the substantive law, determines rights and liabilities of the parties. For example, in an action of defamation for a publication to the effect that plaintiff’s character is bad, the publisher may raise the defense that the statement is true. Evidence, pg. 551. Similarly, the plaintiff is suing the newspaper for defamation based upon an article describing “The plaintiff as a bad role model.” The testimony by the witness should be admissible substantively because it relates to the truth of the assertion, which, in turn, would provide the newspaperwith a valid defense. Choice (B), therefore, trumps choice (A). Note, too, that choice (A) incorrectly states that the witness’s testimony is admissible only for purposes of impeachment.
- A plaintiff sued a defendant for injuries suffered in an automobile accident that occurred six months ago. The plaintiff claimed that the defendant drove through a red light and hit her as she was crossing the street. The posted speed limit at the scene of the accident was 25 m.p.h. In his case-in-chief, the defendant testified that the traffic light was green and he was driving carefully at 20 m.p.h. The plaintiff’s attorney did not cross-examine the defendant. Rather, she called a police officer who testified that the defendant told him immediately after the accident that he was going 30 m.p.h.
The police officer’s testimony is
(A) a prior inconsistent statement and, therefore, admissible to impeach.
(B) hearsay, but admissible as a prior inconsistent statement for any purpose.
(C) admissible, as offered against the defendant.
(D) inadmissible, because the accident report is the best evidence of what the defendant told the police officer.
- (C) Choice (C) is the correct answer because the defendant’s statement to the police officer (that he was going 30 m.p.h.) is admissible against him as an admission. By definition, admissions are the words or acts of a party-opponent or his predecessor or representative, offered as evidence against him. This is a popular Multistate example because the test maker is distinguishing between statements (or admissions) made to a police officer and statements contained in a police report. As a general rule, statements in a police report that are attributed to witnesses or to prove conclusions of the investigating officer are inadmissibLe hearsay. Choice (A) is technically correct because FRE 613 permits the use of extrinsic evidence of prior inconsistent statements, but choice (C) is a better choice because an admission can be used substantively and is, therefore, stronger than evidence that is used only to impeach. Choice (B) is incorrect because an admission is excluded from the hearsay rule by FRE 801(d)(2). Choice (D) is incorrect because the best evidence rule, FRE 1002, applies only if the contents of a writing, recording, or photograph are in dispute.
- One year ago, while driving through an intersection, the defendant’s car collided with the plaintiff’s car. The plaintiff sued, claiming that the defendant ran a red light. In her case-in-chief, the plaintiff testified that immediately after the accident, a bystander, who was a local resident, screamed at the defendant, “You jerk.. . you drove through the red light.” In his case-in-chief, the defendant now calls a police accident investigator to testify that the plaintiff told him that she “didn’t see the color of the light when she entered the intersection because she was dialing a number on her cell phone.”
The investigator’s testimony should be
(A) admitted, because the plaintiff’s inconsistent statement has bearing on her credibility.
(B) admitted, because the accident investigator gathered the information in the course of his official duties.
(C) excluded, because the defendant failed to lay a foundation, thus not giving the plaintiff an opportunity to deny or explain her statement.
(D) excluded, because the plaintiff’s statement to the investigator is hearsay.
- (A) In her case-in-chief, the plaintiff claimed that the defendant drove through a red light and hit her as she was crossing the street. So obviously the plaintiff must be contending that the traffic light was green (in her favor) when she proceeded to cross the intersection. As a consequence, her statement to the investigator that she “didn’t see the color of the light when she entered the intersection because she was dialing a number on her cellphone” may be receivable in two ways: (1) as an admission by a party under FRE 801(d), and (2) as an inconsistent statement to impeach the witness under FRE 613. Choice (A) is, therefore, correct. Choice (B) is a distracting answer and is incorrect. The words “official duties” might cause a test- taker to think of FRE 803(8), the public records hearsay exception. This exception, however, applies only to “matters observed” by public officials in the course of their duties and requires personal knowledge by the official of the matter observed. Here, the investigator has no personal knowledge of the light’s color at the time of the accident. Choice (C) is the wrong answer because, from the facts, it appears that the defendant has laid a sufficient foundation to introduce the plaintiff’s statement as either an admission or to impeach. The plaintiff will be afforded an opportunity to cross-examine the officer about the statement, if she so chooses. Choice (D) is incorrect because an admission is not hearsay under Rule 801(d).
- A football player sued a football team for breach of contract. He was a star player for the team before suffering a serious hip injury. Although the player attempted to continue playing for the team, he failed a physical examination and was cut from the team roster. After failing his physical, the team discontinued making contract payments to the player as per the terms of his employment contract. In his lawsuit, the player claimed that he was physically fit to continue playing but that he was cut from the team because they wanted to stop making contract payments.
At trial, the team called its physician, an orthopedist, to testify that the player’s hip injury was, in fact, career-threatening and, in his opinion, sufficiently serious to warrant failing his physical. The team physician stated during his testimony that his diagnosis was based, in part, upon an examination of the player’s x-rays and review of an MRI test conducted by another doctor. Neither the x-rays nor the MRI test results have been admitted into evidence.
In all likelihood, the team physician’s testimony should be
(A) admissible, provided that the other doctor testifies as to the validity of the MRI test results.
(B) admissible, provided the team physician based his opinion on data reasonably relied upon by other orthopedic physicians in the field.
(C) inadmissible, because neither the x-rays nor the MRI test results had been admitted into evidence at the time he formulated his opinion.
(D) inadmissible, because the team physician’s opinion was not based in part upon his own firsthand observation of the player’s physical condition.
- (B) FRE 703 deals with the bases of opinion testimony by experts. An expert may base her opinion on facts or data perceived by or made known to her at or before the hearing. These facts or data need not themselves be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Therefore, an expert opinion need not be based on firsthand observation—this is why choice (D) is incorrect—and instead may be based on presentation of data to the expert outside of court. The justification for this rule is based on an attempt to bring judicial practice in line with the out-of-court practice of experts themselves, who base their own life-and-death diagnoses in reliance on information from numerous sources, including statements of patients and relatives, reports and opinions of other doctors and technicians, hospital records, and x-rays. FRE 703, Advisory Committee’s notes. As Long as the team physician’s diagnosis was based on data reasonably relied upon by other orthopedic physicians in the field, it will be admissible. Choice (B) is, therefore, correct. The x-rays and the MRI test results need not be admitted in evidence at trial, so choice (C) is incorrect. Choice (A) is incorrect because the MRI test results need not be validated, provided that such data are reasonably relied upon by experts in the field.
- In an action for malpractice, a plaintiff sued a doctor, claiming that the latter failed to properly diagnose his emphysema condition. The plaintiff contends that he went to the doctor for a medical examination after experiencing chest pains and shortness of breath. However, the doctor found no evidence of the disease and advised him that he was probably suffering from indigestion. Thereafter, the plaintiff was examined by another doctor who discovered that the plaintiff in fact was suffering from a chronic case of emphysema.
At trial, the plaintiff calls the other doctor as his first witness. The other doctor proposes to testify the x-rays of the plaintiff’s lungs showed that his respiratory organs were marked by distension, which was characteristic of emphysema. Upon objection by the defendant’s attorney, the testimony should be
(A) admitted, because a doctor is properly qualified as an expert in medical matters.
(B) admitted, because the other doctor followed accepted medical practice in arriving at his opinion.
(C) excluded, because his opinion is based upon facts not in evidence.
(D) excluded, because the x-rays are the best evidence to show the distension of the plaintiff’s lungs.
- (D) Here, it is necessary to distinguish that the other doctor is proposing to testify “that the x-rays showed a distension.” X-rays come within the best evidence rule, FRE 1002, which applies to the contents of writings, recordings, and photographs; according to FRE 1001 (2), x-rays are considered photographs. Choice (D) is, therefore, correct. Choice (A) is incorrect because there is no evidence in the fact pattern that the other doctor was tendered as an expert under FRE 702; doctors are not automatically expert witnesses at trial. There is not enough information in the fact pattern to determine whether the other doctor followed acceptable medical practices, so choice (B) is a wrong answer. Choice (C) is incorrect because, assuming that the other doctor was qualified as an expert witness, FRE 703 would permit him to base his conclusions on facts not in evidence.
- A driver was prosecuted for speeding. It is conceded that the speed limit on the stretch of the highway in question at the time of the alleged speeding was 55 m.p.h. As part of its case-in-chief, the prosecution called a police officer who testified that at about 11:30 a.m. one mile east of the town line, he set up a radar apparatus. The officer testified that, with the use of tuning forks, he found the radar apparatus was accurate. The officer also stated that he had five years of experience in operating such radar devices. Furthermore, the officer testified that the radar’s mechanism for recording the speed of vehicles by means of an ink line drawn mechanically on a roll of paper was also functioning properly. Upon further questioning, the officer stated that at about 1:30 p.m., the needle of the speed indicator dial of the radar apparatus showed the driver’s car passing his location at 65 m.p.h.
If the driver’s attorney makes an objection to the introduction of the radar finding that the driver was traveling at a speed of 65 m.p.h., the court will most likely
(A) sustain the objection, because the radar results are not conclusive evidence of speeding.
(B) sustain the objection, because radar is not a technique recognized by the scientific community.
(C) overrule the objection, because the court will take judicial notice of the accuracy of such tests.
(D) overrule the objection, because the radar results would be construed as an admission against interest.
- (C) The majority of courts are generally in accord in holding that expert testimony is no longer needed to establish the scientific validity of radar. In People v. MacLaird, 264 Cal. App. 2d 972 (1968), the trial court required the jury to take judicial notice of the validity and accuracy of radar devices. Similar results have been reached in People v. Magri, 3 NY. 2d (1958); United States v. Preos, 156 F. Supp. 200 (D.C. Md. 1957); and State v. Dantonio, 115 A.2d 35 (1955). These are among a few of the earliest cases in which the court has taken judicial notice of the validity of radar devices. Choice (A) is incorrect, given the general acceptance of radar results by courts and the scientific community. Choice (B) is an excellent example of an answer choice that cannot be correct if any other answer choice is correct. In order for choice (B) to be correct, it would have to be true that the scientific community had rejected radar. Since case law (and, for that matter, common sense) tells us that expert testimony is no longer needed to establish radar’s validity, choice (B) cannot be correct. Finally, choice (D) is incorrect. An admission is a statement made by a party-opponent. Observations of a party’s actions made or recorded by other people or by scientific instruments are not admissions.
- In January, while he was driving on the street, a defendant lost control of his car, hitting and killing a small child. The child’s parents sued the defendant for causing the wrongful death of their child. At trial, the parents’ attorney calls a bystander to testify that the defendant’s car was traveling well over the 25 m.p.h. speed limit on that street.
Upon objection by the defendant’s attorney, the trial judge would rule the bystander’s testimony
(A) admissible, because the bystander’s opinion is based on his own perception.
(B) admissible, as a declaration of existing state of mind.
(C) inadmissible, as hearsay not within any of the exceptions.
(D) inadmissible, because a lay witness is not qualified to testify about the speed of a vehicle.
ii. (A) Choice A is correct, because there are particular situations, such as estimating in miles per hour the speed of a moving vehicle, in which opinions of lay witnesses are generally admissible. Other such situations under FRE 701 in which lay opinions are admissible include (a) the general appearance or condition of a person; (b) the state of emotion of a person; (c) matters involving sense recognition; and (d) identifying the likeness or identity of handwriting. Choice (B) is inapplicable to this set of facts. An estimation of speed is not a “declaration of then-existing mental, emotional, or physical condition” within the meaning of FRE 803(2), the “state of mind” hearsay exception. Choice (C) is incorrect. The witness is testifying about his personal observation. No out-of-court statements are being introduced. Finally, choice (D) is the wrong answer because, under FRE 701, lay opinion witnesses are qualified to testify about such things as the speed of a moving vehicle.
- A city entered into a small-cost construction contract with a construction company whereby the latter obligated themselves to perform certain minor sewer repair work. Two months after completion of the work, the company sued the city for its failure to pay under the terms of the contract.
At trial, the company’s construction supervisor who personally oversaw all the repair work was called to testify. He sought to testify about the amount of sewer pipe used, the number of hours required to complete the job, and the number of workers employed by the company during the construction repair work.
The defendant’s attorney objected on the grounds that the company routinely recorded such factual information in their log books, which were in the company’s possession.
As a consequence, the supervisor’s testimony should be ruled
(A) admissible, because it is based on firsthand knowledge.
(B) admissible, because it is a report of regularly conducted business activities.
(C) inadmissible, because such testimony would be violative of the best evidence rule.
(D) inadmissible, because no evidence was introduced to show that the original log records are not available for examination.
- (A) Choice (C) is incorrect because the original document rule (otherwise known as the best evidence rule) applies to those situations where in proving the terms of a writing, and the terms are material, then the original writing must be produced unLess it is shown to be unavailable for some reason other than the serious fault of the proponent. First, there are certain writings that the substantive law (e.g., the Statute of Frauds, the parol evidence rule) endow with a degree of either indispensability or primacy. Transactions to which substantive rules of this character apply tend naturally to be viewed as written transactions and writings embodying such transactions (e.g., deeds, contracts, judgments, etc.). Contrasted with the above-described types of writings are those, essentially unlimited in variety, that the substantive law does not regard as essential or primary repositories of the facts recorded. In this regard, log books would be viewed as a writing of this latter sort in that they happen to record the facts of essentially non-written transactions. Testimony descriptive of non-written transactions is not generally considered to be within the scope of the present rule and may be given without producing or explaining the absence of a writing recording the facts. [See Allen v. W. H. 0. Alfalfa Mill Co. 272 F.2d 98 (10th Cir. 1959) where costs of production were allowed without records]. As a result, choice (D) is also incorrect because the original document rule is inapplicable. Therefore, in accordance with FRE 602, “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. .. ,“ choice (A) is the best answer. Since the construction supervisor personally oversaw the entire job, he would clearly have firsthand knowledge regarding the construction work. Choice (B) is inapplicable because the witness is testifying directly as to his firsthand knowledge and is not introducing information from the company’s records under FRE 803(6), the business records exception.
- A plaintiff sued a defendant for leg injuries stemming from a collision between their cars at an intersection. Each party was driving his own car, and the plaintiff alleged that the defendant had sped through a red light and collided with the plaintiff’s car. The defendant denied this allegation.
During the trial, the plaintiff testified that he and the defendant had conferred after the accident and that the defendant had said, “Don’t worry about anything; I’ll see to it that your doctor’s bills are paid.” The defendant’s attorney immediately objected.
The trial judge should rule this testimony
(A) admissible, because the defendant admitted his negligence.
(B) admissible, because it is a declaration against interest.
(C) inadmissible, because the prejudice in admitting the testimony outweighs its probative value.
(D) inadmissible, because an offer to pay medical bills is not admissible to prove negligence.
- (D) FRE 409 provides that evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. This rule does not extend to conduct or statements not part of the act of furnishing or offering to pay medical and similar expenses. Thus, if the defendant had said, “Since I went through the red light, I’ll pay for any injuries you may have suffered,” the defendant’s admission that he went through the red light would be admissible, although the statement regarding medical expenses would be inadmissible in accord with FRE 409. Choice (A), therefore, is an incorrect answer. Choice (B) does not apply to this fact pattern because there is no indication that the defendant is unavailable at trial, a foundational element of FRE 804(b)(3), the statement against interest exception to the hearsay rule. Choice (C) is incorrect because it misstates the balancing test of FRE 403, which states that “evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice…
- A pedestrian is suing a defendant for injuries she suffered to her leg when the defendant ran the pedestrian over with his motorcycle. On cross- examination of the pedestrian’s physician, the defendant’s attorney asked him whether or not the pedestrian had told him that the leg that she claimed was injured had been permanently stiff as a result of a former field hockey injury the pedestrian suffered in high school.
Upon objection by the pedestrian’s attorney, the trial judge should
(A) sustain the objection, as hearsay not within any recognized exception.
(B) sustain the objection, as violative of the physician-patient privilege.
(C) overrule the objection, as a statement made for the purpose of diagnosis or treatment.
(D) overrule the objection, as a statement against interest.
- (C) Statements made for purposes of medicaL diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, are not excluded by the hearsay rule under FRE 803(4). Choice (A) is the wrong answer. The statement is hearsay, but it falls under a recognized hearsay exception. Choice (B) is incorrect. There is no standard physician-patient privilege under the FRE. Instead, under FRE 501, state law provides the basis for the privilege in federaL courts. In this fact pattern, there is no information gWer about the parameters of or exceptions to the state privilege. Although the pedestrian’s statement to her doctor might well be against her interest, the fact pattern gives no information about the physician’s unavailability, which would be required in order to trigger FRE 804(b) (3), the statement against interest exception. Thus, choice (D) is incorrect.
- A newly elected mayor was charged with tax fraud. The prosecutor served a trial subpoena directing the mayor’s attorney to produce private bank records that the mayor delivered to the attorney. The attorney refused the request. The prosecutor in a hearing then sought to compel compliance with the subpoena.
The court should
(A) compel production, because it would not violate the attorney-client privilege.
(B) compel production, because there is no element of confidentiality.
(C) not compel production, because it would violate the mayor’s privilege against self- incrimination.
(D) not compel production, because it would violate the attorney-client privilege.
- (A) This question deals with the issue of what type of communications are within either the attorney-client priviLege or the Fifth Amendment privilege against selfincrimination. Pre-existing written documents (contracts, leases, memos) do not become privileged by simply being handed over to the attorney. Written documents are comm unications protected by the attorney-client privilege if they were prepared specifically from the client to the attorney or vice versa. In light of this discussion, choice (A) is correct, and the court should compel production of the mayor’s private bank records. Choice (B) confuses the issue and is incorrect. Certainly, the mayor intended the bank records to be confidential; that’s why he gave them to his attorney. However, no privilege is available to him under these circumstances. Choice (C) is incorrect. Similarly, pre-existing records, especially those of a business nature, which were voluntarily prepared by or for the owner at an earlier time, may generally be obtained by the government without violating the privilege against self-incrimination. Lilly, Law of Evidence, pp. 339—340. Whereas ordinary business records may be seized pursuant to a valid search warrant because such a seizure does not involve any incriminating assertion by the owner of the records [Andresen v. Maryland, 427 U.S. 463 (1976)], even production of specified business records is generally allowed on the theory that the gathering and submitting procedure is not, standing alone, an incriminating assertion [Fisher v. United States, 425 U.S. 391 (1976)]. Private items, such as a diary, present a more difficult question. However, “the fact that a pre-existing, non-coerced communication is private in nature is probably not dispositive so long as it can be obtained and presented at trial without compelling the individual resisting disclosure to make incriminating statements or verify the truth of the contents.” Lilly, Law of Evidence, pp. 340—341. Choice (D) is the wrong answer, for the same reasons that choice (A) is the correct answer.
- A guitarist and lead singer for a rock and roll band was performing a concert when an overhead strobe light fell on stage and struck him. The singer suffered a fractured skull and was hospitalized for an extended period of time. A lighting company was hired by the venue to perform the strobe lighting show at the concert.
During his hospital stay, the singer sent a letter to the lighting company’s president threatening to sue and holding the lighting company responsible for the accident. After receiving the singer’s letter, the company’s attorney visited the singer at the hospital where he was being treated. The attorney entered the singer’s hospital room and told him, “The company will pay your medical expenses if you will give a release.” The singer remained silent, and the attorney then left the room.
Thereafter, the singer filed a lawsuit against the lighting company to recover damages for his injury. At trial, the singer seeks to introduce into evidence the attorney’s statement at the hospital.
Upon objection, the attorney’s statement should be
a. admitted, as a vicarious admission.
b. admitted, as a declaration against interest.
c. excluded, as an offer to compromise.
d. excluded, as a privileged attorney-client communication.
i6. (C) One of the most important Evidence distinctions tested on the bar exam is statements made in compromise or settlement discussions (FRE 408) and admissions made in connection with an offer to pay medical or hospital expenses (FRE 409). Statements made in compromise negotiations are not admissible. On the other hand, under FRE 409, we sever and admit the admission while the offer to pay medical expenses is not admissible. Based on the given answer choices, it is necessary to assume that the attorney’s statement was made in connection with settlement negotiations. Since the facts state that the singer has threatened to sue the lighting company, there is an actual dispute between the parties. Under the circumstances, the lighting company’s lawyer is attempting to engage in compromise negotiations. Thus, choice (C) is correct, and choice (A) is incorrect. Choice (B) is incorrect, fortwo reasons: (1) an offer to compromise is not necessarily a statement against interest (here, there is no admission of liability); and (2) the facts contain no evidence about the declarant’s unavailability, a critical foundational element for FRE 804(b) (3). Choice (D) does not apply here because the attorney was authorized by his client to make this communication to a third party.
- An experienced equestrian rider sued a woman, claiming that her horse kicked and injured the rider. At trial, the rider testified that he was attending a horse show when, without provocation, he was kicked by a gray stallion with a black tail. The rider then called the woman as an adverse witness and asked her the following question: “Isn’t it true that you are the owner and trainer of a gray stallion with a black tail?” After answering affirmatively, the woman was not asked any further questions on direct examination. Whereupon in cross- examination, the woman was then asked, “Isn’t it true that your horse is very gentle and would not kick anyone unless provoked?”
Upon objection by the rider’s attorney, the rider’s strongest argument would be that the woman’s proffered testimony is
(A) inadmissible as an improper form of impeachment.
(B) inadmissible as substantive evidence to show that the horse must have been provoked.
(C) inadmissible, because the horse’s general propensity cannot be used to prove what occurred on a particular occasion.
(D) inadmissible as beyond the scope of the woman’s direct testimony.
- (D) FRE 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” In the rider’s suit against the woman, by calling the defendant as an adverse witness, the plaintiff tactically limited the scope of direct examination only to the issue of ownership of the gray stallion. As a result, the ensuing cross-examination as to the temperament of the horse goes beyond the scope of direct examination. Subject to discretion of the court, such questioning will be inadmissible. Choice (D) is therefore correct. Note: FRE 611(b) will govern procedurally, despite the fact that the defense may use other proper means (e.g., calling other witnesses or calling the defendant at a later time) to impeach the rider’s testimony. Choice (A) is inapplicable here because the question focuses more on scope of direct than impeachment. Had the rider’s attorney not limited the scope of direct, the question on cross might very well have been permissible impeachment. Choice (B) is also inapplicable. The evidence of the horse’s temperament would be admissible to show it must have been provoked, but as pointed out earlier in this paragraph, the defense would have to introduce that evidence in some other way than cross-examination. Choice (C) is wrong, because the character rules for propensity (contained in FRE 404 and 405), apply to human beings, not animaLs.
- A truck driver was assigned to drive a huge tractor- trailer loaded with logs. The logs were being sold by a lumber company, which had loaded the tractor- trailer. After four hours of steady driving, the truck driver stopped at a lounge and consumed five bottles of beer. He left the tavern in an intoxicated condition and then drove off to make his final delivery.
As he came to the top of a steep incline in the highway and started his descent, an 11-year-old girl suddenly darted out into the road directly in front of him. The truck driver slammed on his powerful air brakes and swerved sharply to the left to avoid hitting her, but the girl was struck by the tractor- trailer and was seriously injured.
The girl’s parents, on behalf of their daughter, assert a claim against the lumber company to recover damages for the girl’s injuries.
At trial, which of the following is LEAST likely to be admissible?
(A) Evidence that the truck driver’s reputation for driving is poor, if the lumber company and truck driver argue that the latter was not negligent.
(B) Evidence that the truck driver pleaded guilty to a criminal charge of DUI arising from this incident.
(C) Evidence that the lumber company carried liability insurance on the tractor-trailer, if an investigator for the lumber company’s insurance company testified for the lumber company that they deny ownership of the truck.
(D) Evidence that the lumber company carried liability insurance on the tractor-trailer, if the lumber company argues that the truck driver was an independent contractor.
- (A) Where the owner of a motor vehicle is charged with liability for the acts of a person using it on the grounds of negligent entrustment, then the character of the custodian is “in issue” (to show negligence in entrusting the vehicle to an incompetent driver). This is a difficult question because the facts do not indicate that this is a negligent entrustment case. The facts simply state that the girl’s parents assert a claim against the lumber company. Consequently, choice (A) is correct because, if thisisanegligenceaction (which itwould be if the lumbercompanywere introducing evidence to show that the truck driver was not negligent on this occasion), then the defendant’s character would not be “in issue,” and character evidence would be inadmissible. Choice (B) is incorrect, because the truck driver’s DUI guilty plea would be admissible to help prove negligence. Choice (C) is incorrect. Although evidence of insurance coverage is generally inadmissible under FRE 411 to prove negligence, it is admissible to prove other things, such as proof of ownership. For similar reasons, choice (D) is incorrect. Proof of insurance coverage can be introduced to show “agency, ownership, or control.” Under these facts, the evidence could be admissible to prove agency or control.
- Ajudge attended a local men’s club meeting. In introducing the judge to the club members, the club president said: “Gentlemen, I take great pleasure in presenting the judge, who we all know is the best judge money can buy in the city.”
The judge sued the club president for slander. If the club president pleads truth as a defense, he may not properly introduce evidence to show
(A) the judge has a reputation for dishonesty in the community.
(B) the judge was convicted of bribery three years earlier.
(C) the judge, though not convicted, embezzled money from a former employer before being elected to the bench.
(D) the judge was convicted for a felony assault 12 years earlier.
- (0) Character evidence is generally not admissible in civil actions unless character is “in issue” (i.e., where it is a material element of a charge, claim, or defense). In the following tort actions, character is said to be “in issue” and, thus, character evidence is admissible: (1) defamation, (2) deceit, (3) negligent entrustment, and (4) assault/battery where the defendant claims he acted in self-defense, in which case the plaintiff’s reputation for violence or turbulence is in issue. Since this is a defamation action, the judge’s character for honesty is “in issue” especially since the club president is pleading truth as a defense. In this regard, FRE 405 provides “In all cases in which evidence of character or a trait of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.” Thus, evidence that supports the statement in choice (A) may properly be offered, since the club president can prove that the judge has a reputation for dishonesty. FRE 405(2) states, “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” Therefore, evidence that supports the statement in choices (B) and (C) may properly be admitted because the club president can show specific instances of (mis)conduct on the judge’s part (namely that (a) he was convicted of bribery, and (b) he embezzled money) to prove his defamatory statements were truthful. The assertion in choice (D) is the only one that the club president may not introduce. The judge’s character for honesty is in issue, but the felony conviction for assault does not speak to his character for honesty. Witness impeachment by prior conviction is generally acceptable for certain crimes, but such evidence is generally inadmissible if 10 years or more have elapsed.
- Two weeks before an election, a local newspaper published an article implying that one of the mayoral candidates was a thief. The candidate subsequently lost the election and sued the newspaper for defamation. The newspaper defended on the grounds of truth. At trial, the candidate took the stand and testified that he was not a thief. Thereafter, the newspaper called a witness to testify that three years ago the candidate committed a larceny while employed at his former job.
Upon objection by the candidate’s attorney, the witness’s testimony should be
(A) excluded, because bad acts may not be proved by extrinsic evidence.
(B) excluded, because it is improper character evidence.
(C) admitted as probative evidence of the candidate’s character for veracity.
(D) admitted as relevant evidence of the candidate’s character as a thief.
- (D) FRE 405(b) provides, “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” Many students will incorrectly choose choice (B); however, choice (B) is wrong because although character evidence is generally not admissible in a civil action, there are certain exceptions. For example, character evidence is admissible in those cases in which a person’s character is “in issue” (e.g., defamation, negligent entrustment, and hiring). Since this is a defamation action, the candidate’s character is in issue and, therefore, all three forms of character evidence (opinion, reputation and specific acts) are admissible. On this very point, Lilly provides the following example: Assume that the defendant states that the plaintiff is “corrupt and dishonest”; in the resulting suit for defamation, the defendant bases his defense upon the truth of his statement. Plaintiff’s character for dishonesty and corruption is directly in issue, and the inferential chain stops with the establishment of these traits. Here, the distinguishing characteristic is that the candidate’s character trait for stealing, not veracity, is in issue. In other words, the newspaper wants to produce evidence to show that the candidate is a thief in order to sustain its defense of truth in this defamation action. That’s why choice (D) is a better answerthan choice (C). Choice (A) is incorrect, because FRE 405 permits proof of specific instances of a person’s conduct in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, as it is in this case.
- A man and a school entered into a written contract providing that the man would be employed for one year in various capacities (athletic director, teacher, football coach) in return for an annual salary of $37,750. Shortly thereafter and prior to the July commencement date of employment, the school elected to terminate its varsity football program. The school publicly attributed the decision to economic factors. Upon hearing this news, the man sought out the headmaster of the school to inquire as to the effect, if any, of this decision on his salary and responsibilities.
In order to resolve the matter, the headmaster arranged a meeting among various school officials to discuss the man’s situation. Afterward, the school sent written notice to the man of its intent to terminate his employment contract. The man then commenced suit to recover the full balance of his salary calculated on the basis of the contract. At trial, the headmaster was called to testify. On direct examination, he testified that six people (including himself) attended the meeting where it was decided to terminate the man’s employment contract. When asked to identify the attendees, the headmaster gave the names of four but, despite trying, was unable to remember the name of the fifth person.
The attorney who called the headmaster to testify now seeks to show him her handwritten notes that the attorney prepared during her pretrial interview with the headmaster, in which he provided all five names.
The trial court is likely to consider the showing of the notes taken as
(A) a proper attempt to refresh the headmaster’s recollection.
(B) a proper attempt to introduce recorded recollection.
(C) an improper attempt to support the headmaster’s credibility.
(D) an improper attempt to lead the witness.
- (A) FRE 612 clearly states that “Except as otherwise provided . . . if a witness uses a writing to refresh his memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interest of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Refreshing may be accomplished by handing the writing to the witness, accompanied by a request to the witness to read the writing to himself. Thereupon counsel retrieves the writing and repeats the question. At this point, the witness testifies from his own jogged present recollection. In this question, the headmaster’s present recollection has been exhausted, since he is unable to remember the name of the fifth person who attended the meeting to terminate the man’s employment contract. Use of the handwritten notes prepared by examining counsel in her pretrial interview is a proper attempt to refresh the headmaster’s recollection. Choice (A) is correct. Choice (B) is incorrect in this case. As the Multistate Nuance Chart below demonstrates, a key foundational element for using someone’s recorded recollection under FRE 803(5) is a failed attempt to refresh the individual’s memory. There is nothing in the fact pattern to suggest that the attorney’s effort to refresh the headmaster’s recollection has failed. Choice (C) is wrong underthese facts, because there is no indication in the fact pattern of anyone attempting either to attack or buttress the headmaster’s credibility. Choice (D) is also wrong. Showing a witness a document to refresh his or her recoLlection is not “leading” within the meaning of FRE 611.
- On Thursday, March 7, an owner’s home was destroyed by fire. The owner’s house was insured against such fire loss by an insurance company. According to the policy contract, the insured was required to notify the insurance company within 10 days following any loss due to fire or other catastrophe.
The owner sued the insurance company to recover $750,000, which was the face amount that his home was insured for. The insurance company admitted that the owner’s house was insured for that amount, though the company denied liability because it claimed that it had not received notice of the fire within the 10-day period as required by the policy.
At trial, the owner calls his bookkeeper to testify. The bookkeeper proposes to testify that on March 11, the owner handed her an envelope and told her it contained a notice form for the insurance company, and that she mailed the envelope on his behalf.
If the bookkeeper intends to establish that the envelope that the owner handed her contained the notice of fire loss, her proposed testimony is
(A) admissible, because the owner’s statement to her is non-hearsay.
(B) admissible, because a letter properly mailed is presumed received in due course.
(C) inadmissible, because the owner’s statement to the bookkeeper is not the best evidence.
(D) inadmissible, because the owner’s statement to the bookkeeper is hearsay not within any exception.
- (D) Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Here, the owner’s out-of-court statement to the bookkeeper (that the envelope contained an insurance notice form) is being offered to prove the truth of the matter stated. As a consequence, it is inadmissible hearsay. Choice (A) is, accordingly, wrong, because it states that the evidence is not hearsay. Choice (B) is interesting, but wrong. Choice (B) implicates the “mailed letter presumption,” which is that one can presume a letter reached its destination if it was properly posted. The point here is subtle, but important:
the bookkeeper is testifying about what the owner told her concerning the purpose of the letter, not the fact that she posted it on a particular date. Thus, choice (B) is incorrect. Choice (C) is also incorrect. The contents of the letter are not at issue, which is a basic requirement of FRE 1002, the best evidence rule.
- A husband is charged with the murder of his wife. The prosecution alleges that on December 17, the husband murdered his wife by giving her a massive injection of succinyicholine while she was asleep. Succinylcholine is a drug used in small quantities by anesthesiologists as a muscle relaxant. The prosecution claims that the fatal dose given to the wife so totally relaxed her lung muscles that she suffocated. Further allegations claim that the husband’s principal motive was to collect his wife’s $500,000 life insurance policy under which he was the named beneficiary.
The defense called the physician who signed the wife’s death certificate as its first witness. The defendant’s attorney asked her, “Is it not true that the cause of death was a heart attack?” The physician answered in the negative and stated that the cause of death was unknown. The husband’s attorney then assailed her testimony as a recent fabrication and asked her if she had not stated at the coroner’s inquest that the cause of death was a heart attack. The prosecution immediately objected to this question.
The trial judge should rule that this question is
(A) objectionable, because a party may not impeach its own witness.
(B) objectionable, because the husband’s attorney did not lay a proper foundation.
(C) unobjectionable, because a party may impeach its own witness by a prior inconsistent statement.
(D) unobjectionable, because the physician’s testimony at a proceeding that occurred shortly after the death would be more reliable.
- (C) In accordance with FRE 607, the credibility of a witness may be attacked by any party calling him (to testify). The common law rule against impeaching one’s own witness has been abandoned. Where the impeachment is by a prior statement, it is free from hearsay dangers. For this reason, choice (C) is correct, and choice (A) is incorrect. Choice (B) is wrong under these facts, because there is no indication that the defense failed to lay a proper foundation for the physician’s testimony. The physician’s expert testimony would be admissible under FRE 702 whereby “a witness qualified as an expert by knowledge, skill, expertise, training or education may testify thereto in the form of an opinion or otherwise.” Although choice (D) is closely related to choice (C), after all, a benefit of impeaching the physician with her prior statement is the inference that a statement made closer in time to an event is more accurate than a statement made later. Choice (D) is not the best choice because it fails to specifically address the doctrine that any party may impeach a witness.
- A toxicologist employed at the state crime laboratory testifies at a murder trial about the autopsy he performed on the victim. His testimony is that he detected traces of succinic acid and choline, the components of succinylcholine, in the victim’s brain tissues. Over defense objections, he testified further that, in his opinion, the victim’s cause of death was succinylcholine poisoning. On cross-examination, the toxicologist admitted that up until his findings, it had been universally accepted in the medical community that succinylcholine would be undetectable in the brain within a few minutes of its injection. He also admitted that his methods of detecting succinylcholine were experimental and that his results were not presently publishable because they were not complete enough. The defense attorney then makes a motion to strike the toxicologist’s testimony regarding the cause of death.
The court will most likely
(A) grant the motion, because the toxicologist’s opinion could not be substantiated.
(B) grant the motion, because the toxicologist was not properly qualified as an expert.
(C) deny the motion, because the toxicologist was qualified as an expert in medical matters.
(D) deny the motion, because he was qualified to give an opinion on the ultimate issue of the case.
- (A) With regard to facts ordata upon which expert opinions are based, FRE 703 requires that the facts or data “be of a type reasonably relied upon by experts in the particular field.” In the present case, the toxicologist admitted that his methods of detecting succinylcholine were “experimental” and that his results were incomplete and not publishable. Therefore, since the toxicologist could not substantiate his theory of death by succinylcholine poisoning, it would be struck as falling outside FRE 703. Choice (A) is also correct for another reason. FRE 702 states that an expert may give an opinion in a case if”(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Under these facts, the toxicologist’s testimony likely fails prongs (1) and (2) of the FRE 702 test. Experimental methods that have not been published and subjected to peer review are suspect under FRE 702, as well as the seminal Supreme Court case on expert testimony, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Choice (B) is incorrect, because the toxicologist meets the requirements to be qualified as an expert under FRE 702 by virtue of his knowledge, training, and experience. Choice (C) is misleading: even if an individual is qualified as an expert under FRE 702, his testimony must still satisfy the FRE 702 three-prong reliability test and FRE
703’s requirement that the underlying facts or data be of a type reasonably relied on by experts in the field. Choice (D) is aLso a misleading answer. Even though FRE 704 permits experts to testify on the ultimate issue in a case, their testimony must still satisfy FRE 702’s reliability test.
- A collector told a local coin dealer that he wished to purchase an 1804 silver dollar. The coin dealer told the collector that he would locate one of these rare coins and the cost would be approximately $40,000 plus a commission. The coin dealer successfully located and arranged for the purchase of the 1804 silver dollar. After the collector purchased the coin, a disagreement arose as to the amount of commission. The coin dealer brought suit, claiming that the agreed-upon amount was 15%. The collector contends that they agreed upon 12%.
At trial, the coin dealer introduces photocopies of company records showing that in all his previous dealings with the collector, and all other customers as well, he charged a 15% commission when asked to locate rare coins.
The court should find that the offer of this evidence is
(A) admissible, under the business records exception.
(B) admissible as past recollection recorded.
(C) inadmissible as a violation of the best evidence rule.
(D) inadmissible as hearsay not within any recognized exception.
- (A) Since the coin dealer’s records are made in the course of regularly conducted business activities, they can be admitted under the business records exception. Choice (B) is incorrect because this is not an example of past recollection recorded, under which an authenticated memorandum, made by a witness, may be read into evidence where the witness is unable to recall the facts recorded in the document. Choice (C) is wrong because under the FRE, photocopies are as admissible as original documents and, therefore, do not violate the best evidence rule. Choice (D) is incorrect, since the company records are within a recognized exception.
- A grain broker specializes in exotic grains for the growing organic-food market. Using his network of contacts across the globe, he is able to find sources for almost any kind of grain, grown anywhere in the world, to be shipped anywhere in the world. Last year, an organic food co-op asked the grain broker to find quinoa for them. The grain broker said, “I’ll do it. It’ll cost you market rate plus the commission.” The grain broker found the quinoa and had it shipped to the co-op at a cost of $15 per bushel plus a 20% commission. The co-op paid $15 per bushel plus an 8% commission. The grain broker brought suit, claiming that the appropriate commission was 20%. The grain broker introduced business records and other documentary evidence establishing that he normally charges a commission of between 10% and 20% for grains, with a higher commission for more exotic grains. The owner of the co-op called another grain broker, a competitor of the plaintiff, to testify. The witness testified that he never charges more than an 8% commission when asked to locate exotic grains for his customers.
The trial judge should rule this testimony
(A) admissible as evidence of customary business practices in the community.
(B) admissible as a proper lay opinion.
(C) inadmissible as hearsay.
(D) inadmissible as irrelevant.
- (A) This is a classic example of a Multistate cross-over testing pattern involving an interrelationship of both Evidence and Contracts principles. When answering a Contracts question that involves buyers and sellers, apply UCC rules when presented with a hypothetical involving a merchant. In this regard, course of dealing, usage of trade, or course of performance evidence may explain or supplement language in a writing, for it shows how the parties themselves interpreted their own deal. Thus, since the grain broker was a merchant, UCC Section 1-205(4) would permit evidence of customary business practices to aid in interpreting the agreement between the parties. Choice (B) is incorrect because the witness is giving fact testimony about business practices in the area, not rendering an opinion. Choice (C) is wrong because there are no out-of-court statements being offered for their truth. Choice (D) is incorrect. FRE 401 defines relevant evidence as having “any tendency to make the existence of any fact that is of consequence to the action more probable or less probable than it would be without the evidence.” The witness’s testimony about prevailing trade practices is highly relevant on the issue of the agreed-upon commission.
- A buyer filed a lawsuit against a seller based on a written contract allegedly executed at the time of the sale of the seller’s hot dog stand to the buyer. Under the terms of the contract, the seller agreed not to open a hot dog stand for a period of two years within a distance of two miles of the old hot dog stand, now owned by the buyer. The buyer alleged in his complaint that the seller violated the contract by opening a hot dog stand one-half mile from the old location. The original contract was lost prior to trial. At trial, the buyer wants to introduce a duplicate carbon copy of the written contract. The seller objects as to the authenticity of the original written contract.
The copy is
(A) inadmissible, because the seller contests the authenticity of the written contract.
(B) inadmissible, because the best evidence rule requires that the original contract always be used as evidence.
(C) admissible, because the duplicate is a carbon copy.
(D) admissible, because the original contract was lost.
- (A) Under FRE 1003, a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Therefore, if the seller contests the authenticity of the original written contract, the duplicate introduced by the buyer would not be admitted into evidence in accordance with subsection (1) of FRE 1003. Choice (B) is an incorrect rule of law. The best evidence rule does notalways require that the original document be used as evidence. If the original document is (1) lost or destroyed, (2) not obtainable by judicial process, or (3) in the possession of an opponent who refuses to produce the original at trial, other “secondary” evidence of the writing, recording, or photograph is admissible. See FRE 1004. Choice (C) is not the best answer. Although duplicate copies are generally admissible to the same extent as originals under FRE 1003, there are exceptions to this rule. Choice (A) correctly states an exception that applies to this fact pattern, whereas choice (C) merely states the general rule. Choice (D) is misleading. The key issue is that the seller contests the authenticity of the original, an issue that brings this question squarely within FRE 1003’s rule on the use of duplicates.
- One afternoon a motorist was driving her car when she struck a pedestrian who entered the intersection. The pedestrian was seriously injured in the accident and sued the motorist to recover damages for personal injuries. There were no witnesses to the accident. The motorist claims that the traffic light was green at the time she entered the intersection. The pedestrian now has amnesia and cannot remember how the accident occurred.
At trial, the pedestrian’s attorney calls a witness to testify. The witness proposes to testify that she was in the emergency room at the hospital when the pedestrian was brought in following the accident. The witness further testifies that while the pedestrian was being treated for his injuries, the nurse asked him, “How did you get hurt?” The pedestrian replied, “The car ran the red light and struck me as I was walking through the intersection.”
Upon objection, this evidence is
(A) admissible as a statement made for purposes of medical treatment and diagnosis.
(B) admissible as a present sense impression.
(C) inadmissible, because the witness was eavesdropping on a confidential communication between the pedestrian and a hospital representative.
(D) inadmissible, because it is hearsay not within any recognized exception.
- (D) Hearsay is defined under FRE 801(c) as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The witness’s testimony as to the pedestrian’s out-ofcourt reply to the nurse’s question is hearsay, since it is being offered for its truth; namely, to prove that the motorist’s car ran a red light. By process of elimination, choice (D) is correct. The pedestrian’s reply is inadmissible as hearsay, since no exceptions apply. Choice (A) is incorrect because, under FRE 803(4), a statement made for purposes of medical diagnosis or treatment must describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” However, statements pointing to persons responsible for the condition are considered irrelevant to medical diagnosis or treatment and do not fall within the exception. Federal Rules of Evidence Manual p.830. The pedestrian’s statement implicated the motorist and will, therefore, be inadmissible as a statement relating to the cause of the accident. Choice (B) is incorrect because, under FRE 803(1), a present sense impression must describe or explain an event or condition white the declarant was perceiving the event or condition or immediately thereafter. Here, the pedestrian’s statement was made in the emergency room fottowingthe accident. Choice (C) is incorrect because the presence of a non-essential third person, such as the witness, would destroy whatever confidentiality existed between the pedestrian and the nurse.
- A driver has been charged with leaving the scene of an accident. The driver allegedly hit another car in a parking lot and drove away without leaving proper insurance and contact information. A bystander wrote down her license plate number and called the police. At trial, the driver proposes to testify that the day after the accident, she met with the police officer investigating the accident, and told him that she did not leave until after she had inspected both cars and determined there was no damage. The bystander is not available to testify at trial.
The driver’s testimony is
(A) admissible, because it is the statement of the witness herself, who is subject to cross-examination.
(B) admissible, because it is a statement based on firsthand knowledge.
(C) inadmissible, because the bystander is unavailable and, therefore, cannot contradict the driver.
(D) inadmissible, because it is hearsay not within any recognized exception.
- (D) In this case, the driver is the out-of-court declarant proposing to testify as to the truth of the matter asserted that she only left the scene after determining there was no damage to either vehicle. As in the previous example, the statement itself is hearsay and will be inadmissible, since no exceptions apply. Choice (D) is, therefore, correct. Choice (A) is incorrect because the driver is proposing to testify in court as to what she said at another prior time out of court. The driver’s prior statement is, therefore, hearsay, despite the fact that she is both the witness, as well as the out-of-court declarant. By the same reasoning, choice (B) is incorrect because the driver is not actually testifying as to firsthand knowledge; rather, she is quoting herself. Choice (C) is incorrect because the rules of evidence do not predicate the admissibility of evidence on the availability of witnesses to contradict it.
- While walking across the street one afternoon, a pedestrian was hit by a car and thrown down in the middle of the intersection. The driver of the vehicle did not stop. Although he never lost consciousness, the pedestrian was in excruciating pain and has been taking strong painkillers since the accident that have affected his memory of the accident. At trial, the pedestrian calls a renowned hypnotist to testify. The hypnotist proposes to testify that after he placed the pedestrian under a hypnotic spell, the pedestrian gave a detailed account of the accident and told the hypnotist that the driver ran a red light and that the driver’s license plate number was GIJO-7 14. The driver concedes that his license plate number is
GIJO-7 14.
The hypnotist’s proposed testimony will most likely be held to be
(A) admissible, because the license plate identification substantiates that the other information is accurate and trustworthy.
(B) admissible, because it is a statement of past recollection refreshed.
(C) inadmissible, because it is hearsay not within any recognized exception.
(D) inadmissible, because statements procured through hypnosis cannot be authenticated as truthful.
- (C) The hypnotist’s testimony as to what the pedestrian told him while under the hypnotic spell, is an out-of-court assertion being offered for its truth. The statement will be inadmissible as hearsay, since no exceptions apply. Because the hypnotist’s testimony is inadmissible hearsay, the corroborating evidence of the driver’s license plate number does not matter. Thus, choice (A) is incorrect. Choice (B) is wrong because the foundational elements of past recollection refreshed have not been met. Past recollection refreshed under FRE 612 applies only when an attempt is made to refresh the recollection of a testifying witness. Here, the pedestrian is not testifying. Choice (D) asserts that hypnotically refreshed testimony that cannot be authenticated may be true, but authentication (orthe lackthereoO does not matter if a statement is inadmissible hearsay under the rules. Choice (0) is incorrect.
- Under the Federal Rules of Evidence, which of the following items of evidence is NOT self- authenticating?
(A) A pamphlet on air safety regulations that a plaintiff claims is an official publication of the Federal Aviation Administration.
(B) A copy of a magazine that a plaintiff claims contains a libelous picture.
(C) A holographic will without attesting signatures that a plaintiff claims was written by her mother in her own handwriting.
(D) A certified copy of his car registration form that, according to a plaintiff, verifies his ownership of the vehicle.
- (C) Choice (C) is correct, since an unattested holographic will of the plaintiffs mother will not be self-authenticating. Under FRE 902, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) domestic public documents under seal; (2) certified genuine foreign public documents; (3) certified copies of public records—such as the certified copy of the car registration form in choice CD); (4) official publications—including books and pamphlets issued by public authority—such as the Federal Aviation Administration pamphlet on air safety regulations in choice (A); and (5) newspapers and periodicals—such as the copy of a magazine in choice (B).
- An owner of a storage facility stores flammable gases under high pressure in large spherical tanks. The facility was constructed for the owner by a company that specializes in the construction of such facilities. After the facility had been in use for three months, one of the tanks ruptured, causing a spillage and loss of the chemicals. The owner sued the company for strict liability, claiming that the storage tank had been defectively manufactured.
At trial, the owner called a photographer who testified she was hired by the owner to photograph the ruptured tank after the accident. She further testified that the roll of film was sent to a commercial film lab where the photographs were developed. Thereupon, the owner’s attorney showed the photographer the photographs, which she identified as the ones she had taken and given to the Owner.
The owner’s attorney offers 10 photographs into evidence. Upon objection by the company’s counsel, which of the following, if true, is the best reason to exclude the photographs from evidence?
(A) The photographer was not shown to be an expert or professional photographer.
(B) There was an unaccountable break in the chain of custody from the time when the photographs were taken to the period when the negatives were processed.
(C) There was no testimony that the photographs accurately portrayed the ruptured tank.
(D) The photographs are not the best evidence to prove how the tank ruptured.
- (C) To authenticate a photograph, it is always required that the proponent establish that the pertinent parts of the picture are a reasonable and accurate representation of the subject pictured. This requirement may be satisfied if a witness (not necessarily the photographer) has observed the scene and testifies that the picture is an accurate representation. Lilly, Law of Evidence, p.423. Choice (C) is the best answer to exclude the 10 photographs. Lack of proper authentication would preclude admissibility if no testimony were offered that the photographs accurately portrayed the ruptured tank. Choice (A) is incorrect because there is no requirement under the rules that a photographer be qualified as an expert or professional photographer. Choice (B) is wrong for two reasons: (1) it is predicated on facts that are not contained in the fact pattern; and (2) even if there were a break in the chain of custody, it would still be possible to authenticate the photographs as reasonably and accurately representing the ruptured tank. Choice (D) is wrong. The best evidence rule only applies when the contents of a writing, recording, or photograph are at issue. See FRE 1002.
- A woman was sailing in a bay when she was struck by a motorboat. The woman, who was seriously injured in the accident, sued the motorboat operator in a personal injury action. During the course of the lawsuit, an important question of consequence was the wind speed on the afternoon the woman was sailing.
At trial, the woman calls an orthopedic surgeon to testi1’. The surgeon, who is an amateur boating enthusiast, testified that he was navigating his sailboat into the bay when the motorboat hit the woman. Furthermore, the surgeon testified that in the cockpit of his boat he maintains a sophisticated electronic weathering device that measures wind speed, temperature, and barometric pressure at periodic intervals. The woman then offers into evidence the computer printout from the surgeon’s weathering device measuring the wind speed at the time of the accident.
Upon objection by the motorboat operator, the printout is
(A) admissible as past recollection recorded.
(B) admissible as the record of regularly conducted activity.
(C) inadmissible as hearsay not within any recognized exception.
(D) inadmissible, unless there is foundation testimony as to the accuracy and good working condition of the surgeon’s electronic weathering device on the afternoon in question.
- (D) In the woman’s personal injury action against the motorboat operator, her witness, the surgeon, is offering into evidence a computer printout from his sophisticated electronic weathering device measuring wind speed. Regarding this computer printout, students should begin by understanding that under FRE 1001(3), “If data are stored in a computer or similar device, any printout or other output readable by sight, is an ‘original’.” There is no best evidence problem as to the admissibiLity of the computer printout. Next, a foundation for the authenticity of the scientific wind device must be laid. Under the original Frye v. United States standard, scientific evidence is admissible where the device or principle from which the deduction is made is “sufficiently established to have gained general acceptance in the particular fieLd.” McCormick, pp. 610—614. Choice (D) is correct. Choice (A) is incorrect because the “past recollection recorded” hearsay exception requires a human witness. Choice (B) is wrong; it describes the business records exception of FRE 803(6), which is not at issue here. Choice (C) is wrong because hearsay under the rules requires either a human declarant or, in the case of computer records, input generated by a human being. According to Mueller & Kirkpatrick’s treatise on evidence, “when information provided by machines is mostly a product of mechanical measurement or manipulation of data by common scientific or mathematic techniques, hearsay concerns are usually addressed by requiring the proponent to show the machine and its functions are reliable, that it was correctly adjusted or calibrated, and that basic data put into the machine are accurate.” Christopher Mueller& Laird Kirkpatrick, Evidence § 8.11 (3d ed. 2003). Mueller& Kirkpatrick go on to explain that when the output of a machine depends on human input, regular hearsay concerns apply.
- A shopper suffered injuries to her back and legs when she slipped on a loose piece of carpeting in a hallway connecting a department store and a cafeteria.
The shopper brought suit against the owner of the entire building. The owner claimed that since he leased the cafeteria, he no longer retained any control over the connecting hallway.
If the shopper offers into evidence the fact that two days after the accident, the owner had the hallway carpet re-laid, the court should rule that the evidence is
(A) admissible, because it is relevant to the issue of the owner’s knowledge of the unsafe condition.
(B) admissible, because it shows that the owner retained ownership and control.
(C) inadmissible, because it shows subsequent repair, which is against public policy.
(D) inadmissible, because the evidence is irrelevant to the accident.
- (B) ALthough evidence of subsequent repair is usually excluded because its basic relevancy is outweighed by public policy considerations, evidence of subsequent remedial measures is admissible for the Limited purpose of showing ownership or control. Choice (A) is incorrect. One of the policies underlying Rule 407 is to encourage owners to repair unsafe conditions. Permitting a jury to infer that repair of an unsafe condition equates to knowledge it was unsafe at the time of the accident would discourage owners from making repairs. Although choice (C) is a true statement, it is not the best answer in this case because the exception to show ownership or control applies more specifically to the fact pattern. Choice (D) is incorrect. The evidence is relevant under FRE 401.
- A man and a woman are tennis partners who play regularly. Last January, the man slipped and fell while restocking grocery shelves at work. The man is suing the grocery store for damages, claiming that he suffers from pain in his back and legs as a result of the accident. At trial, the woman testified that five days prior to the accident, the man told her, “I can’t complete the tennis match because of pains in my back and legs.”
The trial judge should rule this testimony
(A) inadmissible as hearsay.
(B) inadmissible as opinion testimony.
(C) admissible as a proper lay opinion.
(D) admissible as a statement of bodily condition.
- (D) As a general rule, a declaration of a physical condition (e.g., “I have pains in my back and legs”) is admissible as an exception to the hearsay rule under FRE 803(3) (then-existing mental, emotional, or physical condition). Choice (D) is, therefore, correct. Choice (A) is wrong. The statement is hearsay, but it is admissible under a recognized hearsay exception. Choices (B) and (C) are incorrect for similar reasons. The man’s statement is a description of his physical condition, not a statement of opinion.
- A man works at a tire warehouse, where his job duties consist of loading tires onto trucks. The job is exhausting, and the warehouse is always short of personnel. One day, while loading a heavy tractor tire onto a truck by himself, he experienced a sharp and excruciating pain in his lower back. He did not report the incident to his employer, but continued to work. A week later, after work, he went to the doctor for treatment. The man then sues his employer, alleging that the employer failed to provide him with adequate assistance, safety equipment, and training to load heavy tractor tires, thereby contributing to his injury. The employer alleges that the man is merely trying to obtain compensation for an old back injury, unrelated to his employment.
At trial, the man’s doctor testified that the man told her that his back began hurting while he was loading the tire on the truck. The doctor’s testimony is
(A) admissible as expert testimony.
(B) admissible as a statement for the purposes of medical diagnosis.
(C) inadmissible as a violation of the physicianpatient privilege.
(D) inadmissible as hearsay not within any recognized exception.
- (B) Statements made to assist a physician in diagnosing or treating a physical condition are hearsay and require the exception listed in choice (B) in order for them to be admissible. Choice (A) is wrong because the doctor is repeating the man’s statement and not giving his expert opinion. Choice (C) is incorrect because the doctor’s testimony, in such a situation, does not violate the doctor-patient privilege. Choice CD) is incorrect; although the statement is hearsay, it does meet an exception and is admissible.
- A defendant was being prosecuted on a charge of manslaughter in the first degree for causing the death of a 15-year-old girl on whom he had allegedly performed an abortion in his private clinic.
A witness for the defendant testified to the defendant’s non-culpability at the grand jury proceeding. The witness was later called as a defense witness at the trial. During his direct examination, defendant’s attorney asked him, “Is it not true that the defendant could not have performed the abortion on the decedent since he was assisting you in another abortion at the time?” The witness answers in the negative and states that the defendant did, in fact, perform the abortion on the girl.
The defendant’s attorney then assails the witness’s testimony as a recent fabrication, and asks the witness if he had not stated to a grand jury that the defendant was not guilty of performing the abortion, thus causing the death of the girl. The prosecutor objects to this question.
The trial judge should rule that this question is
(A) objectionable, because the defendant’s attorney did not lay a proper foundation for impeaching his own witness.
(B) objectionable, because a party may not impeach his own witness.
(C) unobjectionable, because a witness’s testimony before a grand jury is more reliable because it occurred shortly after the abortion was allegedly performed.
(D) unobjectionable, because a party can impeach his own witness by a prior inconsistent statement.
- (D) In accordance with FRE 607, the credibility of a witness may be attacked by any party, including the party calling him. The common law rule against impeaching one’s own witness has been abandoned. Where the impeaching is by a prior statement in a grand jury proceeding, it is free from hearsay dangers and is excluded from the category of hearsay under FRE 801 (d) (1)(A). For similar reasons, choice (B), which states that a party may not impeach its own witness, and choice (A), which claims that the attorney did not lay a proper foundation for impeachment, are the wrong choices. Choice (C) is incorrect. The issue in impeachment by prior inconsistent statements is not the reliability of the prior statement, but the fact that the witness has made inconsistent statements on the same matter.
- While undergoing a routine plastic surgery procedure, a patient died on the operating table. The patient’s husband is suing the plastic surgeon alleging malpractice. Two years later, at trial, the defense called another doctor as an expert witness. The expert witness testified that the patient’s death was a freak accident and that the surgeon’s performance met the highest standards for medical care. On cross-examination, the plaintiff’s attorney brings out the fact that, one week before trial, the expert witness and the surgeon signed an agreement to become partners in an outpatient plastic surgery clinic. The plaintiff’s attorney suggests that the expert’s testimony was awfully convenient and likely motivated by his desire to maintain a good relationship with the defendant. The defendant then calls another surgeon at the hospital as a witness. He is asked to tell the jury about a conversation he had with the expert inunediately following the patient’s death. The witness stated that “the expert told me the patient’s death was a textbook example of a freak accident and there was nothing anyone could have done to prevent it.”
On objection to this testimony, defendant’s attorney seeks a ruling on the admissibility of this question and answer. The trial judge should
(A) sustain the objection, because the testimony is hearsay.
(B) overrule the objection, because a witness’s veracity may be rehabilitated by a prior consistent statement.
(C) sustain the objection, because a prior consistent statement cannot be used to rehabilitate a witness’s testimony.
(D) overrule the objection, because the expert’s statement is a statement against interest.
- (B) Generally, the prior consistent statements of a witness are not admissible to support the witness’s testimony at trial. However, where the testimony of a witness is assailed as a “recent fabrication,” it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed. Prior consistent statements used for this purpose are not hearsay under FRE 801(d) (1). Because prior consistent statements are not hearsay under FRE 801(d)(1), choice (A) is incorrect. Choice (C) is wrong: as discussed above, prior consistent statements can be used to rehabilitate a witness’s testimony. Choice (D) is incorrect, for two reasons: (1) the statement was not against the expert’s interest; and (2) in orderto use the statements-againstinterest hearsay exception of FRE 804(b)(3), the decLarant must be unavailable. The expert, having just testified in the trial, is available.
- A defendant was charged with vehicular battery after driving through a red light and crashing into a woman’s small convertible. The woman suffered massive internal injuries and lapsed into a coma for several hours after she reached the hospital. The woman’s best friend, who was a passenger in the car, miraculously received only a few minor bruises. After the collision, the passenger stayed with the woman trying to comfort her until the ambulance arrived.
At trial, the passenger is called to testify. ‘While on the witness stand, she gazes with sorrow at the woman, who is still wearing a cast on her leg. The passenger testifies that the first thing she remembered seeing after the accident was the woman’s bloodied body trapped in the mangled wreckage. The state’s attorney then asked the passenger if the woman said anything to her before being taken to the hospital. The passenger answered, “Yes, she told me: ‘I know I’m dying. Why did he have to run that red light?”
Upon objection by the defendant’s attorney, the court should rule the passenger’s testimony
(A) admissible, because it is irrelevant that this is not a homicide case.
(B) admissible, because the woman believed her death was imminent when she made the declaration.
(C) inadmissible, because of the close relationship between the woman and the passenger.
(D) inadmissible, because it is hearsay not within any recognized exception.
- (A) In order for a dying declaration to be admitted, the dec(arant must be unavailabLe to testify. In this example, the dying declaration exception is inapplicable because the woman is not unavailable. In accordance with FRE 804, the dying declaration exception is not excluded by the hearsay rule if the declarant is unavailable as a witness. Since the woman is in court and available as a witness, choice (B) is wrong. Consequently, choice (A) is correct because her statement, “I know I’m dying,” is admissible under FRE 803 as a statement of then-existing physical condition. In addition, her statement, “Why did he have to run the red light?” is not excluded by the hearsay rule because, under FRE 803, it qualifies as a present sense impres. sion. Note that in regard to the hearsay exceptions classified under FRE 803, the availability of the declarant is immaterial. Choice (C) is incorrect. The relationship between a hearsay declarant and a witness is immaterial in determining the admissibility of the hearsay statement. Choice (D) is also incorrect because, although the statement is hearsay, it fits within recognized hearsay exceptions.
- A victim was standing on a street corner waiting to make a drug buy. The drug dealer was always late, so the victim continued to wait outside in the freezing cold weather because he needed a quick fix. Suddenly a car rounded the street corner and a shot rang out. The victim slumped over and fell to the sidewalk. Immediately after being shot and before he died, the victim exclaimed, “The defendant did it!” The defendant was indicted and is now on trial for the victim’s murder.
Based on these facts alone, the admissibility of the victim’s statement should be determined by
(A) the jury, after a preliminary determination by the judge.
(B) the jury, without a preliminary determination by the judge.
(C) the judge, with instruction to the jury that it may consider the dying declaration if it determines that the victim knew he was dying.
(D) the judge, without assistance from the jury.
- (D) FRE 804 (B) (2), also referred to as the “dying decLaration exception” to the hearsay rule, provides that “in a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule if the declarant is unavailable as a witness.” Note two important points in regard to the dying declaration exception: (1) the FRE has broadened the traditional use of dying declarations in prosecutions for homicide by now allowing such statements to be utilized in civil cases; and (2) in accordance with the FRE, the declarant does not need to die in order for his statement “made under belief of impending death” to be deemed admissible. Rather, the requirement that must be met is that the declarant be unavailable to testify. Choices (A), (B), and (C) all misstate the proper roles of the judge and the jury pertaining to the admissibility of evidence. According to FRE 104(a), questions concerning the admissibility of evidence “shall be determined by the court [judge].” Choice (D) is the only answer that correctly states the role of a judge in determining the admissibility of evidence.
- A defendant, on trial for robbery, took the stand and testified in his own behalf. On cross-
examination, the prosecuting attorney asked the defendant whether he had committed false pretenses by making long-distance telephone calls by the unauthorized use of a credit card number. The defendant replied, “That’s a lie, I never did.” In rebuttal, the prosecuting attorney called the court officer to testif’ that the defendant admitted committing false pretenses. The court officer further testified, however, that the defendant was granted immunity from prosecution in exchange for his testimony against others.
The court officer’s testimony is
(A) admissible, as bearing on the defendant’s credibility.
(B) admissible, as bearing on the defendant’s guilt.
(C) inadmissible, because the testimony is extrinsic evidence.
(D) inadmissible, because the court order is the
best evidence.
- (C) In accordance with FRE 608 (b), specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, otherthan conviction of crime as provided in FRE 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross- examined has testified. Choice (A) is incorrect, because of the prohibition against using extrinsic evidence. Choice (B) is also incorrect. Although the evidence does have a bearing on the defendant’s guilt, the rules prohibit using it. Finally, choice (D) is wrong because the contents of the court order are not in dispute; therefore, the best evidence rule is inapplicable.
- In a suit by an investor against a speculator, a relevant fact is the price of gold as quoted on a specific date 20 years ago. The investor calls a librarian to authenticate the microfilm copy of a newspaper from that date. This copy, kept in the archives of the public library, is the only record of that particular issue of the newspaper.
The microfilm is
(A) admissible, to prove the price of gold on that day.
(B) admissible as an ancient document.
(C) admissible as past recollection recorded.
(D) inadmissible as not the best evidence.
- (A) Under FRE 1003, duplicates of a document are generally admissible to the same extent as the original. According to FRE 1001(4), a duplicate includes a photographic miniature. Thus, a microfilm of the newspaper would be considered a duplicate and would be admissible as an original under FRE 1003. Choice (B) is not a bad answer—the ancient documents exception of FRE 803(16) permits the admissibility of statements in a document more than 20 years old, the authenticity of which is established, but choice (A) is a better answer because the use of a microfilm copy of the newspaper raises issues regarding the admissibility of duplicates. Choice (C) is incorrect. The past recollection recorded exception applies when a witness on the stand is unable to remember an event but made a record of it close to the time of its occurrence. Choice (D) is wrong because it misstates the best evidence rule.
