Articles 1 & 11: Preliminary matters (101-106: 1101-1103)

Question 1

T/F:
1. P has filed a products liability case arguing that a morning sickness pill for pregnant mothers, Benedectin, caused a birth defect in her child. The D may file a pretrial motion in liming asking that the court exclude the unreliable testimony of P’s expert under Rule 104(a), rather than the lesser standard of conditional relevancy for the jury under Rule 104(b). (Daubert case)

Answer 1

True

-expert testimony is a complex issue for the judge

Question 2

T/F:
2. If the trial judge believes that the prosecution has not proven by a preponderance of the evidence that a W actually observed the murder, but believes that the prosecution has introduced sufficient evidence that a reasonable juror could find that the W did see the murder, she should admit the evidence and instruct the jury that it is their responsibility to decide whether the witness truly witnessed the murder (Rule 104b)

Answer 2

True

• for the jury b/c it involves first hand knowledge
• falls under 104(b)

Question 3

T/F:

3. An appellate court must reverse a trial court’s judgement if the judgement is based upon evidentiary error, even if counsel failed to object to the inadmissible evidence during the trial. (Rules 103(a)(1) and (103)

Answer 3

False

• counsel has to make (1) timely AND (2) specific objections
• if you don’t do this, the only way to be reversed on appeal is plain error

Question 4

T/F:

4. When a trial judge erroneously admits hearsay testimony, over a valid hearsay objection of the party against whom that testimony is offered, the appellate court must reverse.

Answer 4

False

• 103(a)
• doctrine of harmless error - only reverse if they think the evidence could have made a difference
• more likely it will be found to be a harmless error

Question 5

5. T/F: Prosecution for drunk driving. The arresting officer testifies that the D admitted that he was driving. The D denies ever making the statement. If the judge believes the D, but concedes that reasonable jurors could find otherwise, he can exclude the statement because credibility is an issue for the court under Rule 104(a).

Answer 5

False

-issues of first hand knowledge and credibility are issues for the jury 104(b)

Question 6

T/F:

6. The P offers oral testimony as to the content of a document. The D objects that the evidence is “incompetent, irrelevant, and immaterial.” The judge overrules the objection. ON appeal, the D can raise the “best evidence objection”

Answer 6

False

• Rules 103(a)(1) and 103(d)
• if you say 3 words, it’s redundant at best
• if you don’t say “best evidence” you can’t raise “best evidence” on appeal

Question 7

T/F:
7. Evidence that is otherwise inadmissible may be admitted if the opponent “opens the door” by offering inadmissible evidence on the same subject.

Answer 7

True

-called invited error

Question 8

T/F:
8. An objection is timely if made when the grounds for the objection first become apparent, even though the evidence has already been admitted, but the objection should be coupled with a motion to strike.

Answer 8

True

• Rule 103(a)(1)
• you could not have anticipated that answer - so it’s a motion to strike
• if question is okay but the answer is not okay, that’s when you use motion to strike

Question 9

T/F:

9. The judge may admit inadmissible hearsay testimony if the opponent fails to object. (Rule 103(a)(1) and 103(d))

Answer 9

True

• judge may admit b/c no one has objected
• judges are supposed to sit back and let the attorneys try the case

Question 10

T/F:
10. In determining whether an out-of-court statement falls within a recognized hearsay exception such as excited utterance, a judge can consider inadmissible hearsay (Rule 104(a))

Answer 10

True

-104(a) says when you’re looking at foundational facts, the court can consider inadmissible evidence to make a decision

Question 11

T/F:
11. An offer of proof may be done by counsel’s proffer (“If permitted to testify I expect the W will state that he saw the man who shot Liberty Valence.”) or in question/answer form, in the discretion of the trial judge.

Answer 11

True

• Rules 103(a)(2) and 103(b)
• all trial attorneys have to make offers of proof to preserve
• offer of proof can be made in 2 ways:
  1. if allowed to testify, we expect this
  2. question/answer format
• offers of proof give the appellate court the information they need to evaluate whether it would have made a difference in the case
• is usually done at sidebar

Question 12

T/F:
12. When a party introduces into evidence one part of an oral conversation, an adverse party under Rule 106 may require him to introduce any other part of that conversation which in fairness ought to be considered contemporaneously with it.

Answer 12

True

• because all the rules of evidence are subject to statutory and CL analysis
• 106 applies only to writing and oral statement (even though it doesn’t say so on its face)
• rule of completeness - we’re not going to let you take things out of context

Question 13

T/F:
13. In a sentencing hearing, the D objects on hearsay grounds to the introduction of a social worker’s adverse evaluative report. Under the FRE the court should sustain the objection if the report is in fact hearsay.

Answer 13

-False

• Rule 1101(d)(3) and due process considerations
• b/c rule 1101 says the FRE don’t apply to sentencing
• although the rules don’t apply, due process always applies

Question 14

14. In a negligence action arising out of an auto accident, P’s attorney asks the W whether the D is the person who assaulted him. Before he can answer, the D objects and the court sustains the objection. P’s counsel moves on to additional matters, without preserving an answer. If P loses and appeals on the ground that the W should have been permitted to testify, the appellate court should:

A. Reverse on the ground that the trial court wrongly deprived P of the opportunity to prove an element of his prima facie case.
B. Reverse on the ground that D did not stat the grounds of his objection.
C. Affirm on the ground that P has not preserved the point for appeal by making an offer of proof.
D. Reverse because the D did not give the P an opportunity to have the question answered before successfully objecting. Rule 103(a)(2)

Answer 14

C

Question 15

15. Action for breach of K. The P is asked on cross-examination, “what did you tell the D after the K was signed?” The D objects: “Irrelevant” and the court overrules the objection. On appeal, D can argue that the court committed error in not excluding the evidence on what grounds?

A. Hearsay, b/c the question called for an out of court statement.
B. Rule 403 b/c any after the fact comment would be confusing
C. Rule 402 b/c this was the only objection
D. Rule 403 b/c the question assumes that the K was signed

Answer 15

C

• if you say relevancy, the only thing you raise on appeal is relevancy
• 402= key relevancy issue

Question 16

16. The government appeals a sentencing ruling by the court because the court refused to consider a statement obtained from the D that had been excluded from the case in chief trial on the merits. The trial court rules that because the statement had been taken in violation of Miranda warnings, it was constitutionally inadmissible for any purpose in any proceeding, including sentencing. On appeal, the court should

A. Affirm the conviction because statements taken in violation of constitutional rights are always inadmissible.
B. Reverse because the rules of evidence and statements taken in violation of Miranda rights are admissible in sentencing proceedings unless coerced or involuntary and therefore unreliable under the DPC.
C. Affirm because statements taken in violation of Miranda rights violate Rule 403 and are unfairly prejudicial.
D. Affirm because the D made a timely, specific objection that was sustained

(US v. Nichols)

Answer 16

B

• even constitutional violations are admissible in sentencing unless involuntary (then the DPC comes in)
• evidentiary rules don’t apply at sentencing

Question 17

17. The defense of a personal injury claim in closing arguments while arguing that the P was asking for a “lot of money” based upon a per diem damage calculation (i.e. so many dollars for each day of the injury) referred to iconic McDonald’s spilled coffee case where the P received 2.9 million in damages for damages for hot spilled coffee. If the P objects on 403 as confusing and unfairly prejudicial, the court should:

A. sustain the objection under relevancy and 403 because the “McDonald’s coffee” appeals to the prejudices of the jury argument and unfairly asks the jury to compare the instant case to another case the facts of which are unknown for comparative purposes.
B. overrule the objection because counsel cannot object on evidentiary grounds to closing arguments.
C. Overrule the objection because the “McDonald’s coffee” case is a commonly known fact scenario that the court may judicially notice under Rule 201.
D. Overrule the objection because counsel is not testifying in closing argument. (boyle v. Christenson)

Answer 17

A

• you have to object at openings and closing
• objection in closing is proper in order to preserve the issue for appeal