Evidence Flashcards
ALA quizzes, Kaplan Quizzes, Kaplan Qbank
A plaintiff brought suit against a car owner for personal injuries sustained in an automobile accident. The car was driven by a neighbor, who was angry that the plaintiff would not allow him to date the plaintiff’s daughter. Liability is based on a statute that assesses liability on the automobile owner for the negligent actions of those driving with the owner’s consent. The plaintiff offers the testimony of his chiropractor’s receptionist that the plaintiff told her he needed an appointment for the neck and back pain he has had for several days. The car owner’s lawyer objects.
Which of the following is most accurate?
A The court should overrule the objection, because the evidence is admissible as a present sense impression.
B The court should overrule the objection, because the evidence is admissible as a statement for purposes of medical treatment or diagnosis.
C The court should sustain the objection, because a statement of personal history is not appropriate if the declarant is available.
D The court should sustain the objection, because the receptionist is not a medical professional.
The correct answer is: The court should overrule the objection, because the evidence is admissible as a statement for purposes of medical treatment or diagnosis.
Discussion of correct answer: The statement appears to be hearsay–an out-of-court statement offered for the truth of the matter asserted. However, it should be admissible under the exception for statements made for the purpose of medical diagnosis or treatment. Note that this exception does not apply only to physicians or other licensed practitioners; it also applies to their agents.
The defendant is on trial for battery. His defense is self-defense. In his case-in-chief, he offers the testimony of a witness who testifies as follows: “I have known the victim for 25 years and in my opinion the victim is a violent man.” The prosecutor objects to the testimony.
Is the testimony admissible?
A No, because it is improper character evidence.
B No, because it is improper lay opinion evidence.
C Yes, to show the victim acted in conformity with his character for violence.
D Yes, because it is circumstantial evidence of the peaceful character of the defendant.
The correct answer is: Yes, to show the victim acted in conformity with his character for violence.
Discussion of correct answer: Although it is the general rule that character evidence is inadmissible, there are instances when character evidence is admissible to prove a relevant character trait of the victim of a battery or some other violent crime with which a defendant is charged, often to support a claim of self-defense. Here, the defendant has offered evidence of a relevant character trait of the victim of the alleged battery. It is admissible in the form of an opinion or reputation evidence. It is a proper offer of character evidence, which the prosecutor is free to rebut, if she so chooses.
A musical instrument company is sued when one of its delivery trucks is involved in an accident with a passenger car. At trial, the plaintiff asserts that the company failed to properly maintain the brakes on the delivery truck. The company calls its head mechanic to testify that all of the company’s delivery trucks undergo a safety inspection, including an inspection of the brakes, every morning before the trucks leave the yard. He supervises the inspectors, but does not perform the inspections himself, and was not present in the yard on the morning of the accident. Is the head mechanic’s testimony admissible?
a. Yes, because it is evidence of the routine practice of a business.
b. Yes, because it is evidence of the company’s propensity for safe conduct.
c. No, because the head mechanic does not have personal knowledge that the vehicle was inspected that morning.
d. No, because only personal habits are admissible to show that a defendant acted according to habit on a particular occasion.
a. Yes, because it is evidence of the routine practice of a business.
A young husband and wife were going through a divorce. While the divorce was pending, the wife moved out, and the husband remained in the marital home. During the divorce negotiations, the wife sent the husband an email that stated: “You can have all of our furniture, but remember that the bedroom and kitchen furniture belongs to my parents, and they were just letting us use it temporarily.” In the stipulated divorce decree, the wife was awarded the marital home. After the divorce was finalized, the wife returned to the home and discovered that the husband had taken all of the furniture that belonged to her parents. The husband refused to return the furniture, claiming that the furniture was a gift from the wife’s parents and was awarded to him in the divorce. The wife’s parents sued the husband for conversion of the furniture. At trial, the parents’ attorney calls the wife as a witness to testify that the furniture was not a gift to the couple. On cross-examination, the husband’s attorney asks the wife: “Why did you suddenly claim that the furniture belonged to your parents after the divorce was final?”
On redirect, may the parents’ attorney question the wife about the email that the wife sent to the husband during the divorce negotiations?
A No, because the email is inadmissible hearsay.
B No, because the wife is not a party to the litigation.
C Yes, because the email is a recorded recollection.
D Yes, because the wife’s prior consistent statement is not hearsay.
The correct answer is: Yes, because the wife’s prior consistent statement is not hearsay.
Discussion of correct answer: A statement is not hearsay when the declarant testifies about the prior statement, and the statement is a prior consistent statement that is offered to rebut a claim that the declarant recently fabricated his/her testimony. The wife testifies at trial that the furniture was not a gift and belonged to her parents. On cross-examination, the husband’s attorney implies that the wife only claimed that the furniture belonged to her parents after the divorce was final. The wife’s email to the husband during the divorce negotiations is a prior statement that is consistent with the wife’s testimony that the furniture was her parents’. Thus, the wife’s prior consistent statement in the email is not hearsay and is admissible to rebut the charge that the wife fabricated the story after the divorce.
The plaintiff owned a very successful seafood restaurant. At the end of the previous season, the plaintiff became concerned about competition from a new restaurant approximately two miles away, and so he decided to hire a quality-control administrator who would help increase customer satisfaction and profitability. As one of his first new directives, the quality-control administrator created a spreadsheet and instructed the staff to keep tallies of any service-related issues. He had three headings on the spreadsheet: (1) food sent back based on quality; (2) complaints about service in general; and (3) comments about price.
About three months later, the plaintiff learned that his seafood supplier was being paid by the competitor to deliver subpar seafood to the plaintiff and keep the best product for the competitor. The plaintiff then brought suit against the competitor for intentional interference with a business relationship. In order to prove damages, the plaintiff called the quality-control administrator to testify as to the column on the spreadsheet that showed the number of meals that were send back due to food quality.
Is the quality-control administrator allowed to testify as to the spreadsheet?
A No, because the purpose of keeping the record was not sufficiently business-related.
B No, because the spreadsheet constitutes hearsay not within any exception.
C Yes, because the spreadsheet constitutes a past recollection recorded.
D Yes, because the spreadsheet is a business record.
The correct answer is: Yes, because the spreadsheet is a business record.
Discussion of correct answer: Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. Here, the tallies are clearly written testimony being presented for the purpose of proving that the supplier was supplying the plaintiff’s restaurant with inferior seafood. Therefore, the spreadsheet is inadmissible hearsay unless it falls within a recognized hearsay exception. Because the spreadsheet was created for the purpose of improving the plaintiff’s business and not to further his litigation, it was made in the ordinary course of the plaintiff’s business. As such, it comes within the business records exception to the hearsay rule.
A homeowner purchased a lounge chair from a furniture store. Unfortunately, the chair collapsed while the homeowner was sitting on it, and he suffered a broken arm. The homeowner brought an action against the furniture store for negligence and breach of warranty.
At trial, the homeowner testified that one of the furniture store’s sales representatives told him, “We’re the only retailer of these lounge chairs that sells each chair with a money back guarantee on all parts and workmanship. The furniture store is confident in making this guarantee because specially-trained employees assemble and give each chair a 10-point inspection before delivery to the customer.”
The furniture store’s attorney called the homeowner’s aunt to the stand. On direct examination, the homeowner’s aunt testified that she happened to be at the store when the homeowner purchased the chair, that she did not recall whether or not the salesman made the warranty statement, and that she was not biased against the homeowner. The homeowner’s attorney then questioned the aunt about a bitter family dispute occurring several years ago between the aunt and her sister, the homeowner’s mother. The aunt has not spoken to her sister or her sister’s children, including the homeowner, since the dispute arose. The furniture store’s attorney objects to this line of questions by the homeowner’s attorney. Will the furniture store’s attorney succeed with his objection?
a. Yes, because this testimony addresses a collateral issue.
b. Yes, because this testimony does not have a tendency to prove or disprove any material fact.
c. No, because this testimony tends to establish the aunt’s bias.
d. No, because the testimony would be a statement of family history which fits within an exception to the hearsay rule.
c. No, because this testimony tends to establish the aunt’s bias.
A heartsick lover knew he was being foolish, but he just could not stop himself. The woman he was in love with was so beautiful, and she was so lonely with her husband in prison. She had told the lover that her husband was extremely jealous. She said that her husband was in prison because he had shot her last lover when he learned of their affair. About four months after he started seeing the woman, the lover received a telephone call from her. She seemed distraught, and cried, “My husband escaped from prison this evening, and he knows about us!” As expected, the husband called on the lover that evening. The lover shot the husband and was prosecuted for his murder. The lover claims self-defense. At trial, he attempts to testify to the woman’s statement that her husband was in prison because he had shot her last lover when he learned of the affair.
If the statement is offered to prove that the husband was in prison because he had shot the woman’s lover when he learned of the affair, should the statement be admitted?
A Yes, under the state-of-mind exception.
B Yes, as nonhearsay.
C No, as hearsay not within any exception.
D No, because it is self-serving.
The correct answer is: No, as hearsay not within any exception.
Discussion of correct answer: Under FRE 801(c), hearsay is: (1) any statement other than a statement made by the declarant while testifying at the trial or hearing in which the statement is proffered; (2) which is offered into evidence in order to prove the truth of the matter asserted. Here, this is hearsay because the question tells us that the lover offers the statement for the express purpose of proving the truth of the matter asserted, i.e., that the husband had killed his wife’s prior lover. The statement does not fall within any exception, thus it is not admissible.
The defendant is on trial for battery. His defense is self-defense. In his case-in-chief, he offers the testimony of a witness who testifies as follows: “I have known the victim for 25 years and in my opinion the victim is a violent man.” The prosecutor objects to the testimony. Is the testimony admissible?
a. No, because it is improper character evidence.
b. No, because it is improper lay opinion evidence.
c. Yes, to show the victim acted in conformity with his character for violence.
d. Yes, because it is circumstantial evidence of the peaceful character of the defendant.
c. Yes, to show the victim acted in conformity with his character for violence.
During a farmer’s trial for theft by deception, the State calls a farmhand to testify. The farmhand is the farmer’s co-defendant, who pleaded guilty and received probation for his testimony against the farmer. If the defense attorney has a good-faith basis for the question, which of the following questions may he properly ask the farmhand?
a. Have you ever been convicted of a felony?
b. Have you ever been arrested for a felony?
c. Have you ever been convicted of a misdemeanor?
d. Have you ever been convicted of perjury or disorderly conduct (a misdemeanor)?
a. Have you ever been convicted of a felony?
A criminal defendant was on trial for fraud. The defense called the defendant’s friend as a character witness. He testified that he had known the defendant for 11 years and that he had a good reputation for honesty. After testifying on direct, the prosecution did not cross-examine the witness, and he was excused from the courtroom. On rebuttal, the prosecution sought to admit into evidence an investigative report by the FBI which outlined facts that tended to show that the friend was involved in two unlawful money-laundering operations. The defendant’s attorney objected. Is the report admissible?
a. No, because the witness was not questioned about the matter on cross-examination and was excused after testifying.
b. No, because the report constitutes an improper method of impeachment by attempting to prove specific instances of conduct by extrinsic evidence.
c. Yes, because a witness may be attacked by introducing evidence of prior bad acts that bear directly on dishonesty or untruthfulness.
d. Yes, because the defendant opened the door by calling the friend as a character witness.
b. No, because the report constitutes an improper method of impeachment by attempting to prove specific instances of conduct by extrinsic evidence.
A man was driving to work when his truck collided with a car driven by a woman, who was backing out of her driveway very quickly without looking or yielding to oncoming traffic. The man subsequently filed suit to recover damages from the woman, asserting that he had severely injured his left arm in the accident and that this injury had rendered him unable to work, as he was left-handed. The woman, in turn, claimed that the man’s injury was completely unrelated to the car accident and was the result of repetitive-motion syndrome. The man’s employer required its employees to have an annual examination. The previous year, three months before the accident, the man had visited the doctor for his yearly exam. During the trial, the man testified that his injury had caused him severe pain and left him physically unable to work. He then called the doctor to the stand to testify that the man had told him during the annual exam that his previous arm problems had gone away.
Should the doctor’s testimony be admitted over the woman’s objection?
A No, because it is hearsay not within any exception.
B No, because the man did not make the statement for the purpose of medical treatment.
C Yes, because the man made the statement for the purpose of medical treatment.
D Yes, as a statement by a party-opponent.
The correct answer is: Yes, because the man made the statement for the purpose of medical treatment.
Discussion of correct answer: Federal Rule of Evidence 803(4) allows the admission into evidence of a statement made to a healthcare professional for the purpose of a present medical diagnosis or treatment, describing past symptoms or history, as an exception to the rule excluding hearsay evidence. Here, the man visited the doctor for his general physical examination, to ensure that he was healthy and able to work. As such, his statement to the doctor would probably be regarded as one made for the purpose of treatment. Therefore, the statement should be admitted pursuant to this exception to the hearsay rule.
A realtor is arrested and charged with the arson of a house. On cross-examination of the realtor, the prosecution asked the realtor whether he had been convicted of fraudulent business practices four months earlier. The defense objects to the question. Assuming that the realtor was, in fact, convicted of fraudulent business practices, will the objection be sustained?
a. Yes, because the probative value of the evidence is outweighed by the danger of unfair prejudice.
b. Yes, because the conviction of fraudulent business practices is unrelated to a charge of arson.
c. No, because the conviction can be used to show that the realtor has the propensity to lie.
d. No, because the conviction may serve as character evidence.
c. No, because the conviction can be used to show that the realtor has the propensity to lie.
A girlfriend and boyfriend, out to dinner at a restaurant, got into a heated argument. The boyfriend stood up angrily, and the woman stood up and started to leave. He followed her out, and they continued yelling at each other. They began walking on the street, where she tried to get away from him. She walked faster and faster, but he continued to follow her, yelling and gesticulating angrily. A stranger on the street saw her approaching in a panic. The girlfriend grabbed the stranger in a frenzy and begged for help, saying her boyfriend had just hit her and was chasing her.
The boyfriend was later arrested for assault. At trial, the girlfriend called as witnesses both the stranger and the girlfriend’s own best friend. The stranger planned to testify that the girlfriend had told him that her boyfriend had hit her that night. The best friend, with whom the girlfriend had been staying since the incident, planned to testify that the girlfriend had recently told her that the boyfriend had hit her. The boyfriend’s attorney objects to the testimony of both witnesses.
How is the court likely to rule?
A The testimony of both the stranger and the best friend will be admissible.
B The testimony of neither the stranger nor the best friend will be admissible.
C The testimony of the best friend will be admissible and the testimony of the stranger will be inadmissible.
D The testimony of the stranger will be admissible and the testimony of the best friend will be inadmissible.
The correct answer is: The testimony of the stranger will be admissible and the testimony of the best friend will be inadmissible.
Discussion of correct answer: A general rule of evidence is that any out of court statement offered to prove the truth of the matter asserted is inadmissible hearsay, unless an exception applies. Here, the state is trying to prove that the boyfriend assaulted his girlfriend that night after they left the restaurant, and among the evidence it seeks to introduce are two pieces of testimony concerning what the girlfriend said. Both statements, the one made to the stranger and the one made to the best friend, were made out of court, and both are offered to prove the truth of the matter asserted, that the boyfriend hit his girlfriend. Unless an exception applies, neither will be admitted. The excited utterance exception will apply to the stranger’s testimony, but not to that of the best friend. Under the excited utterance exception, a statement that would otherwise be hearsay will be admissible if it was made under the stress of a startling or exciting event. The primary requirement is that the declarant was still under the influence of the emotional stress of the event when the statement was made. Here, the girlfriend was clearly under stress when she made the statement to the stranger, as she was running from her boyfriend, frantic. When she made the statement to her best friend, however, it was many days or even weeks later, after the stress of the incident had passed. Therefore, the statement to the best friend will not qualify as an excited utterance.
A restaurant patron sued a fast-food restaurant, alleging that she slipped and fell on a grease puddle on the floor that the restaurant had negligently failed to clean up within a reasonable time. As part of her case, to show the extent of damages, the restaurant patron offered the following testimony of her boyfriend: When he asked the restaurant patron to go sailing with him the day after the accident, she replied, “Sailing, no way! It will be a wonder if I can even stand up; my backside is killing me!” Opposing counsel objects to this testimony.
Should the trial court rule that the evidence is admissible or inadmissible?
A Inadmissible, because the declarant must be unavailable for a declaration of present bodily condition to be admitted.
B Inadmissible, because a recorded recollection must be in writing.
C Admissible, as an excited utterance.
D Admissible, as a declaration of present bodily condition.
The correct answer is:Admissible, as a declaration of present bodily condition.
Discussion of correct answer:This statement about the restaurant patron’s pain is within the hearsay exception for statements of present bodily condition. The present bodily condition exception is separate from the Federal Rule of Evidence exception for statements for the purpose of medical treatment, so it need not be to a medical provider or her agent to be admissible. The declarant’s availability is immaterial for both exceptions.
A woman called 911, telling the operator that her husband had hit her, threatened her children, and was now breaking objects in the living room. Once the husband saw her calling 911, he fled, and the caller told the operator where he went. The husband was arrested and charged with assault. At trial, the woman did not testify. Instead, the prosecution called the 911 operator to play the recording of what the woman said in her call. The husband’s attorney objected to the admission of the wife’s call to the police.
How should the trial court rule?
A The statement is inadmissible, because in criminal cases, all evidence presented against the defendant must be subject to cross-examination in front of the trier of fact.
B The statement is inadmissible, because it was testimonial in nature.
C The statement is admissible, as a statement made while under the stress of a startling event.
D The statement is admissible, because it was not testimonial in nature and qualifies as an excited utterance.
The correct answer is: The statement is admissible, because it was not testimonial in nature and qualifies as an excited utterance.
Discussion of correct answer: This call would be nontestimonial in nature (it is describing current events to help police deal with an emergency), and so everything the wife said, including the identity of the attacker, would be admissible in court. Therefore, even if she does not show up in court, the prosecutor can play the tape in order to get a conviction.
A college professor is on trial for the murder of her husband. The prosecution alleges that the professor paid one of her students to kill the victim. The student told his girlfriend the day after the husband’s death, “We’re rich! I just knocked off the old man and made $100,000 for five seconds’ work.” The student was a bit too exuberant, however, and a neighbor outside overheard every word. The student mysteriously disappeared before trial. Over the professor’s objection, the neighbor testified at trial as to the student’s remarks.
Why is the neighbor’s testimony regarding the student’s remarks admissible despite the professor’s objection?
A It is a statement with circumstantial guarantees of trustworthiness.
B It is a statement by an opposing party.
C It is a statement against penal interest.
D It is an excited utterance.
The correct answer is: It is a statement against penal interest.
Discussion of correct answer: If a declarant makes a statement against his penal interest and is unavailable for trial, the statement will qualify as a statement against interest and will be admitted as an exception to the hearsay rule. The facts indicate the student has mysteriously disappeared. The student’s statement also meets this exception’s criteria that it was against the student’s penal interest when he said it and that a reasonable person would not have made the statement if it were not true. Therefore, this is the best answer.
While driving her company vehicle near a pedestrian mall, a woman came upon the scene of a three-car accident. She was so busy gawking at the damaged vehicles that she failed to see one of the victims lying on the road in front of her car. She hit and ran over the victim, who survived and sued the woman’s company. The victim offers the testimony of a witness to the incident. Referring to the woman, the witness stated, “The driver of that car ran over the victim as he was lying on the ground awaiting an ambulance, and said ‘It is all my fault, I should have been paying more attention to my driving.’” Assume for this question that the woman is available to testify.
How should the trial judge rule on the admission of the testimony?
A Admissible, as a statement against interest.
B Admissible, as a present sense impression.
C Admissible, as a statement by a party-opponent.
D Inadmissible, as hearsay not within any recognized exception.
The correct answer is: Admissible, as a statement by a party-opponent.
Discussion of correct answer: A statement will not be barred from admission by the general rule against hearsay where the statement is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed. Indeed, there is a substantial trend favoring the admission of statements relating to matters within the scope of the agency or employment. Therefore, this answer is correct, because the statement will be admitted as a vicarious statement by a party-opponent.
A woman sued her former employer for wrongful termination. During discovery, the woman’s attorney found out that the woman’s former supervisor, a key witness for the woman’s case, was terminally ill. The woman’s attorney deposed the supervisor. The employer’s attorney attended the deposition but did not cross-examine the supervisor.
If the supervisor dies prior to trial, is the supervisor’s deposition testimony admissible as substantive evidence?
A No, because the employer’s attorney did not cross-examine the supervisor.
B No, because the supervisor’s deposition is hearsay.
C Yes, because the supervisor’s deposition is former testimony.
D Yes, because the supervisor’s deposition was under the belief of imminent death.
The correct answer is: Yes, because the supervisor’s deposition is former testimony.
Discussion of correct answer: There is a hearsay exception for former testimony that applies when the declarant is unavailable to testify at trial. This exception requires that the testimony was given at a trial, hearing, or lawful deposition, and it is offered against a party who had an opportunity to develop the former testimony. The supervisor’s deposition is former testimony, and the supervisor is unavailable because she passed away. The employer’s attorney had the opportunity to cross-examine the supervisor at the deposition, and it is immaterial that the employer’s attorney chose not to do so. The supervisor’s deposition is therefore admissible substantively at trial as former testimony.
A brother and a sister were arguing about their parents’ estate, and it became a heated exchange where many long-simmering resentments exploded. The sister grabbed a lamp and threw it at her brother, and her brother then grabbed his sister and began choking her in anger and frustration. She collapsed and, realizing he had gone too far, he called 911. When the ambulance arrived, the sister was barely conscious. She was trying to speak, but the medic told her to stay calm and quiet until they could get her to the hospital or she risked death.
Moments later her neighbor came rushing in and dropped to the sister’s side, asking what happened and if she was ok. The sister mustered up every bit of energy she could and whispered to her neighbor, “Don’t worry about me, I need to tell someone that I saw my brother burn his house down last week.”
The sister was taken to the hospital and made a full recovery. Indeed, the brother’s house had burned down the week before, and he had submitted a claim with his insurance company. When the neighbor told the police about the sister’s statement, the prosecutor filed an arson charge against the brother.
At the arson trial, will the sister’s statement be admissible against the brother?
A No, because her statement does not concern the cause of her belief of imminent death.
B No, because she did not die.
C Yes, because she made the statement believing her death was imminent.
D Yes, because it is being offered in a criminal action.
The correct answer is: No, because her statement does not concern the cause of her belief of imminent death.
Discussion of correct answer: In general, a statement made out of court that is offered to prove the truth of the matter asserted is considered hearsay and will be inadmissible. There are certain exceptions, however, where testimony that is considered hearsay will be admitted. One such exception is a statement made under a belief that death is imminent. If a declarant makes an out of court statement under such a belief, and the statement is about the cause or circumstances leading to that belief, it will be admitted in a homicide or civil case if the declarant is unavailable to testify. Here, the state is seeking to admit a statement made by the sister out of court to prove the truth of the matter asserted, that the brother burned down his house. Her testimony is therefore inadmissible hearsay unless an exception applies. Although she was under a belief that her death was imminent, her statement made under that belief was not about the cause or circumstances surrounding her present condition. She made it clear that she was speaking about another incident entirely. Therefore, her statement will not qualify for this exception and will be inadmissible.
At a defendant’s trial for intoxication manslaughter, which of the following is admissible if offered to show she was intoxicated?
A The defendant’s bar receipt which was found in her car.
B The defendant’s statement to a bystander that the defendant didn’t realize how many drinks she had consumed.
C Testimony from a witness that the witness told the defendant after the accident that the defendant smelled like alcohol.
D Testimony from the bartender that the bartender told the defendant that the defendant was too intoxicated to drive.
The correct answer is: The defendant’s statement to a bystander that the defendant didn’t realize how many drinks she had consumed.
Discussion of correct answer: FRE 801 defines what constitutes hearsay and what statements are not considered hearsay. This is slightly different from the exceptions to hearsay contained in FRE 803 and FRE 804 because non-hearsay statements don’t go through the initial step of being classified as hearsay and then the second step of satisfying an exemption. One statement that is defined as non-hearsay is a statement by a party opponent if the statement is being offered against a party and was made by that party. Here, the defendant made the statement to a witness about how many drinks she had consumed. If it is being offered to show that she was intoxicated, it would be being offered by the prosecution, to which she is the party opponent. Her statement would therefore be non-hearsay and admissible at trial.
A heartsick lover knew he was being foolish, but he just could not stop himself. The woman he was in love with was so beautiful, and she was so lonely, with her husband in prison. She had told the lover that her husband was extremely jealous. She said that her husband was in prison because he had shot her last lover when he learned of the affair. About four months after he started seeing the woman, the lover received a telephone call from her. She seemed distraught, and cried, “My husband escaped from prison this evening, and he knows about us!” As expected, the husband called on the lover that evening. The lover shot the husband and was prosecuted for his murder. The lover claims self-defense. At trial, he attempts to testify to the woman’s statement that her husband was in prison because he had shot her last lover when he learned of the affair.
If the statement is offered to prove that the husband was in prison because he had shot the woman’s lover when he learned of the affair, should the statement be admitted?
a. Yes, under the state of mind exception.
b. Yes, as non-hearsay.
c. No, as hearsay not within any exception.
d. No, because it is self-serving.
c. No, as hearsay not within any exception.
A woman served for several years as the CEO of a successful Fortune 500 company until she was forced out by the board of directors. The company was involved in some environmental litigation against a group of public interest plaintiffs. Shortly after her resignation, and after she had moved to a different job, she wrote a letter to one of the plaintiffs that contained the following language, “We both know this litigation has dragged on too long. I’ve kept a secret for a long time, but I think it’s time you should know. Our company was responsible for dumping toxic waste in the protected wetland. We did everything we could to hide it from you, but it’s time you knew the truth. We did it, and we knew what we were doing.”
Is the woman’s letter admissible against the company in the environmental litigation?
A Yes, because it is a statement against interest.
B Yes, because it is a statement by a party-opponent.
C No, because the statement was not made at or near the time of the incident.
D No, because it is hearsay not within any exception.
The correct answer is: No, because it is hearsay not within any exception.
Discussion of correct answer: While it is tempting to claim that this is a vicarious statement by a party-opponent by an authorized agent, the problem with that theory is that the woman did not make the statement while she was employed by the company. In fact, she made it after her employment had ended. The statement might well be true, but she cannot bind the company by her statements the way that she could while she was still acting as CEO. The law permits agents of a company to bind the company with their statements while they are still an agent or employee. Once that relationship has ended, the person no longer has the ability to make a vicarious statement on behalf of the company. In this case, the woman was forced out as CEO and could have an incentive to be untruthful so as to hurt the company.
A plaintiff sued a defendant for injuries suffered in a fall on the sidewalk of the defendant’s home. The plaintiff’s complaint alleged that the walk was covered by a thick sheet of ice, which had been negligently left there for several days by the defendant. In his answer, the defendant set forth that the ice formed overnight and that the plaintiff fell before the defendant had a chance to remove it. During the trial, a physician, whose office was next door to the defendant’s home, testified that he saw the plaintiff fall and that the ice, which had been there for several days was at least two inches thick. On cross-examination, counsel for the defendant asked the physician the following question: “During your treatment of the plaintiff on the day in question, is it not true that he told you his fall resulted from a loss of equilibrium after he suffered from dizziness?”
Upon objection by the plaintiff’s attorney, how should the court rule on the physician’s testimony?
A Admissible, because it is reasonably pertinent to diagnosis or treatment.
B Admissible, because the physician had personal knowledge of the plaintiff’s injuries.
C Inadmissible, because the defendant’s counsel failed to lay a proper foundation.
D Inadmissible, because the physician’s testimony is not relevant to prove that the plaintiff’s alleged injuries are false or exaggerated.
The correct answer is: Admissible, because it is reasonably pertinent to diagnosis or treatment.
Discussion of correct answer: The Federal Rules of Evidence allows not only statements of past symptoms and medical history as exceptions under the hearsay rule, but also the cause or source of a patient’s past physical condition, insofar as it is reasonably pertinent to diagnosis or treatment. In this regard, the plaintiff’s statements to the physician would be admissible as reasonably pertinent to diagnosis and/or treatment regarding the cause or source of his injuries.
A husband and his wife recently put a down payment on a plot of land on which a developer planned to construct new homes. The contract between the husband and wife and the developer contained a “satisfaction guarantee” clause. Upon closing, the husband discovered that the house did not meet their specifications. The husband and wife brought suit against the developer, seeking specific performance. At trial, the developer’s attorney sought to question the wife as to whether she and her husband ever discussed any details of their soon-to-be home. The wife’s attorney objected to this question. Assuming that the state in which this trial is being held recognizes a privilege by one spouse not to testify against another spouse in a civil action, how should the judge rule on the objection?
a. Overruled, because the privilege of marital communications is lost when both the husband and the wife are parties to a suit.
b. Overruled, because the wife waived any objection to such testimony by taking the stand.
c. Sustained, because the question solicited information concerning private conversations between the husband and the wife.
d. Sustained, because the wife cannot be compelled to testify against the husband under any circumstance.
c. Sustained, because the question solicited information concerning private conversations between the husband and the wife.
A man was prosecuted for armed robbery of a local convenience store. The robber had been extremely unkempt, with long hair and a scruffy beard. The store clerk identified him in a photo lineup. At trial, the alleged robber wore a suit and tie, was clean-shaven, and had short hair. The prosecutor then showed the store clerk a group of photographs. The clerk testified that she had previously told the prosecutor that the third photograph was a picture of the robber. The third photograph was a picture of the suspect, with long hair and a beard.
Should the clerk’s testimony be admitted?
A No, because it violates the suspect’s confrontation rights.
B No, as hearsay not within any exception.
C Yes, as a prior identification.
D Yes, as a recorded recollection.
The correct answer is:Yes, as a prior identification.
Discussion of correct answer:The evidence is admissible as a prior identification. Federal Rule of Evidence 801(d)(1)(C) classifies a prior identification of a person, made after perceiving that person, as nonhearsay if the declarant (eyewitness) is available to testify and be cross-examined. Thus, the store clerk may testify that she earlier identified the defendant, and the prior identification may be used as substantive evidence.
A new husband and wife took a ferry ride on their honeymoon. As they were descending the observation deck, the husband slipped on some water on the stairs. The husband alleged that he sustained severe back injuries from the fall, and he sued the ferry owner. Although the ferry owner admitted that the husband was injured by slipping on the water, the ferry owner denied negligence and claimed that the husband was contributorily negligent. The wife died before the trial. At trial, the ferry owner called the ferry captain to testify that just before the husband fell, the captain heard someone call out, “Be careful, the stairs are wet.” The husband offered into evidence his wife’s deposition testimony that “I did not hear anyone warn my husband about the water on the stairs.”
Is the deposition testimony admissible?
A No, because the wife is not subject to cross-examination.
B No, because the testimony is hearsay not within any exception.
C Yes, as a dying declaration.
D Yes, as former testimony.
The correct answer is: Yes, as former testimony.
Discussion of correct answer: This is the best choice because Federal Rule of Evidence 804(b)(1) provides that testimony given by a witness in another hearing (including a hearing in a different proceeding) or taken in a deposition in the same (or different) proceeding is excepted from the hearsay rule if: (1) the former witness is unavailable in the present proceeding; and (2) the party against whom the former testimony is offered (or his predecessor in interest) had an opportunity to develop the former testimony by direct, redirect, or cross-examination and had a similar motive to develop the former testimony by cross-examination. Here, the wife is unavailable at trial and was subject to examination by the ferry owner at the deposition. Therefore, the former testimony exception applies.
A resident wanted to adopt a dog. Because of recent burglaries, the resident preferred to adopt a dog from a more aggressive breed to protect the apartment. Once he found a puppy, the resident took the dog to a veterinarian to make sure that it was healthy. While there, the veterinarian told the resident that this puppy was a member of a very aggressive dog breed. The veterinarian recounted a set of specific incidences involving dogs of this breed attacking children and mauling other animals. The resident still went forward and adopted the puppy.
A year later, the resident’s neighbor claimed the dog engaged in an unprovoked attack on the neighbor in the elevator, causing significant facial disfiguring. The resident argued that the injuries actually occurred when the neighbor attempted to break into the resident’s apartment and kill the dog in order to steal the resident’s valuables. The injured neighbor sued the resident. At trial, the veterinarian was called to testify about the dog’s health at the time of the adoption. On cross-examination, the neighbor elicited testimony from the veterinarian regarding his knowledge of prior incidences involving dogs of the same breed. This information was introduced to prove conduct in conformity therewith. The resident objected to the use of this evidence.
Should the judge sustain the resident’s objection and exclude this portion of the veterinarian’s testimony?
A Yes, this is an improper use of character evidence.
B Yes, this is protected by the physician-patient privilege.
C No, this is proper habit evidence.
D No, this is not being offered to prove the truth of the matter asserted.
The correct answer is: Yes, this is an improper use of character evidence.
Discussion of correct answer: There are general rules which apply to the admission of all evidence and special rules which apply to the admissibility of specific types of evidence such as evidence of subsequent remedial measures, habit evidence, and offers to compromise. Character evidence is also evidence which is subject to special rules governing admissibility. Generally, when we think of character evidence, we think of that character evidence as it pertains to the character of a human. However, character evidence can also be introduced as it pertains to animals in certain circumstances. Specific instances of animal behavior are generally admissible to prove conduct in conformity therewith. So, evidence that a specific animal has previously done a specific bad act can be admitted to show that the animal would be likely to commit that same bad act again. Here, if the veterinarian was being called to testify about an incident in which the resident’s dog has bad been violent in the past, then this type of character evidence would be perfectly admissible. However, under these facts, the veterinarian is being called to testify about specific incidences of bad animal acts which were committed by other animals. This is an improper manner of introducing evidence relating to the resident’s dog if being offered to prove conduct in conformity therewith. Therefore, it would be proper for the judge to sustain the objection and exclude the veterinarian’s testimony for this purpose.
A man was a convicted of sexual assault and required to register with the county of his residence within 30 days of his release from prison. After being paroled, the man rented an apartment, but failed to register. Three months later, during a routine traffic stop, the man was arrested for failing to register in violation of his parole.
At trial, the prosecutor called the chief clerk of the county in which the defendant’s apartment was located to testify. She proposed to testify that she did a diligent search of the country sex-offense registry and that the defendant’s name did not appear in the records. The defendant objected, claiming that her testimony was hearsay.
How should the court rule?
A The testimony is inadmissible, under the Confrontation Clause.
B The testimony is inadmissible, because the business record exception applies only to an actual entry in a business record.
C The testimony is admissible, as proof of the absence of an entry in a business record.
D The testimony is admissible, because the clerk has firsthand knowledge of the country records.
The correct answer is: The testimony is admissible, as proof of the absence of an entry in a business record.
Discussion of correct answer: In order to prove who has not registered as a sex offender, the clerk must testify to a document that lists all of the registered sex offenders. Because this list is an out-of-court statement being offered for its truth, a hearsay exception must exist for it to be admissible. Here, the prosecution is attempting to prove that the man is not on the list, and therefore not compliant with the law. As such, the absence of an entry in a business record is what is being proved. The elements are similar to the business record exception; however, it is being used to show what is not there, rather than what is there. Because the man’s absence from the list is what is being sought to be proved, this exception provides for the clerk’s testimony.
A man crashed into a woman’s car. Shortly after the accident, a police officer arrived at the scene, and the woman told the officer that the man had run the red light and swerved into her car. The police officer wrote her statement in the “Accident Report Form,” which he was required to complete after every accident. The woman sued for personal injuries sustained in the accident. On direct examination, her attorney called her to testify and asked her to recall the events of the night.
Is the woman’s testimony admissible?
A No, because a party is precluded from introducing their own out-of-court statements at a subsequent trial.
B No, because it is hearsay not within any exception.
C Yes, because the officer wrote down the statement as part of his official duties.
D Yes, because the woman has firsthand knowledge of the events of the night in question.
The correct answer is: Yes, because the woman has firsthand knowledge of the events of the night in question.
Discussion of correct answer: The woman is not being asked to recount her out-of-court statement, but rather, to testify as to what she remembered seeing on the night in question. As long as the witness has firsthand knowledge, she is a proper witness to the events, and can testify as to what she saw. Therefore, there is no hearsay problem.
The plaintiff attended a party at the defendant’s apartment. During the party, the area was hit by a fast-moving snowstorm that blanketed the ground with six inches of snow. When the plaintiff left the party, he slipped on the snow covering the front porch and broke his leg. The plaintiff sued the defendant for negligence in failing to warn him about the snow on the porch. At trial, the plaintiff called another guest at the party as a witness, who testified that shortly before the plaintiff left the apartment, another partygoer had gone outside to smoke a cigarette, and when he returned, he stated: “There is six inches of snow on the front porch.” He further testified that the defendant was present when this statement was made. The defendant’s attorney objected to this testimony.
Is the statement of the partygoer admissible?
A No, as hearsay not within an exception.
B No, unless the partygoer is unavailable to testify at trial.
C Yes, as a statement describing a condition that the partygoer just observed.
D Yes, as lay opinion.
The correct answer is: Yes, as a statement describing a condition that the partygoer just observed.
Discussion of correct answer: FRE 803(1) provides an exception to the hearsay rule for statements describing a condition made immediately after observing it–the present sense impression exception. Here the witness is testifying about another person’s statement that was made out-of-court and now being offered in court for its truth–to show that there was snow on the porch. It is a hearsay statement, but is admissible under the present sense impression exception. Some students may recognize another theory of admissibility. Here, the statement of the partygoer could be viewed as a nonhearsay statement of warning. In other words, the statement is being offered not for its truth, but to show that the defendant was aware of the danger of the snow on the porch. Because it is not offered for its truth, it is nonhearsay. However, there is no answer choice that reflects this theory, so this is the best answer choice.
A chef was involved in a two-car collision and sued the other driver, a cook. At the trial, the chef testified that the cook failed to stop at a stop sign and hit her, so the accident was not her fault. The cook called a witness who testified that she has known the cook for many years, and she observed that he always completely stopped at every stop sign.
Is the witness’s testimony admissible?
A Yes, because it tends to establish a pertinent habit of the cook’s while driving.
B Yes, because it is evidence of the cook’s cautious character behind the wheel.
C No, because the cook’s reputation for careful driving can only be proved by opinion or reputation.
D No, because the cook’s prior conduct cannot be used to prove he is a careful driver.
The correct answer is: Yes, because it tends to establish a pertinent habit of the cook’s while driving.
Discussion of correct answer: Under Federal Rule of Evidence 406, evidence of a person’s habit can be used to show that a person acted in a similar matter on a particular occasion. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. Always stopping at stop signs is the kind of automatic, invariable behavior for which this type of testimony may be admitted. The witness may therefore testify that the driver always stopped at stop signs, according to her observation.
The plaintiff is suing the defendant for damages as the result of an automobile accident. The plaintiff offers the testimony of a police officer who arrived at the scene of the accident one hour after it occurred. There he met a bystander who claimed she saw the defendant’s car drive through a red light and strike the plaintiff’s car. The bystander wrote her statement on a piece of paper and handed it to the police officer. The police officer retained possession of the note, which is now being offered in evidence at trial. Defense counsel objects.
Is the note admissible?
A Yes, as a prior consistent statement.
B Yes, as past recollection recorded.
C No, under the best evidence rule.
D No, as hearsay not within an exception.
The correct answer is: No, as hearsay not within an exception.
Discussion of correct answer: The note is an out-of-court statement of the bystander which is being offered in court by the plaintiff for its truth (i.e., that the defendant caused the accident). It is, therefore, hearsay. There is no exception that applies here, although some might argue that it may qualify as a present sense impression. However, because the statement was written at least one hour after the accident, it would not meet the requirement that it be made contemporaneously with the observation or immediately thereafter.
A husband and wife were experiencing marital problems. The husband suspected that his wife was having an affair with his best friend. One evening, the husband came home to discover his best friend and his wife sitting at the kitchen table having a cup of coffee. Their clothing looked messy and they both appeared to blush when he asked what they had been doing. The husband yelled, “You have been cheating on me with him haven’t you? How could you do this to me?” The wife made no reply. A week later, the husband filed for divorce. At the divorce trial, during the husband’s testimony, his attorney attempted to introduce into evidence that fact that the wife was silent in response to the husband’s accusations. The wife’s attorney objects.
How should the court rule?
A The court should overrule the objection, because the husband is on the stand and is subject to cross-examination.
B The court should overrule the objection, because the wife’s silence constitutes an adoptive statement by silence.
C The court should sustain the objection, because the husband’s statement is hearsay not within any exception.
D The court should sustain the objection, because the statement is in the husband’s self interest.
The correct answer is: The court should overrule the objection, because the wife’s silence constitutes an adoptive statement by silence.
Discussion of correct answer: Rule 801(d)(2) states that statements by acquiescence or silence can be offered into evidence and are not hearsay. Under this doctrine, when an accusatory statement is made in the presence of an individual, who understands and has an opportunity to deny it but remains silent, the statement and failure to deny it are admissible as an adoptive statement by silence. The basis for this doctrine is that an innocent person would speak up and defend themselves under the circumstances.
A plaintiff brought a personal injury action against a delivery truck company for damages arising from a car accident in which the plaintiff’s car collided with a delivery truck driven by one of the company’s drivers. During his lunch break, the delivery truck driver had driven the delivery truck home, where he consumed several alcoholic drinks, and then had taken the rest of the day off to attend a baseball game. The collision occurred in the parking lot of the baseball stadium.
In his complaint, the plaintiff alleged that the delivery truck company’s personnel manager had been negligent in approving the hiring of the delivery truck driver, who was an alcoholic, and that the manager reasonably should have known that the driver’s alcoholism made him a serious risk to others while operating a motor vehicle. At trial, the plaintiff called the driver’s former wife to testify that she had lived with the driver for the six months prior to the accident and that on three separate occasions, she had observed the driver operate a motor vehicle while in a severely intoxicated state. The delivery truck company objected to the introduction of the former wife’s testimony. Should the court admit the former wife’s testimony over the truck company’s objection?
a. Yes, because the driver’s character is a material issue in the litigation.
b. Yes, because the driver is not a defendant in this case.
c. No, because evidence of specific instances of misconduct may only be inquired into on cross-examination and may not be proven by extrinsic evidence.
d. No, unless the driver had already testified that he has never operated a motor vehicle while intoxicated.
a. Yes, because the driver’s character is a material issue in the litigation.
A motorcyclist was involved in a collision with a pickup truck on the highway late one evening. The responding police officer arrested the motorcyclist for driving under the influence of alcohol and failure to maintain a lane. A blood sample was taken from the motorcyclist at the hospital before he was transported by police to the jail. At trial, the defense presented a scientist as an expert witness to testify about the inaccuracies in blood sample testing when blood was collected in the manner that the police used in this case. The expert witness also testified that the motorcyclist likely was not under the influence of alcohol to the extent claimed by the prosecution. One year prior to testifying in this case, the expert witness had left his previous place of employment where he had worked for the government for fifteen continuous years. On cross-examination, the prosecution attempted to introduce a news article published two years earlier in which the expert is quoted as saying that that accuracy of the method of blood sample testing used in all criminal prosecutions was irrefutable. What would be a proper basis for the introduction of this article?
a. The article contains prior inconsistent statements that may be used to prove the truth of the matter asserted.
b. The article contains prior sworn inconsistent statements that may be used as substantive evidence.
c. The article contains prior inconsistent statements that may be used for impeachment purposes.
d. The article contains a statement that may be used as substantive evidence.
c. The article contains prior inconsistent statements that may be used for impeachment purposes.
A real estate company occasionally hired temporary workers from a local agency. During an especially busy month, the real estate company needed an accountant to assist in its financial data operations. The real estate company contacted the agency’s staffing agent and requested an accountant for temporary employment. The real estate company and the staffing agent then entered into a contract in which the staffing agent promised to provide an accountant “who was honest and trustworthy.” A short time later, the staffing agent sent over a woman who was placed in the accounting position.
The woman worked at the real estate company for one week, until she was fired for stealing money. The real estate company then brought suit against the agency for negligent hiring. During the trial, the agency denied having any knowledge that the woman they sent over was dishonest and untrustworthy. Thereupon, the real estate company proffered evidence to show that two months before the agency referred the woman to the real estate company, she had been terminated from a previous temporary employment job for theft. Upon objection by the agency, is the proffered evidence admissible?
a. Yes, because specific instances of conduct may be admitted for the limited purpose of impeachment.
b. Yes, as proof of the woman’s character trait for dishonesty.
c. No, because the agent’s character is in issue, not the women, because the agent was the one who referred her.
d. No, because specific instances of conduct are an improper means of proving character.
b. Yes, as proof of the woman’s character trait for dishonesty.
A man and a woman were involved in a car accident that occurred when the man abruptly switched lanes in front of the woman without signaling. Unable to stop, the woman hit the man’s car into a median. Immediately after the accident, as the two drivers emerged from their vehicles, a pedestrian, obviously emotional and upset from having just observed an accident, ran up to the man and shouted, “You careless driver, you! Didn’t you ever learn that you’re supposed to use a turn signal when you switch lanes?” The pedestrian was never identified and is not present at trial.
How should the court rule on the pedestrian’s statement?
A Admissible, as nonhearsay.
B Admissible, even though it is hearsay.
C Admissible, under the excited utterance exception.
D Inadmissible, because the bystander cannot be identified and is not present at trial.
The correct answer is: Admissible, under the excited utterance exception.
Discussion of correct answer: Under FRE 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule. The theory behind the excited utterance exception is simply that circumstances may produce a condition of excitement that temporarily stills the capacity of reflection and, thus, produces utterances free of conscious fabrication. Spontaneity is the key factor in determining whether the statement was, indeed, made without any conscious reflection.
A man was on trial for kidnapping a woman and holding her prisoner for nearly a week. Photographs of the man’s home were introduced into evidence, including photos of the attic where the woman was kept. During the week she was held captive by the man, the woman never saw his face or any part of the house other than the attic. She was, however, able to keep a small notebook that she wrote down observations in. On the third day, she made an entry stating that the house smelled like something was burning and that she could feel heat and see smoke coming through the door on the floor of the attic. The prosecutor wished to offer the notes as evidence because a fire was reported at the man’s house the same day the woman made the entry. The woman was available to testify at trial about the abduction and the entries in her notebook.
Are the woman’s notes admissible to show that there had been a house-fire that day?
A No, because the matter asserted is that there was something burning and the statement is being offered to prove that the house was burning.
B No, because the woman is not unavailable for trial.
C Yes, because the notes are the woman’s recorded recollection.
D Yes, because the notes describe an event that the woman observed.
The correct answer is: Yes, because the notes describe an event that the woman observed.
Discussion of correct answer: One exception to the rule against hearsay is the exception for present sense impressions under FRE 803. A statement qualifies under the exception if it is a statement that explains or describes an event or condition made while or immediately after it was perceived. In this case, the woman wrote down her observation of the smell, heat and smoke as she observed it. Thus, answer (D) is correct.
The driver of a minivan ran a red light and slammed into the passenger side of another car. The passenger, a teenage girl, was injured. Her parents later brought a civil suit against the driver of the minivan. The day before the trial, the teenage girl turned 18 and hopped a flight to Africa for a two-year mission with the Peace Corps. At trial, the parents alleged that their daughter had sustained head and neck injuries in the car accident and has since been unable to move her neck normally. For his defense, the minivan driver brought in an as a witness the ambulance medic who responded at the scene. The medic planned to testify that at the scene of the accident he asked the girl if she could move her neck freely, and that she had nodded yes. The attorney for the parents objected, stating that such testimony was inadmissible hearsay evidence.
How is the court likely to rule on the admissibility of the medic’s testimony?
A Admissible, because the teenage girl is unavailable to appear personally in court.
B Admissible, because the evidence is not being offered to prove the truth of the matter asserted.
C Inadmissible, because the evidence is being offered to prove the truth of the matter asserted.
D Inadmissible, because there is no evidence that the teenage girl made the assertion under a belief that death was imminent.
The correct answer is: Admissible, because the evidence is not being offered to prove the truth of the matter asserted.
Discussion of correct answer: The general rule on hearsay is that an out of court statement is not admissible to prove the truth of the matter asserted. At issue here is whether the teenage girl was able to move her neck freely following the accident. The defense seeks to admit evidence that she answered the medic’s question by nodding her head immediately after the accident, proving that she was in fact able to move her neck. Although the girl’s nodding is an out-of-court nonverbal assertion answering the medic’s question, and it is being offered to prove that she could indeed move her neck, it is not hearsay. Her affirmative response to the medic’s question is not what the defense is attempting to offer into evidence. The medic is simply testifying that he saw with his own eyes that she could physically move her neck.
Three men and a woman robbed a bar and its patrons on December 16 at 5:00 p.m. The defendant, alleged to be one of the robbers, called a defense witness to testified that she drove to the defendant’s home at 4:00 p.m. on December 16 and picked him up for a tennis game, which lasted until 5:30 p.m. The prosecutor asked on cross-examination, “What is your relationship to the defendant?” The defense counsel objected. How should the court rule?
a. Overruled, because the question is directed at discovering possible bias in the witness.
b. Overruled, because the question attacks the witness’s truth and veracity.
c. Sustained, because the question seeks to elicit irrelevant information.
d. Sustained, because the answer to the question would create prejudice that would outweigh its probative value.
a. Overruled, because the question is directed at discovering possible bias in the witness.
A local TV news anchor aired a show in which she stated that the mayor was “a corrupt politician who manages to grab a surprisingly large amount of bribe money with his small hands.” The mayor was the subject of a recall effort that was ultimately successful, and he sued the TV station for defamation. The TV station defended on the grounds of truth. The mayor took the stand and testified that he was an honest politician. The station called a witness to testify that a year prior to the TV show in question, the mayor took a bribe in connection with a rezoning project. The mayor’s lawyer objects. Should the court allow the testimony to be admitted into evidence?
a. No, because it is inadmissible character evidence.
b. No, because the prosecutor may not introduce evidence of character unless the defendant puts his character in issue.
c. Yes, as relevant evidence of the mayor’s character as a corrupt politician.
d. Yes, as relevant evidence of character for truthfulness.
c. Yes, as relevant evidence of the mayor’s character as a corrupt politician.
A man sued his company claiming that he was denied his yearly bonus. The CEO claimed that the man was not a bonused employee. To prove this fact, he wished to introduce a record of all bonused employees. The CEO called the secretary who was in charge of payroll to testify to this record. The man objected claiming the report was hearsay.
How should the court rule?
a. The testimony is inadmissible under the Confrontation Clause.
b. The testimony is inadmissible because the business record exception applies only to an actual entry in a business record.
c. The testimony is admissible as proof of the absence of entry in business records.
d. The testimony is admissible as habit evidence provided there is corroborating evidence.
c. The testimony is admissible as proof of the absence of entry in business records.
A defendant is on trial for murder. The defendant allegedly stabbed the victim with a knife. The defendant claims self-defense and offers the testimony of the victim’s wife that her husband had a reputation in the community for having a violent temper. On rebuttal, the prosecution offers the testimony of the defendant’s former business partner that the defendant, in his opinion, is a violent person. The defendant objects, claiming the testimony is improper character evidence. How should the court rule on the proposed testimony?
a. It is inadmissible, because the defendant did not first offer evidence of his character for nonviolence.
b. It is inadmissible, because character evidence is inadmissible to prove a criminal disposition or propensity for violent behavior.
c. It is admissible, because the defendant opened the door to his character by first attacking the victim’s character for violence.
d. It is admissible, because the defendant’s character for violence is always in issue on a claim of self-defense.
c. It is admissible, because the defendant opened the door to his character by first attacking the victim’s character for violence.
The defendant was shopping in a convenience store. He decided to steal a package of batteries off the shelf. He picked up a package and placed it in his pocket. He was observed placing something in his pocket by the security guard, but the security guard could not see exactly what item was taken. The defendant then ran out of the store with the security guard in hot pursuit. Just as the security guard tackled the defendant, he threw the batteries into a dumpster. The security guard searched the defendant but found nothing. The defendant was charged with larceny. At trial, the prosecutor called the manager of the store as a witness. The manager was asked if he was able to determine what the defendant stole from the store. The manager said that although the security guard was unable to see what was taken, the manager was able to figure it out on his own. He testified that he reviewed the inventory records kept by the store, which had previously been entered into evidence, and was able to determine that one package of batteries was missing. The defendant’s attorney objected to this testimony.
Is the manager’s testimony admissible?
A No, because the manager did not have firsthand knowledge of what was stolen.
B No, because the inventory records are hearsay.
C Yes, because the inventory records are past recollection recorded.
D Yes, because the inventory records were made and kept by the business for just such a circumstance.
The correct answer is: Yes, because the inventory records were made and kept by the business for just such a circumstance.
Discussion of correct answer: FRE 803(6) makes an exception to the hearsay rule for records made and kept in the ordinary course of business. Here, the inventory records were made and kept by the store to track the items on the store’s shelves. They are classic business records.
A plaintiff sued a defendant for defamation after the defendant told the plaintiff’s co-workers that she had stolen money from the office petty cash box. The defendant testified in his own defense, but his attorney only asked him one question: “Did you tell the plaintiff’s co-workers that she had stolen petty cash?” The defendant responded: “No.” On cross-examination, the plaintiff’s attorney asked: “Isn’t it true that you were convicted of perjury nine years ago?” The defendant’s attorney objects. Should the court sustain the objection?
a. No, because counsel may inquire into matters bearing upon the credibility of the witness during cross-examination.
b. No, because the commission of a prior crime can be used to establish motive.
c. Yes, because of the highly prejudicial nature of the evidence.
d. Yes, because the question exceeds the scope of direct examination.
a. No, because counsel may inquire into matters bearing upon the credibility of the witness during cross-examination.
After being passed over for a promotion, an aeronautic engineer became a whistleblower. He contacted a government agency to state that the company for which he worked was submitting false safety reports on newly built aircraft. When the company learned that the engineer was leaking this information to the government agency, he was fired from his job. Afterward, the engineer sued the company for wrongful termination of employment. During the discovery stage of litigation, the engineer was deposed by the company’s attorney. In his deposition, the engineer stated that the company submitted false safety reports to the government agency to cover up structural defects in its aircraft. A pilot was injured when one of the company’s airplanes he was piloting crashed. The pilot asserted a strict products liability tort against the company. At trial, the pilot sought to introduce into evidence portions of the engineer’s deposition from his wrongful termination lawsuit against the company. Assume that the engineer is unavailable to testify at trial.
Upon objection by the company, how should the trial court judge rule on the engineer’s deposition?
A Admissible, as former testimony.
B Admissible, as a vicarious statement.
C Inadmissible, as hearsay not within any recognized exception.
D Inadmissible, because the company did not have the opportunity to cross-examine the engineer on the liability issue for which the statement is now being offered.
The correct answer is: Admissible, as former testimony.
Discussion of correct answer: Usually, former testimony questions will involve the same parties where each had the opportunity to interrogate the witness at the earlier trial. In this question, we have a plaintiff (who was not party to the first suit) seeking to introduce former testimony against the same defendant. According to Lilly, “using the testimony against the same defendant, which was a party to both suits and had an opportunity at the first trial to interrogate the witness, appears to fit comfortably within the exception.” Evidence, p. 286. On the other hand, Lilly points out that if a plaintiff seeks to use all or part of the former testimony against a new defendant (who did not have an opportunity to interrogate the witness), then the testimony should be excluded. Here, because the testimony is being used against the same defendant, it is admissible.
A social activist was appalled at the actions of a foreign multinational corporation in Asia. She took part in a large protest in front of the corporation’s American headquarters. Police moved to break up the protest, and the activist scuffled with police. She was arrested by an officer whom she had encountered before at rallies and demonstrations and whom she knew had a reputation for violence. The activist was charged with non-deadly assault against a police officer in the line of duty, a misdemeanor. During pretrial discovery, the activist learned that, during the officer’s eight years with the department, a local coalition against police brutality had twice protested the officer’s conduct, leading to his receiving official reprimands. The activist claims in her case-in-chief that she acted in self-defense and seeks to present a witness, who is a member of the coalition, to testify as to the officer’s reputation for violence. The prosecutor objects, arguing that the testimony is inadmissible character evidence.
Will the prosecutor’s objection succeed?
A No, because the officer’s reputation for violence is not an ultimate issue in the case.
B No, because evidence of the officer’s character may be admitted in this situation.
C Yes, because character evidence is never admissible in a criminal case, except for purposes of impeachment.
D Yes, because character traits may be proven only by evidence of specific acts.
The correct answer is: No, because evidence of the officer’s character may be admitted in this situation.
Discussion of correct answer: Most courts admit evidence of a victim’s character when it is relevant to an asserted defense, as self-defense is here. Some limit this to evidence of reputation, and a growing number allow opinion testimony as well. In addition, FRE 404(a)(2) provides that in a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused is admissible. Here, the activist is claiming that she acted in self-defense, so the officer’s character and reputation for violence are relevant to the question of whether the activist acted in the reasonable belief that she needed to defend herself against the officer. Therefore, the activist may prove the officer’s character for violence with testimony about his specific evidence of his behavior, including evidence of the two reprimands for use of excessive force.
A truck driver for a local beer distributor was pulling onto the freeway when he collided with a car driven by a bank teller. The bank teller and her passengers were seriously injured in the accident, and they filed suit against the truck driver, alleging that he failed to yield as he entered the freeway from the entrance ramp. They also alleged that he had exceeded by five hours the company’s 12-hour limit for drivers per day, and that he should not have been driving at all, as he was taking medication that caused dizziness and fatigue. The truck driver, in turn, claimed that the bank teller was speeding and had failed to make any attempt to avoid the accident even though the two lanes to the left of the entrance ramp were wide open. The truck driver’s attorney seeks to introduce the testimony of the state trooper who first arrived on the scene that, when he approached the bank teller’s car immediately following the accident, she stated over and over, “I should have slowed down or moved over.” The bank teller objects.
Is the trooper’s statement admissible?
A Yes, because it was overheard by an officer during his investigation.
B Yes, because it is a statement by the bank teller.
C No, because it does not admit any wrongdoing that is clearly a violation of the motor vehicle law.
D No, because it is hearsay.
The correct answer is: Yes, because it is a statement by the bank teller.
Discussion of correct answer: Under Federal Rule of Evidence 801, a statement by a party-opponent that is offered against that party is not hearsay. Here, the bank teller’s statement that she should have slowed down or moved over constitutes an opposing party’s statement, and will therefore be admissible against her at trial.
The defendant was tried in state court for robbery of a bank. After he was acquitted, the defendant celebrated with friends at a local bar. During the celebration, the defendant was overheard by an off-duty FBI agent telling his friends that he did commit the robbery, but had a really good defense lawyer. The FBI agent then reported what he heard to a federal prosecutor, who sought and obtained an indictment against the defendant for a federal charge of bank robbery. At trial, the defendant invoked his Fifth Amendment privilege against self-incrimination, which the judge permitted. The prosecutor then offered the testimony of the FBI agent, who sought to testify about what the defendant said after his acquittal. Assume that the defendant’s motion for dismissal on double jeopardy grounds was denied.
Is the FBI agent’s testimony admissible?
A No, because it is a violation of the defendant’s right against self-incrimination.
B No, because it is hearsay not within an exception.
C Yes, as a statement against interest.
D Yes, as an opposing party’s statement.
The correct answer is: Yes, as an opposing party’s statement.
Discussion of correct answer: Students must be aware that the bar examiners have a preference for the nonhearsay answer choice over the exception-to-the-hearsay-rule answer choice. If the statement constitutes nonhearsay, then it is obviated from needing a hearsay exception for admission. In other words, in analyzing the bases for a statement’s admission that appears to have a hearsay problem, first see if it constitutes nonhearsay. If not, and the statement is hearsay, then look to see if a relevant exception applies. Here, the defendant’s statement is clearly against his penal interest under Rule 804, and the defendant is unavailable to testify as required by Rule 804 by virtue of invoking his Fifth Amendment right against self-incrimination. However, his statement is also nonhearsay–it is a statement by a party offered by the opponent party, and the Federal Rules of Evidence define opposing party’s statements as nonhearsay. The bar examiners prefer this answer choice to a statement against interest because it presents a nonhearsay reason rather than a hearsay exception.
A social activist was appalled at the actions of a foreign multinational corporation in Asia. She took part in a large protest in front of the corporation’s American headquarters. Police moved to break up the protest, and the activist scuffled with police. She was arrested by an officer whom she had encountered before at rallies and demonstrations and whom she knew had a reputation for violence. The activist was charged with non-deadly assault against a police officer in the line of duty, a misdemeanor. During pretrial discovery, the activist learned that, during the officer’s eight years with the department, a local coalition against police brutality had twice protested the officer’s conduct, leading to his receiving official reprimands. The activist claims in her case-in-chief that she acted in self-defense and seeks to present a witness, who is a member of the coalition, to testify as to the officer’s reputation for violence. The prosecutor objects, arguing that the testimony is inadmissible character evidence. Will the prosecutor’s objection succeed?
a. No, because the officer’s reputation for violence is not an ultimate issue in the case.
b. No, because evidence of the officer’s character may be admitted in this situation.
c. Yes, because character evidence is never admissible in a criminal case, except for purposes of impeachment.
d. Yes, because character traits may be proved only by evidence of specific acts.
b. No, because evidence of the officer’s character may be admitted in this situation.
Two police officers, a sergeant and a lieutenant, were charged with robbery and felony murder. The sergeant’s lawyer moved to have the two officers tried separately, and the court granted the motion. The sergeant’s trial was held first, and he was acquitted. At the lieutenant’s trial, his lawyer called the sergeant’s wife as a witness. The sergeant’s wife testified that after the sergeant was acquitted, the sergeant told her that he had committed the robbery because he wanted to buy her a new ring and that he felt bad because the lieutenant was not involved.
Should the wife’s testimony be admitted?
A No, because the sergeant is estopped from contradicting the jury’s acquittal verdict.
B No, because it is hearsay not within any exception.
C Yes, because it is a statement by a co-conspirator.
D Yes, because it is a statement against a penal interest.
The correct answer is: No, because it is hearsay not within any exception.
Discussion of correct answer: Pursuant to Federal Rule of Evidence 801(c), hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. Some out-of-court statements are admissible under exceptions to the rule excluding hearsay evidence. Furthermore, a statement is not hearsay if it is offered to prove something other than the truth of the matter asserted in the statement. Here, the wife’s testimony is being used to prove the truth of the matter asserted therein–that is, the lieutenant did not participate in the crime. Therefore, the testimony is hearsay. Because the statement does not fall within any of the exceptions to the hearsay rule, it cannot be admitted.
A defendant was on trial for attempted murder. The alleged victim was called by the prosecution to testify. During her testimony, the victim recounted the incident and described how the defendant savagely beat her with a baseball bat. She was not asked by the prosecution whether she made any statements during the attack. After the victim was excused and left the witness stand, the prosecution called another witness to testify. The witness proposes to testify that when the beating stopped, the victim screamed, “I’m dying. Don’t let the defendant get away with this.”
Upon objection by the defendant’s attorney, how will the court rule on the witness’s proffered testimony?
A Admissible, as an excited utterance.
B Admissible, as a dying declaration.
C Inadmissible, as hearsay not within any recognized exception.
D Inadmissible, because the victim was not questioned about the statement before being excused.
The correct answer is: Admissible, as an excited utterance.
Discussion of correct answer: Under FRE 803(2), an excited utterance is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The witness’s testimony of the victim’s statement, “I’m dying. Don’t let the defendant get away with this,” related to the savage beating (the startling event) and was made when the beating stopped (while the victim was still under the stress of excitement). The testimony will be admissible substantively as an excited utterance.
The plaintiff sued a legal journal for libel based on an article which implied that he had cheated the IRS by not paying his taxes. At trial, the plaintiff denied any wrongdoing. An accountant was then called by the defense to testify that five years earlier, the plaintiff had improperly distorted the value of certain investments in an effort to lower his taxable income. Should the accountant’s testimony be admitted?
a. Yes, to challenge the plaintiff’s credibility.
b. Yes, as substantive evidence of the plaintiff’s character.
c. No, because it is improper character evidence.
d. No, because the testimony must be corroborated.
b. Yes, as substantive evidence of the plaintiff’s character.
A defendant was on trial for drug distribution. The arresting officer was called by the prosecution to describe in detail the events that led to the defendant’s arrest. The officer described the night in question, where he was, and what he observed. He was asked to provide a list of what he confiscated from the defendant after he was arrested. The officer testified that the defendant has a large amount of money and many small packets of drugs in several pockets throughout his clothing. When asked specifically about the number of drugs packets, the officer was unable to recall. The officer was then shown his police report. The officer quickly flipped to the third page of the report, then looked at the prosecutor. The prosecutor asked if the officer was now able to remember how many bags of drugs were taken from the defendant. The officer indicated that he was, but before he could answer the question, the defense attorney objected to the officer’s testimony.
How should the court rule?
A Sustain the objection, because the officer lacks a present memory of the incident.
B Sustain the objection and require the report to be admitted into evidence, because the jury is just as capable as reading the report as the officer.
C Overrule the objection, because the officer’s memory was refreshed.
D Overrule the objection, because the report is admissible as a past recollection recorded.
The correct answer is: Overrule the objection, because the officer’s memory was refreshed.
Discussion of correct answer: The prosecutor is refreshing the officer’s recollection. To do so, he can use anything available, because it is not being admitted as an exhibit, and so it is not used substantively. If the attempt to refresh fails, then extrinsic evidence is required, at which point past recollection recorded would be a valid hearsay exception. However, because the officer’s memory was refreshed, the judge should overrule the defense attorney’s objection.
A girlfriend and boyfriend lived together and had a tumultuous relationship. One night, the couple got in a fight. The next morning, the girlfriend realized that the boyfriend had moved out. The girlfriend also noticed that her valuable diamond necklace that she had inherited from her grandmother was gone. The girlfriend sued the boyfriend for conversion of the diamond necklace. At trial, to prove the location of the necklace before it went missing, the girlfriend testified that she wore the necklace everyday, and she always took the necklace off before she went to bed and placed it in the same place in her jewelry box. No other witness can attest to the girlfriend’s testimony. The boyfriend’s attorney objected to the girlfriend’s testimony regarding the necklace.
How should the judge rule on the objection?
A Overrule it, because the girlfriend’s testimony is relevant to whether the boyfriend converted the necklace.
B Overrule it, because the girlfriend’s testimony is admissible habit evidence.
C Sustain it, because the girlfriend’s testimony cannot be corroborated.
D Sustain it, because the girlfriend’s testimony is inadmissible character evidence.
The correct answer is: Overrule it, because the girlfriend’s testimony is admissible habit evidence.
Discussion of correct answer: Generally, character evidence is not admissible to prove action in conformity with that character. However, an exception to this rule exists for habit evidence, which refers to actions that a person “always” or “invariably” performs. Actions performed “frequently” or “often” are not habits; a habit is a regular response to a given situation that is performed without must forethought. Here, the girlfriend’s testimony is that she “always” took the necklace off before bed and put it in the same location. The girlfriend’s testimony is admissible as habit evidence.
A man pulled his truck onto the freeway and collided with a car. The driver of the car was seriously injured in the accident, and subsequently filed suit against the truck driver, alleging that he failed to yield as he entered the freeway from the entrance ramp. The truck driver, in turn, claimed that the driver of the car was speeding and had failed to make any attempt to avoid the accident even though the two lanes to the left of the entrance ramp were wide open. The truck driver’s attorney called the truck driver to testify that when he approached the car immediately following the accident, the driver of the car stated over and over, “I should have slowed down or moved over.” The driver of the car objected.
Should the truck driver be allowed to testify as to the driver of the car’s statement?
A No, because it is inadmissible hearsay.
B No, because the truck driver is an interested party and there is no corroboration of the statement.
C Yes, because it shows awareness by the driver of the car that he was speeding.
D Yes, because it is a statement by an opposing party.
The correct answer is: Yes, because it is a statement by an opposing party.
Discussion of correct answer: Under Federal Rule of Evidence 801, a statement by an opposing party that is offered against that party is nonhearsay. Here, the car driver’s statement constitutes an opposing party’s statement, and will therefore be admissible against him at trial.
A murder mystery writer is charged with the murder of her husband. The prosecution charged that the writer poisoned her husband by mixing yew berries into his Thanksgiving cranberry relish. This was the same poison used in the writer’s recent murder mystery novel. The prosecution also alleges the writer wanted to marry her editor but feared a divorce from her husband might affect her popularity and the sales of her books.
The defense called the husband’s personal physician to the stand as its first witness. During examination, the writer’s lawyer asked, “Isn’t it true that the husband’s cause of death is unknown?” The doctor responded, “No, the husband died after ingesting poison.” The writer’s lawyer then attacked the testimony as a recent fabrication and asked, “Isn’t it true that you stated on the husband’s death certificate that the cause of death was unknown?” The prosecutor objected. The judge’s ruling will be that the last question is
a. proper because the doctor’s testimony about written opinions is more reliable.
b. proper, because a party may impeach its own witness.
c. not proper, because a party may not impeach its own witness with a prior inconsistent statement.
d. not proper, because the doctor is a general practitioner rather than a toxicology expert.
b. proper, because a party may impeach its own witness.
One night, a man and his friend were shooting pool and drinking beer when the man received a call on his cell phone from his wife. After finishing his conversation with his wife, the man told his friend that he had to wrap up the game because his wife had just gotten into a fistfight with a neighbor, and it appeared that his wife was the instigator. When the man arrived home, he spoke with a bystander and discovered that his wife hadn’t been the instigator after all. The neighbor sued the wife for personal injuries. At trial, the husband took the stand, but denied ever having told his friend that his wife was the instigator of the fight. The neighbor now seeks to call the friend to testify as to the husband’s comments at the pool hall. Should the court allow the friend’s testimony?
a. No, as hearsay not within an exception.
b. No, because the testimony calls for an opinion.
c. Yes, to impeach the husband.
d. Yes, as a statement.
c. Yes, to impeach the husband.
A girlfriend and boyfriend lived together and had a tumultuous relationship. One night, the couple got in a fight. The next morning, the girlfriend realized that the boyfriend had moved out. The girlfriend also noticed that her valuable diamond necklace that she had inherited from her grandmother was gone. The girlfriend sued the boyfriend for conversion of the diamond necklace. At trial, to prove the location of the necklace before it went missing, the girlfriend testified that she wore the necklace everyday, and she always took the necklace off before she went to bed and placed it in the same place in her jewelry box. No other witness can attest to the girlfriend’s testimony. The boyfriend’s attorney objected to the girlfriend’s testimony regarding the necklace. How should the judge rule on the objection?
a. Overrule it, because the girlfriend’s testimony is relevant to whether the boyfriend converted the necklace.
b. Overrule it, because the girlfriend’s testimony is admissible habit evidence.
c. Sustain it, because the girlfriend’s testimony cannot be corroborated.
d. Sustain it, because the girlfriend’s testimony is inadmissible character evidence.
b. Overrule it, because the girlfriend’s testimony is admissible habit evidence.
The plaintiff owned a very successful seafood restaurant. At the end of the previous season, the plaintiff had become concerned about competition from a new restaurant approximately two miles away. Now, at the beginning of this new season, the plaintiff was particularly concerned, because the clams and scallops he was receiving from his supplier were not up to their usual standard. The plaintiff believed that the diminished quality was due to changes in water temperatures and environmental conditions, which the plaintiff expected to improve by the start of summer. However, even well into the summer season, the plaintiff found that the seafood continued to be subpar.
Early in July, he hired a secretary, who was previously employed by the supplier, to work in his office. Shortly after the secretary began working for the plaintiff, she told him that the owner of the new restaurant was an old high school buddy of the president and owner of the supplier. The secretary told the plaintiff that the owner of the supplier was a silent partner in the new restaurant, and that at a meeting in March, the secretary overheard them discussing a plan to supply inferior seafood to the plaintiff’s restaurant, in order to hurt the plaintiff’s reputation and increase business at the new restaurant.
The plaintiff immediately instructed his staff to keep tallies of how many meals containing seafood supplied by the supplier were sent back to the kitchen as a result of customer complaints. In a subsequent action by the plaintiff against the supplier for interference with business relations, the plaintiff moved to introduce the tallies into evidence.
Are the tallies admissible?
A Yes, because they constitute a past recollection recorded.
B Yes, because they are a business record.
C No, because they are hearsay not within any exception.
D No, because there is no proof that the meals were sent back because of the inferior seafood.
The correct answer is:No, because they are hearsay not within any exception.
Discussion of correct answer:Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. Here, the tallies are clearly written testimony being presented for the purpose of proving that the supplier was supplying the plaintiff’s restaurant with inferior seafood. Therefore, the tallies are inadmissible hearsay if they are not subject to a recognized hearsay exception. Moreover, because the tallies were clearly created for the purpose of the plaintiff’s litigation and not in the ordinary course of the plaintiff’s business, they do not come within the business records exception to the hearsay rule.
A chef was involved in a two-car collision and sued the other driver, a cook. At the trial, the chef testified that the cook failed to stop at a stop sign and hit her, so the accident was not her fault. The cook called a witness who testified that she has known the cook for many years, and she observed that he always completely stopped at every stop sign. Is the witness’s testimony admissible?
a. Yes, because it tends to establish a pertinent habit of the cook’s while driving.
b. Yes, because it is evidence of the cook’s cautious character behind the wheel.
c. No, because the cook’s reputation for careful driving can only be proved by opinion or reputation.
d. No, because the cook’s prior conduct cannot be used to prove he is a careful driver.
a. Yes, because it tends to establish a pertinent habit of the cook’s while driving.
A patient sued his doctor for malpractice. The patient called an expert witness to testify that the drugs prescribed by the doctor were so experimental that it constituted negligence under accepted practices in the medical community. On cross-examination, the expert stated that Pharmacology: A Guide for the Practitioner was a reliable authority in her area of specialty. The expert testified that she, however, did not rely on that treatise in forming her opinion. The doctor’s attorney then proposed to read a portion from the treatise, which stated that the drugs prescribed by the doctor are widely used by other physicians in treating patients. The patient’s attorney objected.
Will the court admit the evidence?
A No, because the text of the treatise constitutes inadmissible hearsay.
B No, because the expert did not rely on the treatise in forming her opinion.
C Yes, as substantive evidence.
D Yes, to impeach the expert, but not as substantive evidence.
The correct answer is: Yes, as substantive evidence.
Discussion of correct answer: FRE 803(18) provides that statements contained in treatises may be admitted into evidence during direct or cross-examination of an expert witness if: (1) the treatise is established as a reliable authority; and (2) the treatise is called to the attention of the expert witness during cross-examination or is relied upon by the expert in direct testimony. As an exception to the hearsay rule, statements in treatises admitted pursuant to FRE 803(18) may be used as substantive evidence. They may be read to the jury.
A woman was on trial for the murder of her husband. The prosecution alleged that the woman paid one of her neighbors $25,000 to kill her husband. Immediately after the killing, the neighbor boarded a bus and called his roommate. In a lowered voice, he whispered, “Pack your bags, we gotta get out of town for a while ‘till the heat cools off. Don’t worry about money, I got it covered.” The neighbor’s conversation was heard by a fellow passenger. The neighbor was arrested at the airport the following day. At trial, the prosecution attempted to call the neighbor to testify, but he invoked his Fifth Amendment right not to testify. The prosecution then called the passenger to testify. The wife objected.
Which of the following is most accurate?
A The statement is inadmissible, because it does not directly incriminate the neighbor.
B The statement is inadmissible, because it does not directly incriminate the wife.
C The statement is admissible, as a statement against interest.
D The statement is admissible, as an excited utterance.
The correct answer is: The statement is admissible, as a statement against interest.
Discussion of correct answer: If a declarant makes a statement against his penal interest and is unavailable for trial, the statement will qualify as a statement against interest and will be admitted as an exception to the hearsay rule. The facts indicate that the neighbor has invoked his Fifth Amendment right not to testify. The neighbor’s statement also meets this exception’s criteria that it was against the neighbor’s penal interest when he said it, and that a reasonable person would not have made the statement if it were not true. Therefore, this is the best answer.
One morning, a man and a woman were seated at the kitchen table, eating breakfast together. The man said to the woman, “I had the funniest sensation last night…a burning feeling right in the middle of my forehead. It was where the doctor attached that probe to my head during my check-up yesterday. It lasted about 10 minutes, and then went away. It was weird.” She nodded her head, took another bite of her toast and replied, “That’s nice, dear.” A few minutes later, the man collapsed and died. The woman sued the doctor for medical malpractice. At trial, her attorney asks her to repeat what her husband said to her at breakfast.
How should the judge rule on the admissibility of this statement?
A Admit the statement, because it qualifies as a dying declaration.
B Admit the statement, because it qualifies as a statement of then-existing physical condition.
C Exclude the statement, because the man was not under the stress of excitement caused by a startling event.
D Exclude the statement, because it is hearsay not within any exception.
The correct answer is: Exclude the statement, because it is hearsay not within any exception.
Discussion of correct answer: Hearsay is a statement made outside of court that is offered into evidence in order to prove the truth of the matter asserted. The husband’s statement to the wife is hearsay if it is offered to prove that he suffered pain at the spot where the doctor attached the probe. It is inadmissible because it does not fit any exceptions to the hearsay rule. It is not a dying declaration, because there is no evidence the husband believed he was dying at the time he made the statement. It is not a statement of then-existing physical condition, because the husband is describing a past condition and not a present condition. It is not an excited utterance, because there is no evidence that the husband was under the stress of excitement caused by a startling event.
A father gives his son the keys to the father’s sports car. Without the father’s knowledge or permission, the son takes it street racing and in running a red light, he injures the innocent driver of another car. The innocent driver sues the father on a negligent entrustment theory. At trial, the innocent driver calls a neighbor of the father and son who testifies only that the son had always been “an extremely reckless sort of kid” whom the entire neighborhood regarded as having “absolutely no regard for the safety of others.” The defense objects. Is the neighbor’s testimony proper?
a. No, the neighbor did not support her testimony with specific instances of reckless conduct.
b. No, a witness may not testify as to the ultimate issue.
c. Yes, the son’s character is an essential element of the innocent driver’s cause of action.
d. Yes, the neighbor’s testimony did not offer evidence of specific instances of reckless conduct.
c. Yes, the son’s character is an essential element of the innocent driver’s cause of action.
