Evidence

Question 1

Olivia sued Jim for defamation after Jim wrote and published an untrue story about Olivia claiming that she used illegal drugs during school hours at the school where she was a teacher. Jim offered to settle the case, but Olivia was so enraged that she refused, and the parties proceeded to trial. During trial, Olivia’s co-worker Kate testified that she had never witnessed Olivia using drugs and, in fact, Olivia sponsored the anti-drug club at the school. On cross-examination, counsel for Jim asked Kate if two of Olivia’s brothers were heavy drug users who were able to keep their drug use a secret, which had not been addressed during Kate’s testimony on direct examination. Jim had a source who had given him information that this assertion was indeed true, and he expected Kate to say that she did not know; however, Kate answered with an unequivocal “no.” Jim would like to impeach Kate with evidence that Olivia’s brothers were indeed drug users. Pursuant to Florida law, which of the following is correct regarding Kate’s answer to Jim’s last question?

Answer 1

Jim is bound by Kate’s answer, and he is not permitted to impeach her on the matter.

Question 2

During Mae’s criminal trial, the prosecution seeks to call several witnesses regarding Mae’s alibi. The prosecution is hoping to garner inconsistent statements from each witness, which will destroy their credibility and cast doubt on Mae’s alibi defense. In order for this plan to work, the prosecution does not want each witness to hear the testimony of the other witnesses, so the prosecution seeks to exclude each witness from the courtroom while the others are testifying. The prosecution’s motion will be:

Answer 2

Granted, as long as the witnesses do not fall within into any exceptions for people who may not be excluded from the courtroom.

Question 3

A police officer investigating the theft of water skis from a water sports shop located the reportedly stolen items in plain view under Tom’s pier. The police officer photographed the water skis found under Tom’s pier. On the back of the photographs, the officer wrote out a detailed description of the water skis, the location of the shop where the alleged larceny had occurred, and the precise location where the water skis had been found. The officer also wrote his name on the photographs as the photographer and investigating officer as well as the time and date of the discovery of the stolen merchandise. With the assistance of another police officer who was a notary public, the officer then signed the statement under oath. Almost immediately thereafter an enormous wave washed the water skis out to sea. Tom was subsequently charged with burglary and larceny. At Tom’s criminal trial in a Florida court, the prosecution sought to admit the photographs of the water skis in lieu of the actual property to prove that Tom had stolen the skis. Which of the following statements is true?

Answer 3

The photographs may be admitted in lieu of the water skis, because the photographs satisfy the Florida requirements for admissibility of a photograph of wrongfully taken property in lieu of the actual property.

Question 4

During a trial for damages arising from personal injuries sustained in a slip and fall accident, counsel for plaintiff, Helen, asks defendant Rich’s witness, Suzy, about the accident. Suzy was an eyewitness but now is unable to remember sufficient details to answer questions. Helen’s counsel seeks to introduce a memorandum of a statement made by a different eyewitness, Alex, as a recorded recollection. Assume that Suzy has adopted Alex’s statement. Rich’s counsel objects.

Answer 4

Sustained, because Suzy did not make the statement.

Question 5

A non-expert may testify as to the genuineness of handwriting as long as the testimony

Answer 5

Is not based on opinion that was formed in preparation for litigation.

Question 6

Pursuant to Florida law, for what purpose(s) may evidence of subsequent remedial measures be admissible?
I. To prove ownership or control.
II. To prove negligence.
III. To shift blame to a third party.

Answer 6

I and III.

Question 7

Paul, a prosecutor, is trying a case in which there are three joint defendants. Each defendant is given six peremptory challenges to use during the voir dire process. Paul is entitled to use:

Answer 7

Eighteen peremptory challenges.

Question 8

At trial, the attorney for the defendant wants to affirmatively use the deposition testimony of a witness. The deposition may be used affirmatively in all of the following situations except:

Answer 8

If the deponent is an expert or skilled witness, but only if she is unavailable.

Question 9

Dick arranged to take two clients, Smith and Jones, deep sea fishing off the Florida coast. Jane, Dick’s wife, overheard a telephone conversation that Dick had with Smith about the fishing trip, but she never saw Smith or Jones, before she left home for work that day. Jane also knew that Smith had planned to pick Dick up at home early that morning. Jane comes home from work that evening and finds Dick on the couch shot in the leg. Dick murmurs, “Honey, I’m shot and I’ve been lying here for hours. Call Dr. Feelgood.” Several seconds later he says, “Smith shot me.” He then dies of a heart attack. At the criminal trial of Smith for the murder of Dick, Dick’s statement that Smith shot him is:

Answer 9

Inadmissible, because it is hearsay.

Question 10

Jones was injured while examining a used car at Dealer’s car lot. Jones was looking under the hood of the car while a mechanic was working. The mechanic poured gasoline in the carburetor, which exploded when the mechanic tried to start the car, burning Jones badly. The mechanic made a routine written report of the accident in order to comply with the state safety regulations. Jones sues Dealer. The mechanic dies before trial. If Jones seeks to admit the mechanic’s properly authenticated report and the defense objects, the court should:

Answer 10

Overrule the objection; the report is a business record.

Question 11

Victim has brought a civil action against Driver for injuries she sustained when Driver accidentally backed over her legs as he pulled out of his driveway. Victim is claiming damages for various injuries, including two broken legs, loss of the use of her right arm, recurring headaches, failing eyesight, and diminished hearing capacity. At trial, Driver’s counsel calls Expert to testify that the numerous injuries described by Victim (with the exception of her broken legs) could not have resulted from the accident. In support of his testimony, Expert reads the following passage from a well-known medical journal: Broken legs bear no actual physical relationship to injuries of the arms, ears, eyes, and brain. If Victim’s counsel objects to this testimony, the court should:

Answer 11

Sustain the objection, since the medical journal may not be relied on as substantive evidence.

Question 12

In a trial, Judge Adams took judicial notice of the fact that City streetlights are lit at 7:00pm during the month of June. Which of the following is a correct statement?

Answer 12

Judge Adams has the discretion to determine whether the judicially noticed fact is conclusive.

Question 13

Dobb is being prosecuted for sexually assaulting Victim; however, Dobb claims that Victim consented to all of the alleged sexual activity. The prosecution calls Dobb’s wife, Wilma, and, after establishing her identity as Dobb’s wife, asked her what Dobb said on the night of the sexual assault. Dobb’s counsel immediately objected to Wilma’s testimony. The objection should be:

Answer 13

Sustained, because the privilege for confidential marital communications applies.

Question 14

Vlad died three days after a crane, operated by Drake, struck him. Vlad’s estate is now suing Drake. Counsel for the estate offers evidence that the day after the accident, Drake entered a drug rehabilitation center for treatment of cocaine addiction. The trial court would probably rule that such evidence is:

Answer 14

Inadmissible, as against a subsequent remedial measure.

Question 15

After she was sexually assaulted in a laundromat late one night, Janine met with a registered sexual assault counselor and told her about the incident. The counselor put Janine in touch with the police. Based on a description given by Janine, the police eventually arrested a Florida resident, Cameron, and Cameron was subsequently charged with rape. If Cameron seeks an in camera review of Janine’s communication with the counselor, what is the standard that he will be required to meet under Florida law?

Answer 15

Cameron must demonstrate a reasonable probability that the privileged matters contain material information necessary to his defense.

Question 16

Zack was charged with murder by the state of Florida. His defense was that he was not in Orlando, the city where the crime occurred, on the date of the murder. At trial, the State offered into evidence an authenticated letter of Bill, the victim dated three days before his murder stating that he and Zack were headed to Orlando for a few days. Zack’s counsel objects. How should the court rule on the objection?

Answer 16

Overruled, because Bill’s future conduct may be proved through evidence of his then-existing state of mind.

Question 17

Sandy was the manager of the local bookstore. While devoted to her business, Sandy had poor record-keeping skills and did not make her staff fill out regular time sheets. Cal, an employee of the bookstore, did not get along well with Sandy. As a full-time employee, Cal was paid for 40 hours per week. However, Sandy felt that Cal was generally not very productive, and she decided to begin paying him for only 20 hours of work per week. When Cal received his next monthly paycheck, he protested the reduced amount. Sandy scribbled a note on a scrap of paper, saying, “Cal’s hours for October: 20 per week” and placed it in a file marked “Employee Hours.” There were no other notes in the file. Cal subsequently filed suit against Sandy and the bookstore to recover his unpaid wages for the month of October. At the trial on the matter, Sandy sought to introduce her note as evidence that Cal had worked only 20 hours per week during the month of October, under the “business record” exception to the hearsay rule. Will the court allow the admission of Sandy’s note into evidence?

Answer 17

No, because the note does not qualify as a business record.

Question 18

Mary, the owner of a restaurant, meets with Artie, an attorney, to discuss some business issues. During their conversation, Mary mentions to Artie that she would like to sell the building in which the restaurant was formerly located, but she is having trouble finding a buyer. The old location has been up for sale for several years and Mary needs the money to invest in the new location. Mary asks Artie some questions about how people get caught for insurance fraud, and ways to avoid it. A week later, Mary’s building that has been for sale burns down under suspicious circumstances, and she attempts to collect the insurance proceeds on the policy attached to the building. If Mary is later on trial for arson and insurance fraud, her discussions with Artie will be:

Answer 18

admissible, because Mary sought information from Artie to commit what she knew was a crime.

Question 19

Vehicles driven by Elmer and Olive collide at a busy four way intersection. Before the filing of any lawsuit, Elmer tells Olive that he ran the stop sign and offers to settle the claim for $1500. Olive refuses to accept. Olive then sues Elmer for her personal injuries and property damage and Elmer, who was not injured, counterclaims for property damage. Olive testifies that her neighbor told her that his friend, a fireman, witnessed the accident and that the fireman, while still under the stress of the excitement of having viewed the accident, had told him exactly what he saw. Her attorney then asks Olive what the neighbor said to her about the accident. Before Olive can testify further, Elmer interjects a hearsay objection. The court should:

Answer 19

sustain the objection because the neighbor’s statement is hearsay and no exception applies.

Question 20

On a party’s request during a trial, the court takes judicial notice that the town of Aurora is located beside a lake. The jury:

Answer 20

may disregard the fact, if it is a criminal case.

Question 21

A defendant was on trial for murdering his girlfriend. She was found shot to death in her bedroom. While the first officer to arrive was in the bedroom he saw the girlfriend’s open diary on her desk. The diary, which was confiscated by the police, was properly authenticated as being in the girlfriend’s handwriting. During the defendant’s murder trial, the prosecution called the officer to testify. He proposed to testify that when he looked at the open diary, he saw the following handwritten passage: “My boyfriend threatened to kill me today.”
Upon objection, is the officer’s proposed testimony admissible?

(A) 		Yes, because the diary was in plain view.
(B) 		Yes, because he has firsthand knowledge of the diary.
(C) 		No, because the best evidence rule requires the diary to 		be produced into evidence.
(D) 		No, because the passage in the diary is hearsay not within any recognized exception.

Answer 21

(D) No, because the passage in the diary is hearsay not within any recognized exception.

Question 22

Marina, a famous pop singer, is involved in a car accident while driving under the influence of alcohol in which she hit and severely injured Hannah, a pedestrian, outside of a Miami night club. Hannah brings suit against Marina alleging damages for her injuries, but Marina maintains that she was not at fault for the accident. Due to the negative press
surrounding the accident, Marina authorizes her spokesperson, Alana, to give a statement on her behalf. Alana addresses the press with the following statement: “Marina is extremely sorry for the injuries she caused to a pedestrian when she ran a red light while speeding and driving under the influence of alcohol last Saturday night.” If Hannah seeks to introduce Alana’s statement to prove Marina was at fault for the accident, the statement will be:

(A) inadmissible, because the statement was made by Alana, not Marina.
(B) inadmissible, because it is hearsay not within any exception.
(C) admissible, because it’s a statement of an opposing party.
(D) admissible, because it does not constitute hearsay.

Answer 22

(C) admissible, because it’s a statement of an opposing party.

Question 23

Chelsey is on trial for the murder of her husband Jeff. As part of her defense, Chelsey claims that she has an alibi, as she was at the country club at the time the murder allegedly took place. While no one saw Chelsey at the country club on the afternoon in question, the country club has a system that keeps track of each member who uses her access card to enter the building. Chelsey wants to prove she was at the country club by showing that her access card was used on the date in question. This evidence will likely be:

(A) inadmissible as hearsay.
(B) inadmissible, unless the evidence can be corroborated by an eyewitness.
(C) admissible, because this is a criminal, not a civil, trial.
(D) admissible, because it is a record of regularly conducted activity.

Answer 23

(D) admissible, because it is a record of regularly conducted activity.

Question 24

Terry was badly beaten when he started making fun of some young men playing baseball in a Florida park, not realizing that the men were willing to use their baseball bat on him. As he lay in the hospital with many broken bones and internal injuries, he reasonably thought he was dying. Terry described the perpetrators to his roommate in the hospital. After about two months, Terry made a significant recovery and was released from the hospital. Around the same time, police made an arrest of two suspects in Terry’s beating, and he made the correct lineup identification. However, before the trials could take place, Terry crossed the street carelessly and was killed by a speeding truck. The prosecution could:

(A) have Terry’s identification to his roommate admitted under the present sense impression hearsay exception.
(B) have Terry’s identification to his roommate admitted under the hearsay exception for statement under belief of impending death.
(C) not have Terry’s identification to his roommate admitted, because it is hearsay not
within any exception.
(D) not have Terry’s identification to his roommate admitted, because he was seriously injured when he made the statement and may have been on mind-altering drugs.

Answer 24

(B) have Terry’s identification to his roommate admitted under the hearsay exception for statement under belief of impending death.

Question 25

While Mary was driving her sister Sally to school, Mary’s car collided with one driven by Larry. That evening, at her attorney’s suggestion, Mary decided to write a summary of the accident while it remained fresh in her memory. Mary signed the document and showed it to Sally, who agreed to sign it as well. One month later, Larry sued Mary’s insurance company in Florida state court for compensation for his injuries. Because Mary had moved to Spain for school and would not appear as a witness, Larry called Sally to the stand and sought to have Mary’s summary admitted as Sally’s recorded recollection.

The court should rule that the summary as a recorded recollection is:

inadmissible, because the statement is hearsay.
inadmissible, because Mary made the statement, not Sally.
admissible, because Sally adopted Mary

’

s statement.
admissible, because Mary is not available.

Answer 25

inadmissible, because Mary made the statement, not Sally.

Question 26

A woman suffered a broken arm in a car accident. She brings suit, but needs an expert to testify as to causation. She consults a doctor and says “my arm is in tremendous pain, it broke due to striking it on my car door in a car accident, when the other car ran a stop sign.” At trial, the defense objects to this conversation.

What statements are admissible?

(A) None, because the doctor was retained exclusively for expert testimony, not treatment.
(B) The statement ”my arm is in tremendous pain.”
(C) The statement ”my arm is in tremendous pain, it broke due to striking it on my car door in a car accident.”
(D) The entire conversation.

Answer 26

(C) The statement ”my arm is in tremendous pain, it broke due to striking it on my car door in a car accident.”

Question 27

Defendant is on trial for conspiracy to commit bank robbery. As part of her case-in-chief the prosecutor offers into evidence the grand jury testimony of a witness who gave incriminating testimony about Defendant before the grand jury, but who has since died prior to trial. The prosecutor offers the original stenographic record of the witness’ sworn testimony before the grand jury. Defense counsel objects.

Should the court admit the testimony?

(A) No, because the witness’ grand jury testimony is hearsay not within an exception.
(B) No, because it represents a prior consistent statement.
(C) Yes, as former testimony.
(D) Yes, as past recollection recorded.

Answer 27

(A) No, because the witness’ grand jury testimony is hearsay not within an exception.

Question 28

A patient sued his doctor for malpractice. The patient called an expert witness. She testified 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.

Answer 28

(D) Yes, to impeach the expert, but not as substantive evidence.

Question 29

While riding his bike to school one morning, Eric is struck by a vehicle driven by Sophia. As a result of the accident, Eric is required to undergo a series of complicated surgeries. Sophia, who is extremely wealthy, learns that Eric’s family is poor and cannot afford the surgeries, so she offers to pay for them. Eric’s parents accept the offer, and allow Sophia
to pay for several of Eric’s surgeries. They then bring suit against Sophia for negligence in causing the accident. If they seek to introduce evidence of Sophia’s offer to pay, and subsequent payment of, Eric’s medical bills, the evidence will be:

(A) admissible with regard to Sophia’s offer to pay.
(B) admissible with regard to Sophia’s payment of Eric’s medical bills.
(C) admissible with regard to both Sophia’s offer to pay and Sophia’s payment of Eric’s medical bills.
(D) inadmissible with regard to both Sophia’s offer to pay and Sophia’s payment of Eric’s medical bills.

Answer 29

?????

Question 30

As a result of a collision, Dustin is injured by a car being driven by Kimberly. Dustin has brought suit against Kimberly, alleging that she is liable for causing the collision which resulted in his injuries. Overcome with guilt, Kimberly sends a note to Dustin which says, “I am so sorry about the accident, and the fact that you are still in the hospital. I feel so bad for causing this accident.” If Dustin tries to introduce this note into evidence, he will be able to introduce:

(A) the part of the statement in which Kimberly admits she caused the accident.
(B) the entire statement.
(C) none of the statement.
(D) the part of the statement in which Kimberly says she feels bad that he is still in the hospital.

Answer 30

(A) the part of the statement in which Kimberly admits she caused the accident.

Question 31

Mary sued John for injuries she sustained falling on John’s staircase as she left his apartment building. John’s attorney seeks to introduce evidence that the day after the accident, John’s landlord, Alice, repaired the staircase. The evidence is:

(A) admissible, because it is evidence of a routine practice of an individual.
(B) admissible, because it is used to shift the blame to another party.
(C) inadmissible, because it is hearsay.
(D) inadmissible, because it is a subsequent remedial measure.

Answer 31

(B) admissible, because it is used to shift the blame to another party.

Question 32

Bernie consults his lawyer telling him that he is running an illegal investment scheme to defraud investors. He asks the lawyer advice as to how to avoid being caught. In a later fraud prosecution of Bernie,

(A) Bernie’s lawyer may claim privilege on behalf of his client.
(B) Bernie may claim privilege regarding confidential communications he had with his lawyer.
(C) Bernie may not claim privilege because the disclosure regarding the fraud is not confidential.
(D) Bernie’s lawyer may not claim privilege on behalf of his client.

Answer 32

?????

Question 33

After Robert was assaulted at a fraternity party, he filed a civil action against the fraternity and its president. Robert subpoenaed Bill, a writer for the school newspaper who wrote extensively about the incident on his personal website. Robert sought the admission of Bill’s notes from his interviews with several students who attended the party.

Which of the following, if true, would be Bill’s strongest argument in favor of journalist privilege?

The information can be obtained from an alternative source.
There is no compelling interest for requiring disclosure.
Bill has already drafted a book proposal based on his website.
Bill interviewed the students for a story for his newspaper.

Answer 33

Bill interviewed the students for a story for his newspaper.

Question 34

Jason hires Shelley to walk his dogs three afternoons a week while he is at work. After several weeks, Jason realizes that Shelley has been stealing small trinkets from his apartment each time she comes to walk his dog. Most of the items are insignificant in value, but one is an antique paperweight worth over $3,000. At Shelley’s trial for wrongful taking of the paperweight, Jason seeks to introduce a picture of the paperweight in lieu of the actual paperweight. Pursuant to Florida law, Jason will:

(A) not be permitted to introduce the picture, since the item can be easily transported to the court.
(B) not be permitted to introduce the picture, but may introduce a written description of the item.
(C) be permitted to introduce a picture of the item, as long as the photograph has certain information written on the back.
(D) be permitted to introduce a picture of the item, as long as he can provide corroborating testimony that this is indeed the paperweight that has been stolen.

Answer 34

(C) be permitted to introduce a picture of the item, as long as the photograph has certain information written on the back.

Question 35

Selby and Stefan, a married couple, live in Florida, where they support themselves by robbing stores. After a dozen or so robberies, they are apprehended and tried. The prosecutor puts pressure on Selby, encouraging her to testify against Stefan in exchange
for immunity, but Selby refuses. She seeks the advice of her lawyer as to what the prosecution can compel her to do. Her lawyer tells her that:

(A) she can be compelled to testify at Stefan’s trial, but she cannot be compelled to disclose marital communications.
(B) she cannot be compelled to testify at Stefan’s trial or disclose marital communications.
(C) she can be compelled to testify at Stefan’s trial, and the joint participants’ exception will apply.
(D) she cannot be compelled to testify or to disclose marital communications.

Answer 35

(A) she can be compelled to testify at Stefan’s trial, but she cannot be compelled to disclose marital communications.

Question 36

At the defendant’s trial for murder, the defendant sought to introduce the testimony of John, the defendant’s cousin, who was to testify that he was with the defendant out of state on the night of the murder. The prosecution then moved to introduce evidence that three years ago, John had been convicted of filing a false tax return. The defendant objected to the evidence of John’s conviction. Will the court overrule the objection?

(A) Yes, because evidence that a witness has been convicted of any crime is admissible to attack his credibility.
(B) Yes, because the crime of which John was convicted involved dishonesty or a false statement.
(C) No, because the crime of which John was convicted was not punishable by death or imprisonment in excess of one year.
(D) No, because the conviction occurred over one year ago and is of little probative value.

Answer 36

(B) Yes, because the crime of which John was convicted involved dishonesty or a false statement.