EVIDENCE

Question 1

In which of the following situations may the prosecution introduce evidence of the defendant’s bad character to establish she probably committed the crime charged?

A. Where the crime charged is a felony or a crime involving dishonesty or false statement.

B. Where the defendant first introduces evidence of her good character.

C. Where the defendant’s bad character shows that she is more likely to have committed the crime of which she is accused.

D. Where the defendant chooses to testify.

Answer 1

CORRECT ANSWER: B. Where the defendant first introduces evidence of her good character.

If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant’s bad character.

As a general rule, evidence of a defendant’s bad character is inadmissible to prove that the defendant probably acted in accordance with that character and committed the crime. This is true regardless of the nature of the crime charged, with limited exceptions for certain sexual assault cases. (Note that “felony or crime of dishonesty or false statement” is relevant to the separate concept of impeaching witnesses with prior criminal convictions.)
The general rule is that the prosecution cannot initiate evidence of the defendant’s bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant’s bad character.
A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

Question 2

A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime.

Under the Federal Rules, which of the following is an impermissible manner of showing the defendant’s good character?

A. Calling a witness to give his personal opinion concerning the trait in issue of the defendant.

B. Calling a witness to testify as to the defendant’s good reputation for the trait involved in the case.

C. Calling a witness to testify to the defendant’s specific acts of conduct to prove the trait in issue.

D.Calling a witness to testify that he has heard nothing bad regarding the defendant’s reputation for the trait involved in the case.

Answer 2

CORRECT ANSWER: C. Calling a witness to testify to the defendant’s specific acts of conduct to prove the trait in issue.

A defendant may call a qualified witness to testify as to the defendant’s good reputation (or that he has heard nothing bad) for the trait involved in the case. Under Federal Rule 405, the witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify as to specific acts of conduct of the defendant to prove the trait in issue.

Question 3

If a defendant in a criminal case presents evidence of his own good character for a particular trait, which of the following is a permissible method of rebutting this evidence?

A. The prosecution asks the defendant’s character witness whether he has heard about a bad act committed by the defendant, and after the witness denies it, the prosecution proves it by extrinsic evidence

B. The prosecution calls another witness to testify as to the defendant’s bad reputation for the same trait

C . The prosecution calls another witness to testify about a bad act committed by the defendant

D. The prosecution introduces documentary proof of a bad act committed by the defendant (e.g., a criminal conviction)

Answer 3

CORRECT ANSWER: B. The prosecution calls another witness to testify as to the defendant’s bad reputation for the same trait.

If the defendant puts her character in issue, the prosecution may rebut the defendant’s character evidence by calling qualified witnesses to testify to the defendant’s bad reputation for the particular trait involved. The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, introducing evidence about specific acts by the defendant is not allowed (whether by calling witnesses or introducing documentary proof of the act).
If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation, the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Question 4

The defendant is on trial for assault with a deadly weapon. The sole prosecution witness is the victim, who testifies as to his version of the events leading up to and including the charged assault. The defense’s first witness contradicts the victim’s testimony that the defendant engaged in an unprovoked attack. The witness testifies that the victim pulled a knife on the defendant and that the defendant, in defending himself, wrested the knife away and accidentally stabbed the victim. The defense’s next and final witness intends to testify that the defendant’s reputation in the community for honesty and veracity is very good. Aware of the intended testimony, the prosecutor moves in limine to exclude it.

How should the court rule?

A. For the state, because the defendant may not introduce evidence of his character to prove that he acted in conformity therewith.

B. For the state, because the testimony as to the defendant’s honesty and veracity is irrelevant.

C. For the defendant, because a criminal defendant may put his character in issue.

D. For the defendant, because a criminal defendant’s reputation for honesty and veracity is always at issue.

Answer 4

CORRECT ANSWER: B. For the state, because the testimony as to the defendant’s honesty and veracity is irrelevant.

The court should rule for the state. A criminal defendant, to show his innocence of the charged crime, may call a qualified witness to provide reputation or opinion testimony regarding the defendant’s good character for a trait involved in the case (i.e., to prove that he acted in conformity with that good trait during the events at issue). Therefore, (A) is incorrect. Here, however, the defendant is charged with a crime of violence, so his character for honesty and veracity is not pertinent to the case. Furthermore, although any witness may be impeached with reputation or opinion evidence of his bad character for honesty and veracity, the defendant did not testify. For these reasons, the proffered evidence is irrelevant. Thus, (C) is incorrect. A criminal defendant may offer evidence of character for a certain trait only when the trait is relevant to the charges, and so (D) is a misstatement of law.

Question 5

The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man.

Which of the following, if offered by the prosecution, would most likely be admissible?

A. neighbor’s testimony that the defendant has beaten his wife on several occasions.

B. A police officer’s testimony that the defendant has a general reputation in the community as a violent person.

C. A neighbor’s testimony that the defendant has a reputation for being untruthful.

D. Evidence that the defendant has a conviction for aggravated battery.

Answer 5

CORRECT ANSWER: B. A police officer’s testimony that the defendant has a general reputation in the community as a violent person.

Testimony of the defendant’s reputation as a violent person is admissible to rebut the defendant’s character evidence. The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, if the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant, the prosecution may rebut with evidence of the defendant’s bad character. One means of rebutting a defendant’s character evidence is by calling qualified witnesses to testify to the defendant’s bad reputation for the particular trait involved in the case. Here, the defendant put his character in issue by having his witness testify to the defendant’s nonviolent nature, which is relevant to whether he committed the crime charged. The prosecution, assuming that it can show that the police officer has knowledge of the defendant’s reputation in the community, can have the officer testify that the defendant had a reputation as a violent person. (A) is incorrect because the prosecution cannot prove the defendant’s bad character for the pertinent character trait with evidence of specific bad acts like beating his wife. The prosecution may only introduce character evidence in the form of reputation or opinion testimony after the defendant has first introduced evidence of his good character. The prosecution may also cross-examine the defense witness with questions about specific acts of misconduct by the defendant, but the prosecution may not prove those acts with extrinsic evidence. (C) is incorrect. While the defendant has “opened the door” to evidence of his bad character by presenting testimony of his good character, the evidence must pertain to the particular trait involved in the case. Here, the defendant’s capacity for violence has been placed in issue by the defendant, but his reputation for truthfulness is not relevant to whether he has committed the crime for which he is charged. (And because the defendant has not placed his credibility in issue by taking the stand as a witness, his reputation for truthfulness cannot be offered for impeachment purposes.) (D) is incorrect because the basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition, regardless of whether the defendant has placed his character in issue. [Fed. R. Evid. 404(b)] While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant’s battery conviction in this case appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible.

Question 6

Character evidence is admissible in a civil case if __________.

A. the evidence is in the form of reputation or opinion only

B. character is directly in issue

C.the defendant “opens the door” by introducing evidence of his good character

D. it is offered to show a good character trait only

Answer 6

CORRECT ANSWER: B. Character is directly in issue

Where character is directly in issue in a civil case, character evidence is admissible.
A defendant in a criminal case may “open the door” by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases.
Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used.
Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.

Question 7

Which of the following is a civil claim where character evidence may be admissible because character is “directly in issue?”

A. Battery claim, to show that defendant is violent and likely liable.

B. Negligent hiring claim, to show that the person hired by the defendant is unstable.

C. Breach of contract claim, to show that defendant is untrustworthy and likely to have breached the contract.

D. Product liability claim, to show that defendant is careless and likely liable.

Answer 7

CORRECT ANSWER: B. Negligent hiring claim, to show that the person hired by the defendant is unstable.

When a person’s character itself is at issue in the case, character evidence is not only admissible, but indeed is the best method of proving the issue. Character is said to be at issue in a civil case when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense. For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case. Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief). However, these types of situations are rare.
In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue. Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.

Question 8

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:

A. Reputation, opinion, or specific acts

B. Reputation and opinion only

C. Opinion only

D. Specific acts only

Answer 8

CORRECT ANSWER: A. Reputation, opinion, or specific acts.

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is “directly in issue.” Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.

Question 9

A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff’s witness would testify that the defendant is known by all his friends as “the Menace.”

Is the proffered testimony admissible?

A. Yes, because reputation evidence is a proper method of proving character.

B. Yes, because it is relevant.

C. No, it is inadmissible to show that the defendant was negligent on this occasion.

D. No, because the defendant did not introduce evidence of his reputation for carefulness.

Answer 9

CORRECT ANSWER: C. No, it is inadmissible to show that the defendant was negligent on this occasion.

The testimony of the plaintiff’s witness should not be admitted to show that the defendant was negligent. Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action). Character is not directly in issue here, and so (A) and (D) are incorrect. The defendant in a criminal, but not a civil, case can introduce evidence of good character, which can then be rebutted. (B) is incorrect because, although such evidence is clearly relevant, courts exclude this evidence because its slight probative value is outweighed by the danger of unfair prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

Question 10

A pedestrian sued the driver of a car that hit him, alleging that the driver ran a stop sign. The driver denies this, maintaining that the pedestrian carelessly darted into the street. At trial, the pedestrian calls her husband to testify for her. The husband offers testimony that the pedestrian invariably looks both ways before crossing a street. The driver objects to the admission of this evidence.

How should the court rule on the driver’s objection?

A. Sustained, because there is no evidence to corroborate the husband’s testimony.

B. Sustained, because it seeks to prove conduct in conformity with the character evidence.

C. Overruled, because the pedestrian’s character is in issue.

D. Overruled, because it tends to establish the pedestrian’s habit.

Answer 10

CORRECT ANSWER: D. Overruled, because it tends to establish the pedestrian’s habit.

The driver’s objection should be overruled. The husband’s testimony is a classic example of evidence regarding habit-it is a regular response (looking both ways) to a regular set of circumstances (crossing a street). The pedestrian’s habit is relevant to the issue of whether she was at fault in the accident. (A) is wrong because neither the Federal Rules nor the prevailing common law requires the corroboration of habit evidence. (B) and (C) are wrong because the testimony is evidence of habit, not character. Furthermore, this is not the type of civil case where character is directly in issue (e.g., defamation or negligent hiring cases).

Question 11

While a driver was driving someone else’s car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence.

How should the court rule on the objection?

A. Sustained, because the driver’s character is not in issue.

B. Sustained, because specific evidence of misconduct is not admissible to establish evidence of character.

C. Overruled as to the case against the owner, but sustained as to the case against the driver.

D. Overruled, because the evidence goes to the issue of the driver’s criminal negligence.

Answer 11

CORRECT ANSWER: C. Overruled as to the case against the owner, but sustained as to the case against the driver.

The witness’s testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character. Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver’s character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself. (A) is wrong; as stated, the driver’s character is in issue in determining whether the owner was negligent. (B) is wrong because specific instances of conduct may be used to prove character when character is an issue in the case. [Fed. R. Evid. 405(B)] (D) is wrong because this is not a criminal case.

Question 12

In its lead editorial in the Sunday edition, a suburban daily newspaper characterized a real estate developer as a “common thief.” The developer promptly filed suit against the newspaper for defamation. During the course of the presentation of the plaintiff’s case, he sought to put a witness on the stand who is prepared to testify that the plaintiff once saved the life of a fellow soldier in combat.

If the newspaper’s lawyer objects, should the court rule that the testimony is admissible?

A. Yes, because the plaintiff has a right to introduce evidence of his good character.

B. Yes, because the plaintiff’s character has been brought into question by the editorial.

C. No, because the witness’s testimony is not probative of any material issue.

D. No, because specific instances of conduct are not admissible to prove character.

Answer 12

CORRECT ANSWER: C. No, because the witness’s testimony is not probative of any material issue.

The witness’s testimony is inadmissible because it is not probative of a material issue (i.e., whether the plaintiff is a thief). Relevant evidence tends to prove or disprove a material fact in issue. Here, the testimony tends to prove that the plaintiff is brave and selfless, but it is not relevant as to the fact in issue, which is whether he is honest. (A) is incorrect because character evidence is admissible in a civil suit only when, as here, proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense. However, even when character is in issue, the evidence must be relevant to the particular character trait in issue; here, it is not relevant to the issue of the plaintiff being a thief. (B) is incorrect for the same reason; to be admissible, the evidence must be relevant. (D) is incorrect because proof of specific instances of a person’s conduct is admissible when character is directly in issue. [Fed. R. Evid. 405(b)]

Question 13

In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:

A. Proof beyond a reasonable doubt that the defendant committed the prior misconduct

B. Sufficient evidence to support a jury finding that the defendant committed the prior misconduct

C. Clear and convincing evidence that the defendant committed the prior misconduct

D. Proof that the defendant was convicted of a crime based on the prior misconduct

Answer 13

CORRECT ANSWER: B. Sufficient evidence to support a jury finding that the defendant committed the prior misconduct

Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that the defendant committed the prior act. Hence, clear and convincing evidence, proof beyond a reasonable doubt, or proof by a prior conviction are incorrect. (Note that the standard Rule 403 test also applies; the probative value of the evidence also must not be substantially outweighed by the danger of unfair prejudice.)

Question 14

A defendant is charged with beating a victim to death with a set of brass knuckles during the course of a fight in a tavern. The victim was found to have a pistol on his person at the time of the fight. During the course of the trial, the defendant took the stand in his own defense and testified that the victim threatened him with a gun and the defendant had hit the victim with the brass knuckles in self-defense. To rebut the defendant’s claim, the prosecution wishes to place the bartender on the stand, who will testify that two years prior to the attack on the victim, she had seen the defendant approach a customer in her tavern from behind, put on a pair of brass knuckles, and strike the customer a severe blow on the side of the face with a brass-knuckled fist. The prosecutor has complied with all notice requirements regarding the bartender’s proposed testimony. As soon as the bartender is sworn in, the defense attorney raises an objection.

How should the court rule on the admissibility of the bartender’s testimony?

A. Admissible, as substantive evidence that the defendant did not act in self-defense in beating the victim.

B. Admissible, to attack the defendant’s credibility.

C. Inadmissible, because prior bad acts cannot be admitted to prove the defendant’s propensity to commit the specific crime with which he is charged.

D. Inadmissible, because the defendant has not put his character in issue in this case.

Answer 14

CORRECT ANSWER: C. Inadmissible, because prior bad acts cannot be admitted to prove the defendant’s propensity to commit the specific crime with which he is charged.

The bartender’s testimony is inadmissible because the defendant’s prior fight in the tavern cannot be admitted to prove his propensity to beat someone to death. The basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. [Fed. R. Evid. 404(b)] The danger is that the jury may convict because of past conduct rather than because of guilt of the offense charged. While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant’s prior fight appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible. (A) is incorrect because it suggests that the bartender’s testimony should be admitted to show the defendant’s propensity for violence. As stated above, extrinsic evidence of his prior misconduct is inadmissible if offered solely to establish a criminal disposition. Evidence of specific acts of the person in question as demonstrating that person’s character is permitted only in the few instances when character is itself one of the ultimate issues in the case. [Fed. R. Evid. 405(b)] The defendant’s propensity for violence is not an ultimate issue in this case. (B) is incorrect because extrinsic evidence of the defendant’s previous bad acts cannot be used to impeach him. A specific act of misconduct must be probative of truthfulness (i.e., an act of deceit or lying) and can be elicited only on cross-examination of the witness. Extrinsic evidence is not permitted. Therefore, testimony concerning the defendant’s prior incident is not admissible for impeachment. (D) is incorrect because it is irrelevant. It is true that the defendant has not put his character in issue in this case simply by pleading self-defense. Even if he had, however, the prosecutor could not rebut by having a witness testify as to prior instances of misconduct; only reputation or opinion evidence would be admissible.

Question 15

Under the “recorded recollection” exception to the hearsay rule, certain records made by a declarant at or near the time of the event in question may be admissible.

Which of the following statements regarding this exception to the hearsay rule is true?

A. The record may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury.

B. The witness need not have known about the record prior to trial, as long as it concerns the event in question.

C. The exception applies where the witness’s memory of the event cannot be revived by looking at the record.

D. The declarant must be unavailable for trial.

Answer 15

CORRECT ANSWER: C. The exception applies where the witness’s memory of the event cannot be revived by looking at the record.

Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence.
There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record.
There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the record before trial.
If admitted under this exception, a record may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.

Question 16

The “recorded recollection” exception to the hearsay rule allows the offering party to:

A. Use a memorandum as a substitute for an unavailable declarant’s testimony

B. Admit a memorandum into evidence as an exhibit

C. Introduce a memorandum into evidence by reading it aloud

D. Refresh the witness’s recollection with a memorandum but not read it to the jury

Answer 16

CORRECT ANSWER: C. Introduce a memorandum into evidence by reading it aloud

Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury.
The “recorded recollection” exception is in contrast to “present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.
If admitted under the “recorded recollection” exception, a record may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party.
The “recorded recollection” exception only applies when a testifying witness is unable to remember the contents of the record (and when several other foundational requirements are met). It does not apply when a declarant is unavailable.

Question 17

A boater and a water skier were involved in a boating accident. Shortly after the accident, the water skier prepared a written summary of the events surrounding the accident. At trial two years later, the water skier is on the stand and is unable to accurately recall the details of the accident, even after reviewing the aforementioned account of the accident.

Assuming a proper foundation is laid, may the summary of the accident be read into evidence?

A. No, because the best evidence is the writing itself.

B. Yes, because the water skier’s memory of the actual event is insufficient.

C. Yes, because it refreshes the water skier’s recollection.

D. Yes, even though hearsay, because the out-of-court declarant is on the stand and is capable of being cross-examined.

Answer 17

CORRECT ANSWER: B. Yes, because the water skier’s memory of the actual event is insufficient.

The summary of the accident may be read into evidence. If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, Federal Rule 803(5) permits the introduction of an out-of-court memorandum or other record of the event made by the witness at a time when the witness’s memory of the event was fresh. The fact that the witness’s memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury, as here. (A) is incorrect. There is no question that the document which is read must satisfy the best evidence rule and be either the original or a duplicate, or there must be a satisfactory excuse for nonproduction of an original. There is no indication in this case that the summary in the witness’s possession would fail to satisfy the best evidence rule. It appears to be her original notes. The real question here is whether the document in question is admissible despite the hearsay rule. (C) is incorrect. If a record is used to refresh the memory of a witness who then proceeds to testify from her own memory as to the matter, then the memorandum is not evidence coming within the past recollection recorded exception under Federal Rule 803(5). A document which is used to refresh a witness’s memory may not be read to the jury. Instead, the witness will testify from her refreshed memory. (D) is incorrect. The hearsay rule applies in general to any out-of-court statement, whether or not the declarant is available for cross-examination. However, this statement comes within the hearsay exception for a past recollection recorded under Federal Rule 803(5). Under that Rule, the contents of the memorandum may be read to the jury.

Exam Tip: The difference between present recollection refreshed and past recollection recorded is a recurring exam favorite.

Question 18

Which of the following opinions of a lay witness is likely to be inadmissible?

A. A person seemed cheerful.

B. A person was suffering from malaria.

C. An object was heavy and bulky.

D. A person was intoxicated.

Answer 18

CORRECT ANSWER: B. A person was suffering from malaria.

Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert. Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.

Question 19

Which of the following statements regarding expert testimony is false?

A. The witness must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject.

B. The witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case.

C. The subject matter must be one where specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.

D. The witness must possess reasonable certainty or probability regarding his opinion.

Answer 19

CORRECT ANSWER: B. The witness’s opinion must not embrace the ultimate issue to be decided by the trier of fact in the case.

The opinion of an expert witness may embrace the ultimate issue in the case . Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: “An opinion is not objectionable just because it embraces an ultimate issue.”
Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:
(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.
To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

Question 20

Which of the following statements regarding the basis of expert testimony is false?

A. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.

B. An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.

C. An expert’s opinion may be based on his previous examination of a person about whom he is testifying.

D. An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel.

Answer 20

CORRECT ANSWER: B. An expert’s opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence.

Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
An expert’s opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion.
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination.
An expert’s opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.

Question 21

Which of the following statements concerning impeachment by “prior bad acts” is false?

A. The Federal Rules do not provide for the exclusion of prior bad acts on the basis of remoteness.

B. The cross-examiner may ask the witness about a prior bad act only if she has a reasonable basis for believing that the witness may have committed the act.

C. Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act.

D. If the witness denies the prior bad act on cross-examination, the cross-examiner may, in good faith, continue the cross-examination in the hope that the witness will change his answer.

Answer 21

CORRECT ANSWER: C. Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act.

Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.
The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the “bad act” inquired about.
The Federal Rules do not provide guidelines for the exclusion of prior bad acts on the basis of remoteness. Prior convictions, however, must not be too remote.

Question 22

Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel may now:

A. Continue the cross-examination in the hope that Witness will change his answer

B. Introduce an entry from Witness’s journal in which Witness admits committing the act of perjury

C.Introduce a transcript of Witness’s prior testimony from the unrelated case into evidence

D. Call another individual to testify about Witness’s prior act of perjury

Answer 22

CORRECT ANSWER: A. Continue the cross-examination in the hope that Witness will change his answer

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness's answer and move on.
Extrinsic evidence (e.g., calling another witness or introducing a record) of "bad acts" is not permitted, even where the witness denies committing the act on cross-examination. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

Question 23

The defendant was being sued by the plaintiff for driving his car negligently and injuring the plaintiff. The defendant called as a witness his brother, who was in the passenger seat of the defendant’s car when the accident occurred. His brother testified that the defendant was driving safely and well below the posted 55-mile-per-hour speed limit. Shortly before the trial began, the brother’s secretary telephoned the plaintiff and told him that the brother has been understating his income to the government for years. The Internal Revenue Service has never charged the brother with tax evasion, but the secretary’s information was accurate. On cross-examination, the plaintiff’s attorney asked the brother, “Have you ever cheated on your tax returns?” The defendant’s attorney objects.

Should the objection be sustained?

A. Yes, because the question is not relevant to the facts of the case at bar.

B. Yes, because witnesses may not be impeached through the use of collateral material.

C. No, because the brother’s tax evasion shows a tendency to lie.

D. No, because the brother’s acts constitute a felony punishable by at least one year in prison.

Answer 23

CORRECT ANSWER: C. No, because the brother’s tax evasion shows a tendency to lie.

The objection should be overruled because the question is a proper means of impeaching the brother’s character for truthfulness through specific instances of misconduct. Under Federal Rule 608(b), subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying). A conviction of a crime is not necessary under this rule. Cheating on one’s taxes is lying, so this would be a specific act of misconduct reflecting on the brother’s character for truthfulness. (A) is incorrect. Any matter that tends to prove or disprove the credibility of a witness is relevant because it affects the weight that the trier of fact should give to his testimony. (B) is incorrect because the brother is not being impeached by collateral extrinsic evidence (which is not permitted by Rule 608(b)); he is only being interrogated on cross-examination. (D) is incorrect because it states a requirement for impeachment by a prior conviction under Federal Rule 609, rather than by prior bad acts under Rule 608(b), which does not require that the conduct constitute a felony. Rule 609 is inapplicable because it requires a criminal conviction, and the brother has never even been charged with tax evasion.

Question 24

The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, “Isn’t it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?” The waiter responded, “Yes, but I wasn’t trying to steal anything. I just forgot to charge them.” The defense then asked, “Isn’t it a fact that last month you threw a rock through the plate glass window at the restaurant?” The waiter replied, “That’s not true; I was there but I didn’t throw the rock.” The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant’s window.

Assuming that there have been no criminal charges filed as a result of the broken window, is the witness’s testimony admissible?

A. No, because specific acts of misconduct that did not result in a conviction cannot be used to impeach a witness, either on cross-examination or through extrinsic evidence.

B. No, because specific acts of misconduct that did not result in a conviction cannot be established through extrinsic evidence.

C. Yes, as evidence of bias.

D. Yes, to establish that the waiter lied under oath.

Answer 24

CORRECT ANSWER: C. Yes, as evidence of bias.

The witness’s testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant’s window, because such evidence would help establish the waiter’s bias against the restaurant. (A) is incorrect for two reasons: Federal Rule 608 provides that, if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible. (B) is incorrect as well for this latter reason. (D) is too broad a statement. In a broad sense, the evidence is offered to impeach the credibility of the waiter and to suggest to the jury that he may be lying under oath. However, the defense does not need to establish that the waiter lied; the reason the evidence is relevant and does not constitute impeachment on a collateral matter is because it is offered to show bias, making (C) the better answer.

Question 25

Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:

A. Hearsay, and not admissible

B. Nonhearsay

C. Hearsay, but nonetheless admissible as an exception to the hearsay rule

D. Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement.

Answer 25

CORRECT ANSWER: B. Nonhearsay.

Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an “admission by a party-opponent”) is not hearsay at all under the Federal Rules.
It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).

Question 26

Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:

A. Partner; co-conspirator; co-party; principal-agent

B. Authorized spokesperson; partner; co-conspirator; principal-agent

C. Authorized spokesperson; partner; co-conspirator; co-party

D. Co-conspirator; co-party; principal-agent; authorized spokesperson.

Answer 26

CORRECT ANSWER: B. Authorized spokesperson; partner; co-conspirator; principal-agent

A statement may be attributable to an opposing party without being made by that party in an individual capacity. A party can be held vicariously liable for statements made by people with the following relationships to the party:
Authorized Spokesperson: The statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party.
Principal-Agent: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this statement may be introduced against her employer even if she was not authorized to speak for the employer.
Partners: After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others.
Co-Conspirators: The Supreme Court has held that statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.

Question 27

A defendant is being tried for the murder of a bank teller, which occurred during the robbery of a bank. At trial, a witness, who knew the defendant, is called to testify that on the day after the robbery he saw the defendant buying some groceries, and when the defendant removed a large roll of money, the witness had asked, “You didn’t steal that from someone, did you?” The defendant nodded.

This evidence is:

A. Admissible, as an excited utterance.

B. Admissible, because it is not hearsay.

C. Inadmissible, because it is hearsay not within any exception.

D. Inadmissible, because the defendant had no reason to respond to this statement.

Answer 27

CORRECT ANSWER: B. Admissible, because it is not hearsay.

The nod constitutes nonverbal conduct intended as an assertion and would thus be considered a “statement” for purposes of the hearsay rule. However, this statement constitutes a statement of a party-opponent and hence is not hearsay under Federal Rule 801. (C) is therefore incorrect. Likewise, (A) is incorrect, because (i) an excited utterance is an exception to the hearsay rule and this is not hearsay, and (ii) even if it were hearsay, this does not constitute an excited utterance because the statement was not made during or soon after the startling event and under the stress of that event. (D) is incorrect. The defendant responded to the question with a nod. If the defendant had failed to respond and the prosecutor wished to introduce his silence as an adoptive statement, then it would be necessary to determine whether there was a reason to respond.

Question 28

A plaintiff sued a defendant for negligence when the tractor that he was driving at a construction site collided with the plaintiff’s car. The plaintiff alleged that she was driving in a proper lane when the tractor collided with her car. The plaintiff’s counsel called the responding police officer to testify that the defendant’s employee made a statement to the police officer, in the defendant’s presence, that the defendant “accidentally went too far into traffic,” and the defendant did not say anything.

Should the trial judge rule that this evidence is admissible?

A. Yes, because the employee’s statement is a statement against interest.

B. Yes, because the defendant’s silence may qualify as an adoptive statement.

C. No, because the employee’s statement was hearsay, and the defendant’s silence is also hearsay.

D. No, because the employee has not yet testified to his statement.

Answer 28

CORRECT ANSWER: B. Yes, because the defendant’s silence may qualify as an adoptive statement.

The judge should rule the evidence admissible as an adoptive statement of an opposing party. Statements by or attributable to a party and offered against that party are not considered hearsay under the Federal Rules. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an adoptive statement. Although it is arguable that a person who may be liable for negligence would reasonably remain silent when in the presence of a police officer, this is the best answer. (D) is wrong because there need be no foundation evidence. (C) is wrong; the silence is deemed the adoption of the employee’s statement. Thus, both the employee’s statement and the defendant’s silence would be admissible. (A) is wrong because the statement against interest exception does not apply here. To fall within the exception, a statement must be against the declarant’s own interest when made-here, the employee’s statement was against the defendant’s interest, not his own. Furthermore, the exception requires the unavailability of the declarant (i.e., the employee), and there is no indication that the employee is unavailable.

Question 29

During the defendant’s trial for armed robbery, evidence was introduced establishing that a rifle was found in the trunk of the defendant’s car when he was arrested. On direct examination, the defendant testified that when he was arrested and the rifle was found, he stated, “I keep that with me for protection.”

Should the court allow the testimony?

A. Yes, because it is a statement of a party.

B. Yes, because it is an excited utterance.

C. No, because it is hearsay not within an exception.

D. No, because it is a self-serving statement.

Answer 29

CORRECT ANSWER: C. No, because it is hearsay not within an exception.

The court should not allow the testimony. The defendant’s testimony is being offered to prove the truth of the matter asserted (i.e., that he keeps the rifle for protection) and is hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay problem can arise even if the out-of-court declarant and the in-court witness are the same person, as is the case here. Because the statement is not within any exception to the hearsay rule, it must be excluded. (A) is incorrect because a party’s statement is considered nonhearsay when offered by a party-opponent. This hearsay exclusion does not apply here because the defendant’s testimony was elicited on direct examination-i.e., the defendant was introducing his own statement into evidence. (B) is incorrect because an excited utterance applies only if made in response to a startling event. Although the conditions of the search might have been stressful to the defendant, it is not the type of situation that gives rise to an excited utterance. (D) is incorrect. The fact that a statement is self-serving is not grounds for its exclusion. All of a criminal defendant’s evidence can be considered self-serving in the sense that it furthers his claim of innocence.

Question 30

In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence.

Which statement regarding the permissibility of extrinsic evidence is false?

A. A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.

B. Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.

C. The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.

D. The prior inconsistent statement must be relevant to the case.

Answer 30

CORRECT ANSWER: C. The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.

Question 31

Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:

A. Hearsay, but admissible as an exception

B. Not hearsay, as long as the witness is subject to cross-examination

C. Inadmissible hearsay

D. Not hearsay, as long as the witness is given an opportunity to explain or deny the prior statement

Answer 31

CORRECT ANSWER: B. Not hearsay, as long as the witness is subject to cross-examination

A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).
Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.

Question 32

Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?

A. An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

B. An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement.

C. An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

D. An unavailable hearsay declarant may not be impeached by any method because she is not present at trial.

Answer 32

CORRECT ANSWER: C. An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated.

Question 33

A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman’s car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident.

Will this evidence be permitted?

A. No, the statement is hearsay not within any recognized exception.

B. No, the moving company cannot impeach its own witness.

C. Yes, but it may be used only to impeach the driver.

D. Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.

Answer 33

CORRECT ANSWER: D. Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.

The evidence will be permitted to impeach and as substantive evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a testifying witness’s prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted. (A) is therefore incorrect. (B) is incorrect because the Federal Rules permit a party to impeach its own witness, even if not “surprised.” (C) is incorrect because it is too narrow; the evidence is admissible as substantive evidence as well as to impeach the driver.

Question 34

The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.

If the employee’s letter to his friend is properly authenticated, should the court admit the letter?

A. Yes, for impeachment purposes only.

B. Yes, as both substantive and impeachment evidence.

C. No, because a party may not impeach his own witness.

D. No, because it is inadmissible hearsay.

Answer 34

CORRECT ANSWER: B.

he letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness’s prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee’s letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee’s statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence, making (B) correct and (A) incorrect. (C) is incorrect because the Federal Rules provide that the credibility of a witness may be attacked by any party, including the party calling him. [Fed. R. Evid. 607] (D) is incorrect. The letter is hearsay because it is being offered to prove the truth of the matter asserted-that the employee was going to do electrical work on the home-as a basis for inferring that the employee did do the work. Additionally, it is not categorized as nonhearsay under the Federal Rules because it was not made under oath. However, as discussed above, it falls within the “present state of mind” exception to the hearsay rule.

Question 35

In federal courts, spousal immunity __________.

A. may be invoked in both civil and criminal cases.

B. is not terminated upon divorce

C. can be asserted as to matters that took place before the marriage

D. can be invoked by both the witness-spouse and the party-spouse

Answer 35

CORRECT ANSWER: C. can be asserted as to matters that took place before the marriage

The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.
Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege.
The privilege lasts only during the marriage and terminates upon divorce or annulment.
Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.

Question 36

When may the spousal immunity doctrine be invoked?

A. In criminal or civil cases, as long as the matter concerns a confidential communication between the spouses

B. In criminal or civil cases, for matters that took place before or during the marriage

C. In criminal cases only, for matters that took place during the marriage only

D. In criminal cases only, for matters that took place before or during the marriage

Answer 36

CORRECT ANSWER: D. In criminal cases only, for matters that took place before or during the marriage

When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only.
The privilege lasts only during the marriage and terminates upon divorce or annulment. However, if a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.
Spousal immunity may not be invoked in civil cases.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of spousal immunity.

Question 37

Which statement regarding the privilege for confidential marital communications is true?

A. The confidential communication must have been spoken aloud.

B. The privilege may be asserted as to communications made after divorce.

C. Either spouse may prevent anyone from disclosing confidential marital communications.

D. The privilege may be asserted as to communications made before the marriage.

Answer 37

CORRECT ANSWER: C. Either spouse may prevent anyone from disclosing confidential marital communications.

Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication.
The privilege cannot be asserted as to communications made before the marriage. In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.
The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.
The confidential communication need not be spoken; it may be made by conduct intended as a communication.
Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.

Question 38

An indictment was filed in federal district court charging the defendant with violations of federal bank robbery statutes. At trial, the government attempted to introduce into evidence the testimony of the defendant’s wife, who would testify that she had seen the defendant arm himself on several occasions with weapons identical to those used in the bank robberies, had seen him return to their home carrying sacks filled with money with the markings of the robbed banks, and had overheard, while serving meals, the defendant and his co-defendants discussing plans for robbing the various banks and concealing the loot. The defendant’s attorney objected, and the district court judge ruled that the wife’s testimony was within the spousal privilege and could not be admitted over the defendant’s objection.

Was this ruling correct?

A. No, because the spousal privilege may be asserted only by the testifying spouse-she may not be compelled to testify nor be foreclosed from testifying.

B. No, because there is no federal common law, and the spousal privilege is a creation of the common law.

C. Yes, because the privilege not to testify may be asserted by either the testifying or nontestifying spouse

D. Yes, because the defendant and his wife were married at the time and he can prevent her from disclosing the confidential communication.

Answer 38

CORRECT ANSWER: A.No, because the spousal privilege may be asserted only by the testifying spouse-she may not be compelled to testify nor be foreclosed from testifying.

Federal Rule 501 provides that federal courts shall apply rules of privilege developed at common law except in diversity cases, wherein state law controls, but this is not a diversity case. The United States Supreme Court has held that the privilege not to testify may be asserted only by the testifying spouse, and if she is willing to so testify against her husband, the marital relationship is so disharmonious that there is nothing left for the privilege to preserve. Thus, (A) is correct and (B) and (C) are incorrect. (D) is incorrect because it states the privilege for confidential marital communications, which is different from the spousal privilege. Further, the confidential communication was between the defendant and his co-defendants, not between the defendant and his wife.

Question 39

A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend’s presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant’s wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it.

May the defendant’s wife testify about the conversation?

A. Yes, because the conversation occurred prior to their marriage.

B. Yes, but only if she chooses to do so.

C. No, because the defendant forbids it.

D. No, unless both the defendant and his wife agree that she may testify.

Answer 39

CORRECT ANSWER: B. Yes, but only if she chooses to do so.

The wife may testify if she chooses to do so. In federal court, the privilege of spousal immunity belongs to the witness-spouse. There are two privileges based on the marital relationship. Under spousal immunity, a person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, one spouse may choose to testify against the other in a criminal case, with or without the consent of the party-spouse. Spousal immunity lasts only during the marriage and terminates upon divorce. However, as long as a marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage. Because the defendant is a criminal defendant, his wife cannot be compelled to testify about his conversation with the visitor. She may, however, choose to testify, and the defendant cannot stop her. The other choices reflect elements of the privilege for confidential marital communications. Under that privilege, either spouse (whether or not a party) may refuse to disclose, and may prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife. The communication must be made during a marriage, and must be in reliance upon the intimacy of the marital relationship, which is presumed in the absence of contrary evidence. This privilege is not afforded to a communication that is made in the known presence of a stranger. Both spouses jointly hold this privilege. The conversation between the defendant and the visitor cannot qualify as a confidential marital communication for several reasons. Most importantly, it was not a communication between the defendant and his wife. Moreover, the incident did not occur during the marriage. Thus, the privilege for confidential marital communications does not apply, and the defendant cannot prevent his wife’s testimony should she choose to testify. (A) is wrong because it states a reason why the privilege for confidential marital communications does not apply. Spousal immunity still applies; thus (B) is a better choice because it reflects the fact that the wife’s testimony cannot be compelled. (C) is wrong because, in federal court, spousal immunity does not permit the defendant-spouse to foreclose testimony by the witness-spouse. As discussed above, the privilege for confidential marital communications, under which both spouses may prevent disclosure, does not apply here. (D) is wrong for the same reason.

Question 40

The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child’s parents seeks to have the defendant’s wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, “Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would’ve hit the kid.” The wife was recently divorced from the defendant and eager to testify against him. The attorney for the child’s parents also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window.

Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?

A. Yes, because she and the defendant were divorced during the time between the making of the statement and the trial.

B. Yes, because the fact that the neighbor heard the statement removes the privileged status of the statement.

C. No, because the defendant’s statement was a confidential marital communication

D. No, because the privilege to foreclose such testimony belongs to the party-spouse.

Answer 40

CORRECT ANSWER: C. No, because the defendant’s statement was a confidential marital communication

The defendant’s statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with “between you and me,” and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement. (A) is incorrect because the communication was made during the marriage, and the privilege is not abrogated by a later divorce. (B) is incorrect because the fact that the neighbor heard the statement was unknown to the defendant and his wife. If the communication is made in the known presence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged. Nothing in these facts indicates negligence. Thus, the defendant can prevent his wife from testifying to the statement. (D) is incorrect because the privilege for confidential marital communications belongs to both spouses, rather than to just one. The trial here is a civil case, so the spousal immunity is inapplicable; this question involves the privilege for confidential marital communications. Furthermore, even if spousal immunity did apply, the federal privilege belongs to the witness-spouse, not the party-spouse.