Evidence Flashcards
In litigation on a federal claim, Plaintiff had the burden of proving that Defendant received a notice. Plaintiff relied on the presumption of receipt by offering evidence that the notice was addressed to Defendant, properly stamped, and mailed. Defendant, on the other hand, testified that she never received the notice.
Which of the following is correct?
(A) The jury must find that the notice was received.
(B) The jury may find that the notice was received.
(C) The burden shifts to Defendant to persuade the jury of nonreceipt.
(D) The jury must find that the notice was not received, because the presumption has been rebutted and there is uncontradicted evidence of nonreceipt.
(B). Rule 301: When a presumption applies, the other party (the one that didn’t invoke the presumption) has the burden of production to rebut it. But that doesn’t change the burden of persuasion.
In a prosecution of Drew for forgery, the defense objects to the testimony of West, a government expert, on the ground of inadequate qualifications. The government seeks to introduce a letter from the expert’s former criminology professor, stating that West is generally acknowledged in his field as well qualified.
On the issue of the expert’s qualifications, the letter may be considered by
(A) the jury, without regard to the hearsay rule.
(B) the judge, without regard to the hearsay rule.
(C) neither the judge nor the jury, because it is hearsay not within any exception.
(D) both the judge and the jury, because the letter is not offered for a hearsay purpose.
(B). The question before the court is whether West is qualified enough to testify. For obvious reasons, that’s not a question we can ask the jury itself to decide! Rather, this is a preliminary question for the judge. Our question is thus whether the judge can consider the professor’s letter in making that determination. And the answer to our question comes directly from Rule 104(a), which provides that when deciding preliminary questions, “the court is not bound by evidence rules, except those on privilege.”
In a federal court diversity action by Plant against Decord on an insurance claim, a question arose whether the court should apply a presumption that, where both husband and wife were killed in a common accident, the husband died last.
Whether this presumption should be applied is to be determined according to
(A) traditional common law.
(B) federal statutory law.
(C) the law of the state whose substantive law is applied.
(D) the federal common law.
(C). Rule 302 provides that in civil cases where state law provides the rule of decision, “state law governs the effect of a presumption regarding a claim or defense.” I.e., in a civil case governed by state law (i.e., diversity jurisdiction cases), you also apply the state law on presumptions. So long as you are familiar with Rule 302, the correct answer here—Answer C—is easy to spot.
A defendant was charged in federal court with selling a controlled substance (heroin) in interstate commerce. At trial, the prosecutor introduced evidence that the defendant had obtained the substance from a supplier in Kansas City and had delivered it in Chicago. The defendant denied that the substance in question was heroin, but he introduced no contrary evidence on the issue of transportation.
Which of the following instructions regarding judicial notice may the judge legitimately give the jury?
(A) “If you find that the defendant obtained the substance in Kansas City and delivered it to Chicago, I instruct you to find that the substance was sold in an interstate transaction.”
(B) “If you find that the defendant obtained the substance in Kansas City and delivered it to Chicago, then the burden of persuasion is on the defendant to establish that the transaction was not interstate.”
(C) “If you find that the defendant obtained the substance in Kansas City and delivered it to Chicago, then you may, but you are not required to, find that the transaction was interstate in nature.”
(D) “I instruct you that there is a presumption that the substance was sold in an interstate transaction, but the burden of persuasion on that issue is still on the government.”
(C). This instruction complies with Federal Rule of Evidence 201(f), which states that in a criminal case, “the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Thus, a judicially noticed fact in a criminal case allows the court to instruct on a permissible inference, but nothing more.
(B) is incorrect b/c a judicially noticed fact in a criminal case cannot shift that constitutionally mandated burden of proof.
In a civil action for breach of an oral contract, the defendant denied having entered into a contract with the plaintiff, although he admitted that he had discussed doing so.
Which of the following standards of admissibility should the court apply to evidence proffered as relevant to prove whether a contract was formed?
(A) Whether a reasonable juror would find the evidence determinative of whether the contract was or was not formed.
(B) Whether the evidence has any tendency to make the fact of contract formation more or less probable than without the evidence.
(C) Whether the evidence is sufficient to prove, absent contrary evidence, that the contract was or was not formed.
(D) Whether the evidence makes it more likely than not that a contract was or was not formed.
(B). This is the standard of relevance applied by the judge in determining admissibility under Federal Rule of Evidence 401. Under that rule, evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”
In a suit based on a will, the distribution of $1 million depends upon whether the wife survived her husband when both died in the crash of a small airplane. An applicable statute provides that, for purposes of distributing an estate after a common disaster, there is a rebuttable presumption that neither spouse survived the other. A witness has been called to testify that as she approached the plane she heard what she thought was a woman’s voice saying, “I’m dying,” although by the time the husband and wife were removed from the wreckage they were both dead.
Is the witness’s testimony admissible?
(A) No, because the matter is governed by the presumption that neither spouse survived the other.
(B) No, because the witness’s testimony is too speculative to support a finding.
(C) Yes, because the hearsay rule does not apply to statements by decedents in actions to determine rights under a will.
(D) Yes, because it is relevant and not otherwise prohibited.
(D). The testimony is not barred by the hearsay rule or any other rule and is relevant to the issue of whether the wife survived the husband. The dying woman’s statement is not being offered for its truth but only to prove that she could speak and therefore was alive.
A defendant’s house was destroyed by fire, and she was charged with arson. To prove that the defendant had a motive to burn down her house, the government offered evidence that the defendant had fully insured the house and its contents.
Should the court admit this evidence?
(A) No, because the probative value of the evidence of insurance on the issue of whether the defendant intentionally burned her house down is substantially outweighed by the dangers of unfair prejudice and confusion of the jury.
(B) No, because evidence of insurance is not admissible on the issue of whether the insured acted wrongfully.
(C) Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house.
(D) Yes, because any conduct of a party to the case is admissible when offered against the party.
(C). Although this evidence is certainly not conclusive that the defendant committed arson (many people fully insure their houses), it is relevant to the issue of whether the defendant would have had a financial incentive to commit the arson. The defendant might have been able to generate cash more quickly by burning down the house and collecting insurance proceeds than by attempting to sell the house. To be relevant under Rule 401 of the Federal Rules of Evidence, the evidence need only have a tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence. Therefore, evidence that has only the slightest probative value can be admitted under this rule.
(B) is wrong because under Rule 411 of the Federal Rules of Evidence it is true that evidence that a person was insured is generally not admissible to prove that the person acted negligently or otherwise wrongfully. However, such evidence may be received for other purposes, and proof of motive is such a purpose. In this respect, Rule 411 is similar to Rule 404(b), under which evidence of past conduct cannot be admitted to prove a propensity to engage in such conduct but can be admitted on the issue of motive.
At Darrow’s trial for stealing an automobile, Darrow called a character witness, Goode, who testified that Darrow had an excellent reputation for honesty. In rebuttal, the prosecutor calls Wick to testify that he recently saw Darrow cheat on a college examination.
This evidence should be
(A) admitted, because Darrow has “opened the door” to the prosecutor’s proof of bad character evidence.
(B) admitted, because the cheating involves “dishonesty or false statement.”
(C) excluded, because it has no probative value on any issue in the case.
(D) excluded, because Darrow’s cheating can be inquired into only on cross-examination of Goode.
(D). Darrow has opened the door to character evidence about about his honesty, so the prosecutor may offer rebuttal evidence. But Rule 405 limits what kind of evidence the prosecutor can use. The prosecution can call its own witness to testify to REPUTATION or OPINION evidence relating to dishonesty, but the prosecutor can only ask about SPECIFIC INSTANCES is strictly during cross-examination.
Doppler is charged with aggravated assault on Vezy, a game warden. Doppler testified that, when he was confronted by Vezy, who was armed and out of uniform, Doppler believed Vezy was a robber and shot in self-defense. The state calls Willy to testify that a year earlier, he had seen Doppler shoot a man without provocation and thereafter falsely claim self-defense.
Willy’s testimony is
(A) admissible, as evidence of Doppler’s untruthfulness.
(B) admissible, as evidence that Doppler did not act in self-defense on this occasion.
(C) inadmissible, because it is improper character evidence.
(D) inadmissible, because it is irrelevant to the defense Doppler raised.
(C). Rule 404 prohibits “other crime” evidence when it is offered to prove that a person has a character trait or propensity that they acted in accordance with on a particular occasion.
Doppler testified, so it is fair game for the prosecutor to impeach his character for truthfulness. Indeed, any witness’s character for truthfulness is fair game for attack. And if Doppler falsely claimed self-defense before, that’s relevant to his character for truthfulness. But Rule 608, which governs this sort of impeachment, says that the attack must come in the form of reputation or opinion witnesses, and not with extrinsic evidence of specific incidents. Willy is trying to testify about a specific event—Doppler’s falsely claiming self-defense in the earlier case. Rule 608 doesn’t permit that sort of extrinsic evidence.
Denn is on trial for arson. In its case in chief, the prosecution offers evidence that Denn had secretly obtained duplicate insurance from two companies on the property that burned and that Denn had threatened to kill his ex-wife if she testified for the prosecution.
The court should admit evidence of
(A) Denn’s obtaining duplicate insurance only.
(B) Denn’s threatening to kill his ex-wife only.
(C) both Denn’s obtaining duplicate insurance and threatening to kill his ex-wife.
(D) neither Denn’s obtaining duplicate insurance nor threatening to kill his ex-wife.
(C).
The rule prohibiting evidence of insurance doesn’t apply to all kinds of insurance, just to LIABILITY INSURANCE. So this property insurance evidence is fine.
Evidence re: the threat may be objected to as “prior act” evidence, but the prosecution can easily respond that this is relevant b/c it goes to Denn’s consciousness of guilt.
Plaintiff Construction Co. sued Defendant Development Co. for money owed on a cost-plus contract that required notice of proposed expenditures beyond original estimates. Defendant asserted that it never received the required notice. At trial Plaintiff calls its general manager, Witness, to testify that it is Plaintiff’s routine practice to send cost overrun notices as required by the contract. Witness also offers a photocopy of the cost overrun notice letter to Defendant on which Plaintiff is relying, and which he has taken from Plaintiff’s regular business files.
On the issue of giving notice, the letter copy is
(A) admissible, though hearsay, under the business record exception.
(B) admissible, because of the routine practices of the company.
(C) inadmissible, because it is hearsay not within any exception.
(D) inadmissible, because it is not the best evidence of the notice.
(B). Not H b/c not offered for the truth of the matter it asserts (that there were cost overruns).
This is propensity reasoning, but it is propensity reasoning that Rule 406 expressly permits. Evidence of an “organization’s routine practice,” Rule 406 tells us, is permissible to show that the “organization acted in accordance” with that practice.” (ORGANIZATION HABIT / ROUTINE PRACTICE)
Plaintiff sued Defendant for breach of a commercial contract in which Defendant had agreed to sell Plaintiff all of Plaintiff’s requirements for widgets. Plaintiff called Expert Witness to testify as to damages. Defendant seeks to show that Expert Witness had provided false testimony as a witness in his own divorce proceedings.
This evidence should be
(A) admitted only if elicited from Expert Witness on cross-examination.
(B) admitted only if the false testimony is established by clear and convincing extrinsic evidence.
(C) excluded, because it is impeachment on a collateral issue.
(D) excluded, because it is improper character evidence.
(A). A party cannot use “extrinsic” (i.e., outside) evidence about a specific instance of dishonesty to challenge a witness’s character for truthfulness. (Note that a witness’s prior convictions under Rule 609 are an exception, but this question does not implicate that exception.) Second, a party may ask a witness about their own specific prior acts of dishonesty during cross-examination.
At Devlin’s trial for burglary, Jaron supported Devlin’s alibi that they were fishing together at the time of the crime. On cross-examination, Jaron was asked whether his statement on a credit card application that he had worked for his present employer for the last five years was false. Jaron denied that the statement was false.
The prosecutor then calls Wilcox, the manager of the company for which Jaron works, to testify that although Jaron had been first employed five years earlier and is now employed by the company, there had been a three-year period during which he had not been so employed.
The testimony of Wilcox is
(A) admissible, in the judge’s discretion, because Jaron’s credibility is a fact of major consequence to the case.
(B) admissible, as a matter of right, because Jaron “opened the door” by his denial on cross-examination.
(C) inadmissible, because whether Jaron lied in his application is a matter that cannot be proved by extrinsic evidence.
(D) inadmissible, because the misstatement by Jaron could have been caused by misunderstanding of the application form.
(C). When a party is seeking to show that a witness has a bad character for truthfulness in general, that’s called character-based impeachment and it’s governed by Rule 608. That rule provides that a party can ask about specific incidents of lying on cross-examination, but may not offer extrinsic evidence about them. So while the prosecutor was entitled to ask Jaron about the credit card application, he is stuck with Jaron’s answer. Since this is character-based impeachment, the prosecutor may not call a witness to try to disprove it.
At Defendant’s murder trial, Defendant calls Witness as his first witness to testify that Defendant has a reputation in their community as a peaceable and truthful person. The prosecutor objects on the ground that Witness’s testimony would constitute improper character evidence.
The court should
(A) admit the testimony as to peaceableness, but exclude the testimony as to truthfulness.
(B) admit the testimony as to truthfulness, but exclude the testimony as to peaceableness.
(C) admit the testimony as to both character traits.
(D) exclude the testimony as to both character traits.
(A). The key here is to ascertain what character traits are pertinent to the case. This is a murder trial, so whether the defendant is peaceful is surely pertinent. But what about Witness’s assertion that Defendant also has a reputation for being truthful? That’s not necessarily pertinent in a murder case. Note also that the facts tell us that Witness is Defendant’s FIRST WITNESS. That means that Defendant himself has NOT testified. If Defendant had testified and been impeached, then his character for truthfulness would also be fair game. Since he hasn’t testified, Witness will be limited to telling the jury only about Defendant’s reputation for peacefulness.
A plaintiff sued the insurer of her home after the insurer denied coverage for water damage to the home allegedly caused by a frozen plastic pipe that burst. At trial, the insurer called as an expert witness an engineer, who testified that the pipe had burst because of age rather than freezing. On cross-examination, the engineer admitted that five years earlier, he had been convicted of tax fraud, even though he had asserted that it was his accountant’s error. In response, the insurer calls a witness, who is well acquainted with the engineer and his reputation, to testify that (1) in the witness’s opinion, the engineer is a truthful person, and (2) the engineer’s neighbors all describe him as a truthful person.
How much, if any, of the witness’s testimony is admissible?
(A) All of the testimony is admissible to support the engineer’s credibility.
(B) Only the portion concerning the engineer’s reputation is admissible, because where both opinion and reputation evidence are available, only the latter is admissible under a rule of preference.
(C) Only the portion concerning the witness’s opinion of the engineer’s character, because the witness’s reporting of the neighbors’ comments is hearsay.
(D) None of the testimony is admissible, because it is collateral, having no bearing on the engineer’s qualifications as an expert.
(A) As reputation and opinion evidence are admissible to rehabilitate a witness’s character for truthfulness, all of the testimony is admissible to support the engineer’s credibility.
Parker sues Dix for breach of a promise made in a letter allegedly written by Dix to Parker. Dix denies writing the letter.
Which of the following would NOT be a sufficient basis for admitting the letter into evidence?
(A) Testimony by Parker that she is familiar with Dix’s signature and recognizes it on the letter.
(B) Comparison by the trier of fact of the letter with an admitted signature of Dix.
(C) Opinion testimony of a nonexpert witness based upon familiarity acquired in order to authenticate the signature.
(D) Evidence that the letter was written in response to one written by Parker to Dix.
(C). The nonexpert’s familiarity must not have been established for purposes of authentication.
Poole sued Darrel for unlawfully using Poole’s idea for an animal robot as a character in Darrel’s science fiction movie. Darrel admitted that he had received a model of an animal robot from Poole, but he denied that it had any substantial similarity to the movie character. After the model had been returned to Poole, Poole destroyed it.
In order for Poole to testify to the appearance of the model, Poole
(A) must show that he did not destroy the model in bad faith.
(B) must give advance notice of his intent to introduce the oral testimony.
(C) must introduce a photograph of the model if one exists.
(D) need do none of the above, because the “best evidence rule” applies only to writings, recordings, and photographs.
(D). The best evidence rule only applies to writings, recordings, or photographs. The testimony here concerns an animal robot model. So the best evidence rule doesn’t apply to this testimony.
(A) would be true if this were a writing/recording/photograph.
In a federal civil trial, Plaintiff wishes to establish that, in a state court, Defendant had been convicted of fraud, a fact that Defendant denies.
Which mode of proof of the conviction is LEAST likely to be permitted?
(A) A certified copy of the judgment of conviction, offered as a self-authenticating document.
(B) Testimony of Plaintiff, who was present at the time of the sentence.
(C) Testimony by a witness to whom Defendant made an oral admission that he had been convicted.
(D) Judicial notice of the conviction, based on the court’s telephone call to the clerk of the state court, whom the judge knows personally.
(D). The biggest problem here is that a fact can be judicially noticed only if it is something “not subject to reasonable dispute.” But we learn in the facts here that there is a dispute about whether Defendant was convicted, and we’re given no reason to think that the dispute isn’t reasonable. Judicial notice was inappropriate in this circumstance, and that’s why the correct answer is D.
A threatening telephone call that purports to be from Defendant to Witness is most likely to be admitted against Defendant if
(A) the caller identified himself as Defendant.
(B) Witness had previously given damaging testimony against Defendant in another lawsuit.
(C) Witness had given his unlisted number only to Defendant and a few other persons.
(D) Witness believes that Defendant is capable of making such threats.
(C) This is decent identification evidence! It shows that Defendant was among the exclusive group of people who even could call Witness. That does make it somewhat more likely that Defendant was the person who made the threatening call.
Plaintiff sued Defendant for injuries suffered in a car accident allegedly caused by brakes that had been negligently repaired by Defendant. At a settlement conference, Plaintiff exhibited the brake shoe that caused the accident and pointed out the alleged defect to an expert, whom Defendant had brought to the conference. No settlement was reached. At trial, the brake shoe having disappeared, Plaintiff seeks to testify concerning the condition of the shoe.
Plaintiff’s testimony is
(A) admissible, because Defendant’s expert had been able to examine the shoe carefully.
(B) admissible, because Plaintiff had personal knowledge of the shoe’s condition.
(C) inadmissible, because the brake shoe was produced and examined as a part of settlement negotiations.
(D) inadmissible, unless Plaintiff establishes that the disappearance was not his fault.
(B) This question seeks to distract you with details that don’t actually matter. This is a lawsuit between a person injured in a car accident (Plaintiff) and a person who’d repaired the car’s breaks (Defendant). Plaintiff wants to testify about the condition of the brake shoe. At one time Plaintiff had possession of the brake shoe, but it was missing by the time of trial. Can Plaintiff tell the jury about the missing shoe?
Absolutely, he can. He had personal knowledge of it and can testify based on his first-hand observations. To be sure, it is very fishy that the brake shoe went missing before trial. Defendant’s lawyer will surely make a big issue out of that on cross-examination. In no way, however, does that make the Plaintiff’s testimony inadmissible.
Defendant is on trial for extorting $10,000 from Victim. An issue is the identification of the person who made a telephone call to Victim. Victim is prepared to testify that the caller had a distinctive accent like Defendant’s, but that he cannot positively identify the voice as Defendant’s. Victim recorded the call but has not brought the tape to court, although its existence is known to Defendant.
Victim’s testimony is
(A) inadmissible, because Victim cannot sufficiently identify the caller.
(B) inadmissible, because the tape recording of the conversation is the best evidence.
(C) admissible, because Defendant waived the “best evidence” rule by failing to subpoena the tape.
(D) admissible, because Victim’s lack of certainty goes to the weight to be given Victim’s testimony, not to its admissibility.
(D). Given the limited purpose for which the prosecutor is offering the recording (similar accent, not ID), it is not necessary for Victim to be able to identify Defendant as the caller. Victim is testifying based on his memory, so the prosecution is not relying on the recording to PROVE ITS CONTENTS (which triggers the best evidence rule). The testimony is admissible, and Victim’s lack of certainty goes to how much weight the jury will give it, but not to its admissibility. That is, given that all Victim can say is that the caller had a distinctive accent, the jury may not give the testimony all that much weight. But that’s a separate question from admissibility.
A defendant is on trial for possession of heroin. During the prosecution’s case-in-chief, a police officer testifies that he watched another officer seize a bag of white powder from the defendant and seal it in an envelope, which both officers initialed and dated and then placed in the police property room. The prosecutor then calls a chemist to testify that she obtained, intact from the property room, the dated, sealed envelope with the initials of both police officers, whose handwriting she recognized from previous experience, and that testing disclosed that the powder therein was heroin. The defendant argues that the prosecutor has not sufficiently authenticated the powder tested by the chemist as the powder that was seized from the defendant.
Is the chemist’s testimony admissible?
(A) No, because the chemist lacks firsthand knowledge that the powder came from the defendant.
(B) No, unless the envelope and powder are produced in court or their absence is explained.
(C) Yes, because an object in official custody is self-authenticating.
(D) Yes, because the powder is sufficiently identified as having come from the defendant.
(D). This is sufficient to establish a chain of custody (i.e. the powder is sufficiently identified as having come from the defendant.)
The answer is not C because objects in official custody are not self-authenticating; a chain of custody still must be proven. In addition, self-authenticating documents include public documents, newspapers, periodicals, official foreign documents, trade inscriptions, commercial paper, and other documents that the court will presume to be authentic; the same does not apply for drugs seized at the scene of a crime.
A defendant was charged with burglary. At trial, a police officer testified that, after the defendant had been arrested and had agreed to answer questions, the officer had interrogated him with a stenographer present, but that the officer could not recall what the defendant had said. The prosecutor presented the officer with a photocopy of the stenographic transcript of the interrogation. After looking at it, the officer began to testify that he recalled that the defendant had admitted to being in the area of the burglary. The defendant has objected to the officer’s testimony on the ground that it violates the “original document” rule (also known as the “best evidence” rule).
Should the officer’s testimony concerning the defendant’s recorded confession be admitted?
(A) No, because a photocopy cannot be used without a showing that the original is unavailable.
(B) No, because the stenographer has not testified to the accuracy of the transcript.
(C) Yes, because a photocopy is a duplicate of the original.
(D) Yes, because the prosecutor is not attempting to prove the contents of the document.
(D) The prosecutor is trying to prove what the defendant said, not what the transcript says. Accordingly, Federal Rule of Evidence 1003, the best evidence rule, is not relevant. In this case, the copy of the transcript may be used under Federal Rule of Evidence 612 to refresh the officer’s recollection.
(C) assumes the best evidence rule applies here, which it doesn’t.
A defendant was tried on multiple counts of bank fraud for a scheme in which he allegedly made withdrawals from the bank accounts of others by using false identification cards and forging signatures on checks. A codefendant, who had assisted the defendant in 5 of the 75 transactions for which the defendant was being tried, testified that he was present and saw the defendant endorse 5 of the checks. Thereafter, the prosecutor moved for admission of all 75 checks that the defendant had allegedly endorsed, arguing that a comparison by the jury of the signatures on the checks identified by the codefendant with those on the other 70 checks would demonstrate that they were all signed by the defendant.
Should the court permit the proposed comparison of the handwriting specimens by the jury?
(A) No, because such a comparison may be done only by an expert.
(B) No, because such a comparison may be done only by an expert or by a nonexpert who can testify to the genuineness of the handwriting.
(C) Yes, because the jurors are allowed to determine the genuineness of handwriting specimens based on comparison with authenticated specimens.
(D) Yes, but only if the court first makes a preliminary finding of authenticity as to the other 70 checks.
(C). Rule 901(b)(3) allows the jury to determine the genuineness of evidence by comparison with other authenticated specimens. Because five specimens have been properly authenticated by a witness with personal knowledge, the rule permits the jury to compare the remaining specimens with those five.
Rule 901(b)(3) allows a “comparison with an authenticated specimen by an expert witness or the trier of fact.”
