Evidence

Question 1

Answer Strategies

Answer 1

4 Ws: why is evidence being introduced? Who is trying to offer it? When in the proceeding? Is proceeding civil or criminal?

Question 2

9. D is on trial for embezzlement. The prosecution wishes to introduce evidence that D makes $15,000.00 per year and has a net worth of $5.00 to establish a motive for the embezzlement. What else, if anything, must the prosecution offer to establish the relevance of this evidence?
   A) None, poverty alone is sufficiently relevant to show motive for embezzlement.
   B) The fact that after the money disappeared, D bought a very expensive sports car.
   C) The fact that D is a compulsive gambler.
   D) The fact that D inherited two million dollars.

Answer 2

B) The fact that after the money disappeared, D bought a very expensive sports car.

This fact may show not that D was a pauper, rather that a pauper would not normally be able to buy a sports car. Thus, the jury could then infer that D got the money from the embezzlement.

Question 3

73. James is charged with assaulting a police officer. The primary evidence is the testimony of the officer who states that a black clad and masked person with a red “A” on his shirt spit in his face. The prosecution then introduces a certified copy of a State Court judgment finding James guilty 14 years ago for spitting in a police officer’s face while wearing black clothing with a red “A” and a mask. Upon a timely objection, what result?
    A) Admissible, probative value outweighs prejudicial effect.
    B) Admissible, but not to prove that James has a propensity for spitting in police officer faces.
    C) Not admissible, conviction is more than ten years prior.
    D) Not admissible, specific acts cannot be proved with extrinsic evidence.

Answer 3

A) Admissible, probative value outweighs prejudicial effect.

This evidence is admissible for other purposes to show identity (Rule 404(b)).

Question 4

75. Jerry gets a high paying job and buys a speed boat. His friend Heather scoffs, “That is an obscene monument to capitalism, and I’d like to use it to run down the President of Floor Mart because he deserves it. He has gotten rich off the backs of his employees and exploited his customers. Jerry hands the keys to Heather and says “Have fun.” Heather takes the boat and sees the President of Floor Mart swimming. She runs him down, killing him. His estate sues Heather (wrongful death) and Jerry (negligent entrustment).||The estate wishes to call Peter who will testify that Jerry was aware that Heather had a propensity to run down prominent businessmen using various vehicles. Upon Heather’s objection, what ruling?
    A) Not admissible, evidence of Heather’s character is not relevant.
    B) Not admissible, specific instances of conduct cannot be introduced by extrinsic evidence.
    C) Admissible because the evidence goes to Jones’ knowledge of Heather’s dangerous propensities.
    D) Admissible, but cannot be used against Heather, only Jones.

Answer 4

C) Admissible because the evidence goes to Jones’ knowledge of Heather’s dangerous propensities.

This evidence is admissible as establishing Jerry’s negligence by entrusting Heather with the boat when he knew or should have known she would make good on her threat.

D) is incorrect because the evidence can be used against Heather, so long as it is admissible for another purpose other than to prove action in conformity therewith.

Question 5

10) Doctor Witness testifies on behalf of P in P’s suit for personal injuries. Which of the following questions will be permitted on cross-examination?
A) “Isn’t it true that the only way your bill will be paid is if P recovers?”
B) “Isn’t it true that you were once cited for sleeping in a park?”
C) “Isn’t it true that your wife is a communist?”
D) “Isn’t it true that your Doctoral Degree is in Post-Modern Feminist Thought?”

Answer 5

A) “Isn’t it true that the only way your bill will be paid is if P recovers?”

This question shows a motivation for bias, which is nearly always relevant. A corollary to this is that witness impeachment evidence will never be excluded for irrelevancy, but it must conform to Rules 608-609.

Question 6

14) Heather is a radical leftist who is charged with giving the middle finger to a police officer. The Prosecution offers Heather’s previous five convictions for giving the finger to police officers. Which of the following is a condition precedent to admission of the previous convictions?
A) Heather claims she was giving the finger to a rich capitalist who was walking behind the police officer.
B) Heather must testify.
C) Testimony that Heather has a reputation for such things.
D) There is no condition precedent, the evidence comes in on its own.

Answer 6

A) Heather claims she was giving the finger to a rich capitalist who was walking behind the police officer.

This would allow the prosecution to introduce the evidence to rebut Heather’s claim of mistake. FRE 404(b). Otherwise, the evidence is inadmissible as propensity evidence.

Question 7

30) In which of the following situations will a witness be competent to testify?
A) The witness refuses to take the oath.
B) The witness is newly deaf and just had her larynx removed and has not yet learned sign language.
C) The witness has been stricken with amnesia.
D) The witness is insane.

Answer 7

D) The witness is insane.

Insanity alone will not disqualify a witness. An insane person may be able to recall events and communicate them with an appreciation of truthfulness. Witnesses are not competent if they do not appreciate truthfulness

Question 8

31) Which of the following witness statements is not admissible in and of itself?
A) “The light was green.”
B) “I was watching the light at the time of the collision and it was green.”
B) “If I remember correctly, I saw that the light was green.”
D) “I’m not exactly sure, but I’m fairly certain that when I saw the light it was green.”

Answer 8

A) “The light was green.”

There is no foundation as to the witness’ personal knowledge.

Question 9

32) P is suing D for damages resulting from D’s throwing a brick through the P’s window. D states that it was not him who threw the brick. Witness testifies “I saw D throw the brick and he was drinking a Daff Beer at the time.” Which of the following evidence is inadmissible as impeachment evidence?
A) A videotape showing someone other than D throwing a brick through the window drinking Daff Beer.
B) Testimony of D stating that he could not have been drinking Daff Beer because he is allergic to alcohol.
C) Testimony of D that he did not throw the brick through the window, rather it was his twin brother E.
D) The fact Witness is a convicted perjurer.

Answer 9

B) Testimony of D stating that he could not have been drinking Daff Beer because he is allergic to alcohol.

This is a collateral matter that goes only to casting doubt on the witness’ memory. Impeachment evidence must be material to the case. The other options is evidence that is material to the case while casting doubt upon the witness’ testimony.

Question 10

36) D is on trial for assault. D takes the stand in his own defense and denies being the assailant. If the prosecutor wishes to attack D’s credibility, which of the following is permissible?
A) Introduce D’s five year-old conviction for embezzlement.
B) Introduce D’s attempted murder conviction for which he has been out of prison for one year.
C) Introduce D’s 7-year-old juvenile conviction for perjury.
D) Call a witness who will testify that D kicked her dog on one occasion.

Answer 10

A) Introduce D’s five year-old conviction for embezzlement.

Under FRE 609(a)(2), conviction for a crime of dishonesty may be used to impeach any witness. Embezzlement is a crime of dishonesty.

Question 11

42) Which of the following opinions is admissible?
A) “The D is guilty.”
B) “The P’s injuries were proximately caused by the automobile collision.”
C) “The D was negligent.”
D) “I examined the D, and in my opinion, he is not mentally capable of having the mens rea for the crime.”

Answer 11

B) “The P’s injuries were proximately caused by the automobile collision.”

An opinion on an ultimate issue of fact is admissible.

Question 12

50) D CEO and his corporation are being sued for an intentional tort. Determine which of the following out-of-court statements offered against the D is hearsay.
A) D’s wife said, “Of course my husband’s company is liable.”
B) D states to an investigating officer, “I did it on purpose.”
C) D states to a friend, “I don’t remember what happened.”
D) D Corporation’s Public Relations Spokesperson states, “The President of Mega Co. has asked me to say we are very sorry that our toxic chemicals spilled into the public aquifer.”

Answer 12

A) D’s wife said, “Of course my husband’s company is liable.”

This is hearsay. In the case of intentional torts, the spouse is not a party unless he/she specifically participated in the tort. Therefore the admission is not by a party. FRE 801(d)(2).

Question 13

58) P’s medical records contain the following written statement by P’s doctor, “Patient complains of arm pain secondary to motor vehicle accident.” P offers the records into evidence. Which of the following hearsay exceptions will get this record into evidence?
A) Then existing mental, emotional, or physical condition.
B) Record of a regularly conducted activity, and Statements for purpose of medical diagnosis.
C) Recorded recollection, and Statements for purpose of medical diagnosis.
D) Present sense impression, and then existing mental, emotional, or physical condition.

Answer 13

B) Record of a regularly conducted activity, and Statements for purpose of medical diagnosis.

This is hearsay within hearsay. The record of the doctor and the plaintiff’s statement are their own statements each of which must have its own exception. The medical records are Records of a Regularly Conducted Activity and the statement of plaintiff was a Statement for the purpose of Medical Diagnosis.

Question 14

59) In which situation is it most likely that an absent declarant’s hearsay will be impeached as if he were present and testifying?
A) The statement is the party’s own statement.
B) A prior statement by a witness regarding identity of a person.
C) A statement by a co-conspirator.
D) The statement is the party’s adoptive admission.

Answer 14

B) A prior statement by a witness regarding identity of a person.

This is the best answer because impeachment seems most likely if the prior statement concerned a probative material fact at issue in the dispute.

Question 15

62) Which of the following is not an acceptable method of authenticating a document?
A) A lay witness compares the signature on the document with an authentic signature.
B) An expert witness testifies that she created the document.
C) A witness testifies that she witnessed the creation of the document.
D) A witness testifies that she heard the D admit to creating the document.

Answer 15

A) A lay witness compares the signature on the document with an authentic signature.

This type of comparison requires an expert. FRE 901(b)(3). A lay witness who is familiar with the signature may authenticate based on familiarity, but not based on a comparison. FRE 901(b)(2).

Question 16

64) In which situation is a voice over the telephone not authenticated?
A) X calls Y’s place of business and leaves a message for Y. X gets a telephone call five minutes later and the caller states, “Hello, this is Y returning your telephone call.”
B) X receives a telephone call where the caller identifies himself as Y.
C) X looks up Y’s telephone number in the directory, dials the number, and the call is answered by “Hello, Y speaking.”
D) X calls Y’s place of business and speaks to a person identifying himself as Y and the two discuss business.

Answer 16

B) X receives a telephone call where the caller identifies himself as Y.

This is not sufficient to identify the caller’s voice as someone could be posing as Y.

Question 17

67) Which of the following is not a self-authenticating document?
A) Market reports or commercial publications.
B) A certified copy of a deed.
C) A book published by the Federal Government.
D) The New York Times.

Answer 17

A) Market reports or commercial publications.

This is an exception to hearsay, not a self-authenticating document.

Question 18

70) What effect does an opposing party’s admission to the contents of a document have?
A) None, the document must still be produced.
B) The proponent need not produce the original.
C) None, provided that the original is not obtainable.
D) A presumption of the contents of the document arises.

Answer 18

B) The proponent need not produce the original.

This eliminates the need to produce the original under FRE 1007.

Question 19

79) Dave is on trial for the murder of Erin. Frank testifies that he saw Dave dispose of bloody clothing after returning home from his work as a butcher. Dave timely objects. What ruling and why?
A) For the prosecution because disposing of bloody clothes demonstrates that Dave was trying to hide something.
B) For the prosecution because the testimony is relevant.
C) For Dave because the testimony is prejudicial.
D) For Dave because the testimony is irrelevant.

Answer 19

C) For Dave because the testimony is prejudicial.

This is the best answer because the fact that Dave is a butcher makes his disposal of the clothes just as consistent with innocence as with guilt but the inference is potentially quite prejudicial.

Question 20

80) Dave is on trial for the murder of Erin and the defense asks Dave whether he was reprimanded by his law school for claiming to be on the Law Review when he was not. Dave states on the stand that his law school never reprimanded him. The prosecution offers into evidence a letter from the dean of the law school to Dave reprimanding Dave for going overtime on an exam. If Dave objects, what result?
A) Sustained, because the letter is extrinsic evidence.
B) Sustained, because Dave has not had an opportunity to explain or deny the statement in the letter.
C) Overruled, because the letter is a prior inconsistent statement.
D) Overruled, because the letter is offered to refresh the witness’s memory.

Answer 20

A) Sustained, because the letter is extrinsic evidence.

This is correct because the letter is extrinsic evidence of a specific instance of conduct under Rule 608(b), which is not admissible.

Question 21

90) Sally is called as a witness in Paul’s suit against Deidre. Sally testifies “I did not see the collision, but based on the fact the Paul was so badly injured, Deidre must have been going at least seventy miles-per hour.” Upon Deidre’s objection what result?
A) Excluded, not based on personal knowledge.
B) Excluded, Sally is not an expert.
C) Admitted, expert opinion is not required because it does not take specialized knowledge or training to testify as to a car’s speed.
D) Admitted, best evidence available.

Answer 21

A) Excluded, not based on personal knowledge.

Sally did not see the collision, so she has no personal knowledge of the car’s speed.

Question 22

97) Ronald is sued civilly by Betty for the tort of battery. Ronald calls Warren to testify that Ronald has a reputation for peacefulness in the general community. If Betty objects what result?
A) Admissible, character evidence may be offered by the accused.
B) Admissible, for other purposes.
C) Not admissible, character evidence may not be offered to show action in conformity therewith.
D) Not admissible, Betty must first attack Ronald’s character.

Answer 22

C) Not admissible, character evidence may not be offered to show action in conformity therewith.

By elimination C is the best answer because such testimony does not go to the battery, as such, and thus is not admissible.

Question 23

98) Percy is involved in an automobile collision that leaves several dead. One of the estates sues the bar at which Percy had been drinking. The estate calls Dave a bar patron who will testify that he saw and heard Doris tell the bartender, “Look at Percy, he’s stumbling around drunk and vomiting.” Percy objects, what result?
A) Admissible, hearsay subject to an exception.
B) Admissible, not hearsay.
C) Not admissible, Doris is not an expert on intoxication.
D) Not admissible, hearsay not subject to any exception.

Answer 23

A) Admissible, hearsay subject to an exception.

It would be admissible as a present sense impression hearsay exception. Rule 803(1). The statement was describing an event as it was happening.

Question 24

107) Jeff, who was convicted 12 years ago of sexual assault for which he served one year and a day in prison, is called to testify on behalf of Larry in Larry’s personal injury suit. Jeff testifies as to his observations of how Larry’s injuries have affected his daily life. On cross-examination, defense counsel asks “Is it true that you were convicted of sexual assault?” Larry’s attorney timely objects. What ruling and why?
A) For D because past sexual assaults are admissible for its bearing on any matter to which it is relevant.
B) For D because past crimes punishable by death or imprisonment greater than one year are admissible to impeach a witness.
C) For Larry because Jeff’s conviction was not for a crime involving dishonesty and false statement.
D) For Larry because more than ten years has elapsed since Jeff’s release from prison.

Answer 24

D) For Larry because more than ten years has elapsed since Jeff’s release from prison.

Rule 609[b] prohibits admission of a witness’ past crime for impeachment purposes if the witness was convicted or released (whichever is later) more than ten years ago. If the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effects, the court may admit evidence of a conviction that is outside the ten year limit if in the interest of justice.

Question 25

108) Sal is on trial for the murder of Tom, his business partner. Tom was killed by a single gunshot fired from a rifle of the same caliber as one owned by Sal. In fact, there are millions of rifles that use the same caliber bullet as the one that killed Sal. This is the only evidence that could possibly link Sal to the murder. The prosecution seeks to introduce Sal’s rifle into evidence. The rifle is a Remington “Widowmaker” sniper rifle, the same model used by SWAT teams and military Special Operations forces. Sal timely objects. The judge should
A) Exclude the rifle from evidence because the possible prejudice of the model name “Widowmaker” outweighs the probative value.
B) Exclude the rifle from evidence because as the only prosecution evidence it is insufficient to sustain a guilty verdict.
C) Admit the rifle into evidence because it is relevant.
D) Admit the rifle into evidence, but instruct the jury to not be prejudiced by the name “Widowmaker.”

Answer 25

C) Admit the rifle into evidence because it is relevant.

Sal’s ownership of the rifle is relevant to establish that he possessed the means to kill Tom.

Question 26

110) Sal is on trial for the murder of Tom, his business partner. Tom was killed by a single gunshot fired from a rifle of the same caliber as one owned by Sal. Tom was killed at 6:30 p.m. on a Saturday night. Sal wishes to offer the testimony of his friend Bruce who will state that he has seen Sal with his rifle at the gun club on every Saturday from 5:00 p.m. until 6:00 p.m. for the last ten years. Bruce will then testify that every time Sal finished shooting, he always disassembled and cleaned his rifle, which always takes until 7:00 p.m. On the evening in question, Bruce went with Sal to the gun club, but had to leave early for a church function. The prosecutor objects to Bruce’s testimony. The judge should rule to
A) Exclude the testimony because it is not based on firsthand knowledge.
B) Exclude the testimony because it attempts to use religious beliefs to enhance Bruce’s credibility.
C) Allow the testimony because it is relevant to demonstrate that Sal had probably disassembled his rifle at the time Tom was killed.
D) Allow the testimony because it may be admissible for another purpose such as intent, plan, preparation, or knowledge.

Answer 26

C) Allow the testimony because it is relevant to demonstrate that Sal had probably disassembled his rifle at the time Tom was killed.

This is evidence of a habit. Rule 406. The key is the similarity of circumstances between the night in question and every Saturday for the past ten years. If any circumstances had changed, such as Sal not going to the club that night, Bruce’s testimony would be barred.

Question 27

124) Personal Injury P calls his crystal healer Guru to testify regarding his injuries. Guru states “Based on my twenty year practice as a crystal healer in Sedona, Arizona, at the prestigious ‘Energy Vortex Healing Center,’ my examination of P, and statements by Mr. Centauri, a space alien with whom I consulted, it is my opinion on a more probable than not basis that P’s unbalanced aura was proximately caused by D.” Which of the following is the most likely?
A) The judge must exclude the testimony because crystal healing is not recognized by the mainstream scientific community.
B) The judge must exclude the testimony because it contains hearsay.
C) Admit the testimony because Guru is an expert in crystal healing.
D) Admit the testimony because Guru correctly stated the causal relationship

Answer 27

C) Admit the testimony because Guru is an expert in crystal healing.

Though it is doubtful any court would permit this testimony under the Daubert requirement of method reliability, this is the best answer. Guru is undoubtedly an expert in this area, though not taken seriously by most people.

Question 28

127) In a capital murder case, possible exculpatory evidence is that it was raining on the day of the murder.  Unbelievably, the only person who has knowledge of that fact is Cindy.  Cindy will testify that on the day after the murder she asked her now deceased husband if it had rained the previous day.  He responded by holding up his $200.00 Italian loafers that were obviously ruined by water.  Cindy knows he had worn those shoes outside on the day of the murder.  What is the best way to characterize Cindy's testimony?
A) Not hearsay, admissible.
B) Hearsay, but admissible.
C) Hearsay, not admissible.
D) Not hearsay, inadmissible.

Answer 28

C) Hearsay, not admissible.

The husband’s holding up of the shoes was intended as a non-verbal assertion that it had rained the previous day, and the testimony is offered to prove the fact that it was raining the day before. No hearsay exception applies, making it inadmissible hearsay.

[how is this not a present sense impression?]

Question 29

131) Peter is called to testify in Paul’s robbery trial. Peter testifies, “Paul robbed me at gunpoint.” Paul then calls David who testifies, “Peter told me Oh my God! I was just robbed by Sal.’” How should the judge rule?
A) Admissible, non-hearsay.
B) Admissible, hearsay, but subject to an exception.
C) Not admissible, hearsay not subject to any exception.
D) Not admissible, extrinsic evidence.

Answer 29

B) Admissible, hearsay, but subject to an exception.

Peter’s statement to David is hearsay, but is excepted from exclusion as an excited utterance. Rule 803(2)

Question 30

136) Bob is an employee of Mega, Inc., the same evil corporation that polluted the habitat of baby ducks. Bob sees his physician Dr. Julius Hibbert and tells him “My hair and teeth are falling out, I am suffering from abdominal cramps, and I am convinced it is due to Mega Inc.’s use of Dihydrogen Monoxide to which I have been exposed.” Which is the best reason to admit Dr. Hibbert’s testimony regarding what Bob told him?
A) None.
B) Present sense impression.
C) Then-existing mental, physical, or emotional condition.
D) Statements for purposes of medical diagnosis or treatment.

Answer 30

D) Statements for purposes of medical diagnosis or treatment.

With this hearsay exception, the entire statement would be admitted because it is all significant to treatment.

Question 31

137) Joe, a Mega, Inc. employee, is suffering physical ailments and believes they are caused by exposure to Dihydrogen Monoxide, which Mega, Inc. uses. In his suit against Mega, Inc. Joe calls Wally as a witness to testify regarding an injury that occurred on the job. Wally witnessed the injury, and filled out a company injury report on the spot. In the report he states, “I saw Joe, an independent contractor, get injured. Joe told me that he was in pain.” On the stand, Wally admits that he fills out at least three injury reports each day and states that even if he reviewed the report he would not remember the events. You are Joe’s Attorney. What should you do?
A) Have Wally review the report and testify based on his refreshed recollection.
B) Have Wally read the entire report into evidence.
C) Have Wally read the report except for Joe’s statement to him because it is hearsay.
D) Offer the report into evidence, but strike Joe’s statement because it is hearsay.

Answer 31

B) Have Wally read the entire report into evidence.

This is hearsay within hearsay. The report is hearsay, but is excepted either as a Recorded Recollection or a Record of a Regularly Conducted Activity; and Joe’s statement is hearsay but is excepted as a then existing physical condition. Because Wally has insufficient recollection the report would be read into evidence.

Question 32

138) Joe is suing Mega, Inc. for damages resulting from injuries sustained when the diversion valve failed. Mega, Inc. denies that valve failure caused the injuries. No report was created at the time of the injury. After Joe files suit, the V.P. of Legal Affairs directs Wally to investigate and take statements from other witnesses to the injury to help prepare Mega, Inc.’s defense. Several witnesses state “Joe was 100% at fault for his own injury, he failed to relieve the pressure on the valve before opening it,” which Wally dutifully records in a report to the V.P. Unfortunately, all of the witnesses meet mysterious and untimely deaths. Counsel for Mega, Inc. offers the report into evidence. What result?
A) Not admissible, hearsay not subject to any exception.
B) Admissible, hearsay subject to an exception.
C) Admissible, not hearsay.
D) Not admissible, not hearsay, but excluded under another rule of evidence.

Answer 32

A) Not admissible, hearsay not subject to any exception.

This is not a record of a regularly conducted activity because this report was prepared in anticipation of litigation. Neither is it a present sense impression of the witnesses because of the passage of time.

Question 33

140) Arnie is on trial for the murder of Bret. The prosecution calls Mr. Tallman who found a dying Bret and heard him exclaim with his last breath, “That jerk Arnie stabbed me, but I think he missed anything vital.” What ruling and why?
A) Not admissible, hearsay not subject to any exception.
B) Not admissible, not hearsay, but excluded under a different rule of evidence.
C) Admissible, hearsay, but subject to an exception.
D) Admissible, not hearsay.

Answer 33

C) Admissible, hearsay, but subject to an exception.

The best answer because it would come in as an excited utterance under 803(2) or a then existing mental, emotional, or physical condition under 803(3).

Question 34

141) Earl’s will is offered for probate. Dan contests the will by testifying as to Earl’s deathbed statement, “I am about to die. I now know that at the time I executed the will, I was suffering from a delusion.” Is Earl’s statement admissible and why or why not?
A) Admissible, statement under belief of impending death.
B) Admissible, then existing emotional, mental, or physical condition.
C) Admissible, not hearsay.
D) Not admissible, not hearsay, but excluded under another rule of evidence.

Answer 34

B) Admissible, then existing emotional, mental, or physical condition.

Typically, a then-existing mental condition cannot be admitted to prove a prior existing condition. However, it may be admitted when it relates to the execution of a will.

Question 35

143) Percy P is suing Donald for the tort of battery. Percy calls Wendy to testify that she saw Donald strike Percy. However, Wendy testifies that it was not Donald who struck Percy. Percy calls Xavier to testify that he saw Donald strike Percy. On cross-examination, Donald’s attorney asks Xavier if he was wearing eye-glasses at the time of the battery. Xavier replies, “No, I did not need them.” Donald then calls Dr. Smith, Xavier’s optometrist to testify that Xavier wears reading glasses on occasion. What ruling as to Dr. Smith’s testimony and why?
A) Admissible to impeach Xavier’s credibility.
B) Admissible to impeach Xavier’s memory.
C) Not admissible because a witness’s prior acts cannot be proved through extrinsic evidence.
D) Not admissible because whether or not Xavier wears eye glasses is collateral to the issues at trial.

Answer 35

D) Not admissible because whether or not Xavier wears eye glasses is collateral to the issues at trial.

Even though it would cast doubt on Xavier’s testimony, Xavier’s credibility may not be impeached with this evidence because the fact that he wears reading glasses is collateral to the issues at trial.

Question 36

146) P sues D Corporation for injuries. D’s attorney requests the risk manager memorialize the incident in a letter to the attorney. P demands that the letter be produced at trial. What result?
A) Produce the letter because it is a record of a regularly conducted activity.
B) Produce the letter because it is not privileged.
C) Withhold the letter because it is attorney-client communication.
D) Withhold the letter because it is hearsay not subject to an exception.

Answer 36

C) Withhold the letter because it is attorney-client communication.

Because the risk manager wrote the memo to the attorney, it is attorney-client communication.

Question 37

156) Mega Co. and its vendor, Vend Co., consult with the senior partner of Dewey, Cheatum, and Howe about a product liability case initiated by P for injuries caused by a Mega Co. product of which a part was made by Vend. Co. Both parties discussed their potential liability. In its answer, Mega. Co. cross-claims against Vend Co. P calls Vend Co. and asks Vend Co. to repeat statements made by Mega Co. at a joint conference. What ruling on the admissibility of the statements?
A) Not admissible, privileged conversation.
B) Admissible, no privilege.
C) Admissible, admission by party opponent.
D) Not admissible, hearsay with no exception.

Answer 37

A) Not admissible, privileged conversation.

Despite the presence of both parties, in relation to third parties this conversation was privileged because both parties are required for the communication to occur.

Question 38

157) Mega Co. and its vendor, Vend Co., consult with the senior partner of Dewey, Cheatum, and Howe about a product liability case. The matter was initiated by P for injuries caused by a Mega Co. product in which a significant part was made by Vend. Co. Both parties discussed their potential liability. In its answer, Mega. Co. cross-claims against Vend Co. P calls Vend Co. and asks Vend Co. to repeat statements made by Mega Co. at a joint conference. Vend Co. calls a secretary who was present at the conference to testify as to Mega Co.’s statements. What ruling?
A) Admissible, relevant to rebut Mega Co.’s cross-claim.
B) Admissible, no privilege.
C) Not admissible, hearsay without an exception.
D) Not admissible, still a privileged conversation.

Answer 38

B) Admissible, no privilege.

This is permissible because there is no privilege between the two parties present, unless employee’s presence was reasonably required in the product liability case meeting and a mere secretary would not seem to qualify.

Question 39

158) A Seccna 172 (a light single propeller airplane) stalls short of the runway, killing all aboard. After the crash, Seccna begins installing a stall warning indicator on all of its production aircraft. The estate of a passenger sues for defective design in not installing a stall warning indicator. Seccna alleges that it was not feasible to install the indicator in the 172. Is the evidence of the subsequent installation admissible?
A) Yes, relevant to prove feasibility of installing the indicator.
B) Yes, relevant to prove Seccna’s negligence.
C) No, subsequent remedial measures are not admissible.
D) No, installation of the warning indicator insufficient to prove that lack of a warning indicator proximately caused the crash.

Answer 39

C) No, subsequent remedial measures are not admissible.

Subsequent remedial measures are not ordinarily admissible to prove negligence.

Question 40

160) A Seccna 172 (a light single propeller airplane) stalls short of the runway, killing all aboard. After the crash, Seccna begins installing a stall warning indicator on all of its production aircraft. The estate of a passenger sues for defective design in not installing a stall warning indicator. Seccna alleges that it was not feasible to install the indicator in the 172. Seccna introduces evidence that the pilot had failed to take his heart medication. The evidence is a statement in the pilot’s wife’s diary that the pilot refused to take his medication. The pilot’s wife is called to testify that her husband stopped taking his medication. What result?
A) Admissible, subject to an offer of proof on relevance.
B) Admissible, provided that the diary is made available to opposing counsel.
C) Not admissible, the contents of a writing must be proved with the writing admitted into evidence.
D) Not admissible, hearsay.

Answer 40

A) Admissible, subject to an offer of proof on relevance.

This is the best answer, subject to relevancy to the cause of the crash.

Question 41

161) A Seccna 172 (a light single propeller airplane) stalls short of the runway, killing all aboard.  After the crash, Seccna begins installing a stall warning indicator on all of its production aircraft.  The estate of a passenger sues for defective design in not installing a stall warning indicator.  Seccna alleges that it was not feasible to install the indicator in the 172.  Seccna calls an air traffic controller who was talking to the pilot and will testify that the pilot stated, "I forgot to put fuel in the airplane."  Is this statement admissible?
A) Yes, admission by party opponent.
B) Yes, exculpates Seccna.
C) No, hearsay with no exception.
D) No, irrelevant to negligence claim.

Answer 41

C) No, hearsay with no exception.

This is an out of court statement offered by Seccna to prove the truth of the matter asserted: the pilot’s own negligence and not admissible unless allowed under the residual exception of FRE 807.

Question 42

162) Bubo brings an action to eject some squatters from his home after returning from Lovely Mountain. The squatters allege an affirmative defense of adverse possession. Central to the case is the date upon which Bubo left for his adventure. Bubo testifies that it was on a Thursday and he remembers the fact because the day before he hosted Elf for tea and wrote on his engagement tablet “Elf Tea Wednesday.” Is the testimony regarding the engagement tablet admissible?
A) Yes, provided the underlying document is made available to opposing counsel.
B) Yes, because the engagement tablet is collateral to the issues at trial.
C) No, best evidence: The engagement tablet itself must be offered into evidence.
D) No, hearsay not subject to any exception.

Answer 42

B) Yes, because the engagement tablet is collateral to the issues at trial.

The best evidence rule does not extend to writings collateral to the issues at trial. The issue is what date Bubo left, which he testifies to out of personal knowledge. The fact that he remembers the date because he wrote it down is collateral to the issue of when he left.

Question 43

165) Polly comes home to find her apartment trashed and graffiti scrawled on the wall. Polly offers a photograph of her apartment to prove the extent of the damages. What else is needed to admit the photograph?
A) The testimony of the photographer.
B) Testimony that the photograph was taken within a reasonable time of Polly’s arrival home.
C) Testimony that the photograph accurately depicts the damage to the apartment.
D) Testimony that the photograph is actually of her apartment.

Answer 43

C) Testimony that the photograph accurately depicts the damage to the apartment.

So long as Polly states that the photograph accurately depicts the damage to the apartment, the photo is authentic under FRE 901(a); the matter in question is what it is claimed to be.

Question 44

172) The police are called to Polly’s apartment. They find Justin shot to death and recover Polly’s handgun which has been fired. Polly is charged with murder. Her defense is that Justin came to her apartment to kill her and she shot him in self-defense. Justin’s estate sues Polly for wrongful death. The estate calls Officer Friendly who will testify that Polly said, “Oops, I was cleaning my pistol and it went off striking Justin. I sure was negligent.” Is this testimony admissible?
A) Yes, statement against interest.
B) No, hearsay without an exception.
C) Yes, admission by party.
D) No, opinion on an ultimate issue that must be left for the jury.

Answer 44

C) Yes, admission by party.

Polly is a party and the statement is an admission of negligence.

Question 45

177) Bob is on trial for burglary, a crime punishable by two years in prison. The prosecution wishes to enter a certified copy of a prior burglary conviction in which Bob spent two days in prison. What is the best way to characterize this evidence?
A) Admissible to prove Bob’s character and propensity to commit burglary.
B) Admissible to impeach Bob’s testimony.
C) Not admissible, hearsay.
D) Not admissible, character evidence.

Answer 45

B) Admissible to impeach Bob’s testimony.

Impeachment is the only way this evidence could be admitted.

Question 46

178) Clumsy Clancy trips on uneven pavement in front of Carl’s house. Carl denies that the sidewalk belongs to him and asserts that it is county property. Clancy sues Carl for injuries and seeks to admit the testimony of Nosy Neighbor who saw Carl repairing the sidewalk a week after Clancy tripped. Is Nosy’s testimony admissible?
A) Inadmissible, repairing a dangerous condition would be discouraged otherwise.
B) Inadmissible, too much time has passed since the injury.
C) Admissible, it is evidence of Carl’s ownership of the sidewalk.
D) Admissible, it proves the sidewalk was in a dangerous condition.

Answer 46

C) Admissible, it is evidence of Carl’s ownership of the sidewalk.

FRE 407 allows subsequent remedial measures to be admitted to prove, inter alia, ownership.

Question 47

181) Jones is arrested for driving under the influence of a controlled substance, marijuana. The prosecution wishes to introduce a videotape from a pot party showing Jones sucking on a four foot bong and saying “That’s great weed, man.” Assuming the prosecutor can establish the proper foundation, is this videotape admissible?
A) Yes, hearsay, admission by party.
B) Yes, not hearsay.
C) No, hearsay not subject to any exception.
D) No, this evidence must be elicited upon cross-examination.

Answer 47

B) Yes, not hearsay.

So far as Jones’ action is an admission, it is not hearsay under FRE 801[d].

Question 48

184) Frank is on trial for burglary. Frank was caught when Wally Witness told a Police Officer, “I saw Frank enter that building twenty minutes ago and come out with an armload of stuff.” The Officer then went to Frank’s house and arrested him. Prior to trial, Wally meets a mysterious and untimely death. The prosecutor wishes to have the Officer testify as to Wally’s statement. Is the Officer’s testimony admissible?
A) Yes, present sense impression.
B) Yes, declarant unavailable.
C) No, hearsay with no exception.
D) No, all testimony must be subject to cross-examination.

Answer 48

C) No, hearsay with no exception.

Wally is not a party, and though unavailable, his statement does not fall under any hearsay exception unless the court determines the circumstances guarantee trustworthiness and it goes to a material fact.

Question 49

189) Ethel Engineer is an expert who was called to testify and give her opinion in regards to causation of a certain equipment's mechanical failure.  Wally Weasel is called to testify as to Ethel's reputation for truth and veracity.  Wally says, "Ethel does not have a good reputation for truthfulness.  In fact, she falsified test data for her Doctoral Dissertation."  Which of the following parts of Wally's statement is admissible?
A) The first sentence only.
B) The second sentence only.
C) Both sentences.
D) Neither sentence.

Answer 49

A) The first sentence only.

The first sentence is reputation testimony admissible under FRE 405 and FRE 608(a). The second sentence is extrinsic evidence of a specific instance of conduct inadmissible under FRE 608(b). Note that specific instances of conduct under FRE 405(b) are admissible only if the character trait is an essential element of a charge or claim.

Question 50

195) Carl Criminal is on trial for “Disturbing the Social Order” by criticizing an elected official. The main witness against Carl is Sally Socialist, the elected official Carl allegedly criticized. Carl does not take the stand in his own defense. He does call Percy who will testify that Carl volunteers at the local orphanage to read bedtime stories to the poor urchins. Is the testimony admissible?
A) Not admissible, not a pertinent character trait.
B) Admissible, goes to witness bias.
C) Admissible, an accused may always put on favorable character evidence.
D) Not admissible, character evidence may not be admitted to prove action in conformity therewith.

Answer 50

A) Not admissible, not a pertinent character trait.

The character of the accused is admissible if offered by the accused and pertinent to the charge. In this case, Carl’s compassion for children is not pertinent to the charges against him.

Question 51

198) D and Cool Mo are hanging out on the street corner. They are joined by Mr. Big, who is an undercover police officer. Mo says to D, “That is some expensive jewelry you are wearing. You must have been the one who knocked over that jewelry store last week.” D says nothing. D is later arrested for the heist and Mr. Big testifies that upon the accusation by Mo, D was silent. Upon objection, which result?
A) Admitted, admission by party-opponent.
B) Admitted, witness’ personal knowledge.
C) Excluded, hearsay with no exception.
D) Excluded, only spoken utterances can be hearsay.

Answer 51

C) Excluded, hearsay with no exception.

Here D’s silence is being offered as an out of court assertion that he is guilty of the crime.

Question 52

General Opening Argument

Answer 52

The Federal Rules of Evidence attempt to provide fact finders with reliable, relevant facts and exclude all else.

Question 53

Relevancy

Answer 53

In order for evidence to be admitted, it must be relevant, i.e., tend to prove or disprove a material issue in dispute. The court has discretion to exclude relevant evidence if it finds that the probative value is outweighed by the danger of unfair prejudice, confusion, or undue delay.

Question 54

Hearsay v. Relevance

Answer 54

Relevant evidence is generally inadmissible if it is barred by the hearsay rule and no exception to the hearsay rule applies.

Question 55

Hearsay

Answer 55

Hearsay is a generally inadmissible out-of-court statement of fact offered to prove the truth of the matter asserted. Many statements are not hearsay, such as prior inconsistent statements and admissions of a party opponent.

Question 56

Subsequent Remedial Measures

Answer 56

Subsequent remedial measures are inadmissible to show negligence, culpable conduct, or defective product. Such evidence may be admitted, however, to prove ownership, notice, or feasibility of a remedial measure.

Question 57

Settlement negotiations

Answer 57

Settlement negotiations, including criminal plea bargaining, are inadmissible. However, an offer to compensate a witness in a criminal case may be admissible to show bias or witness tampering (which may be a crime as well).

Question 58

Marital communications privilege

Answer 58

The marital communications privilege assumes that communications between a validly married husband and wife are confidential, even if the couple later divorces.

Question 59

Adverse Spousal Testimony Privilege

Answer 59

The adverse spousal testimony covers all communications prior to and during the marriage, but expires upon divorce. The goal of this privilege is to protect the existing marriage.

Question 60

Physical Evidence

Answer 60

The introduction of physical evidence requires proper authentication and proper chain of custody to ensure it is in the same condition as when it was recovered or received.

Question 61

Witness Competency

Answer 61

For a witness to testify, she must be competent. A witness must have 1) personal knowledge, 2) present recollection, and 3) ability to communicate. Any document can be used to refresh a witness’s memory, so long as it is made available to opposing counsel.

Question 62

Character Evidence

Answer 62

The past criminal conduct or records of the D are generally not admissible to prove character or the propensity to commit another criminal act. However, prior bad acts can be used to show “habit” or motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A prior conviction can usually be used to impeach the credibility of a witness.

Question 63

Best Evidence Rule

Answer 63

Under the “Best Evidence Rule,” if a party wishes to prove the content of a writing, photo, or drawing, they must submit the original or a duplicate at trial.

Question 64

Expert Witnesses

Answer 64

An expert witness must be qualified, which can be shown by knowledge, skill, experience, training, or education beyond a law person and their expert opinion must be helpful to the trier of fact.