Evidence Flashcards

Question

An unresponsive answer by a witness is subject to a motion to .... by ....

Answer 1

... strike by **_examining counsel._** Thus, examining counsel can adopt an unresponsive answer if it is not objectionable on some other ground.

Answer 2

.....cross-examine the witness.

Answer 3

A court may call a witness at a party’s request or on its own initiative.

Answer 4

need not provided that the information is of a type reasonably relied upon by experts in the particular field.

Answer 5

(1) it is rationally based on the perception of the witness, (2) helpful to a clear understanding of the witness’s testimony on the determination of a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge. (1) not satisfied when witness is speculating rather than testifying to his own perceptions.

Answer 6

**Under the rule of present recollection refreshed,** a witness may be shown any writing or other thing that may refresh her memory of an event. The writing is not authenticated, is not in evidence, and may be used solely to refresh her recollection. **The doctrine of past recollection recorded applies when** a party is seeking to introduce a memorandum or other record into evidence. To have the record read into evidence, a foundation must be laid. _Ask: Is the party seeking to introduce the document into evidence?_

Answer 7

The trial court has the authority to cut off cross-examination when it determines there has been an adequate opportunity for meaningful cross-examination.

Answer 8

Statements made against interest. Basically, if a declarant has made a statement that is so contrary to his interests that the truth of the statement is not in question, the statement is admissible hearsay. It only applies if the declarant is unavailable.

Answer 9

Hearsay is any out of court statement offered in court to prove the truth of the matter asserted. The statement can either be oral, written or conduct intended to be a speech substitute. Here, the receipt is an out of court statement. If it is being offered to prove that the defendant was drinking at the bar, it is hearsay. Thus, if offered to prove she was intoxicated the receipt becomes hearsay and is inadmissible.

Answer 10

A statement qualifies under the exception if it is a statement that explains or describes an event or condition made while or immediately after it was perceived. i.e. The woman wrote down her observation of the smell, heat and smoke as she observed it. Recorded recollections are an exception to the hearsay rule if it is a record that: (1) the witness once knew about but cannot recall at trial; (2) was made by the witness when the event was fresh in the witness's mind; and (3) accurately reflects the witness's knowledge. i.e. Here, the facts state that the witness is prepared to testify about her abduction and her notes. There is no indication that she does not remember the fire.

Answer 11

FRE 803(18) provides that statements contained in treatises may be admitted into evidence during direct or cross-examination of an expert witness if: (1) the treatise is established as a reliable authority; and (2) the treatise is called to the attention of the expert witness during cross-examination or is relied upon by the expert in direct testimony. As an exception to the hearsay rule, statements in treatises admitted pursuant to FRE 803(18) **_may be used as substantive evidence._**

Answer 12

the defense must file a motion describing the evidence 14 days before trial (or at another time set by the court).

Answer 13

Under Rule 1002 of the Federal Rules of Evidence, in order to prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph is required, subject to numerous exceptions. This best evidence rule (so named because the original is supposedly the best evidence of the contents) does not apply merely because the writing records or otherwise reflects the happening of an event. Instead, the rule applies only when the writing, recording, or photo is the controlling instrument (e.g., deed, will, or contract) or when the witness is testifying about facts he or she read (e.g., a letter, a license plate number, etc.). In addition, the rule does not apply to collateral matters; as such, when the contents of a writing, recording, or photograph are not closely related to a controlling issue, the contents may be proved by other than production of the original. By definition, the best evidence rule would not apply to a physical object such as the genie lamp.

Answer 14

If the defendant in a criminal trial chooses to admit evidence of his pertinent trait, then the prosecutor can offer evidence to rebut it and character evidence becomes admissible for that purpose. **The method of proving character evidence can be in the form of reputation or opinion.** _It can only be in the form of specific instances if a person's character trait is an essential element of a charge or defense._

Answer 15

Prior inconsistent statements **are admissible as substantive evidence** (and not excluded as hearsay) if the declarant testifies at the trial and is subject to cross-examination, **_and_** the prior statement was given under oath at a prior proceeding. If they do not meet these standards, prior inconsistent statements are hearsay that is admissible for the limited purpose of impeachment. \

Answer 16

A trial court's ruling on discretionary matters, such as the admissibility of evidence, is subject to review under the abuse of discretion standard. Generally, the de novo standard of review is used on appeal for legal rulings. This means that the appellate court reviews the evidence and law without deference to the trial court's legal rulings. Generally, the clearly erroneous standard of review is used on appeal for findings of facts. This means that the appellate court must give deference to the trial court's factual findings.

Answer 17

SRA Specific situation Repeated semi-Automatic Response to... Evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with that habit. i.e. According to the testimony, the defendant regularly fails to obey the stop sign at the intersection **_at which the collision occurred,_** and in fact, he regularly disregards any stop sign.

Answer 18

The board member’s testimony should be admissible because it is relevant nonhearsay based on firsthand knowledge. 1. The testimony is **_relevant_** to the employee’s age discrimination suit because it is being offered to prove that the board’s motivation in firing the employee was his age. 2. It is not **_hearsay_**, even though the board member is repeating the statement of an out-of-court declarant (the chairman of the board), because it is not being offered to prove the truth of what the chairman was asserting (i.e., that the employee was in fact too old to fit the corporate image). Rather, it is being offered to show its effect on the board; i.e., it is being offered as circumstantial evidence of the board’s motivation in deciding to fire the employee, which is the critical issue in the case. 3. Finally, the board member is **_competent to testify_** to the chairman’s statement since he heard it firsthand, and no other restrictions on the admissibility of relevant evidence are applicable in this case.

Answer 19

Photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. The witness who identifies the photograph need only be familiar with the scene or object that is depicted. It is not necessary to call the photographer to authenticate the photograph.

Answer 20

A business report prepared as a communication from client to attorney is privileged.

Answer 21

The judge should overrule the objection because lay opinion is permissible (and often essential) to identify handwriting. A foundation must first be laid to establish familiarity with the handwriting The fact that the teacher has not seen the singer’s handwriting for 10 years goes to the **_credibility_** of her testimony but not to its admissibility.

Answer 22

The physician’s testimony regarding the plaintiff’s statement is admissible because **_an examination for insurance purposes is not considered to be for diagnosis and treatment._** To be privileged, the information must be acquired by the physician in the course of treatment. Thus, the plaintiff’s statement to the physician is not privileged. Since it is not privileged and **_qualifies as an admission by a party-opponent for hearsay purposes_**, the statement is admissible.

Answer 23

If a physician examines a client at the request of the attorney (e.g., to assess the extent of injury), the attorney-client privilege applies to communications made to the physician because the physician is deemed to be a representative of the attorney.

Answer 24

Testimony regarding the defendant’s attempt to bribe the witness is admissible as substantive evidence against the defendant. Under the Federal Rules, a statement made by a party and offered against that party (commonly called an admission) is not hearsay. _Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest an awareness of liability or guilt._ _Because the defendant’s liability is the issue (i.e., a relevant fact) in the case, his attempt to bribe the witness is admissible as a statement of a party-opponent._

Answer 25

(C) The Tenth Amendment prevents the federal government from interfering with a member of the state’s legislature in the performance of his legislative duties.

Answer 26

(B) The judge should permit the plaintiff’s testimony because evidence of specific acts of misconduct is admissible to show motive. Under Federal Rule 404(b), evidence of other acts may be admissible in a criminal or civil case if they are relevant to some issue other than character, such as motive. Here, whether the neighbor was motivated by an improper purpose in building the fence is the key issue in the lawsuit by the plaintiff. The neighbor’s prior misconduct in spraying herbicide toward the plaintiff’s garden is circumstantial evidence that her hostility toward the garden motivated her to build the fence. (C) and (D) are wrong even though they correctly state general rules: evidence of specific acts of misconduct is generally inadmissible, and character evidence is generally inadmissible in a civil case. However, when the specific acts are being offered _for a purpose other than to show bad character or conduct in conformity to character_, they are admissible in both criminal and civil cases.

Answer 27

(C) 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.

Answer 28

(C) The former co-worker’s testimony is admissible character evidence. Under Federal Rule 404, in a civil case, evidence of the character of a person generally is inadmissible if offered to prove that the person may have acted in conformity with his character on a particular occasion. If, however, the character evidence is offered for some other purpose, such as where a person’s character itself is an essential element of a claim or defense in the case (e.g., in defamation or negligent hiring/ entrustment cases), Rule 404 will not exclude the evidence. The testimony is evidence of the guard’s character but, if offered against the bank, it would be offered to show that the bank may have been negligent when it entrusted the gun to the guard. Thus, the evidence would not be excluded by Rule 404. _In addition, the evidence would be relevant even if the bank did not know of the guard’s reputation, because the jury could find that a reasonable investigation by the bank would have uncovered the information and the bank should have known of the guard’s reputation._

Answer 29

(C) The court should not admit the deposition testimony. The driver’s statement is hearsay because it is being offered to prove the truth of the matter asserted—that the defendant’s car crossed lanes and struck her car. Because it is hearsay, the statement is admissible only if it falls within an exception to the hearsay rule. Here, there are no exceptions under which to admit the deposition transcript. (A) and (B) are incorrect because the former testimony exception to the hearsay rule does not apply. This exception allows the prior statement of a declarant to be admitted into evidence if the statement was made under oath at a prior deposition or proceeding. There must be a sufficient similarity of parties and issues. The exception applies, however, only if the declarant is unavailable to testify. For the absent driver to be “unavailable” here as defined by the Federal Rules, _the passenger must show that he has been unable to procure her attendance or testimony by process or other reasonable means, and here no attempt was made to procure her attendance._ As such, the deposition transcript is inadmissible under this exception and the driver should be subpoenaed to testify on behalf of the plaintiff.

Answer 30

(C) The description is inadmissible as hearsay not within an exception. (B) is wrong. Under the Federal Rules of Evidence, **_a prior identification is considered nonhearsay, but only if the declarant testifies at the trial and is subject to cross-examination._** Since the night watchman died, this requirement cannot be satisfied. On these facts, there are no exceptions to the hearsay rule that would make the description admissible.

Answer 31

However, under the Federal Rules, if the prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or deposition, it is not hearsay.

Answer 32

Yes, i.e. to show provocation for the battery.

Answer 33

(C) The officer’s testimony is admissible against the nightclub only. A statement by or attributable to an opposing party is not hearsay. A statement by an employee concerning any matter within the scope of her employment, made during the existence of the employment relationship, is admissible against the employer as a vicarious opposing party’s statement. Here, the manager was an employee of the nightclub when she made the statement about the bouncer’s training and conduct, and such matters were within the scope of her employment. The statement does fit the general definition of hearsay because it was made out of court and is being offered for its truth—that the bouncer went too far during the altercation. However, an opposing party’s statement is categorized as nonhearsay. Consequently, the manager’s statement is admissible against the nightclub. However, statements of a party are not receivable against its co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action. If there are two or more parties, the statement of one is receivable against it but, in the absence of authority, not against its co-party. Thus, the manager’s statement is not admissible against the bouncer.

Answer 34

(C) The testimony should not be admitted. _Under the Confrontation Clause_, an accused has the right to be confronted by the witnesses against him. **A hearsay statement will not be admitted—even if it falls within a hearsay exception—when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.** The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner’s statement was hearsay because it was made out of court and is being offered for its truth—that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this (“Thank you for catching him!”). Therefore, the homeowner’s statements to the officer were testimonial. Because the homeowner is unavailable to testify at trial and the robber has had no opportunity to cross-examine the statements, admitting them at trial through the testimony of the officer would violate the Confrontation Clause. (C) The statement likely qualifies as an excited utterance. **_However, even a hearsay statement that falls within an exception may be barred by the Confrontation Clause, as is the case here_**.

Answer 35

(B) The testimony will most likely be admissible as a statement of a then-existing physical condition. Declarations of existing physical condition are admissible as an exception to the hearsay rule. Under the Federal Rules, these declarations are admissible even though not made in the context of medical diagnosis or treatment. (C) is incorrect. The statement would be hearsay but it would qualify under the exception for statements describing current physical condition.

Answer 36

(B) 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. (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.

Answer 37

(B) Asking the witness about the assault charge is an improper method of impeachment. _A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness._ An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the **_conviction_** would have been admissible, provided it was a **_felony._** (C) and (D) are incorrect because these questions represent proper means of rebutting the evidence of the co-worker’s character for dishonesty, as well as trying to impeach the witness’s credibility based on lack of knowledge. Once the defendant has introduced evidence of the alleged victim’s bad character for apertinent trait, the prosecution may counter with reputation or opinion evidence of the victim’s good character for the same trait. [Fed. R. Evid. 404] On cross-examination, the prosecution may inquire into relevant specific instances of conduct. [Fed. R. Evid. 405(a)] Traditionally, asking a witness if he has heard of a particular instance of conduct represents a means of testing the accuracy of the hearing and reporting of a reputation witness, who relates what he has heard. Asking a witness if he knows of a particular instance of conduct is a means of testing the basis of an opinion expressed by the witness. Here, the witness’s testimony indicates both that he has heard that the co-worker has a bad reputation for honesty and that his own opinion is that she is a dishonest person. Thus, in attempting to rebut this testimony, the prosecution may test the accuracy of what the witness has heard concerning the co-worker’s character by asking him if he has heard of specific instances of her teaching Sunday School and receiving a church award. Also, the prosecution may test the basis for the witness’s opinion as to the co-worker’s dishonesty by asking if he knows of these specific instances that are indicative of her good character.

Answer 38

(D) The question is proper. The defendant has taken the stand in his own defense, and therefore the prosecutor can attack his **_credibility as a witness_**. Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness’s character for truthfulness. (A) is incorrect because even if fraud were probative of the tendency to commit violence, evidence of other crimes is not admissible to prove that a person has a propensity to commit criminal acts.

Answer 39

(A) The defense witness’s testimony is admissible character evidence because the plaintiff’s character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, 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, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence—reputation, opinion, or specific acts—may be used. Here, character is an issue in the plaintiff’s defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness’s testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed. (B) is incorrect because the fact that the theft here could be considered a crime of dishonesty would be relevant only if the plaintiff’s credibility were being impeached, and only then if proof of an actual conviction were provided. Here, the testimony is admissible because it is being offered as substantive evidence of an aspect of the plaintiff’s character that is an essential element of a defense in the case.

Answer 40

(C) 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.

Answer 41

(A) The objection to the perjury question is most likely to be sustained. Federal Rule 609 permits the prosecution to inquire into prior convictions of crimes requiring proof or admission of dishonesty or false statement unless over 10 years have passed since the date of conviction or date of release from confinement (whichever is later). While the facts do not indicate the latter date (or even whether a confinement occurred), (A) remains the best of the four choices. The conviction in (A) is more than 10 years old, so it probably would be subject to objection as being too remote. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

Answer 42

(C) The record of the conviction should be excluded **_because the defendant has given no testimony to be impeached._** Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence. (A) is incorrect because evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Circumstantial use of prior behavior patterns for the purpose of inferring that, at the time and place in question, a person probably acted in accord with such patterns raises the danger of unfair prejudice and distraction from the main issues. Consequently, even if the prior conviction resulted from driving while intoxicated, the record of that conviction is not admissible to show that the defendant was intoxicated when she collided with the plaintiff. (B) is incorrect because, as has been noted, evidence cannot be used for impeachment purposes before there is anything to be impeached. (D) is incorrect for two reasons: First, it is unnecessary to address the issue of whether the conviction constitutes proper impeachment evidence, because impeachment is not even called for on these facts. Second, if properly offered to impeach testimony by the defendant, the conviction would not be considered too remote. Under the Federal Rules, a conviction is not too remote if fewer than 10 years have elapsed since the conviction or release from prison.

Answer 43

(B) The testimony is inadmissible because it is not a permitted way to impeach a witness. _A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted._ 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 it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it. (A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements, or if the crime was a felony. However, the prior conviction will generally not be admitted if more than 10 years have passed since the date of conviction or release from confinement, whichever is the later date (although the judge has discretion to admit older convictions in extraordinary circumstances). Here the witness was convicted 20 years ago and the conviction is likely too remote. Additionally, the defendant did not attempt to introduce evidence of the witness’s conviction; the proposed testimony only concerns the commission of the misconduct.

Answer 44

(A) The friend’s testimony is admissible only to challenge the credibility of the bystander’s earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the bystander’s hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement. (D) is wrong. While it is true that the statement is hearsay not within an exception (and thus inadmissible as substantive evidence), it is still admissible for the purpose of impeachment.

Answer 45

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.

Answer 46

(B) Only the witness’s testimony is necessary to introduce the photograph. **To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts.** It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible. (A) incorrectly categorizes the employee’s testimony as necessary. Generally, a _photographer’s testimony is not necessary_ to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene.

Answer 47

(A) The judge must find that the writing is unavailable, through no fault of the plaintiff. Under the best evidence rule, when a document is unavailable but is central to the resolution of a dispute (i.e., not collateral) and there is an attempt to enter the contents of that document into evidence through testimony, the judge must first find that the document itself is not available ***_through no fault of the proponent_*** (here, the plaintiff), in order for testimony on the issue to be admissible. (B) is wrong because the proponent need not prove that an opposing party contributed to the loss of the document.

Answer 48

.... federal cases where state law does not supply the rule of privilege (i.e., federal question cases).

Answer 49

(B) The statement of the passenger is admissible as a statement by an opposing party. A statement made by a party and offered against that party (commonly called an admission) is admissible nonhearsay. Here, the driver’s lawyer is seeking to admit the passenger’s statement that he was arguing with the driver when the collision occurred. The testimony relates to the issue of fault and is admissible. (A) and (C) are incorrect. The attorney-client privilege protects from disclosure communications between a client and an attorney made during professional consultation. The privilege applies even if the communication is made in the presence of an agent of the attorney. **_The privilege does not apply, however, in suits between two parties represented by the same attorney._** Here, the privilege would apply despite the paralegal’s presence because she is an agent of the lawyer. It does not, however, apply in the suit between the driver and passenger because they were represented by the same attorney.

Answer 50

(C) The testimony should be excluded because _the attorney-client privilege applies to the examination done in preparation for trial._ The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney. (B) is a true statement; the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. However, (B) is incorrect because _when a client is examined by a doctor at the attorney’s request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated._ *Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).*

Answer 51

(B) 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. **Under confidential marital communications 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. (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.

Answer 52

(C) The judge will make the determination and the jury must be excused. Whether the jury should be excused during a preliminary fact determination is generally within the discretion of the trial judge. **However, because of the potential for prejudice to the accused in a criminal trial,** _Federal Rule 104(c) provides that the jury must be excused during hearings on the admissibility of the accused’s confession._ (A) is incorrect. The judge, not the jury, must decide any preliminary question about whether evidence—such as a confession—is admissible.

Answer 53

(B) The judge determines whether the testimony falls within an exception to the hearsay rule, and is generally not limited by the rules of evidence in making that determination. The Federal Rules of Evidence distinguish between _preliminary facts to be decided by the jury, which involve whether the proffered evidence is relevant_, and _preliminary facts decided by the judge, which involve whether the evidence is competent, i.e., not barred by an exclusionary rule._ **All preliminary fact questions that determine the applicability of an exception to the hearsay rule must be determined by the judge**, because the competency of the evidence will depend on that preliminary fact determination. **I****_n making this preliminary fact determination, the trial court may consider any nonprivileged relevant evidence, even though it would not otherwise be admissible under the rules of evidence._** [Fed. R. Evid. 104(a)] In this case, then, the judge should decide whether the testimony falls within the present sense impression exception, and she is not limited in making this determination by the rules of evidence other than privilege.

Answer 54

(D) The witness may not refer to the letter. Generally, a memorandum can be used to refresh the recollection of a witness, to substitute for forgotten testimony, or on cross-examination. _Here, the plaintiff’s counsel can use the letter to impeach the witness’s testimony because it is a prior inconsistent statement._ **To do so, he can cross-examine her as to the contents of the letter (as opposed to having her read it to herself prior to cross-examination, as he attempted to do) to show that she has made statements contrary to her testimony,** thereby discrediting her testimony. (C) is incorrect because the memorandum does not need to be offered into evidence; a witness may simply refer to it to refresh recollection prior to giving her testimony.

Answer 55

(A) Leading questions are allowed on the *direct examination* of **_a “hostile” witness._** There is no rule that allows leading questions on the direct examination of **_a “disinterested” witness._** *A leading question is normally permitted on _cross-examination_ whether the witness is a layperson or an expert.* Therefore, (C) is wrong.

Answer 56

i.e. Here the prosecutor is trying to read portions of the treatise before calling any expert witness to the stand, so the treatise is inadmissible hearsay.

Answer 57

(B) is correct. As a general rule, to offset the coercive nature of custodial interrogation by a police officer and protect defendants' Fifth Amendment right against compelled self-incrimination, the Supreme Court has made Miranda warnings a prerequisite to the admissibility of confessions obtained during a custodial police interrogation. ***_The officer's question here was an interrogation, as the term "interrogation" extends to any words or conduct used by an officer intentionally to elicit an incriminating response._*** Nevertheless, the driver's response here is admissible despite the lack of Miranda warnings because the driver was not in custody. ***_Determining whether a person is in custody for Miranda purposes involves a two-step inquiry._*** The Court will first look to whether a reasonable person in the circumstances would _feel free to terminate the encounter and leave._ If not, the Court looks to the whether the relevant environment _presents coercive pressures_ similar to those of a station house interrogation. The more a setting resembles a traditional arrest, the more likely the Court will find the person to be in custody. Here, the driver, no doubt, felt that he was not free to leave, having just been pulled over for a traffic violation. However, a traffic stop does not resemble a traditional arrest. Given their brief nature and the motorist's knowledge that he will soon be on his way, **_the Supreme Court has found traffic stops to be noncustodial._** Therefore, a police officer can ask questions during a routine traffic stop without giving Miranda warnings, and responses to those questions are admissible at trial in a case-in-chief and for impeachment purposes. Therefore, (A), (C), and (D) are incorrect.

Answer 58

No because grand jury proceedings do not provide the opportunity for cross-examination.

Answer 59

... a nonexpert cannot become familiar with the handwriting merely for the purpose of testifying. There is no requirement that the witness have seen the signature recently.

Answer 60

(i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701]

Answer 61

a doctor employed to testify

Answer 62

A plea of guilty to a traffic infraction is a formal judicial admission. The admission is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary admission (i.e., it is not conclusive and can be explained). Here, the defendant has acknowledged by her guilty plea that she was speeding at the time of the accident. This fact is relevant to the plaintiff’s suit for personal injuries because it increases the likelihood that the defendant was at fault in the accident that caused those injuries. Therefore, the defendant’s guilty plea is admissible in the current civil action as an evidentiary admission.

Answer 63

The testimony should not be admitted. Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. ***_A hearsay statement will not be admitted—even if it falls within a hearsay exception—when:_*** ***_(i) the statement is offered against the accused in a criminal case;_*** ***_(ii) the declarant is unavailable;_*** ***_(iii) the statement was testimonial in nature; and_*** ***_(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial._*** The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner’s statement was hearsay because it was made out of court and is being offered for its truth—that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this (“Thank you for catching him!”). Therefore, the homeowner’s statements to the officer were testimonial. Because the homeowner is unavailable to testify at trial and the robber has had no opportunity to cross-examine the statements, admitting them at trial through the testimony of the officer would violate the Confrontation Clause. (A) is incorrect. Under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if it relates to the startling occurrence and was made under the stress of excitement produced by the startling event. Here, finding a robber in one’s home is a startling event, and the homeowner was still under the stress of the excitement when she made the statement—she was crying and shaking. The statement likely qualifies as an excited utterance. However, even a hearsay statement that falls within an exception may be barred by the Confrontation Clause, as is the case here. (B) is incorrect. As stated above, when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Because the homeowner’s statement was made for this purpose and not to address an ongoing emergency, it was testimonial in nature and its admission would violate by the Confrontation Clause. (D) is incorrect. As stated above, the homeowner’s statement falls within the exception for excited utterances, so it will not be excluded because of the hearsay rule. The testimony will be excluded because of the robber’s constitutional right to be confronted by the witnesses against him.

Answer 64

a matter did not occur

Answer 65

This is character evidence because it describes the pedestrian’s general tendency to act cautiously. Evidence of a person’s character is generally irrelevant and inadmissible in a civil case except in rare circumstances where character is directly in issue (e.g., defamation or negligent hiring cases). Here, because the pedestrian’s character is not directly in issue in this civil personal injury lawsuit, the friend’s testimony is inadmissible. (A) is incorrect. Under Federal Rule 406, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit. Habit describes one’s regular response to a specific set of circumstances, while character describes one’s disposition in respect to general traits. Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. Here, however, the friend’s testimony is character evidence, not habit evidence. The fact that the pedestrian is cautious and obeys traffic laws is not nearly specific enough to qualify as habit evidence—despite the use of the term “invariably.” (B) is incorrect. The answer choice recites the general rule of relevance—that is, evidence is relevant if it makes the existence of any fact of consequence to the determination of the action more likely or less likely than it would be without the evidence. However, despite meeting the low threshold for relevance, character evidence is generally inadmissible in civil cases to prove that a person acted in conformity with the trait during the events of the case. (D) is incorrect. Although the credibility of a witness may be impeached by showing that the witness is biased, that does not mean the testimony itself is inadmissible. Indeed, most witnesses testifying as to the habit or character of a person will have some sort of personal bias in favor of or against that person.

Answer 66

only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

Answer 67

The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney. (A) is incorrect because admissions by party-opponents, while not hearsay under the Federal Rules, are still subject to potential privilege assertions. _**(B) is a true statement; the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff’s suit, so (D) is incorrect.** ***However, (B) is incorrect because when a client is examined by a doctor at the attorney’s request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).***_

Answer 68

_The judge determines whether the testimony falls within an exception to the hearsay rule, and is generally not limited by the rules of evidence in making that determination._ ***_The Federal Rules of Evidence distinguish between preliminary facts to be decided by the jury, which involve whether the proffered evidence is relevant,_*** **and preliminary facts decided by the judge, which involve whether the evidence is competent, i.e., not barred by an exclusionary rule.** All preliminary fact questions that determine the applicability of an exception to the hearsay rule must be determined by the judge, because the competency of the evidence will depend on that preliminary fact determination. **_In making this preliminary fact determination, the trial court may consider any nonprivileged relevant evidence, even though it would not otherwise be admissible under the rules of evidence._** [Fed. R. Evid. 104(a)] In this case, then, the judge should decide whether the testimony falls within the present sense impression exception, and she is not limited in making this determination by the rules of evidence other than privilege. (A) is incorrect because the judge’s preliminary fact determination does not need to be based on the rules of evidence (other than privilege rules). (C) and (D) are incorrect because, as discussed above, determining whether the testimony falls within the scope of the hearsay exception is a determination of whether the evidence is competent, and this determination is made by the judge rather than the jury.

Answer 69

The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant’s testimony raises a rebuttable presumption that the check had been delivered in the mail. The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. **_The burden of persuasion does not shift from party to party during the course of a trial._** **Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives.** **_The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved._** _If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant._ Here, when the plaintiff made out a prima facie case of the defendant’s debt, the burden of going forward with the evidence shifted to the defendant. The defendant met this burden through the use of a presumption. _Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption._ The defendant’s evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check). (B) is incorrect because, as discussed above, the defendant’s testimony raised a rebuttable presumption that the check was delivered in the mail, which shifted the burden of going forward with the evidence to the plaintiff. The fact that the plaintiff met his burden of going forward with the evidence of the debt once, when he made out his prima facie case, does not mean the burden cannot shift back to him. (C) is incorrect because the plaintiff has not satisfied his burden of persuasion. As discussed above, the burden of persuasion does not shift from party to party and is only a crucial factor when all the evidence is in. This burden is satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party. Because the defendant’s testimony raises a rebuttable presumption that the check was delivered to the plaintiff, the plaintiff’s burden of persuasion cannot be met until he offers evidence to prove that the check was not received (a necessary element of his case). (D) is incorrect because, as discussed above, the defendant’s testimony raised a rebuttable presumption of delivery of the check in the mail to the plaintiff, which shifted the burden of going forward with evidence of nondelivery back to the plaintiff. The plaintiff’s burden of persuasion cannot be satisfied until he comes forward with this evidence because a necessary element of his case is that the defendant never paid him.

Answer 70

The court will allow the historian to testify as to the identity of the voice simply because he is familiar with the uncle's voice. **Where the identity of a speaker is important, the oral statements require authentication as to the identity of the speaker.** _A voice, whether heard firsthand or through a tape recording, may be identified by the opinion of anyone who has heard the voice at any time._ As long as such a foundation is laid to show familiarity with the voice, a lay opinion as to the identity of the speaker is permissible. Thus, because the historian became familiar with the uncle's voice when he made the tape recording, he will be permitted to testify that the voice on the tape was the uncle's. (C) is incorrect because, **_in contrast to the rule for handwriting verification, a person can become familiar with a voice after litigation has begun and for the sole purpose of testifying._** Hence, the fact that the historian became familiar with the uncle's voice before the dispute arose is not critical to admissibility of his testimony.

Answer 71

... the declarant testifies at the trial and is subject to cross-examination, and the prior statement was given under oath at a prior proceeding. If they do not meet these standards, prior inconsistent statements are hearsay that is admissible for the limited purpose of impeachment.

Answer 72

the abuse of discretion standard.

Answer 73

The judge may call and examine the witness, but the parties are entitled to cross-examine the witness. A court is entitled to examine any witness called by any party, and may also call a witness on its own or at a party’s request. Therefore, (D) is wrong. (A) is wrong because the court may call a witness on its own, even if the witness has not been called by any of the parties. (B) is wrong because the court may call any witness, even an expert. Although the court has wide discretion to call and examine witnesses, each party is entitled to cross-examine the court’s witness. A party may also object to the court’s examining or calling a witness either at that time or at the next opportunity when the jury is not present (to spare counsel the potential embarrassment of objecting to the judge’s questions in front of the jury).

Answer 74

If one party lays a proper foundation for the presumption and the other party does not introduce any contrary evidence, the judge will instruct the jury on the presumption. ***_If the other party produces even a scintilla of credible evidence contradicting the presumption, the judge will not instruct the jury on the presumption._*** ***_i.e._*** The attorney claims that she mailed the letter to the law firm, but the law firm denies receiving it. Given that the law firm has produced testimonial evidence contradicting the presumption, the judge should not instruct the jury on the presumption. \* Evidence state that a conclusive presumption is one which the jury must accept no matter what evidence to the contrary is introduced. Conclusive presumptions are rare.

Answer 75

The shopper's statements to the witness are admissible as statements by a party-opponent. These are words or acts of a party-opponent offered as evidence against him. Under Federal Rule of Evidence 804(b)(3), a statement against interest requires that: ***_(1) the declarant is unavailable at trial;_*** (2) at the time the statement was made, it was contrary to the declarant's pecuniary, proprietary, or penal interest, or tended to subject the declarant to civil or criminal liability; and (3) a reasonable person in the declarant's position would not have made the statement if it were not true. The shopper is available at trial, and the statement was probably not against any interest at the time he made it, so this exception does not fit. Note that this hearsay exception will not be the correct answer when the declarant is a party to the action; opposing party's statement answers are better in that type of fact pattern. Thus, this answer is incorrect.

Answer 76

In a criminal case, the Sixth Amendment requires the opportunity to cross-examine testimonial hearsay statements. Examples of out-of-court "testimonial statements" include ones made to law enforcement officers, other government employees or officials, and statements made in courtrooms or courtroom-like settings or other analogous situations. This includes prior testimony in a preliminary hearing, before a grand jury, at a prior trial and also police interrogation situations. Affidavits and depositions are also viewed as being testimonial statements. Basically, the common thread among statements made in such environments is the more "official" or formal nature of such communications. In contrast, hearsay statements to family, friends, co-workers, and neighbors, which are typically informal and conversational in nature, are not considered testimonial. Calls to 911 and similar statements to law enforcement which, when viewed objectively, have as their primary purpose to enable law enforcement to respond to an ongoing emergency are not testimonial in nature.

Answer 77

Any witness may be questioned during cross-examination about acts of misconduct when they relate to the witness's credibility. Credibility is in issue for all witnesses, and so impeachment on the grounds of their ability to perceive or recall is always acceptable. Similarly, bias and tendency toward truth-telling are always relevant as to the credibility of a witness who takes the stand to testify. Any witness may be questioned during cross-examination about acts of misconduct when they relate to the witness's credibility. Therefore, this is within the scope of direct examination.

Answer 78

Both settlement offers and statements made during settlement negotiations are inadmissible. [Fed. R. Evid. 408] This is because public policy favors the voluntary settlement of disputes. If a settlement offer has been made in a case that ultimately goes to trial, admission of the offer into evidence would probably prejudice the party who made the offer. Thus, if such evidence were admissible, there would be a disincentive to parties making settlement offers. Similarly, if statements made during settlement negotiations could be admitted into evidence in cases that ultimately go to trial, then that would be a disincentive to enter into settlement negotiations or to discuss settlement in a freewheeling way. In either event, the public policy favoring settlements bars use of such statements.

Answer 79

an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.

Answer 80

The barograph record is admissible only if it was properly authenticated. **Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof showing that the writing is what the proponent says it is.** In general, a writing may be authenticated by any evidence that serves to establish its authenticity. One means of authentication under Federal Rule 901(b) is by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Hence, for the man’s barograph record to be admissible, evidence must have been offered that the instrument is accurate and that it was in good working order when the record was produced.

Answer 81

Although usually facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting.

Answer 82

The offer to pay medical expenses in itself is not admissible as an admission. Here, however, there is a statement that follows such an offer. This statement is admissible as an admission by the CEO of the development firm that the employee had not warned the plaintiff about the dangerous condition of the stairs. Because this is an admission, it is not hearsay under the Federal Rules. (A) is an exception to the hearsay rule and is thus unnecessary. Furthermore, it is an exception requiring the unavailability of the declarant, and there is no indication in the facts that the employee is now unavailable. (C) is wrong because, as mentioned, the statement is not hearsay under the Federal Rules. (D) is a misstatement of the law; only the offer to pay medical expenses is inadmissible on public policy grounds.

Answer 83

The trial court should rule the witness’s testimony inadmissible because its probative value is substantially outweighed by the danger that it will confuse the issues and waste time. Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment (other than by cross-examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair surprise, confusion of issues, and undue consumption of time. An issue is considered collateral if it would not be admissible other than to contradict the testimony. Evidence that a person has previously filed similar claims is generally inadmissible to show the invalidity of the present claim. At best, this evidence shows the plaintiff’s tendency toward litigation. Unless there is evidence that the previous claim was false, the probative value of such evidence is deemed outweighed by the risk of confusion of the issues. Because the prior suit would not be the subject of proof independent of impeachment, it is a collateral matter, and extrinsic evidence, such as the witness’s testimony, is inadmissible. (A) is wrong because the testimony is not proper impeachment and is inadmissible. Further, this choice states the foundational requirement for introducing a prior inconsistent statement. This is not a prior inconsistent statement and, if the testimony were admissible, the opportunity to explain or deny would not be required. (B) is wrong because the failure to object merely meant that the plaintiff’s answer to the question was admitted into evidence; it does not change the fact that the matter is collateral. Because it is a collateral matter, extrinsic evidence will not be permitted. (C) is wrong for two reasons: First, the suit is a fact that exists independently of the court record, and thus the best evidence rule would not apply. Further, as stated above, extrinsic evidence of any kind is not admissible on a collateral matter; the defendant is limited to cross-examination for impeachment in these circumstances.

Answer 84

The Dead Man Act will have no effect on the admissibility of the purchaser’s conversation with her brother because the dealer is not a protected party. **A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.** Such statutes are designed to protect those who claim directly under the decedent from perjured claims. **Here, the dealer is not a representative or successor in interest of the brother, such as an executor, administrator, heir, legatee, or devisee.** Therefore, the dealer is not a protected party for purposes of a Dead Man Act. _Because the testimony of the purchaser is not being offered against a representative or successor in interest of the decedent (her brother), the Dead Man Act is inapplicable._ Regarding (A), it is true that the bar to _competency created by a Dead Man Act applies only to civil cases._ However, the mere fact that a civil action is involved will not trigger applicability of a Dead Man Act. As explained above, the absence of someone who is deemed to be a protected party will prevent a Dead Man Act from having any effect. Thus, (A) is incorrect. Regarding (B), it is true that the purchaser is an interested party (i.e., she stands to gain or lose by the direct and immediate operation of a judgment in this case). Nevertheless, (B) is incorrect because a Dead Man Act _requires not only an interested person but a protected party._ As has been noted, the dealer is not a protected party. (D) is incorrect because it is based on the assumption that a Dead Man Act does not apply to civil cases. In fact, such statutes apply only to civil cases, and not to criminal cases.

Answer 85

The court should sustain the objection because the records are hearsay not within any recognized exception. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. Here, the records are being offered to prove that the employer sexually harassed other employees, to support the plaintiff’s contention that the employer sexually harassed her. Because the statements are offered to prove the truth of the matter asserted, they are hearsay, and because there is no recognized exception that would allow the records to be admitted, they must be excluded. Therefore, (D) is incorrect. (B) is incorrect. The business records exception applies to records or writings made in the course of a regularly conducted business activity **_by one who was under a duty to do so._** Here, because the employees were not under a business duty to file their claims, the business records exception does not apply to their statements. (C) does not agree with the facts. A statement against interest is a hearsay exception allowed when a declarant is unavailable. Here, there is no showing of unavailability, and also the employees said nothing against their interests.

Answer 86

The state court is least likely to take judicial notice of the Australian law. Most state courts will not take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court. (A) and (B) are incorrect because they are notorious facts (i.e., facts of common knowledge in the community), and (C) is incorrect because it is a manifest fact (i.e., a fact capable of certain verification by resort to easily accessible sources of unquestionable accuracy). Both manifest and notorious facts are appropriate for judicial notice, and under the Federal Rules, notice must be taken of these facts if so requested by a party.

Answer 87

It was not error to introduce either item of evidence, even though both contain 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. Here, both items of evidence are being offered to prove the truth of what they are asserting—the date of the plaintiff’s birth. However, they both fall within exceptions to the general rule that hearsay is not admissible at trial. Under Federal Rule 803(13), statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc., are admissible (regardless of whether the declarant is available). The plaintiff’s Bible is therefore admissible, and (A) and (C) are incorrect. The certified copy of the birth certificate is also admissible hearsay under Federal Rule 803(9), which admits official records of births, deaths, and marriages. (B) is incorrect because official records are self-authenticating when they are certified [Fed. R. Evid. 902]; the custodian need not authenticate them in court.

Answer 88

The jury must find that the insured is dead. **Because the basic facts that support the presumption were proven at trial, and no other evidence was introduced, the jury must find in accordance with the presumption, because the other party did not meet its burden of going forward with rebuttal evidence.** (C) is wrong because the presumption regarding the insured’s death is a rebuttable presumption. **A rebuttable presumption will have no force or effect when sufficient contrary evidence is introduced. A conclusive presumption is really a rule of substantive law and cannot be rebutted by contrary evidence.**

Answer 89

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. When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.

Answer 90

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 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.

Answer 91

1. facts that he knows from his own observation, 2. facts presented in evidence at the trial and submitted to the expert (i.e. can sit in the courtroom and listen in and then testify), or 3. facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.

Answer 92

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 cannot refute the answer by calling other witnesses or producing other evidence. 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.

Answer 93

* **_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 as an admission. * **_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 admission may be introduced against her employer even if she was not authorized to speak for the employer. The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment. * **_Partners:_** After a partnership is shown to exist, an admission 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 admissions 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.

Answer 94

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). 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. 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_

Answer 95

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.**

Answer 96

The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.

Answer 97

The question is proper. **The defendant has taken the stand in his own defense, and therefore the prosecutor can attack his credibility as a witness.** Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness’s character for truthfulness.

Answer 98

be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of **chain of custody.** The proponent must show that the object has been held in a substantially unbroken chain of possession. **It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody.** i.e. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody. In the absence of a substantially unbroken chain of custody, the evidence is inadmissible for lack of proper authentication

Answer 99

Under the Federal Rules, learned treatises can be used either for impeachment or as substantive evidence. Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice. **The Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if:** **_(i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority_**

Answer 100

The judge should rule this affidavit to be inadmissible hearsay. This affidavit is clearly hearsay, and there is nothing in the facts that shows that it is admissible under any of the exceptions to this rule. Hence, (A) is wrong. (B) is wrong because the observations of the attorney would not be deemed a “communication received from the client.” **_Also, while the attorney-client privilege generally survives the client’s death, it does not apply to communications relevant to an issue between parties who are claiming through the same deceased client_**, such as in the probate proceedings here. (D) is incorrect because a lay person could probably testify to her opinion in this situation since it is rationally based on her own perception, it is helpful to a determination of a fact in issue, and it is not based on scientific, technical, or other specialized knowledge.

Answer 101

The witness’s testimony is admissible nonhearsay. The statement by the witness is not being offered to prove the truth of the matter asserted therein and thus is not hearsay. Hearsay is a statement made out of court by the declarant, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] Although hearsay is inadmissible (unless an exception to the hearsay rule is applicable), a statement that would be inadmissible hearsay to prove the truth thereof may be admitted to show the statement’s effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, one of the theories of recovery underlying the plaintiff’s lawsuit is that the defendant negligently failed to secure the load. Therefore, the plaintiff must show that the defendant either knew or should have known that the load was not properly secured. Consequently, the witness’s statement that the chains looked loose is admissible to show that the defendant had notice of the possible danger. If this same out-of-court statement were offered to show that its contents were true (i.e., that the chains were in fact loose), then it would constitute hearsay, but because the statement is offered to show notice to the defendant of a possible danger, it is nonhearsay

Answer 102

**_Evidence of the defendant’s other crimes or misconduct is admissible only if relevant to some issue other than the defendant’s character or propensity to commit the crime charged._ Such acts would be admissible to show motive, intent, absence of mistake, identity, or a common plan or scheme.** Of these, the only one possibly relevant to these facts is identity. _Evidence that the accused committed prior criminal acts that are so distinctive as to operate as a “signature” may be introduced to prove that the accused committed the act in question._ Merely throwing an object, such as a brick, through a window could not be considered so distinctive as to operate as a signature. Thus, this evidence would not show identity. The only possible reason for offering the evidence is to show the ex-boyfriend’s propensity to commit the crime charged, in which case the testimony will be inadmissible.