Evidence BlackLetter (Barbri)

Question 1

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the declarant is unavailable; and (ii) ∆ had an opportunity to cross-examine the declarant at the time the statement was made. Which of the following is considered “non testimonial” evidence for purposes of the Confrontation Clause?

(A) Affidavits that summarize the results of a fingerprint test

(B) Statements made by a robbery victim to a police officer about the details of the robbery.

(C) Statements made about the identity of the perpetrators during a 911 call in the course of a home invasion.

(D) Statements made by a victim of a theft to a police officer about the physical features of the suspect.

Answer 1

(C) Statements made about the identity of the perpetrators during a 911 call in the course of a home invasion.

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 (e.g., statements made during a 911 call about the identity of the perpetrators in the course of a home invasion). It has been held that affidavits that summarize the findings of forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be admitted into evidence unless the technician is unavailable and the defendant previously had an opportunity to cross-examine him. (Note, however, that such affidavits do not raise a Confrontation Clause issue when they are not offered to prove the truth of the matter asserted.) When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Such statements would include those made to the police by a robbery victim about the details of the robbery, or by a victim of a theft regarding the physical features of the suspect.

Question 2

Certain statements by a person testifying at trial, who is thus subject to cross-examination, are not hearsay under the Federal Rules. Which of the following would be hearsay if offered as proof of the matter asserted?

(A) A witness’s prior inconsistent statement made at a deposition.

(B) A witness’s prior consistent statement offered to rebut a charge that the witness is now lying to provide an alibi for his wife.

(C) A witness’s prior statement identifying a person in a police lineup.

(D) A witness’s prior inconsistent statement made to a news reporter.

Answer 2

(D) A witness’s prior inconsistent statement made to a news reporter.

A witness’s prior inconsistent statement made to a news reporter would be hearsay if offered to prove the truth of the matter asserted. It is an out-of-court statement offered to prove the truth of the matter asserted. Note that it could be used to impeach the witness’s credibility, but not as substantive proof of the matter. A witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under oath. Prior inconsistent statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules. A witness’s prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury. The prior statement must be made before the alleged motive to lie came into being. So if the witness’s statement was made before his wife was a suspect, it would be admissible. A witness’s prior statement identifying a person in a lineup is not hearsay. A prior identification after perceiving a person or even after seeing his picture in a photo identification is not hearsay under the Federal Rules.

Question 3

Which hearsay exception is applicable only if the declarant is unavailable to testify at trial?

(A) present sense impressions
(B) statements against interest
(C) excited utterances
(D) business records

Answer 3

(B) statements against interest

Under the Federal Rules, there are two groups of hearsay exceptions—those that require the declarant be unavailable, and those under which the declarant’s availability is immaterial. The five important exceptions requiring the declarant’s unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against party procuring declarant’s unavailability. Other hearsay exceptions (including the exceptions for present sense impressions, excited utterances, and business records) are applicable whether or not the declarant is unavailable.

Question 4

Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness. Which of the following is NOT a requirement of the former testimony exception to the hearsay rule?

(A) The former testimony must have been given under oath or sworn affirmation.

(B) The subject matter in the current case and the prior case are the same.

(C) The parties in the current case must be the same as in the prior case.

(D) ∆ (or her predecessor in interest) must have had the opportunity to question the declarant about this statement in the prior case.

Answer 4

(C) The parties in the current case must be the same as in the prior case.

For the former testimony exception to apply there must be a sufficient “identity of parties.” The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the “subject matter” of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case.

Question 5

Which of the following is NOT a requirement of the hearsay exception for statements against interest?

(A) The statement must have been against the declarant’s interest when made.

(B) The declarant must have been aware that the statement was against her interest when made.

(C) The declarant must have had no motive to misrepresent when she made the statement.

(D) The declarant must be a party to the action.

Answer 5

(D) The declarant must be a party to the action.

A “statement against interest” differs from an opposing party’s statement in that the declarant does not have to be a party to the action. To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: (i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true; (ii) The declarant must have had personal knowledge of the facts; (iii) The declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) The declarant must be unavailable as a witness.

Question 6

In a criminal case, the prosecution can call witnesses to testify about the defendant’s character for a particular trait to establish the defendant acted in conformity with that trait:

(A) Whenever the evidence makes it more likely that the ∆ committed the crime in question

(B) Only if the ∆ has already put that particular character trait in issue

(C) During its rebuttal case, as long as the ∆ testified during her case-in-chief

(D) Only if the testimony concerns specific bad acts by the ∆

Answer 6

(B) Only if the ∆ has already put that particular character trait in issue

In a criminal case, if the defendant puts her character in issue by calling a witness to provide reputation or opinion testimony regarding that trait of the defendant, the prosecution can then call witnesses to testify about the defendant’s character for that particular trait. This can be in the form of reputation or opinion testimony; testimony concerning the defendant’s specific bad acts is not allowed. The prosecution cannot initiate evidence of the bad character of the defendant merely to show that she is more likely to have committed the crime of which she is accused. However, if the accused introduces evidence of her good character to show her innocence of the alleged crime, the prosecution may rebut that evidence. If the defendant puts her character in issue, the prosecution can rebut that evidence regardless of whether the defendant testified.

Question 7

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

(A) Reputation and opinion only

(B) Opinion only

(C) Reputation, opinion, or specific acts

(D) Specific acts only

Answer 7

(C) Reputation, opinion, or specific acts

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

Question 8

Under what circumstances is evidence of a defendant’s prior acts of sexual assault or child molestation admissible?

(A) Only in a civil case where the defendant is accused of committing an act of sexual assault or child molestation.

(B) Only in a criminal case where the defendant is accused of sexual assault or child molestation.

(C) In a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation and only if the prior act involved the same victim.

(D) In any civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation.

Answer 8

(D) In any civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation.

Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible in a civil OR criminal case where the defendant is accused of committing an act of sexual assault or child molestation. The prior act need not have involved the same victim.

Question 9

When a defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with any of the following except:

(A) reputation evidence of the victim’s good character for the same trait

(B) opinion evidence of the victim’s good character for any trait

(C) opinion evidence of the defendant’s bad character for the same trait

(D) reputation evidence of the defendant’s bad character for the same trait

Answer 9

(B) opinion evidence of the victim’s good character for any trait

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of (i) the victim’s good character for any pertinent trait, or (ii) the defendant’s bad character for the same trait. It is not permissible for the prosecution to introduce evidence regarding any trait; it must be on a trait that counters the defendant’s evidence.

Question 10

Which statement concerning impeachment by evidence of bias is true?

(A) A witness’s bias may be shown only by cross-examination, not by extrinsic evidence.

(B) The evidence of bias must be substantively admissible in the case (not just offered for impeachment purposes).

(C) A party is not permitted to show that a witness’s bias is justified.

(D) A party may introduce extrinsic evidence of a witness’s bias prior to the witness’s testimony.

Answer 10

(C) A party is not permitted to show that a witness’s bias is justified.

Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness’s bias prior to the witness’s testimony would not be allowed because of foundational requirements. The party must ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.

Question 11

A witness’s character for truthfulness may be impeached by certain prior criminal convictions. Which of the following convictions is most likely to be found admissible?

(A) Misdemeanor not involving dishonesty where six months have passed since conviction and release from confinement.

(B) Felony involving dishonesty where 18 years have passed since conviction and release from prison.

(C) Misdemeanor involving dishonesty where 12 years have passed since conviction and release from confinement.

(D) Felony not involving dishonesty where eight years have passed since conviction and release from prison.

Answer 11

(D) Felony not involving dishonesty where eight years have passed since conviction and release from prison.

A felony not involving dishonesty where eight years have passed since conviction and release from prison will likely be admissible. A witness’s character for truthfulness may be attacked by any felony, whether or not it involves dishonesty or a false statement. A conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, only eight years have passed. Therefore, the prior conviction is not too remote. A misdemeanor not involving dishonesty where six months have passed since conviction and release from prison is inadmissible, because a misdemeanor conviction may be used to impeach the witness only if it involved dishonesty or a false statement. A felony involving dishonesty where 18 years have passed since conviction and release from prison will likely be inadmissible. Generally, a witness may be impeached with any prior felony conviction. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote. A misdemeanor involving dishonesty where 12 years have passed since conviction and release from prison will likely be inadmissible. A witness’s character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote.

Question 12

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act:

(A) is probative of truthfulness

(B) affects the witness’s character in some way

(C) is corroborated by extrinsic evidence

(D) resulted in a criminal conviction

Answer 12

(A) is probative of truthfulness

Federal Rule of Evidence 608 permits inquiry into a witness’s act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Extrinsic evidence of “bad acts” 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 the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness.

Question 13

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

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

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

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

(D) An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

Answer 13

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

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

Question 14

In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence. Which statement regarding the permissibility of extrinsic evidence is false?

(A) The prior inconsistent statement must be relevant to the case

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

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

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

Answer 14

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

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

Question 15

Which of the following statements about offers to settle or pay medical expenses is false?

(A) Evidence that a party offered to pay the injured party’s medical expenses is inadmissible to prove liability for the injury.

(B) An admission of fact made during compromise negotiations is generally inadmissible to prove or disprove the validity or amount of a disputed claim.

(C) In compromise negotiations, if a party admits liability and the amount of liability, every statement made in connection with that offer is admissible.

(D) Any admission of fact accompanying an offer to pay medical expenses is inadmissible.

Answer 15

(D) Any admission of fact accompanying an offer to pay medical expenses is inadmissible.

An admission of fact accompanying an offer to pay medical expenses is admissible. This differs from the rule regarding compromise negotiations, where such admissions are inadmissible if certain requirements are met. Evidence that a party offered to pay (or paid) the injured party’s medical expenses is not admissible to prove liability for the injury. When there is a claim disputed as to validity or amount, an admission of fact made during compromise negotiations is inadmissible. If a party admits liability and the amount of liability in compromise negotiations, the claim is not disputed as to validity or amount. Thus, admissions of fact in such compromise negotiations are admissible.

Question 16

Which of the following are protected under the attorney-client privilege?

(A) Statements made to the attorney by a corporate employee who was authorized by the corporation to make the statements.

(B) Communications relevant to an issue between parties, all of whom are claiming through the same deceased client.

(C) Documents prepared by an attorney for his own use in prosecuting his client’s case.

(D) Communications relevant to an issue of breach of duty by the client to her attorney.

Answer 16

(A) Statements made to the attorney by a corporate employee who was authorized by the corporation to make the statements.

A corporation can be a “client” within the meaning of the attorney-client privilege. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation. There is no privilege regarding a communication relevant to an issue between parties, all of whom claim through the same deceased client —regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. Documents prepared by an attorney for his own use in prosecuting his client’s case are not protected by the attorney-client privilege. However, they may be protected by the attorney’s “work product” rule. There is no privilege for a communication that is relevant to an issue of breach of duty by the attorney to his client (malpractice) or by the client to her attorney (e.g., client’s failure to pay her attorney’s fee for professional services).

Question 17

In federal courts, spousal immunity:

(A) can be invoked by both the witness-spouse and the party-spouse

(B) can be asserted as to matters that took place before the marriage

(C) is not terminated upon divorce

(D) may be invoked in both civil and criminal cases

Answer 17

(B) can be asserted as to matters that took place before the marriage

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

Question 18

Which of the following statements regarding the basis of expert testimony is NOT true?

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

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

(C) An expert may give opinion testimony on direct examination without disclosing the basis of the opinion.

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

Answer 18

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

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

Question 19

In a will contest action, the decedent’s children, who were not provided for in his will, claim that the decedent was not of sound mind at the time of executing the will. The plaintiffs’ attorney calls as a witness the neighbor of the decedent, who was present when the will was executed but did not attest to the will. The attorney asks the neighbor to describe the decedent’s mental state at the time of the will’s execution. The neighbor states that the decedent appeared to be senile. The defense objects.

How should the court rule?

(A) Sustained, because this is an opinion.

(B) Sustained, because the neighbor has not been qualified as an expert.

(C) Overruled, because this is proper opinion testimony.

(D) Overruled, because this is a present sense impression.

Answer 19

(C) Overruled, because this is proper opinion testimony.

The objection should be overruled because the neighbor’s testimony is proper opinion testimony. Although opinions by lay witnesses are generally inadmissible, they may be admitted when an event is likely to be perceived as a whole impression rather than as more specific components. Under the Federal Rules, lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her 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] The witness must have had the opportunity to observe the event that forms the basis of her opinion. A witness who has seen a person and is able to describe that person’s actions, words, or conduct may express an opinion as to whether that person was lucid or senile. Here, the neighbor had an opportunity to personally observe the decedent and his words and conduct at the time of the will’s execution. Her opinion that the decedent appeared senile is helpful to an understanding of her testimony because it is easier and clearer to simply state that the decedent appeared senile than to describe his actions. Also, the neighbor’s opinion is helpful to the determination of a fact in issue—i.e., the decedent’s mental state at the time of executing his will. Thus, the neighbor’s opinion as to the decedent’s mental state is proper lay opinion testimony, and the objection by the defense should be overruled. (A) is incorrect because, as has been explained, lay opinion testimony as to whether or not a person who has been observed by the witness was senile is admissible. (B) is incorrect because expert testimony is appropriate and necessary only when the subject matter of testimony is such that scientific, technical, or other specialized knowledge would assist the finder of fact in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] A determination as to whether a person was senile can easily be based on observation of that person by a layperson and does not require any technical or specialized knowledge. Therefore, the neighbor’s status as an expert or nonexpert has no bearing on the admissibility of her testimony. (D) is incorrect because it states an exception to the hearsay rule, and there is no hearsay problem here. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. The neighbor is not testifying to an out-of-court statement made by herself or anyone else, but rather is testifying as to what she observed concerning the decedent’s mental state.

Question 20

A defendant is on trial in federal court for the armed robbery of a casino. The defendant claims that he was out of town at the time of the robbery. The defendant calls an alibi witness to the stand to testify that she was with him on the trip. When asked where she was and who she was with on the date in question, the witness stated that she could not recall. She said she recalls spending a weekend at a bed and breakfast this spring, but she does not recall the date or her traveling companion. The defendant’s attorney then showed the witness a letter written by her on stationery from the bed and breakfast, and asks her to look at it and try to answer the question again. The prosecution objects.

The objection should be:

(A) Overruled, because this is a past recollection recorded.

(B) Overruled, but the witness cannot depend on the terms of the letter when answering.

(C) Sustained, because the letter is hearsay.

(D) Sustained, because the letter has not been properly authenticated.

Answer 20

(B) Overruled, but the witness cannot depend on the terms of the letter when answering.

The prosecution’s objection should be overruled. If a witness’s memory is incomplete, the examiner may seek to refresh her memory by allowing her to refer to a writing or anything else–provided she then testifies from present recollection and does not rely on the writing. (A) is incorrect because past recollection recorded is a hearsay exception that applies when a party is seeking to introduce a particular kind of writing. Here, the defendant is not seeking to introduce the writing; he merely wants the witness to look at it. Thus, (A) is incorrect. (C) and (D) are incorrect because the letter is not being offered into evidence. Hence, the letter is not hearsay and does not need to be authenticated.

Question 21

A driver was driving north on a local road when his car went out of control, crossed the center line, and struck the vehicle of another driver who was driving south on the same road. Immediately after the accident, an off-duty officer came by and photographed the accident scene for the police report. In a suit between the drivers, the plaintiff seeks to introduce the photograph taken by the officer. The officer is present in court but has not been called as a witness.

Is the photograph of the scene of the accident admissible?

(A) Yes, because the photograph was taken by a police officer who took the photo for an official report.

(B) Yes, because the officer is available to testify at trial.

(C) No, because a proper foundation has not been laid.

(D) No, because of the best evidence rule.

Answer 21

(C) No, because a proper foundation has not been laid.

The photograph is not admissible because a proper foundation has not been laid. 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 identifying witness is familiar with the scene or object that is depicted. Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible. (A) is incorrect because a photograph’s admissibility does not require that the photographer be a police officer or that the photograph be taken for an official report. The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility of the photograph. (B) is incorrect because the photographer need not be available to testify at trial. To authenticate a photograph, any person familiar with the scene may authenticate the photograph. (D) is incorrect because the best evidence rule (also known as the original documents rule) is inapplicable to these facts. The best evidence rule states that in proving the terms of a writing (including a photograph), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent. [Fed. R. Evid. 1002] Here, the admissibility of the original photograph is in issue. A copy of the photograph is not being offered. Thus, no problem arises under the best evidence rule.