Evidence I Flashcards
During her opening statement in a murder trial, the prosecutor says, “The evidence will show that the defendant concocted a plan to have her husband murdered so that she could collect on his life insurance policy.” The defense objects as improper argument. Should the judge sustain (uphold) or overrule (reject) the defense’s objection?
a) Sustain.
b) Overrule.
b) Overrule.
During her opening statement in a murder trial, the prosecutor says, “The defendant is a cold-hearted killer who cares more about money than human life.” The defense objects as improper argument. Should the judge sustain (uphold) or overrule (reject) the defense’s objection?
a) Sustain.
b) Overrule.
a) Sustain.
During plaintiff’s closing argument in a fraud trial, the plaintiff’s lawyer says: “The defendant is an unscrupulous, cold-hearted charlatan who didn’t think twice about bilking a naïve elderly lady out of her social security check just so he could blow it all on coke and hookers.” The defense objects as improper argument. Should the judge sustain (uphold) or overrule (reject) the defense’s objection?
a) Sustain.
b) Overrule.
b) Overrule.
During the same closing argument, the plaintiff’s lawyer says: “Can you imagine how you would feel if you barely could get by on a social security check, and some young thief comes along, earns your trust, and next thing you know he takes the very money you need for milk and bread and your heart medications”? The defense objects as improper argument. Should the judge sustain (uphold) or overrule (reject) the defense’s objection?
a) Sustain.
b) Overrule.
a) Sustain.
In the same fraud trial, the defense lawyer says in closing argument, “The defendant is one of the most trustworthy people I know. I’ve been working with him on this case for over a year, and I wouldn’t be standing before you today if I thought he did the things the plaintiff is accusing him of.” Plaintiff’s lawyer objects as improper argument. Should the judge sustain (uphold) or overrule (reject) the plaintiff’s objection?
a) Sustain.
b) Overrule.
a) Sustain.
For the three examinations that follow, select the answer which correctly expresses the order in which they would occur in a trial.
I. Plaintiff’s direct examination of plaintiff’s witness in the rebuttal case.
II. Plaintiff’s cross-examination of defense’s witness in defense’s case-in-chief.
III. Plaintiff’s re-direct examination of plaintiff’s witness in plaintiff’s case-in-chief.
a) I, II, III.
b) II, III, I.
c) I, III, II.
d) III, II, I.
d) III, II, I.
Which of the following statements is not true?
a) Defense counsel conducts the cross-examination of witnesses during plaintiff’s case-in-chief.
b) Plaintiff’s counsel conducts the cross-examination of witnesses during the rebuttal case.
c) Defense counsel conducts the direct-examination during the defendant’s case-in-chief.
d) Plaintiff’s counsel conducts the direct-examination during the plaintiff’s case-in-chief.
b) Plaintiff’s counsel conducts the cross-examination of witnesses during the rebuttal case.
In a murder case, defense counsel knows that the prosecutor plans to introduce bloody photos of the victim in her case in chief. What would be the most appropriate thing for defense counsel to do?
a) Request to make an offer of proof to the judge outside the hearing of the jury.
b) File a motion in limine.
c) Object when the prosecutor seeks to introduce the photos at trial.
d) Cross-examine the witness through whom the prosecutor introduces the photos to establish that the lighting and angle are misleading.
b) File a motion in limine.
On direct examination of the alleged victim in a robbery case, the prosecutor—seeking to preempt any claim that the victim’s heart medication dilated her pupils and so affected her ability to see the perpetrator clearly—asks, “How long before the robbery did you take your heart medication?” Defense counsel objects to the question as irrelevant. The judge sustains the defense’s objection. What should the prosecutor do?
a) Request to make an offer of proof to the judge outside the hearing of the jury.
b) File a motion in limine.
c) Withdraw the question and ask another question.
d) Rephrase the question and ask, “How many hours was it between the last time you had taken your heart medication and the time of the robbery?”
a) Request to make an offer of proof to the judge outside the hearing of the jury.
On direct examination of the alleged victim in the same robbery case, the prosecutor asks, “Was this the most terrifying thing you had ever experienced in your life?” Defense counsel says: “Objection, Your Honor! The question is leading. Opposing counsel is basically trying to cram the witness’ story down her throat and tell her exactly what to say!” The biggest problem with defense counsel’s objection is that it is:
a) Untimely.
b) Based on the wrong grounds.
c) A speaking objection.
d) Compound.
c) A speaking objection.
To which of the following questions would an objection on leading grounds be sustained?
I. On direct examination of the plaintiff in a breach of contract suit, plaintiff’s counsel asks, “You’re married, is that right?”
II. In the same breach of contract suit, defense counsel asks defendant, “When the plaintiff signed the contract, he didn’t indicate he had any remaining issues regarding the time for delivery, did he?”
III. On cross-examination of the defendant in the same breach of contract suit, plaintiff’s counsel asks, “You knew that the plaintiff had never entered a contract dealing with the subject matter before, didn’t you?”
a) I, II, and III.
b) I and II only.
c) II only.
d) Neither I, II, nor III.
c) II only.
On direct examination by the prosecution in a murder trial, an investigating officer testifies that he arrived at the scene to find that it had already been cordoned off by patrol officers. The prosecutor asks, “And then what happened?” The defense’s best objection would be on grounds of:
a) Calls for a narrative.
b) Leading.
c) Assumes facts not in evidence.
d) Vague.
a) Calls for a narrative.
On direct examination of the plaintiff in a breach of contract case, plaintiff’s counsel asks, “You testified earlier that you had three phone conversations with defendant. Did he make an offer on the call?” The question is objectionable in that it:
a) Is leading and argumentative.
b) Is vague and compound.
c) Assumes facts not in evidence and calls for a narrative.
d) Is non-responsive and beyond the scope.
b) Is vague and compound.
In a rape trial, in response to the prosecutor’s question on direct examination, “What did you do when he tried to take your shirt off?”, to which of the following answers by the alleged victim would defense counsel’s objection on grounds of non-responsive be sustained in whole or in part?
I. “I told him to stop.”
II. “He just kept tugging and pulling, he was too strong for me, and then he tried to take off my pants.”
III. “I tried to pull my shirt back down, but then he put his arm against my neck, and I was just so scared, I didn’t know what he was going to do to me.”
a) II only.
b) III only.
c) II and III.
d) I, II, and III.
c) II and III.
In the same rape trial, on cross-examination of the alleged victim by defense counsel, which of the following questions is most likely to be successfully objected to as argumentative?
a) “During the entire encounter, at no point did you actually say the word ‘no,’ did you?”
b) “You invited him back to your place, you willingly performed oral sex on him, but then he tries to have sex with you, and all of a sudden it goes from a good time to rape?”
c) “The blouse you were wearing that night exposed your shoulders, the upper part of your breasts, and most of your stomach, didn’t it?”
d) “You claimed that you were raped by two other men on two occasions prior to this, correct?”
b) “You invited him back to your place, you willingly performed oral sex on him, but then he tries to have sex with you, and all of a sudden it goes from a good time to rape?”
Which of the following statements would be unobjectionable during the prosecution’s opening statement?
a) Imagine if you were the one the defendant held down and forced himself on; what would that feel like?
b) I wouldn’t be bringing this case if I wasn’t firmly convinced the defendant is guilty.
c) The evidence will show that the defendant knew the victim didn’t want to have sex with him, but didn’t care and forced her to anyway.
d) You should find the defendant guilty to send a message that men cannot get away with conduct like this.
c) The evidence will show that the defendant knew the victim didn’t want to have sex with him, but didn’t care and forced her to anyway.
The question by the prosecution of the alleged victim in an aggravated assault case–“He whomped you good, huh?”–is objectionable on which grounds?
a) Asked and answered and vague.
b) Vague and leading.
c) Compound and argumentative.
d) Leading and calls for a narrative.
b) Vague and leading.
An offer of proof should most likely be brought in which of the following situations?
a) In a breach of contract case, plaintiff’s counsel asks the plaintiff, “Why did the defendant agree to the penalty clause?” Defense counsel objects on speculation grounds. Plaintiff’s counsel expects the witness to testify that the defendant said he was fine with the penalty clause because he assumed it would never come into play.
b) In a personal injury action based on negligence, plaintiff’s counsel asks the plaintiff, “Would you say the defendant was driving like a bat out of hell?” Defense counsel objects. Plaintiff’s counsel expects the witness to testify that the defendant was indeed driving like a bat out of hell.
c) In a civil fraud trial, plaintiff’s counsel asks the defendant, “You knew the car would break down after 5,000 miles, didn’t you?” Defense counsel objects on leading grounds.
d) In a rape case where there has been no testimony about drinking during the event in question, defense counsel asks the defendant on direct examination, “Have you ever abused alcohol?” The prosecutor objects on relevance grounds. Defense counsel expects the witness to testify that he has alcohol-induced erectile dysfunction, and so could not have been the source of semen.
d) In a rape case where there has been no testimony about drinking during the event in question, defense counsel asks the defendant on direct examination, “Have you ever abused alcohol?” The prosecutor objects on relevance grounds. Defense counsel expects the witness to testify that he has alcohol-induced erectile dysfunction, and so could not have been the source of semen.
Which of the following lists the witness examinations in correct sequence?
a) Direct exam of defendant’s witness, re-direct exam of defendant’s witness, cross-exam of plaintiff’s rebuttal witness.
b) Direct exam of defendant’s witness, cross-exam of plaintiff’s rebuttal witness, re-direct exam of defendant’s witness.
c) Cross-exam of plaintiff’s rebuttal witness, direct exam of defendant’s witness, re-direct exam of defendant’s witness.
d) Cross-exam of plaintiff’s rebuttal witness, re-direct exam of defendant’s witness, direct exam of defendant’s witness.
a) Direct exam of defendant’s witness, re-direct exam of defendant’s witness, cross-exam of plaintiff’s rebuttal witness.
Which of the following questions is objectionable on the grounds that it is asked and answered?
a) A question that plaintiff’s counsel asks on direct examination, and repeated on re-direct examination.
b) A question that plaintiff’s counsel asked on cross-examination of the defendant that the defendant evaded, and which plaintiff’s counsel asked again.
c) A question on cross-examination of the defendant by plaintiff’s counsel that is asked on redirect examination of defendant by defense counsel.
d) A question on direct-examination of the plaintiff by plaintiff’s counsel that defense counsel asks on direct-examination of the defendant.
a) A question that plaintiff’s counsel asks on direct examination, and repeated on re-direct examination.
Which of the following questions, if the first question asked on cross-examination of the alleged victim in an assault case, is objectionable on the grounds that it assumes facts not in evidence? Assume that the alleged victim is the first witness testifying, and testified on direct that he suffered injuries when the defendant hit him in the back of the head with a bat for no reason.
a) “You only suffered minor injuries, correct?”
b) “It was only after you finished taunting him that he first raised the bat?”
c) “You never actually saw him swing the bat at you?”
d) “You never did like the defendant, did you?”
b) “It was only after you finished taunting him that he first raised the bat?”
Leading questions may not be used on direct examination when:
a) The witness is hostile.
b) The witness has difficulty communicating.
c) The matter asked about is uncontested or collateral.
d) The attorney believes open-ended questions will result in a less efficient or clear examination.
d) The attorney believes open-ended questions will result in a less efficient or clear examination.
Which of the following is not a basis to overrule an objection?
a) The objecting attorney failed to make a similar objection with a different witness
b) It is untimely.
c) It is based on the wrong grounds.
d) No grounds are given.
a) The objecting attorney failed to make a similar objection with a different witness
Which of the following statements is true?
a) Probative evidence is relevant and material.
b) Relevant evidence is material and probative.
c) Material evidence is probative and relevant.
d) Relevant evidence is probative or material.
b) Relevant evidence is material and probative.
Material issues may be determined by all of the following except:
a) A complaint.
b) A criminal information.
c) An answer and affirmative defenses.
d) Common sense and reasonableness.
d) Common sense and reasonableness.
Parties can take a disputed factual issue out of the case by all of the following except:
a) A stipulation to evidence.
b) An admission in a response to requests for admission.
c) An admission in an answer.
d) A stipulation to a fact.
a) A stipulation to evidence
Whether evidence is probative of a material proposition is based on all of the following except:
a) Common sense.
b) Reasonableness.
c) The allegations in the complaint.
d) Shared intuition.
c) The allegations in the complaint.
In order to be relevant, evidence must:
a) Have any tendency to make a fact of consequence more or less likely.
b) Make a fact of consequence substantially more likely.
c) Make a fact of consequence more likely than not.
d) Conclusively establish a fact.
a) Have any tendency to make a fact of consequence more or less likely.
In an action for breach of contract, which of the following evidence offered by the plaintiff would not go to a material issue in the case, and so would not be relevant?
a) Evidence showing that plaintiff sent a written offer and that defendant signed it.
b) Evidence that plaintiff paid his fees for defendant’s services in accordance with the terms of the written contract.
c) Evidence that defendant didn’t perform the services specified in the contract.
d) Evidence that defendant maliciously chose not to provide the services because he disliked the plaintiff.
d) Evidence that defendant maliciously chose not to provide the services because he disliked the plaintiff.
In the same action for breach of contract, on cross-examination of the plaintiff, the defendant offers evidence that five years earlier, plaintiff was convicted of perjury. Plaintiff objects on relevance grounds. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
b) Overrule (let the testimony stand).
In an action for negligence in connection with a slip-and-fall case, the defendant stipulates that he is the owner of the premises on which plaintiff fell. At trial, the defendant testifies that he is not the owner of the property. Plaintiff moves to strike the testimony on the grounds that defendant is bound by the stipulation. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
a) Sustain (strike the testimony).
In the same action for negligence, the defendant also stipulates that if called to testify, the defendant’s property manager would testify that the sidewalk was wet when the plaintiff fell. At trial, the defendant testifies that at the time of the accident, the sidewalk was dry. Plaintiff moves to strike the testimony on the grounds that defendant is bound by the stipulation. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
b) Overrule (let the testimony stand).
In the same action for negligence, in response to plaintiff’s requests for admissions, the defendant admits that the sidewalk was wet when the plaintiff fell. At trial, the defendant testifies that at the time of the accident, the sidewalk was dry. Plaintiff moves to strike the testimony on the grounds that defendant is bound by the stipulation. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
a) Sustain (strike the testimony).
Which of the following is not grounds for excluding evidence as unduly prejudicial?
a) It is highly inflammatory.
b) It will confuse or mislead the jury.
c) It is cumulative and so will waste time.
d) None of the above.
d) None of the above.
Which of the following statements is true?
a) Evidence that is unduly prejudicial is necessarily irrelevant.
b) Evidence that is not unduly prejudicial is necessarily relevant.
c) Evidence may be relevant but still unduly prejudicial.
d) Evidence that is relevant is necessarily not unduly prejudicial.
c) Evidence may be relevant but still unduly prejudicial.
Which of the following statements is true?
a) Relevance asks whether evidence is probative of a material proposition; undue prejudice weighs that probative value against other factors.
b) Undue prejudice asks whether evidence is probative of a material proposition; relevance weighs that probative value against other factors.
c) Both relevance and undue prejudice are a low threshold that only require a finding of any probity.
d) Relevance requires that the probity outweigh any risk of prejudice, whereas undue prejudice requires that the probity substantially outweigh the risk of prejudice.
a) Relevance asks whether evidence is probative of a material proposition; undue prejudice weighs that probative value against other factors.
In an action for breach of contract, plaintiff offers evidence that the defendant knew that plaintiff needed defendant to paint plaintiff’s store by a date certain because plaintiff was having a grand opening; and that defendant continually led plaintiff to believe that he would complete the job, and then refused to do it right before the grand opening, because he disliked plaintiff and wanted to ruin the grand opening. Defense objects that the evidence is irrelevant, because it would tend to show a malicious breach, whereas in a breach of contract action the motivation for a breach is irrelevant; only expectancy damages, and not punitive damages, are ordinarily available. Plaintiff responds that the evidence is relevant to show that defendant was aware of plaintiff’s special need for his services, and so is liable for consequential damages associated with the ruined grand opening, and not merely expectancy damages, which would be the cost of the painting services themselves. Plaintiff further responds that the evidence is relevant to rebut a claim by defendant that plaintiff failed to mitigate damages, because it was defendant’s repeated reassurances that he would complete the job that prevented plaintiff from hiring another painter in time. How should the judge rule on the objection?
a) Sustain the objection, because the evidence is probative of a material issue.
b) Sustain the objection, because the evidence is probative of both a material issue and an immaterial issue.
c) Overrule the objection, because the evidence is probative of both a material issue and an immaterial issue.
d) Overrule the objection, because the evidence is probative an immaterial issue.
c) Overrule the objection, because the evidence is probative of both a material issue and an immaterial issue.
Assume, for purposes of this question, that the judge overruled the relevance objection to the testimony about the malicious breach in the prior question. The defense then argues that the evidence should be excluded as unduly prejudicial, as there is a risk that the jury will use the evidence of the defendant’s malicious breach to render a verdict against the defendant because they dislike him, and not for the issues of consequential damages or mitigation. Which of the following would be the best response of plaintiff?
a) The risk that the jury will use the evidence for an impermissible purpose is substantially outweighed by the likelihood that they will use it for a permissible purpose.
b) The risk that the jury will use the evidence for an impermissible purpose does not outweigh the likelihood that they will use it for a permissible purpose.
c) The risk that the jury will use the evidence for an impermissible purpose does not substantially outweigh the likelihood that they will use it for a permissible purpose.
d) There is no risk that the jury will use the evidence for an impermissible purpose.
c) The risk that the jury will use the evidence for an impermissible purpose does not substantially outweigh the likelihood that they will use it for a permissible purpose.
In a drunk driving prosecution, the prosecution seeks to introduce testimony from the arresting officer that when he pulled the defendant over, the defendant had bloodshot eyes and was slurring his words. The defendant moves to strike the testimony as irrelevant. In support of his objection, he offers to call defendant’s doctor, who will testify that an hour before defendant was pulled over, the doctor gave him prescription medication that can cause bloodshot eyes, slurring, and other symptoms that mimic drunkenness. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
b) Overrule (let the testimony stand).
In a murder prosecution, in which it is alleged that the defendant brutally bludgeoned the victim with a sledge hammer, the defendant offers testimony that he has suffered for years from severe arthritis, making it difficult and painful for him to lift or manipulate heavy objects. The prosecution objects to the testimony as irrelevant, pointing out that even if it were difficult for defendant to lift or use heavy objects, it would not be impossible for him to do so. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
b) Overrule (let the testimony stand).
In the same murder prosecution, the prosecution calls a witness who testifies that he found the victim minutes after she was killed, with a sledgehammer lying next to her. The prosecutor hands him a sledgehammer and asks if he can identify it. He testifies that it looks like the sledgehammer that he found at the scene, but does not know if it is the exact same one. The prosecution offers the hammer in evidence as an example of the kind of hammer used to kill the victim. The defense objects to the evidence as irrelevant, since the witness cannot positively identify it as the one he found. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
b) Overrule (let the testimony stand).
In the same murder prosecution, suppose the prosecutor had offered the hammer in evidence as the hammer that was used in the killing. In response to the relevance objection, the prosecutor responds that a forensics technician will later be called to testify as to the chain of custody. Must the judge sustain the relevance objection?
a) Yes.
b) No.
b) No.
In the same murder prosecution, the prosecutor calls the chief of police. After establishing that the witness is in fact the police chief, the first thing the witness tries to testify to is that the killer was left-handed. Defense counsel objects on the ground that the witness lacks a foundation to testify to that fact. The prosecution responds that the police chief should be allowed to answer the question, and that she (the prosecutor) will “tie up” by laying foundation later. How should the judge rule on the objection?
a) Sustain (strike the testimony).
b) Overrule (let the testimony stand).
a) Sustain (strike the testimony).
In a wrongful death and loss of consortium suit brought by a wife whose husband was killed by a drunk driver, the defendant, the wife plans to testify to the loss of companionship and support she has suffered since losing her husband, who was 38 at the time. The defendant offers to stipulate that the plaintiff wife suffered loss of companionship and support, and argues that the wife’s testimony on the subject should be precluded on undue prejudice grounds, since reading the stipulation to the jury would establish the same facts without the emotional impact of the testimony. How should the judge rule?
a) Sustain (preclude the testimony).
b) Overrule (allow the testimony).
b) Overrule (allow the testimony).
Dale is prosecuted for violating a statute prohibiting felons from possessing firearms. Dale was previously convicted of three counts of felony child molestation. Defense counsel offers to stipulate to the fact that he suffered three prior felony convictions, and argues that the record of conviction, which includes the nature of the charges, should be precluded on undue prejudice grounds, since reading the stipulation to the jury would establish the same facts without the inflammatory impact of the details contained in the record of conviction. How should the judge rule?
a) Sustain (preclude the testimony).
b) Overrule (allow the testimony).
a) Sustain (preclude the testimony).
Pam sues Dan, the defendant, for negligence for injuries sustained during a car accident in which Dan was allegedly speeding. Pam seeks to introduce evidence that the reason Dan was speeding is because he was hurrying to meet his lover, Lana, with whom he was having an extramarital affair. Dan objects. Which of the following would be Pam’s best argument in opposition to the objection?
a) Whether Dan was speeding is a fact of consequence in her negligence claim.
b) Whether Dan was rushing to meet his lover is probative of whether he was speeding.
c) The risk of undue prejudice does not substantially outweigh the probative value toward a fact of consequence.
d) The evidence is more probative of Dan speeding than it is prejudicial.
c) The risk of undue prejudice does not substantially outweigh the probative value toward a fact of consequence.
Which of the following would be a ground to find a witness incompetent to testify?
a) The witness had been previously convicted of felony perjury.
b) The witness suffered a traumatic brain injury and could not remember events before a few minutes ago.
c) The witness had been paid $5,000 by the plaintiff to testify.
d) The witness was under 18.
b) The witness suffered a traumatic brain injury and could not remember events before a few minutes ago.
Which of the following are precluded by the Federal Rules from testifying in a trial?
a) A lawyer for one of the litigants.
b) A blood relative of a litigant.
c) The presiding judge.
d) An undocumented immigrant.
c) The presiding judge.
Which of the following evidence would be admissible to attack a verdict?
a) Evidence that a juror looked up the plaintiff’s social media profile to learn about their history and character.
b) Evidenced that the jury deliberated a complex case in thirty-five minutes.
c) Evidence that two of the jurors were asleep during most of the trial.
d) Evidence that the jury flipped a coin to determine the amount of the damages award.
a) Evidence that a juror looked up the plaintiff’s social media profile to learn about their history and character.
Which of the following statements is correct?
a) Witness competence is required only if a party raises the issue pre-trial.
b) Witness competence is an issue of undue prejudice.
c) The limitation on evidence admissible to attack a verdict is addressed by the same rule that addresses competency generally.
d) Competency is a threshold requirement for witnesses but not real or documentary evidence.
d) Competency is a threshold requirement for witnesses but not real or documentary evidence.
Before a witness can testify about an event, it must be established that:
a) They had an opportunity to perceive the event with any of their senses.
b) They are confident that their recollection is accurate.
c) They have no reason to slant their testimony for or against a party.
d) The jury would be persuaded by a preponderance that the witness had personal knowledge.
a) They had an opportunity to perceive the event with any of their senses.
Which of the following facts could a witness testify to without first establishing their personal knowledge?
a) The identity of the person responsible for a car accident.
b) A statement made by one of the parties to a contract negotiation.
c) How the victim of an assault looked immediately afterward.
d) None of the above.
d) None of the above.
Which of the following statements is true?
a) Competency and personal knowledge both deal with a witness’ ability to take the witness stand.
b) Competency deals with a witness’ ability to take the witness stand; personal knowledge deals with a witness’ ability to testify on a certain subject matter.
c) Competency and personal knowledge both deal with a witness’ ability to testify on a certain subject matter.
d) Competency deals with a witness’ ability to testify on a certain subject matter; personal knowledge deals with a witness’ ability to take the witness stand.
b) Competency deals with a witness’ ability to take the witness stand; personal knowledge deals with a witness’ ability to testify on a certain subject matter.
If opposing counsel asks a trial witness to describe an event without having first established that the witness had personal knowledge of the event, an attorney should?
a) Object once to preserve the record on appeal, and concede that such knowledge can be established later through “tying up.”
b) Continue to object on foundation grounds unless and until personal knowledge is established.
c) File a pretrial motion in limine.
d) Object on undue prejudice grounds.
b) Continue to object on foundation grounds unless and until personal knowledge is established.
Plaintiff’s counsel calls to the stand a witness who defense knows has been having a romantic relationship with the Plaintiff. Defense counsel should:
a) Object on undue prejudice grounds.
b) Seek to preclude the witness from testifying on competency grounds.
c) Move for sanctions against Plaintiff’s counsel.
d) Cross-examine the witness about the matter.
d) Cross-examine the witness about the matter.
Which of the following evidence would not be permitted to attack a verdict?
a) Evidence that a juror’s wife handed him newspaper articles about the case.
b) Evidence that the jurors drew straws to decide which litigant would lose.
c) Evidence that the jurors added an extra zero in the damages amount on the special verdict form.
d) Evidence that an unnamed man threatened to kill a juror’s cat if she voted to convict the defendant.
b) Evidence that the jurors drew straws to decide which litigant would lose.
Which of the following would be permitted to testify in a case?
a) A court clerk.
b) A juror.
c) The presiding judge.
d) A lawyer for one of the parties absent some special circumstances.
a) A court clerk.
The direct examination of plaintiff’s first witness in a fraud case proceeds as follows: “Q: State your name.” “A. Willy Warner.” “Q: Willy, are you aware of a contract being negotiated between the plaintiff and defendant back on October 7 of last year in Los Angeles?” “A. Yes, I was there for the whole conversation.” “Q: Did the defendant ever promise the plaintiff that the car would run like new?” Defense counsel is aware that Yesenia Yural is willing to testify that Willy Warner was with her in San Francisco between October 6 and 8 of last year. What should defense counsel do?
a) Make an offer of proof regarding Yesenia’s testimony about Willy’s whereabouts.
b) Object to further testimony on the topic, since the entire basis for Willy’s personal knowledge consists of his own testimony.
c) Call Yesenia during his case in chief to testify to Willy’s whereabouts on the date in question.
d) Move to strike any testimony Willy gives about the contract negotiations on October 7.
c) Call Yesenia during his case in chief to testify to Willy’s whereabouts on the date in question.
Which of the following statements is correct?
a) Competency is a requirement for witness testimony and real evidence.
b) Authentication is a requirement for witness testimony and real evidence.
c) Competency is a requirement for witness testimony; authentication is a requirement for real evidence.
d) Authentication is a requirement for witness testimony; competency is a requirement for real evidence.
c) Competency is a requirement for witness testimony; authentication is a requirement for real evidence.
Which of the following correctly express the standard for authenticity for admission of real evidence?
a) The proponent must offer sufficient evidence that the judge is persuaded by a preponderance that a reasonable jury could find the item of evidence in question is what the proponent purports it to be.
b) The proponent must offer sufficient evidence that the judge is persuaded that a reasonable jury could find the item of evidence in question is what the proponent purports it to be.
c) The proponent must offer sufficient evidence that jury is persuaded by a preponderance that the item of evidence in question is what the proponent purports it to be.
d) The proponent must offer sufficient evidence that jury is persuaded by a preponderance that the item of evidence in question reasonably could be what the proponent purports it to be.
b) The proponent must offer sufficient evidence that the judge is persuaded that a reasonable jury could find the item of evidence in question is what the proponent purports it to be.
Which of the following accurately describes the structure of Federal Rule of Evidence 901?
a) It contains a general description of the standard for authentication.
b) It lists a variety of non-exclusive examples of methods of authentication.
c) It contains a general description of the standard for authentication, then lists the exclusive methods of authentication.
d) It contains a general description of the standard for authentication, then lists a variety of non-exclusive examples of methods of authentication.
d) It contains a general description of the standard for authentication, then lists a variety of non-exclusive examples of methods of authentication.
Which of the following statements is correct?
a) If a party offers sufficient evidence to authenticate an item of real evidence, the opposing party is free to offer evidence that the item is not authentic.
b) If a party offers sufficient evidence to authenticate an item of real evidence, the opposing party may offer evidence that the item is not authentic if it would establish lack of authenticity by a preponderance.
c) If a party offers sufficient evidence to authenticate an item of real evidence, the opposing party may not offer evidence that the item is not authentic.
d) If a party offers sufficient evidence to authenticate an item of real evidence, and the opposing party offers more compelling evidence that the item is not authentic, the item will be excluded from evidence.
a) If a party offers sufficient evidence to authenticate an item of real evidence, the opposing party is free to offer evidence that the item is not authentic.
Which of the following states the correct sequence for admission of documents?
a) Mark exhibit, ask questions of witness, show to opposing counsel, move into evidence.
b) Move into evidence, mark exhibit, show to opposing counsel, ask questions of witness.
c) Show to opposing counsel, ask questions of witness, move into evidence, mark exhibit.
d) Mark exhibit, show to opposing counsel, ask questions of witness, move into evidence.
d) Mark exhibit, show to opposing counsel, ask questions of witness, move into evidence.
Which of the following methods could be used to authenticate a document?
a) Testimony of a witness who saw it signed.
b) Testimony of a witness that it was received in response to a letter the witness sent to the purported author.
c) The fact that the document contained information it had been established was known only by the purported author.
d) All of the above.
d) All of the above.
Which of the following methods could not be used to authenticate handwriting on a document?
a) Opinion testimony of a lay witness who formed familiarity with the handwriting prior to the litigation.
b) Comparison of the document with a known exemplar of the purported author’s handwriting by a lay witness with no prior familiarity with the purported author’s handwriting.
c) Comparison of the document with a known exemplar of the purported author’s handwriting by an expert witness with no prior familiarity with the purported author’s handwriting.
d) Comparison of the document with a known exemplar of the purported author’s handwriting by the jury.
b) Comparison of the document with a known exemplar of the purported author’s handwriting by a lay witness with no prior familiarity with the purported author’s handwriting.
Plaintiff in a breach of warranty suit testifies that a written warranty, marked for identification, which promised that any defects in the product would be repaired free of charge for the first three years, was provided to him by the defendant. Plaintiff’s counsel moves the exhibit into evidence. Defense counsel objects, and makes an offer of proof that the defendant would testify that he never provided the plaintiff with the written warranty. What should the judge do?
a) Overrule the objection.
b) Overrule the objection and permit the defendant to testify in his case in chief.
c) Sustain the objection.
d) Sustain the objection and refuse to permit the defendant to testify about it in his case in chief.
b) Overrule the objection and permit the defendant to testify in his case in chief.
Which of the following describes the features that would favor making a class of documents self-authenticating?
a) Low probability of forgery.
b) Difficulty of obtaining an authenticating witness.
c) Both a and b.
d) Neither a nor b.
c) Both a and b.
Which of the following steps does not need to be followed with a self-authenticating document?
a) Marking the exhibit for identification.
b) Showing it to opposing counsel.
c) Adducing foundational testimony or circumstantial evidence.
d) Moving the exhibit into evidence.
c) Adducing foundational testimony or circumstantial evidence.
If a proponent seeks to admit into evidence of a document that qualifies as self-authenticating, which of the following is true?
a) The document will be admitted.
b) The document may be admitted if there is sufficient other evidence of authenticity.
c) The opposing party will not be permitted to offer other evidence of its lack of authenticity.
d) If the opposing party offers other evidence of its lack of authenticity, the document will be excluded.
a) The document will be admitted.
Which of the following is not a category of self-authenticating documents?
a) Domestic public documents that are not sealed but are signed and certified.
b) Acknowledged documents.
c) Commercial paper.
d) Records of a regularly conducted activity.
d) Records of a regularly conducted activity.
Which of the following would suffice to authenticate a bat allegedly used in an assault?
a) Testimony from the owner that he recognizes it as the bat he has owned for several years.
b) Testimony from the victim that he recognizes it as the bat that he was struck in the face with.
c) Testimony from a police officer that she recovered it from the scene, stored it, and brought it to court.
d) All of the above.
d) All of the above.
Which of the following may not be used for authentication?
a) Testimony from a lay witness that a signature appears to match that of a known exemplar.
b) Testimony from a lay witness that a voice recording appears to match that of a known exemplar.
c) Testimony from an expert witness that a signature appears to match that of a known exemplar.
d) Testimony from an expert witness that a voice recording appears to match that of a known exemplar.
a) Testimony from a lay witness that a signature appears to match that of a known exemplar.
Which of the following testimony by a caller would suffice to authenticate the identity of the person answering a phone call?
a) Testimony that they called the listed number and the person answering identified himself as being the person listed.
b) Testimony that the caller recognized the voice of the person answering.
c) Testimony that they called the listed number for a hardware store and the person answering discussed tool prices.
d) All of the above.
d) All of the above.
Which of the following would provide the strongest basis to object on authentication grounds to admission of an audio recording of a conversation?
a) One of the participants did not consent to being recorded.
b) The recording was of poor quality and somewhat difficult to make out.
c) Only the first two minutes of a six minute conversation were offered in evidence.
d) The witness through whom foundation was laid recognized the defendant’s voice but not the others.
c) Only the first two minutes of a six minute conversation were offered in evidence.
Which of the following statements regarding demonstrative evidence is true?
a) Demonstrative evidence directly provides underlying facts.
b) Demonstrative evidence may consist of charts, diagrams, photos, and the like.
c) Demonstrative evidence is unduly prejudicial.
d) Demonstrative evidence is never allowed into the jury room for deliberations.
b) Demonstrative evidence may consist of charts, diagrams, photos, and the like.
Which of the following is needed to authenticate a photograph?
a) Testimony by a witness who took the photograph.
b) Testimony by a witness who has seen the photograph before.
c) Testimony by a witness who is familiar with the scene depicted in the photograph.
d) Testimony by a witness who is familiar with the scene depicted in the photograph, that the photograph fairly and accurately depicts the scene.
d) Testimony by a witness who is familiar with the scene depicted in the photograph, that the photograph fairly and accurately depicts the scene.
Which of the following photographs of an accident scene that occurred at noon on a clear day would be objectionable if offered in evidence?
a) A photo taken at noon on a clear day offered to show the lighting at the time of the accident.
b) A photo taken at noon on a clear day with a fisheye lens camera offered to show the width of the intersection.
c) A photo taken at sunset on a cloudy day offered to show the width of the intersection.
d) A photo taken at noon on a clear day with a fisheye lens camera offered to show the lighting at the time of the accident.
b) A photo taken at noon on a clear day with a fisheye lens camera offered to show the width of the intersection.
Which of the following could affect authentication of a computer simulation?
a) The reliability of the data fed into the computer program.
b) the reliability of the program used to convert the data into images or sounds.
c) Both a and b.
d) Neither a nor b.
c) Both a and b.
A plaintiff’s lawyer in a-slip and-fall case wants to do an in-court demonstration by pouring water on the courtroom floor and have the jurors walk on it. Which of the following would not support an objection by defense counsel on authentication grounds?
a) Jurors may injure themselves, causing further liability.
b) There is no foundation that the courtroom floor approximates the surface the plaintiff slipped on.
c) The jurors’ shoes may not have the same traction as the plaintiff’s on the day of the fall.
d) No foundation has been laid that the surface on which the plaintiff fell was wet at the time.
a) Jurors may injure themselves, causing further liability.
Which of the following correctly states that general standard for authentication?
a) The proponent of real evidence must convince the judge by a preponderance that a reasonable factfinder could find the evidence is what it is purported to be.
b) The opponent of real evidence must offer sufficient evidence to convince the judge that a reasonable factfinder could find the evidence is what it is purported to be.
c) The proponent of real evidence must offer sufficient evidence to convince the judge that a reasonable factfinder could find beyond a reasonable doubt the evidence is what it is purported to be.
d) The proponent of real evidence must offer sufficient evidence to convince the judge that a reasonable factfinder could find the evidence is what it is purported to be.
d) The proponent of real evidence must offer sufficient evidence to convince the judge that a reasonable factfinder could find the evidence is what it is purported to be.
Piotr sues DataCo. for wrongful termination. Piotr’s attorney serves a trial subpoena on Warner, an employee of DataCo. who was present at a meeting where the termination of discussed by Warner and six other DataCo. employees. During his trial testimony, Warner mentions a number of specific details regarding the matter that were only known by DataCo. employees, and that all present at the meeting had agreed to keep confidential. During the examination, Piotr’s attorney marks for identification and shows to Warner a page of handwritten notes, dated as of the date of the meeting, which Warner testifies he found in the conference room where the meeting occurred the day after the meeting. Piotr’s attorney does not offer any witness testimony regarding whose handwriting it is or testimony that anyone saw the notes being written. However, the notes contain numerous specific details that would only have been known to one of the participants in the meeting. Piotr moves the notes into evidence as a document written by a DataCo. employee. DataCo.’s attorney objects on authentication grounds. How should the judge rule?
a) Sustain the objection, because there is no witness who recognizes the handwriting.
b) Sustain the objection, because there is no witness who recalls writing the notes or seeing them being written.
c) Overrule the objection, because there is sufficient circumstantial evidence of the notes’ authenticity.
d) Overrule the objection, because the attorney’s assertion that they are authentic satisfies the sufficiency standard.
c) Overrule the objection, because there is sufficient circumstantial evidence of the notes’ authenticity.
Pinchas sues Dathan, Inc., for injuries allegedly sustained when he fell off of a home step ladder he purchased from Dathan. Pinchas’ attorney offers into evidence a stepladder bearing a “Dathan, Inc.” label. Pinchas testifies that he recognizes it as the ladder he fell from. Dathan Inc. objects to admission of the ladder on authentication grounds, arguing there is insufficient evidence that the ladder was in fact manufactured by Dathan. How should the judge rule?
a) Sustain the objection, because the ladder can only be authenticated through chain of custody.
b) Sustain the objection, because Pinchas lacks personal knowledge that the ladder came from Dathan.
c) Overrule the objection, because Pinchas’ testimony establishes it came from Dathan.
d) Overrule the objection, because no additional evidence of the source of the ladder is needed.
d) Overrule the objection, because no additional evidence of the source of the ladder is needed.
Detlev is prosecuted for possession of heroin. The prosecution calls Leyda, a lab technician, who testifies that she received a vial of powder, which she analyzed and determined to be heroin. The prosecution offers into evidence a vial of powder, which Leyda testifies is the one she analyzed. Detlev’s counsel objects, on authentication grounds, arguing that there is not sufficient evidence that the vial she analyzed contained the same powder that was found on Detlev’s person. The prosecution requests that the judge admit the evidence subject to tying up, and makes an offer of proof that they will call the police officer who recovered the powder from Detlev who will testify that he sent the vial to Leyda. Which of the following is correct?
a) The judge must overrule the objection, because Leyda’s testimony is sufficient to authenticate it.
b) The judge may overrule the objection, in his or her discretion.
c) The judge must sustain the objection, because physical evidence cannot be admitted subject to tying up.
d) The judge must sustain the objection, because even if the police officer testified, that testimony would not be sufficient to authenticate.
b) The judge may overrule the objection, in his or her discretion.
Wayne witnessed a car accident in which Doug’s car struck Paolo’s. Wayne immediately pulled out his phone and took photographs of the accident scene. Wayne shared his photos with Paolo’s attorney. Wayne subsequently suffered a head injury that affected his memory. Paolo sued Doug, and Paolo’s attorney called Wayne as a witness at trial. Paolo’s attorney showed Wayne the photos he had taken. Wayne testified he did not remember taking the photos, and did not recall the accident itself. Paolo’s attorney moves the photographs into evidence. Doug’s attorney objects on authentication grounds. How should the judge rule?
a) Sustain the objection, because there is insufficient evidence to authenticate the photos.
b) Sustain the objection, because photos cannot be authenticated through testimony of the one who took them.
c) Overrule the objection, because contemporaneously taken photos are self-authenticating.
d) Overrule the objection, because Paolo’s attorney can authenticate the photos.
a) Sustain the objection, because there is insufficient evidence to authenticate the photos.
Pitt sues Damon for breach of contract. At trial, Pitt’s attorney calls Sam, Damon’s secretary, who testifies that he recognizes the signature on the contract as Damon’s. Damon’s attorney objects on authentication grounds. How should the judge rule?
a) Sustain the objection, because a lay witness cannot authenticate handwriting.
b) Sustain the objection, unless Sam establishes that he was familiar with Damon’s handwriting prior to the litigation through his work as Damon’s secretary or otherwise.
c) Overrule the objection, unless Sam establishes that he was familiar with Damon’s handwriting prior to the litigation through his work as Damon’s secretary or otherwise.
d) Overrule the objection, because a record of business activity is self-authenticating.
b) Sustain the objection, unless Sam establishes that he was familiar with Damon’s handwriting prior to the litigation through his work as Damon’s secretary or otherwise.
D’Armas is prosecuted for armed robbery of Val. At trial, the prosecution calls Val. Val testifies that he was pulling money out of an ATM when someone came up from behind him, poked what felt the metal barrel of a gun in his back, and said, “Your money or your life.” Val handed the robbery cash but never saw his face. He testifies that two days later, he was called down to the police station, where six people were in a line-up and each of them said, “Your money or your life.” Val believed he recognized the defendant’s voice as matching the one he had heard during the robbery. D’Armas’ counsel objects on authentication grounds. How should the judge rule?
a) Sustain the objection, because Val had no prior familiarity with D’Armas’ voice, and only compared D’Armas voice to the one he heard for purposes of the litigation.
b) Sustain the objection, because Val’s identification of D’Armas’ voice as that of the robber’s was not unequivocal.
c) Overrule the objection, because Val’s testimony was sufficient to authenticate D’Armas’ voice.
d) Overrule the objection, because the prosecution need not connect the voice to D’Armas.
c) Overrule the objection, because Val’s testimony was sufficient to authenticate D’Armas’ voice.
Which of the following statements is true?
a) Both character evidence and past crimes, wrongs, or acts are inadmissible if used for the propensity inference.
b) Character evidence is inadmissible if used for the propensity inference; past crimes, wrongs, or acts are not.
c) Past crimes, wrongs or acts are inadmissible if used for the propensity inference; character evidence is not.
d) Past crimes, wrongs or acts cannot logically be used for the propensity inference; character evidence can.
a) Both character evidence and past crimes, wrongs, or acts are inadmissible if used for the propensity inference.
Which of the following accurately describes the propensity inference?
a) Evidence is used to prove character or a character trait.
b) Evidence is used to prove reputation or opinion regarding character or a character trait.
c) Evidence is used to infer a character trait from action in a particular occasion.
d) Evidence is used to show action in conformity with a character trait on a particular occasion.
d) Evidence is used to show action in conformity with a character trait on a particular occasion.
Which of the following statements is not accurate?
a) When character evidence is inadmissible, it is inadmissible in all three forms.
b) When character evidence is admissible, it may not be admissible in all three forms.
c) When character evidence is admissible, it may be proven only through reputation or opinion.
d) After determining whether character evidence is admissible, the form of evidence should always be considered.
c) When character evidence is admissible, it may be proven only through reputation or opinion.
Dan is prosecuted for larceny. The defense, in its case in chief, calls Wanda, who testifies that she has been Dan’s neighbor for years, and always heard people say he was an honest person. This is an example of:
a) Character evidence in the form of opinion
b) Character evidence in the form of reputation
c) Character evidence in the form of specific instances
d) Non-character evidence
b) Character evidence in the form of reputation
Dan is prosecuted for larceny. The defense, in its case in chief, calls Wanda, who testifies that she has been his supervisor for years, and that at the time of the larceny, he was with her closing up their store. This is an example of:
a) Character evidence in the form of opinion
b) Character evidence in the form of reputation
c) Character evidence in the form of specific instances
d) Non-character evidence
d) Non-character evidence
Dan is prosecuted for larceny. The defense, in its case in chief, calls Wanda, who testifies that she has been Dan’s neighbor for years, and has found him to be one of the most honest people she knows. This is an example of:
a) Character evidence in the form of opinion
b) Character evidence in the form of reputation
c) Character evidence in the form of specific instances
d) Non-character evidence
a) Character evidence in the form of opinion
Dan is prosecuted for larceny. The defense, in its case in chief, calls Wanda, who testifies that she has been his supervisor for years, and that he once reported to her that a fellow employee tried to get Dan to agree to take money from the cash register. This is an example of:
a) Character evidence in the form of opinion
b) Character evidence in the form of reputation
c) Character evidence in the form of specific instances
d) Non-character evidence
c) Character evidence in the form of specific instances
Dan is prosecuted for larceny. The defense, in its case in chief, calls Wanda, who testifies that she has been his supervisor for years, and that anytime Dan saw someone he suspected might be shoplifting, even his own friends, he immediately reported it to her or to store security. This is an example of:
a) Character evidence in the form of opinion
b) Character evidence in the form of reputation
c) Character evidence in the form of specific instances
d) Non-character evidence
c) Character evidence in the form of specific instances
Past acts evidence offered for a non-propensity purpose may be admissible, but reputation or opinion evidence offered for a similar purpose would not be admissible.
a) True
b) False
a) True
To rely on a non-propensity purpose, a party must identify which of the five specific MIMIC categories applies.
a) True
b) False
b) False
Non-propensity “MIMIC” purposes may be invoked in criminal and civil cases.
a) True
b) False
a) True
