Evidence - Knowledge Set

Question 1

Character evidence is admissible in a civil case if:

A character is directly in issue

B the defendant “opens the door” by introducing evidence of his good character

C the evidence is in the form of reputation or opinion only

D it is offered to show a good character trait only

Answer 1

A

Where character is directly in issue in a civil case, character evidence is admissible. A defendant in a criminal case may “open the door” by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.

Recommended Activity: Read Evidence II.E.3. Generally Not Admissible in Civil Cases

Question 2

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 defendant committed the crime in question

B Only if the defendant has already put that particular character trait in issue

C During its rebuttal case, as long as the defendant testified during her case-in-chief

D Only if the testimony concerns specific bad acts by the defendant

Answer 2

B

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.

Recommended Activity: Read Evidence II.E.4. Accused in a Criminal Case—Prosecution Cannot Initiate, But Accused Can

Question 3

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 3

C

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

Recommended Activity: Read Evidence II.E.2. Means of Proving Character

Question 4

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 4

D

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.

Recommended Activity: Read Evidence II.E.6. Specific Acts of Misconduct Generally Inadmissible

Question 5

Which of the following is character evidence, rather than habit evidence?

A “Ben is always in a hurry.”

B “Ben always wears his seatbelt.”

C “Ben goes to church every Sunday.”

D “Ben goes to the pub every Friday night at 7 p.m.”

Answer 5

A

“Ben is always in a hurry” is an example of character evidence because it describes a general character trait of Ben, rather than his regular response to a specific set of circumstances. “Ben always wears his seatbelt,” “Ben goes to church every Sunday,” and “Ben goes to the pub every Friday night at 7 p.m.” are all examples of habit evidence. Habit evidence concerns a person’s regular response to a specific set of circumstances. Character evidence describes one’s disposition with respect to general traits.

Recommended Activity: Read Evidence II.E.2. Means of Proving Character

Question 6

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 6

B

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.

Recommended Activity: Read Evidence II.E.5. Victim in Criminal Case

Question 7

A general statement of the hearsay rule under the Federal Rules of Evidence is:

A an out-of-court statement offered in evidence to prove the truth of the matter asserted

B an out-of-court statement by someone other than the declarant to prove the truth of the matter asserted

C an out-of-court statement by a party-opponent offered in evidence to prove the truth of the matter asserted

D a statement offered in evidence to prove the truth of the matter asserted

Answer 7

A

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to provide the truth of the matter asserted. However, most people remember the rule more succinctly as an out-of-court statement offered in evidence to prove the truth of the matter asserted. The key elements are: (i) A statement (ii) Made not while testifying at the trial (out-of-court) (iii) To prove the truth of the matter and not some other purpose. An out-of-court statement by someone other than the declarant is incorrect because the declarant can also be the testifying witness, in which case his out-of-court statement can be hearsay. An statement by an opposing party (also called an “admission by a party-opponent) is not considered to be hearsay under the Federal Rules. A statement offered to prove the truth of the matter asserted does not include the fact that the statement was not made while testifying at the trial. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant. If the statement was made while testifying at the trial, then there was an opportunity to cross-examine the declarant.

Recommended Activity: Read Evidence VII.A. Statement of the Rule

Question 8

Statements by an opposing party (also known as “admissions by a party-opponent”) are considered nonhearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must:

A have been within the party’s personal knowledge at the time

B be attributable to a party and offered against that party

C go against that party’s interest at the time it was made

D not be in the form of an opinion

Answer 8

B

To qualify as a “statement by an opposing party,” a party’s statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.) Lack of personal knowledge does not necessarily exclude an opposing party’s statement. An opposing party’s statement may even be predicated on hearsay. An opposing party’s statement need not have been against the party’s interest at the time it was made. An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.

Recommended Activity: Read Evidence VII.B.2. Statements by Opposing Party (Admissions by Party-Opponent)

Question 9

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the declarant is unavailable; and (ii) defendant had an opportunity to cross-examine the declarant at the time the statement was made. Which of the following is considered “nontestimonial” 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 9

C

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.

Recommended Activity: Read Evidence VII.F.1.a.1) “Testimonial” Statement

Question 10

C

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.

Recommended Activity: Read Evidence VII.F.1.a.1) “Testimonial” Statement

Answer 10

D

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.

Recommended Activity: Read Evidence VII.B.1. Prior Statements by Witness

Question 11

Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious admission (i.e., a statement attributable to the opposing party). Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission?

A Partners

B Joint tenants

C Co-parties

D Spouses

Answer 11

A

A principal-agent relationship, which includes every partner with every other partner in a partnership, is a relationship that may give rise to a vicarious admission. Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. Although in most state courts, admissions of each joint tenant are admissible against the other, this is not true under the Federal Rules. Statements of a party are not receivable against her co-party merely because they happen to be joined as parties to the action. (These statements may be admissible under a hearsay exception such as a statement against interest.) A person’s statement will not be held against his spouse as a vicarious admission simply because they are married. Of course, the spouses may have a separate relationship (e.g., partners, principal-agent, authorized spokesperson) that may allow for vicarious admissions.

Recommended Activity: Read Evidence VII.B.2. Statements by Opposing Party (Admissions by Party-Opponent)

Question 12

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 12

B

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.

Recommended Activity: Read Evidence VII.C. Hearsay Exceptions - Declarant Unavailable

Question 13

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

Answer 13

C

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.

Recommended Activity: Read Evidence VII.C.2. Former Testimony

Question 14

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 14

D

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.

Recommended Activity: Read Evidence VII.C.3. Statements Against Interest

Question 15

The plaintiff offers evidence that the declarant said, “I intend to go to Hawaii next week,” to prove that the declarant went to Hawaii the following week. This falls under which exception to the hearsay rule?

A State of mind

B Present sense impression

C Excited utterance

D Declaration of present bodily condition

Answer 15

A

“I intend to go to Hawaii next week” falls under the state of mind hearsay exception. Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to Hawaii. A statement of present sense impression describes an event or condition happening contemporaneously with or immediately prior to the statement. “I intend to go to Hawaii next week” is not a present sense impression because it concerns the declarant’s future act. The excited utterance exception applies to statements made by a declarant during or soon after a startling event and while under the stress of the event. Here, there is no indication that the plaintiff made his statement while under the stress of a startling event. The exception for declarations of present bodily condition applies to statements regarding physical symptoms, e.g., pain. The declarant’s statement that he intended to go to Hawaii does not fall under this exception.

Recommended Activity: Read Evidence VII.D.1. Present State of Mind

Question 16

Which of the following is NOT a requirement of the business records exception to the hearsay rule?

A The entrant must have had some duty to make the entry as part of her employment.

B The entrant must be unavailable.

C Either the entrant or someone with a business duty to the entrant must have had personal knowledge of the matters in the record.

D The entry must have been made at or near the time of the transaction.

Answer 16

B

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The record must also have been made at or near the time or the transaction. For the business record to be admissible, the person who made the entry need not be unavailable as a witness. The record must have been made in the course of a regularly conducted business activity. For a record to have been made in the course of a regularly conducted business activity, the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction while the entrant’s knowledge of the facts was still fresh.

Recommended Activity: Read Evidence VII.D.5. Records of a Regularly Conducted Activity—Business Records

Question 17

Under the “past recollection recorded” exception to the hearsay rule, certain writings made by a declarant at or near the time of the event in question may be admissible. Which of the following statements regarding this exception to the hearsay rule is true?

A The declarant must be unavailable for trial.

B The witness need not have known about the writing prior to trial, as long as it concerns the event in question.

C The exception applies where the witness’s memory of the event cannot be revived by looking at the writing.

D The writing may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury.

Answer 17

C

Under the “past recollection recorded” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the writing. There are several foundational requirements for the admission of a writing under this exception. One is that the writing must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the writing before trial. If admitted under this exception, a writing may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “present recollection revived,” which allows a party to use a writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.

Recommended Activity: Read Evidence VII.D.6. Past Recollection Recorded

Question 18

Under the Federal Rules, which statement concerning the hearsay exception for dying declarations is correct?

A The exception is available only in homicide prosecutions.

B The exception is available only where the declarant actually died.

C The declarant’s statement may concern any subject as long as the declarant believed his death was imminent.

D The exception is available only in homicide prosecutions and civil actions.

Answer 18

D

Under the Federal Rules, the exception for dying declarations is available only in homicide prosecutions and civil actions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.) The Federal Rules (unlike the traditional view) do not require that the declarant actually died, only that he be unavailable. For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death.

Recommended Activity: Read Evidence VII.C.4. Dying Declarations—Statements Under Belief of Impending Death

Question 19

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 19

C

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.

Recommended Activity: Read Evidence VI.E.3.b. Bias or Interest

Question 20

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 20

D

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.

Recommended Activity: Read Evidence VI.E.3.c. Conviction of Crime

Question 21

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 21

A

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.

Recommended Activity: Read Evidence VI.E.3.d. Specific Instances of Misconduct—Bad Acts

Question 22

Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes used to rehabilitate a witness who has been impeached. A party may rehabilitate his witness by introducing a prior consistent statement EXCEPT when:

A the witness has been impeached by evidence of her prior inconsistent statement on the same subject

B the witness has been impeached with evidence of a prior criminal conviction

C the witness’s sensory deficiencies have been impeached

D the witness has been impeached by a charge that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed

Answer 22

B

A prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. On the other hand, prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some non-character ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility.

Recommended Activity: Read Evidence VI.E.6. Rehabilitation

Question 23

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 23

C

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 24

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 24

D

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, and the adverse party must be given an opportunity to examine the witness about the statement. 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. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.

Recommended Activity: Read Evidence VI.E.3.a. Prior Inconsistent Statements

Question 25

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state.

Is the testimony of the witness admissible?

A Yes, because the witness testified under oath at another hearing related to the same subject matter.

B Yes, because the defendant is a party to both proceedings.

C No, because the plaintiffs were not parties to the criminal proceeding.

D No, because the witness can be subpoenaed to testify.

Answer 25

C

The witness’s testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is “unavailable” for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant’s attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of “unavailability” in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish “unavailability.” In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

Question 26

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim’s car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, “I don’t think I’m going to make it. I tried to slow down, but my brakes didn’t work. My former partner must have tampered with them to get back at me.” With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant.

At trial, can the motorist testify as to the statement made by the victim?

A No, because the victim did not know that the defendant tampered with the brakes.

B No, because the victim is still alive.

C Yes, because the victim thought he was about to die.

D Yes, because this is a civil case.

Answer 26

A

Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be “unavailable” when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim’s statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant’s death is no longer required; unavailability is sufficient. Thus, if the victim’s statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist’s testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)

Question 27

A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff’s attorney calls a witness who testifies that, at the time of the incident, the defendant stated, “It was my fault.” The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest.

Are the grounds for the judge’s decision correct?

A Yes, because the statement subjected the defendant to tort liability.

B Yes, because the defendant is a party to the litigation.

C No, because the statement is not against an important interest.

D No, because the defendant is available to testify.

Answer 27

D

The ground for the judge’s decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable. Also, this choice implies that this exception would be available only if she were subjected to tort liability, not criminal liability. Although some courts so limit the exception, the Federal Rules include statements against penal interest within the parameters of the statement against interest. (B) is incorrect because the defendant need not be a party to the litigation for her statement to qualify as a statement against interest. Thus, her status as a party would not be a basis for deciding that the statement against interest exception applies here. Of course, this choice is also incorrect because her availability to testify precludes application of this exception. (C) is incorrect because the defendant’s statement, which effectively acknowledges liability for the plaintiff’s injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the possibility of being held financially liable for the plaintiff’s damages. Note that the judge correctly overruled the objection by the defendant’s attorney, but for the wrong reason. The defendant’s statement constitutes a statement by a party-opponent (commonly called an admission), which is an act done or statement made by a party and offered against that party and is nonhearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the declarant need not be unavailable. (Don’t be confused by the fact that, although the judge was correct in allowing the testimony as to the defendant’s statement, the call of the question pertains to the grounds for the ruling, which were incorrect.)

Question 28

A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion, each time telling the operator that he wanted to “end it all.”

Is the testimony admissible?

A Yes, because the statements were made in “contemplation” of death.

B Yes, because it tends to show that the husband intended to commit suicide.

C No, because it violates the psychiatrist-patient privilege.

D No, because no phone calls were made to the clinic by the husband on the day he died.

Answer 28

B

The court should rule that the testimony is admissible. Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. Here, the husband’s statements to the operator tend to show that the husband intended to commit suicide, so they are admissible to prove that he did so. (A) is incorrect because a “dying declaration” must concern the cause or circumstances of what the declarant believed to be his “impending” death. Although the husband made threats to end his life, there is no indication he believed his death was impending, and he did not discuss the cause or circumstances of his impending death. (C) is incorrect because the operator is not a psychiatrist, and there is no evidence that the husband assumed her to be one. (D) is wrong because the state of mind need not be as of the time of the incident to be relevant.

Question 29

A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm’s pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a “proposed witness list” from his case file at the firm. After the name of the doctor is the notation, “the plaintiff wants us to check this guy out before trial.” The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff’s case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation.

Is the proposed witness list and notation admissible?

A Yes, as past recollection recorded.

B Yes, as a record of a regularly conducted activity.

C No, as hearsay not within any recognized exception.

D No, as hearsay within hearsay, and one level is not within an exception.

Answer 29

B

The witness list should be admitted as a record of a regularly conducted activity (business record). A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction. The list of proposed witnesses and the notation constitute a statement that the law firm was alerted to the existence of the doctor as a potential expert witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e., that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay problem. Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of the paralegal responsible for updating case files to enter the handwritten notation regarding the doctor at the direction of one of the firm’s attorneys. The matters contained in the list and notation would be within the personal knowledge of the attorney, who was under a business duty to report the information accurately to the paralegal, who was under a business duty to properly record the information. Thus, all the requirements for a business record are present, and the list and notation, made as records of the firm’s having been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is incorrect because past recollection recorded comes into play when a witness’s memory cannot be refreshed by looking at something. At that point, there may be an attempt to introduce a writing made by the witness or under his direction at or near the time of the event. The writing is characterized as past recollection recorded. Here, there is no indication that a witness who has an insufficient memory is testifying, and the list of proposed witnesses and notation are not being offered as a record of anyone’s past recollection. Rather, the evidence is offered as a record of the firm’s being informed of the doctor as a potential expert witness. Therefore, the evidence will not be admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered evidence does come within a recognized hearsay exception. (D) is incorrect because the facts do not present any problem of “levels” of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., “the doctor says that he will be available to testify on the date of the trial”) and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor’s availability.

Question 30

In a claim for damages in a personal injury action, a plaintiff’s attorney sought to introduce evidence of the plaintiff’s testimony made to her boyfriend several days after her accident that “I must have sprained my neck when it happened because it hurts so much.” The plaintiff is also planning to offer medical evidence that her neck was sprained.

Should the court admit the testimony?

A No, because it is hearsay not within any exception.

B No, because the plaintiff is not qualified to give testimony as to her medical condition.

C Yes, because the plaintiff is also going to present medical evidence that her neck was sprained.

D Yes, to show that the plaintiff had suffered physical pain.

Answer 30

D

The court should admit the plaintiff’s testimony. Although it was hearsay, the plaintiff’s testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff’s testimony is not to establish that she suffered a “sprained” neck, which would require an expert witness, but just to establish that her neck was in pain. (C) is wrong because the plaintiff’s statement would be admissible to show her current physical condition even if she had not planned to introduce medical evidence.

Question 31

A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate.

Is the foreman’s proposed testimony hearsay?

A No, because the declarant is testifying as a witness at the hearing.

B No, because the statement is not offered for its truth.

C Yes, but it should be admitted under the hearsay exception for present sense impressions.

D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

Answer 31

B

The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. 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. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement 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 statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay) regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no opportunity for cross-examination at the time the statement was made. The key in this case is not that the declarant is testifying, but that the statement is not being offered for its truth. (C) characterizes the testimony as hearsay, which is incorrect because it is not being offered for its truth. Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception for present sense impressions, which are statements made contemporaneously with perceiving some event. The testimony of the foreman would not come within this exception. (D) incorrectly characterizes the testimony as hearsay. In addition, this statement, even if hearsay, would not come within the present state of mind exception. A statement of a declarant’s then-existing state of mind is admissible when the declarant’s state of mind is directly in issue and material to the controversy, or as a basis for a circumstantial inference that a particular declaration of intent was carried out. The declarant here is the foreman. There is no indication that his state of mind is at all relevant to this litigation, nor is the statement offered indicative of any particular intent on the part of the foreman. Thus, the present state of mind exception is inapplicable.

Question 32

A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years’ imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident.

Upon proper objection, should the court rule that the witness’s statement before the grand jury is admissible?

A Yes, for impeachment only.

B Yes, as substantive evidence only.

C Yes, for impeachment and as substantive evidence.

D No, because it is hearsay not within any exception.

Answer 32

C

The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness’s sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness’s credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident. (C) is the only answer that reflects the fact that the grand jury statement may be used both for impeachment and for substantive purposes. (A) reflects the view of prior law, which was that prior inconsistent statements were limited to impeachment regardless of the circumstances under which they were made. As noted above, Federal Rule 801(d)(1)(A) deems such statements made under penalty of perjury at a prior trial or other proceeding to be nonhearsay, and as such, to be admissible as substantive evidence. (B) is incorrect because it precludes use of the witness’s grand jury testimony for impeachment purposes. A prior inconsistent statement may always be used to impeach the credibility of a witness. (D) is incorrect for two reasons. First, even if deemed to be hearsay, a prior inconsistent statement would be admissible to impeach the witness. Second, because the prior inconsistent statement of the witness was made under oath at a grand jury proceeding, it is admissible nonhearsay.

Question 33

The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner’s lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened.

Whose testimony is necessary to introduce the photograph into evidence?

A The employee’s testimony is necessary and the witness’s is unnecessary.

B The witness’s testimony is necessary and the employee’s is unnecessary.

C The testimonies of both the employee and the witness are necessary.

D The picture is inadmissible.

Answer 33

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. (C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.

Question 34

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence.

How should the court rule?

A Admissible, because the affidavit satisfies the best evidence rule.

B Admissible, because the affidavit is a business record.

C Admissible, because the affidavit was prepared pursuant to statute.

D Inadmissible, because the defendant’s rights under the Confrontation Clause are violated.

Answer 34

D

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible—the lab technician must be brought in to testify as to the findings of the fingerprint test. (A) is incorrect because the fact that the affidavit is an original does not, by itself, make it admissible. Admissibility still violates the defendant’s rights under the Confrontation Clause. (B) is incorrect because, even if the affidavit qualifies as a business record, it is inadmissible in this case under the Confrontation Clause. (C) is incorrect because the report, even if prepared pursuant to statute, is still inadmissible because it violates the Confrontation Clause.

Question 35

The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant’s spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant’s spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver’s seat until the police arrived.

Is the testimony admissible?

A Yes, for impeachment purposes only.

B Yes, to show bias.

C No, because a witness who is available to testify can be impeached only through cross-examination.

D No, because the witness must be given an opportunity to explain or deny the statement.

Answer 35

A

The testimony is admissible to impeach the testimony of the defendant’s spouse. The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony. Here, the friend is prepared to testify that the defendant’s spouse stated that she had not been driving the car at the time of the incident, a fact that would be material to the allegations in the lawsuit and inconsistent with the spouse’s trial testimony. Thus, the friend’s testimony is admissible for impeachment purposes. (B) is incorrect. Extrinsic evidence of bias is not admissible unless a foundation has been laid–the witness must first be questioned about the facts that show bias on cross-examination. If the witness, on cross-examination, admits to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced. Here, nothing suggests that the spouse was cross-examined as to the facts tending to show bias; thus, this is an incorrect ground for admitting the testimony. (C) is incorrect because a witness ordinarily may be impeached by either cross-examination or extrinsic evidence. Here, the prosecution is seeking to impeach the defendant’s spouse by extrinsic evidence of her prior inconsistent statement, and the evidence will be admissible for that purpose. (D) is incorrect because the opportunity to explain or deny the statement can be given subsequent to the friend’s testimony; it does not need to be given prior to her testimony.

Question 36

At the defendant’s trial for rape, he calls a witness who testifies that she was on her patio barbecuing some hamburgers at the time of the charged rape and saw the assailant run from the victim’s apartment. She further testifies that the person who ran from the victim’s apartment was not the defendant.

On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained?

A “Weren’t you convicted of perjury 11 years ago?”

B “Weren’t you under the influence of heroin at the time you were barbecuing those hamburgers?”

C “Haven’t you and the defendant known each other since grammar school?”

D “Didn’t you embezzle funds from your most recent employer?”a

Answer 36

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. (B) relates to the witness’s ability to perceive and would be a legitimate question on cross-examination. (C) shows a possible bias on the part of the witness, which is an acceptable method of impeachment. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

Question 37

A defendant was on trial for burglary, and he took the stand in his own defense. On direct examination, the defendant vigorously denied having committed the burglary. Also on direct examination, the defense attorney asked the defendant questions about his employment history in an attempt to portray him to the jury as a “solid citizen” who would not commit a burglary. The defendant stated that his last regular employment was as a bookkeeper for a corporation. On cross-examination, the prosecutor asked the defendant if he had embezzled funds from the corporation. The defendant denied that he had embezzled from the corporation or from anyone else. The prosecutor then wanted to call a police officer to the stand to testify that when she arrested the defendant for embezzlement, the defendant admitted to the officer that he had embezzled money from the corporation.

Assuming that the defendant has not yet been tried on the embezzlement charges, may the prosecutor call the officer to the stand?

A Yes, but only for purposes of impeachment.

B Yes, both for impeachment of the defendant and as substantive evidence.

C No, because the defendant has not yet been convicted of embezzlement.

D No, because the evidence would be extrinsic.

Answer 37

D

The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify. (A) is wrong because extrinsic evidence, such as the officer’s testimony, of an instance of misconduct is not admissible. (B) is wrong because when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible to establish criminal disposition. Because nothing in the facts indicates that such evidence is being offered to prove something other than disposition (e.g., motive, identity, common plan or scheme), the officer’s testimony is not admissible as substantive evidence. As discussed above, for impeachment, the prosecutor is limited to inquiry on cross-examination regarding the embezzlement. (C) is wrong because, even if the defendant had been convicted of the embezzlement, the officer’s testimony would not be the proper way to introduce it. The fact that a witness has been convicted of a crime usually is proved by eliciting an admission on direct or cross-examination or by the record of conviction. A judge is less likely to allow proof of conviction by testimony because it may be too timeconsuming and more prejudicial than other means of proof. Furthermore, this answer choice implies that evidence of a prior act of misconduct may be introduced only if the act resulted in a conviction, and this is not the case.

Question 38

The plaintiff sued the defendant in a contract dispute. At trial, the plaintiff’s sister testifies as a witness on behalf of the plaintiff, stating that the defendant agreed to sell a computer to the plaintiff for $250. To prove that the sister is telling the truth, plaintiff’s counsel asks the sister on direct examination about a conversation she had with her mother, in which she told her mother that the defendant agreed to sell a computer to the plaintiff for $250. The defendant objects to the testimony.

How should the court rule?

A Admissible, because it is a prior consistent statement.

B Admissible, because it is not hearsay.

C Inadmissible, because leading questions cannot be asked on direct examination.

D Inadmissible, because the sister has not been impeached.

Answer 38

D

The testimony is inadmissible. A party cannot bolster the testimony of a witness until the witness has been impeached. Here, plaintiff’s counsel is seeking to introduce the sister’s prior statement, which is consistent with her in-court testimony, to prove she is telling the truth. The testimony is inadmissible for this purpose because the sister has not been impeached. Therefore, (D) is correct. (A) is incorrect. A prior consistent statement is admissible if offered to rebut a charge that a witness is lying because of some improper motive, or to rehabilitate the credibility of a witness who has been impeached on some other non-character ground. Here, the credibility of the sister has not been attacked; therefore, there is no justification for bolstering her credibility. (B) is incorrect. While the statement would not be hearsay if it is not being offered to prove the truth of the matter asserted, it is nevertheless inadmissible because it is improperly offered to bolster the credibility of the witness. (C) is incorrect. There is no indication that plaintiff’s counsel asked any leading questions. Furthermore, leading questions are sometimes permitted on direct examination (e.g., when the witness is hostile).

Question 39

A resident being interviewed live by a television reporter stated that, “The biggest problem in this city is corruption in city government, particularly the mayor.” The mayor has now brought an action for defamation against the resident. At trial, the mayor has produced testimony as to his honesty and good character. As part of his defense, the defendant seeks to offer into evidence the fact that the mayor was convicted two years ago of taking a bribe to award a city contract for solid waste disposal.

Is the evidence admissible?

A No, because character evidence is not admissible in civil cases.

B No, because character can be proved only by opinion or reputation testimony.

C Yes, because the mayor’s character is directly in issue.

D Yes, because there was an actual conviction for the crime.

Answer 39

C

The evidence is admissible because the mayor’s character is directly in issue. The general rule is that evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when a person’s character itself is one of the issues in the case, character evidence is not only admissible, but in fact is the best method of proving the issue. Where the plaintiff brings a defamation action for injury to reputation and the defendant pleads as an affirmative defense that his statements were true, the plaintiff’s character is directly at issue in the case. 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. [Fed. R. Evid. 405(b)] Here, the mayor’s character is at issue and the resident is offering character evidence to show that his assertion that the mayor is corrupt is a true statement. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because, as stated above, any of the types of evidence can be used to prove character when it is directly in issue. (D) is incorrect because an actual conviction is required for impeachment purposes, but not for the purpose of establishing character—evidence of an arrest or indictment would have been equally admissible.

Question 40

In an accountant’s trial for filing fraudulent tax reports, the prosecution calls a former colleague of the accountant, and she testifies that the accountant’s reputation in the community is for frequently participating in very questionable reporting, often resulting in unnecessary risk for his clients. She testifies further that she thinks the accountant is dishonest.

Should the trial court admit this evidence over the accountant’s objection?

A No, because the prosecution cannot initiate evidence of the defendant’s character.

B No, because use of the colleague’s opinion is improper.

C Yes, because it is evidence of the defendant’s character for dishonesty.

D Yes, because it is evidence of habit.

Answer 40

A

The court should not admit this evidence because the prosecution cannot initiate evidence of the defendant’s bad character. The prosecution may offer such evidence only after the accused has put his character in issue by either taking the stand (thus placing his credibility in issue) or offering evidence of his good character. Thus, (C) is incorrect. (B) is incorrect because, under the Federal Rules, character may be proven by opinion evidence. (D) is incorrect because this does not constitute a regular response to a specific set of circumstances; it is merely reputation and opinion evidence.

Question 41

A defendant is charged with trafficking in firearms, in violation of federal firearms control laws, as well as receiving stolen property. The charges arise from the defendant’s having attempted to sell a semi-automatic weapon identified as one of dozens that were stolen from a warehouse a year ago. The defendant denies intending to sell the gun or knowing that it had been stolen.

At trial, which of the following would the court be LEAST likely to allow the prosecution to introduce as evidence against the defendant?

A Evidence that the defendant was once convicted of armed robbery with a semi-automatic weapon.

B The testimony of a witness that, the day before the defendant’s arrest, he asked the witness how much she would be willing to pay for a semi-automatic weapon.

C The testimony of a member of a secret paramilitary group that the defendant had been supplying the group with weapons for several months.

D Evidence that the defendant had been previously convicted of receipt of stolen weapons.

Answer 41

A

The defendant’s armed robbery conviction is least likely to be admitted. In a criminal case, evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged. Such evidence may be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Here, (A) is least likely to be admitted because evidence of the defendant’s previous conviction for armed robbery does not come within any permissible use of evidence of other crimes or bad acts. Because the defendant apparently is not contesting the issue of whether he possessed the semi-automatic weapon, it is irrelevant that the robbery conviction shows possession of such a weapon at some earlier time. The only use to which evidence of this conviction can be put is to show the defendant’s bad character and disposition to commit the crimes with which he is presently charged. (B) is likely to be admitted because testimony that the defendant apparently tried to interest the witness in buying a semi-automatic weapon tends to show that the defendant had the intent to engage in selling the weapon. For the same reason, (C) is also likely to be admitted. Supplying guns to a paramilitary group is certainly evidence of involvement in a plan of firearms trafficking. (D) is likely to be admitted as evidence of intent or knowledge. Because the defendant has denied knowing that the weapon was stolen, evidence of his prior convictions for receipt of stolen weapons can be introduced to show the likelihood that he knew the weapon was stolen in the present case, negating his claim of good faith.

Question 42

A defendant is on trial for stealing jewelry from his co-worker. The defendant claims that the co-worker sold the jewelry to him because she needed money to buy medicine for her sick mother. The defense witness is asked to testify as to the co-worker’s reputation in the community. The witness testifies that the co-worker is known as a dishonest person who makes her living as a “con artist.”

Assuming appropriate objections by defense counsel, which of the following questions would NOT be proper on cross-examination of the witness by the prosecutor?

A “Isn’t it true that you’re maligning the defendant’s co-worker because she and your wife have been enemies since childhood?”

B “Isn’t it true that you were charged last year with assault for striking your wife?”

C “Have you heard that the defendant’s co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?”

D “Do you know that the defendant’s co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?”

Answer 42

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. (A) is incorrect because it is an example of proper impeachment by showing bias. Evidence that a witness is biased tends to show that he has a motive to lie. The witness’s close relationship to his wife gives rise to an inference that he would be hostile toward the co-worker if she and his wife had a long-standing personal enmity. Consequently, the question posed in (A) represents a proper method of impeaching the witness’s credibility by probing into a possible bias against the co-worker. (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 a pertinent 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.