EVIDENCE MBE Flashcards
Several defendants, senior executives of a corporation, were charged with securities fraud. The government called as a witness another executive of the corporation, who had not been charged and who had been given immunity from prosecution, to authenticate handwritten notes that she had made after meetings of the corporation’s management team at which the alleged fraud was discussed. The witness testified that she had prepared the notes on her own initiative to help her remember what had happened at the meetings. After this testimony, the government offered the notes into evidence to establish what had happened at the meetings.
Should the witness’s notes be admitted?
No, because the notes are hearsay not within any exception.
A plaintiff sued a defendant for shooting her husband from ambush. The plaintiff offers to testify that, the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said, “I’m going to blow your head off one of these days.”
The plaintiff’s testimony concerning her husband’s statement is
inadmissible, because it is hearsay not within any exception.
The plaintiff’s proffered testimony contains multiple out-of-court statements: (i) the deceased’s statement that he had a chance meeting with the defendant on the street in which the defendant threatened him; and (ii) the statement by the defendant to the deceased: “I’m going to blow your head off one of these days.” Multiple hearsay requires that each statement meet its own exception to the rule. each statement must have its own basis for admissibility. Even though the statement made by the defendant to the husband may be an admission by a party-opponent, the statement made from the husband to the plaintiff does not meet any exception and is therefore inadmissible.
A defendant is charged with possession of heroin. The prosecution’s witness, an experienced dog trainer, testified that he was in the airport with a dog trained to detect heroin. As the defendant approached, the dog immediately became alert and pawed and barked frantically at the defendant’s briefcase. The defendant managed to run outside and throw his briefcase into the river, from which it could not be recovered. After the witness’s experience is established, he is asked to testify as an expert that the dog’s reaction told him that the defendant’s briefcase contained heroin.
The witness’s testimony is
A. admissible, as evidence of the defendant’s guilt.
A is correct. The primary issue here is whether the expert testimony would be considered hearsay. The rule is that a drug-sniffing dog’s behavior in identifying a suspect is not a “statement” for purposes of hearsay. As such, the expert’s testimony is not reliant upon an out-of-court “statement,” and is not hearsay. The testimony is therefore admissible as substantive evidence of the defendant’s guilt.
A plaintiff sued a defendant for libel. After the plaintiff testified that the defendant wrote to the plaintiff’s employer that the plaintiff was a thief, the defendant offers evidence that the plaintiff once stole money from a former employer.
The evidence of the plaintiff’s prior theft is
A. admissible, as substantive evidence to prove that the plaintiff is a thief.
Evidence of the plaintiff’s prior theft is admissible as substantive evidence to prove that he is, in fact, a thief because it is an ultimate issue (or “in issue”) in the case.
A defendant was on trial for burglary. The prosecutor called the arresting officer to testify that shortly after her arrest and interrogation, the defendant had orally admitted her guilt to the officer. Before the officer testified, the defendant objected that no Miranda warnings had been given to her, and she requested a hearing outside the presence of the jury to hear evidence on that issue.
How should the court proceed?
A The court should grant the request, because the hearing on the admissibility of the confession must be conducted outside the presence of the jury.
A confession made by a person under arrest and subjected to interrogation can be admitted into evidence at trial only if Miranda warnings were properly given beforehand. Because the defendant contends that no Miranda warnings were given, she is entitled to a hearing on the issue. Under Rule 104(c)(1) of the Federal Rules of Evidence (FRE), the hearing must be conducted so that the jury cannot hear it.
A defendant has been charged with making a false statement to a federally insured financial institution to secure a loan. At trial, the prosecutor calls the defendant’s wife as a willing witness to testify that the defendant told her in confidence that he had misrepresented his assets on the loan application.
The defendant objects to his wife’s testimony. Should the testimony be admitted?
A is correct. The defendant may invoke the marital privilege because he told his wife the information in confidence, during their marriage, and no other facts are offered to indicate that the privilege would be otherwise inapplicable (such as abuse or a third party’s presence).
A construction company sued a development company for money owed on a cost-plus contract that required notice of proposed expenditures beyond original estimates. The defendant asserted that it never received the required notice. At trial the plaintiff calls a witness, its general manager, to testify that it is the plaintiff’s routine practice to send cost overrun notices as required by the contract. The witness also offers a photocopy of the cost overrun notice letter to the defendant on which the plaintiff is relying, and which he has taken from the plaintiff’s regular business files.
On the issue of giving notice, the letter copy is
B. admissible, because of the routine practices of the company.
The letter copy is not being offered to prove its contents, but to establish that the defendant received notice. Because it is not being offered for the truth of the matter asserted, the letter is not hearsay. Moreover, when an organization has routine practices, those are relevant to establishing that the organization acted in accordance with those practices on a given occasion.
A. admissible, though hearsay, under the business record exception.
This answer reaches the correct answer with the wrong reasoning. The question asks whether the letter copy is admissible only on the issue of giving notice. This answer choice, however, states that the letter copy is “admissible, though hearsay, under the business record exception.” This explicit designation of the letter as hearsay is what makes this choice incorrect. As stated above, the letter is not considered hearsay because it is being offered to show that notice was given, not to prove its contents regarding the amount of proposed expenditures beyond the original estimates. Therefore, no exception to the hearsay rule is necessary because it is not being offered as
In a medical malpractice suit by a patient against his doctor, the patient seeks to introduce a properly authenticated photocopy of the patient’s hospital chart. The chart contained a notation made by a medical resident that an aortic clamp had broken during the plaintiff’s surgery. The resident made the notation in the regular course of practice, but had no personal knowledge of the operation, and cannot remember which of the operating physicians gave him the information.
The document is
A- admissible as a record of regularly conducted activity.
The hospital chart is admissible as a record of regularly conducted activity. The chart is a record of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, that was kept in the course of a regularly conducted business activity. In addition, it was the regular practice of that business to make medical records in order to maintain a memorandum, report, record or data compilation. Although the resident may not be able to recall which physician gave him the information, the resident knew that the statement was made. Therefore, the document is admissible.
A defendant was charged with murder. At trial, the prosecutor called a witness who testified that a friend had told him that there was “bad blood” between the defendant and the victim. After the witness was excused, the defense attorney moved to strike the portion of the testimony that included the friend’s statement, arguing that the statement was inadmissible.
Has the issue of admissibility been preserved for appeal?
B. No, because the defense failed to make a timely objection stating the specific ground for objection.
B is correct. Under Federal Rule of Evidence (FRE) 103, an objection raised only after a witness has left the stand is not timely. In this case, the defense attorney should have objected immediately upon hearing the witness relate inadmissible hearsay. In addition, the delayed objection failed to preserve the right to appeal under FRE 103 because the defense attorney did not state a specific basis for the objection.
A plaintiff sued a defendant for breach of a commercial contract in which the defendant had agreed to sell the plaintiff all of the plaintiff’s requirements for widgets. The plaintiff called an expert witness to testify as to damages. On cross-examination, the defendant seeks to elicit from the expert witness that he had provided false testimony as a witness in his own divorce proceedings.
This evidence should be
admitted, because the evidence was elicited from the expert witness on cross-examination.
A is correct. As explained above, the prior bad acts of a witness can be inquired into during cross-examination if certain criteria are met. The expert witness’s false testimony in his divorce proceeding is probative of his character for truthfulness or untruthfulness, and therefore can be inquired into upon in cross-examination.
