Kaplan Evidence Flashcards
<p>5. A plaintiff was the varsity basketball coach of the boys’ team at a high school. After the second game of the season, the plaintiff was suddenly dismissed as the coach for undisclosed reasons. After the dismissal was made public, the local newspaper ran an article discussing the plaintiff’s tenure as coach. The article, which was written by the sports editor, stated that “The plaintiff was a bad role model and morally unfit for the coaching job.”The plaintiff brought suit against the newspaper for defamation. At trial, the plaintiff called a player on the basketball team to testify that “the plaintiff was a good role model and respected by the players.” In presenting its evidence, the newspaper called a witness to testify. He proposes to testify that he saw the plaintiff give beer to players on three occasions after victories. Upon objection by the plaintiff’s attorney, witness’s testimony is(A) admissible, for impeachment purposes only.(B) admissible, as substantive evidence.(C) inadmissible, because specific instances of conduct is an improper method of proving character.(D) inadmissible to prove character, but admissible for the purpose of showing intent or common scheme.</p>
<p>5. (B) Choices (C) and (D) are wrong because FRE 405(b) provides that “in cases in which character or a trait of character of a person is an essential element of a charge, cLaim or defense, proof may be made by specific instances of that person’s conduct.” The key question is whether the witness’s testimony is limited for impeachment or may be admitted substantively as proof of character. According to McCormick, a person’s character may be a material fact that, under the substantive law, determines rights and liabilities of the parties. For example, in an action of defamation for a publication to the effect that plaintiff’s character is bad, the publisher may raise the defense that the statement is true. Evidence, pg. 551. Similarly, the plaintiff is suing the newspaper for defamation based upon an article describing “The plaintiff as a bad role model.” The testimony by the witness should be admissible substantively because it relates to the truth of the assertion, which, in turn, would provide the newspaperwith a valid defense. Choice (B), therefore, trumps choice (A). Note, too, that choice (A) incorrectly states that the witness’s testimony is admissible only for purposes of impeachment.</p>
<p>6. A plaintiff sued a defendant for injuries suffered in an automobile accident that occurred six months ago. The plaintiff claimed that the defendant drove through a red light and hit her as she was crossing the street. The posted speed limit at the scene of the accident was 25 m.p.h. In his case-in-chief, the defendant testified that the traffic light was green and he was driving carefully at 20 m.p.h. The plaintiff’s attorney did not cross-examine the defendant. Rather, she called a police officer who testified that the defendant told him immediately after the accident that he was going 30 m.p.h.The police officer’s testimony is(A) a prior inconsistent statement and, therefore, admissible to impeach.(B) hearsay, but admissible as a prior inconsistent statement for any purpose.(C) admissible, as offered against the defendant.(D) inadmissible, because the accident report is the best evidence of what the defendant told the police officer.</p>
<p>6. (C) Choice (C) is the correct answer because the defendant’s statement to the police officer (that he was going 30 m.p.h.) is admissible against him as an admission. By definition, admissions are the words or acts of a party-opponent or his predecessor or representative, offered as evidence against him. This is a popular Multistate example because the test maker is distinguishing between statements (or admissions) made to a police officer and statements contained in a police report. As a general rule, statements in a police report that are attributed to witnesses or to prove conclusions of the investigating officer are inadmissibLe hearsay. Choice (A) is technically correct because FRE 613 permits the use of extrinsic evidence of prior inconsistent statements, but choice (C) is a better choice because an admission can be used substantively and is, therefore, stronger than evidence that is used only to impeach. Choice (B) is incorrect because an admission is excluded from the hearsay rule by FRE 801(d)(2). Choice (D) is incorrect because the best evidence rule, FRE 1002, applies only if the contents of a writing, recording, or photograph are in dispute.</p>
<p>8. A football player sued a football team for breach of contract. He was a star player for the team before suffering a serious hip injury. Although the player attempted to continue playing for the team, he failed a physical examination and was cut from the team roster. After failing his physical, the team discontinued making contract payments to the player as per the terms of his employment contract. In his lawsuit, the player claimed that he was physically fit to continue playing but that he was cut from the team because they wanted to stop making contract payments.At trial, the team called its physician, an orthopedist, to testify that the player’s hip injury was, in fact, career-threatening and, in his opinion, sufficiently serious to warrant failing his physical. The team physician stated during his testimony that his diagnosis was based, in part, upon an examination of the player’s x-rays and review of an MRI test conducted by another doctor. Neither the x-rays nor the MRI test results have been admitted into evidence.In all likelihood, the team physician’s testimony should be(A) admissible, provided that the other doctor testifies as to the validity of the MRI test results.(B) admissible, provided the team physician based his opinion on data reasonably relied upon by other orthopedic physicians in the field.(C) inadmissible, because neither the x-rays nor the MRI test results had been admitted into evidence at the time he formulated his opinion.(D) inadmissible, because the team physician’s opinion was not based in part upon his own firsthand observation of the player’s physical condition.</p>
<p>8. (B) FRE 703 deals with the bases of opinion testimony by experts. An expert may base her opinion on facts or data perceived by or made known to her at or before the hearing. These facts or data need not themselves be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Therefore, an expert opinion need not be based on firsthand observation—this is why choice (D) is incorrect—and instead may be based on presentation of data to the expert outside of court. The justification for this rule is based on an attempt to bring judicial practice in line with the out-of-court practice of experts themselves, who base their own life-and-death diagnoses in reliance on information from numerous sources, including statements of patients and relatives, reports and opinions of other doctors and technicians, hospital records, and x-rays. FRE 703, Advisory Committee’s notes. As Long as the team physician’s diagnosis was based on data reasonably relied upon by other orthopedic physicians in the field, it will be admissible. Choice (B) is, therefore, correct. The x-rays and the MRI test results need not be admitted in evidence at trial, so choice (C) is incorrect. Choice (A) is incorrect because the MRI test results need not be validated, provided that such data are reasonably relied upon by experts in the field.</p>
<p>10. A driver was prosecuted for speeding. It is conceded that the speed limit on the stretch of the highway in question at the time of the alleged speeding was 55 m.p.h. As part of its case-in-chief, the prosecution called a police officer who testified that at about 11:30 a.m. one mile east of the town line, he set up a radar apparatus. The officer testified that, with the use of tuning forks, he found the radar apparatus was accurate. The officer also stated that he had five years of experience in operating such radar devices. Furthermore, the officer testified that the radar’s mechanism for recording the speed of vehicles by means of an ink line drawn mechanically on a roll of paper was also functioning properly. Upon further questioning, the officer stated that at about 1:30 p.m., the needle of the speed indicator dial of the radar apparatus showed the driver’s car passing his location at 65 m.p.h.If the driver’s attorney makes an objection to the introduction of the radar finding that the driver was traveling at a speed of 65 m.p.h., the court will most likely(A) sustain the objection, because the radar results are not conclusive evidence of speeding.(B) sustain the objection, because radar is not a technique recognized by the scientific community.(C) overrule the objection, because the court will take judicial notice of the accuracy of such tests.(D) overrule the objection, because the radar results would be construed as an admission against interest.</p>
<p>10. (C) The majority of courts are generally in accord in holding that expert testimony is no longer needed to establish the scientific validity of radar. In People v. MacLaird, 264 Cal. App. 2d 972 (1968), the trial court required the jury to take judicial notice of the validity and accuracy of radar devices. Similar results have been reached in People v. Magri, 3 NY. 2d (1958); United States v. Preos, 156 F. Supp. 200 (D.C. Md. 1957); and State v. Dantonio, 115 A.2d 35 (1955). These are among a few of the earliest cases in which the court has taken judicial notice of the validity of radar devices. Choice (A) is incorrect, given the general acceptance of radar results by courts and the scientific community. Choice (B) is an excellent example of an answer choice that cannot be correct if any other answer choice is correct. In order for choice (B) to be correct, it would have to be true that the scientific community had rejected radar. Since case law (and, for that matter, common sense) tells us that expert testimony is no longer needed to establish radar’s validity, choice (B) cannot be correct. Finally, choice (D) is incorrect. An admission is a statement made by a party-opponent. Observations of a party’s actions made or recorded by other people or by scientific instruments are not admissions.</p>
<p>11. In January, while he was driving on the street, a defendant lost control of his car, hitting and killing a small child. The child’s parents sued the defendant for causing the wrongful death of their child. At trial, the parents’ attorney calls a bystander to testify that the defendant’s car was traveling well over the 25 m.p.h. speed limit on that street.Upon objection by the defendant’s attorney, the trial judge would rule the bystander’s testimony(A) admissible, because the bystander’s opinion is based on his own perception.(B) admissible, as a declaration of existing state of mind.(C) inadmissible, as hearsay not within any of the exceptions.(D) inadmissible, because a lay witness is not qualified to testify about the speed of a vehicle.</p>
<p>ii. (A) Choice A is correct, because there are particular situations, such as estimating in miles per hour the speed of a moving vehicle, in which opinions of lay witnesses are generally admissible. Other such situations under FRE 701 in which lay opinions are admissible include (a) the general appearance or condition of a person; (b) the state of emotion of a person; (c) matters involving sense recognition; and (d) identifying the likeness or identity of handwriting. Choice (B) is inapplicable to this set of facts. An estimation of speed is not a “declaration of then-existing mental, emotional, or physical condition” within the meaning of FRE 803(2), the “state of mind” hearsay exception. Choice (C) is incorrect. The witness is testifying about his personal observation. No out-of-court statements are being introduced. Finally, choice (D) is the wrong answer because, under FRE 701, lay opinion witnesses are qualified to testify about such things as the speed of a moving vehicle.</p>
<p>13. A plaintiff sued a defendant for leg injuries stemming from a collision between their cars at an intersection. Each party was driving his own car, and the plaintiff alleged that the defendant had sped through a red light and collided with the plaintiff’s car. The defendant denied this allegation.During the trial, the plaintiff testified that he and the defendant had conferred after the accident and that the defendant had said, “Don’t worry about anything; I’ll see to it that your doctor’s bills are paid.” The defendant’s attorney immediately objected.The trial judge should rule this testimony(A) admissible, because the defendant admitted his negligence.(B) admissible, because it is a declaration against interest.(C) inadmissible, because the prejudice in admitting the testimony outweighs its probative value.(D) inadmissible, because an offer to pay medical bills is not admissible to prove negligence.</p>
<p>13. (D) FRE 409 provides that evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. This rule does not extend to conduct or statements not part of the act of furnishing or offering to pay medical and similar expenses. Thus, if the defendant had said, “Since I went through the red light, I’ll pay for any injuries you may have suffered,” the defendant’s admission that he went through the red light would be admissible, although the statement regarding medical expenses would be inadmissible in accord with FRE 409. Choice (A), therefore, is an incorrect answer. Choice (B) does not apply to this fact pattern because there is no indication that the defendant is unavailable at trial, a foundational element of FRE 804(b)(3), the statement against interest exception to the hearsay rule. Choice (C) is incorrect because it misstates the balancing test of FRE 403, which states that “evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice...</p>
<p>14. A pedestrian is suing a defendant for injuries she suffered to her leg when the defendant ran the pedestrian over with his motorcycle. On cross- examination of the pedestrian’s physician, the defendant’s attorney asked him whether or not the pedestrian had told him that the leg that she claimed was injured had been permanently stiff as a result of a former field hockey injury the pedestrian suffered in high school.Upon objection by the pedestrian’s attorney, the trial judge should(A) sustain the objection, as hearsay not within any recognized exception.(B) sustain the objection, as violative of the physician-patient privilege.(C) overrule the objection, as a statement made for the purpose of diagnosis or treatment.(D) overrule the objection, as a statement against interest.</p>
<p>14. (C) Statements made for purposes of medicaL diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, are not excluded by the hearsay rule under FRE 803(4). Choice (A) is the wrong answer. The statement is hearsay, but it falls under a recognized hearsay exception. Choice (B) is incorrect. There is no standard physician-patient privilege under the FRE. Instead, under FRE 501, state law provides the basis for the privilege in federaL courts. In this fact pattern, there is no information gWer about the parameters of or exceptions to the state privilege. Although the pedestrian’s statement to her doctor might well be against her interest, the fact pattern gives no information about the physician’s unavailability, which would be required in order to trigger FRE 804(b) (3), the statement against interest exception. Thus, choice (D) is incorrect.</p>
<p>15. A newly elected mayor was charged with tax fraud. The prosecutor served a trial subpoena directing the mayor’s attorney to produce private bank records that the mayor delivered to the attorney. The attorney refused the request. The prosecutor in a hearing then sought to compel compliance with the subpoena.The court should(A) compel production, because it would not violate the attorney-client privilege.(B) compel production, because there is no element of confidentiality.(C) not compel production, because it would violate the mayor’s privilege against self- incrimination.(D) not compel production, because it would violate the attorney-client privilege.</p>
<p>15. (A) This question deals with the issue of what type of communications are within either the attorney-client priviLege or the Fifth Amendment privilege against selfincrimination. Pre-existing written documents (contracts, leases, memos) do not become privileged by simply being handed over to the attorney. Written documents are comm unications protected by the attorney-client privilege if they were prepared specifically from the client to the attorney or vice versa. In light of this discussion, choice (A) is correct, and the court should compel production of the mayor’s private bank records. Choice (B) confuses the issue and is incorrect. Certainly, the mayor intended the bank records to be confidential; that’s why he gave them to his attorney. However, no privilege is available to him under these circumstances. Choice (C) is incorrect. Similarly, pre-existing records, especially those of a business nature, which were voluntarily prepared by or for the owner at an earlier time, may generally be obtained by the government without violating the privilege against self-incrimination. Lilly, Law of Evidence, pp. 339—340. Whereas ordinary business records may be seized pursuant to a valid search warrant because such a seizure does not involve any incriminating assertion by the owner of the records [Andresen v. Maryland, 427 U.S. 463 (1976)], even production of specified business records is generally allowed on the theory that the gathering and submitting procedure is not, standing alone, an incriminating assertion [Fisher v. United States, 425 U.S. 391 (1976)]. Private items, such as a diary, present a more difficult question. However, “the fact that a pre-existing, non-coerced communication is private in nature is probably not dispositive so long as it can be obtained and presented at trial without compelling the individual resisting disclosure to make incriminating statements or verify the truth of the contents.” Lilly, Law of Evidence, pp. 340—341. Choice (D) is the wrong answer, for the same reasons that choice (A) is the correct answer.</p>
<p>16. A guitarist and lead singer for a rock and roll band was performing a concert when an overhead strobe light fell on stage and struck him. The singer suffered a fractured skull and was hospitalized for an extended period of time. A lighting company was hired by the venue to perform the strobe lighting show at the concert.During his hospital stay, the singer sent a letter to the lighting company’s president threatening to sue and holding the lighting company responsible for the accident. After receiving the singer’s letter, the company’s attorney visited the singer at the hospital where he was being treated. The attorney entered the singer’s hospital room and told him, “The company will pay your medical expenses if you will give a release.” The singer remained silent, and the attorney then left the room.Thereafter, the singer filed a lawsuit against the lighting company to recover damages for his injury. At trial, the singer seeks to introduce into evidence the attorney’s statement at the hospital.Upon objection, the attorney’s statement should bea. admitted, as a vicarious admission. b. admitted, as a declaration against interest. c. excluded, as an offer to compromise. d. excluded, as a privileged attorney-client communication.</p>
<p>i6. (C) One of the most important Evidence distinctions tested on the bar exam is statements made in compromise or settlement discussions (FRE 408) and admissions made in connection with an offer to pay medical or hospital expenses (FRE 409). Statements made in compromise negotiations are not admissible. On the other hand, under FRE 409, we sever and admit the admission while the offer to pay medical expenses is not admissible. Based on the given answer choices, it is necessary to assume that the attorney’s statement was made in connection with settlement negotiations. Since the facts state that the singer has threatened to sue the lighting company, there is an actual dispute between the parties. Under the circumstances, the lighting company’s lawyer is attempting to engage in compromise negotiations. Thus, choice (C) is correct, and choice (A) is incorrect. Choice (B) is incorrect, fortwo reasons: (1) an offer to compromise is not necessarily a statement against interest (here, there is no admission of liability); and (2) the facts contain no evidence about the declarant’s unavailability, a critical foundational element for FRE 804(b) (3). Choice (D) does not apply here because the attorney was authorized by his client to make this communication to a third party.</p>
<p>17. An experienced equestrian rider sued a woman, claiming that her horse kicked and injured the rider. At trial, the rider testified that he was attending a horse show when, without provocation, he was kicked by a gray stallion with a black tail. The rider then called the woman as an adverse witness and asked her the following question: “Isn’t it true that you are the owner and trainer of a gray stallion with a black tail?” After answering affirmatively, the woman was not asked any further questions on direct examination. Whereupon in cross- examination, the woman was then asked, “Isn’t it true that your horse is very gentle and would not kick anyone unless provoked?”Upon objection by the rider’s attorney, the rider’s strongest argument would be that the woman’s proffered testimony is(A) inadmissible as an improper form of impeachment.(B) inadmissible as substantive evidence to show that the horse must have been provoked.(C) inadmissible, because the horse’s general propensity cannot be used to prove what occurred on a particular occasion.(D) inadmissible as beyond the scope of the woman’s direct testimony.</p>
<p>17. (D) FRE 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” In the rider’s suit against the woman, by calling the defendant as an adverse witness, the plaintiff tactically limited the scope of direct examination only to the issue of ownership of the gray stallion. As a result, the ensuing cross-examination as to the temperament of the horse goes beyond the scope of direct examination. Subject to discretion of the court, such questioning will be inadmissible. Choice (D) is therefore correct. Note: FRE 611(b) will govern procedurally, despite the fact that the defense may use other proper means (e.g., calling other witnesses or calling the defendant at a later time) to impeach the rider’s testimony. Choice (A) is inapplicable here because the question focuses more on scope of direct than impeachment. Had the rider’s attorney not limited the scope of direct, the question on cross might very well have been permissible impeachment. Choice (B) is also inapplicable. The evidence of the horse’s temperament would be admissible to show it must have been provoked, but as pointed out earlier in this paragraph, the defense would have to introduce that evidence in some other way than cross-examination. Choice (C) is wrong, because the character rules for propensity (contained in FRE 404 and 405), apply to human beings, not animaLs.</p>
<p>18. A truck driver was assigned to drive a huge tractor- trailer loaded with logs. The logs were being sold by a lumber company, which had loaded the tractor- trailer. After four hours of steady driving, the truck driver stopped at a lounge and consumed five bottles of beer. He left the tavern in an intoxicated condition and then drove off to make his final delivery.As he came to the top of a steep incline in the highway and started his descent, an 11-year-old girl suddenly darted out into the road directly in front of him. The truck driver slammed on his powerful air brakes and swerved sharply to the left to avoid hitting her, but the girl was struck by the tractor- trailer and was seriously injured.The girl’s parents, on behalf of their daughter, assert a claim against the lumber company to recover damages for the girl’s injuries.At trial, which of the following is LEAST likely to be admissible?(A) Evidence that the truck driver’s reputation for driving is poor, if the lumber company and truck driver argue that the latter was not negligent.(B) Evidence that the truck driver pleaded guilty to a criminal charge of DUI arising from this incident.(C) Evidence that the lumber company carried liability insurance on the tractor-trailer, if an investigator for the lumber company’s insurance company testified for the lumber company that they deny ownership of the truck.(D) Evidence that the lumber company carried liability insurance on the tractor-trailer, if the lumber company argues that the truck driver was an independent contractor.</p>
<p>18. (A) Where the owner of a motor vehicle is charged with liability for the acts of a person using it on the grounds of negligent entrustment, then the character of the custodian is “in issue” (to show negligence in entrusting the vehicle to an incompetent driver). This is a difficult question because the facts do not indicate that this is a negligent entrustment case. The facts simply state that the girl’s parents assert a claim against the lumber company. Consequently, choice (A) is correct because, if thisisanegligenceaction (which itwould be if the lumbercompanywere introducing evidence to show that the truck driver was not negligent on this occasion), then the defendant’s character would not be “in issue,” and character evidence would be inadmissible. Choice (B) is incorrect, because the truck driver’s DUI guilty plea would be admissible to help prove negligence. Choice (C) is incorrect. Although evidence of insurance coverage is generally inadmissible under FRE 411 to prove negligence, it is admissible to prove other things, such as proof of ownership. For similar reasons, choice (D) is incorrect. Proof of insurance coverage can be introduced to show “agency, ownership, or control.” Under these facts, the evidence could be admissible to prove agency or control.</p>
<p>19. Ajudge attended a local men’s club meeting. In introducing the judge to the club members, the club president said: “Gentlemen, I take great pleasure in presenting the judge, who we all know is the best judge money can buy in the city.”The judge sued the club president for slander. If the club president pleads truth as a defense, he may not properly introduce evidence to show(A) the judge has a reputation for dishonesty in the community.(B) the judge was convicted of bribery three years earlier.(C) the judge, though not convicted, embezzled money from a former employer before being elected to the bench.(D) the judge was convicted for a felony assault 12 years earlier.</p>
<p>19. (0) Character evidence is generally not admissible in civil actions unless character is “in issue” (i.e., where it is a material element of a charge, claim, or defense). In the following tort actions, character is said to be “in issue” and, thus, character evidence is admissible: (1) defamation, (2) deceit, (3) negligent entrustment, and (4) assault/battery where the defendant claims he acted in self-defense, in which case the plaintiff’s reputation for violence or turbulence is in issue. Since this is a defamation action, the judge’s character for honesty is “in issue” especially since the club president is pleading truth as a defense. In this regard, FRE 405 provides “In all cases in which evidence of character or a trait of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.” Thus, evidence that supports the statement in choice (A) may properly be offered, since the club president can prove that the judge has a reputation for dishonesty. FRE 405(2) states, “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” Therefore, evidence that supports the statement in choices (B) and (C) may properly be admitted because the club president can show specific instances of (mis)conduct on the judge’s part (namely that (a) he was convicted of bribery, and (b) he embezzled money) to prove his defamatory statements were truthful. The assertion in choice (D) is the only one that the club president may not introduce. The judge’s character for honesty is in issue, but the felony conviction for assault does not speak to his character for honesty. Witness impeachment by prior conviction is generally acceptable for certain crimes, but such evidence is generally inadmissible if 10 years or more have elapsed.</p>
<p>20. Two weeks before an election, a local newspaper published an article implying that one of the mayoral candidates was a thief. The candidate subsequently lost the election and sued the newspaper for defamation. The newspaper defended on the grounds of truth. At trial, the candidate took the stand and testified that he was not a thief. Thereafter, the newspaper called a witness to testify that three years ago the candidate committed a larceny while employed at his former job.Upon objection by the candidate’s attorney, the witness’s testimony should be(A) excluded, because bad acts may not be proved by extrinsic evidence.(B) excluded, because it is improper character evidence.(C) admitted as probative evidence of the candidate’s character for veracity.(D) admitted as relevant evidence of the candidate’s character as a thief.</p>
<p>20. (D) FRE 405(b) provides, “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” Many students will incorrectly choose choice (B); however, choice (B) is wrong because although character evidence is generally not admissible in a civil action, there are certain exceptions. For example, character evidence is admissible in those cases in which a person’s character is “in issue” (e.g., defamation, negligent entrustment, and hiring). Since this is a defamation action, the candidate’s character is in issue and, therefore, all three forms of character evidence (opinion, reputation and specific acts) are admissible. On this very point, Lilly provides the following example: Assume that the defendant states that the plaintiff is “corrupt and dishonest”; in the resulting suit for defamation, the defendant bases his defense upon the truth of his statement. Plaintiff’s character for dishonesty and corruption is directly in issue, and the inferential chain stops with the establishment of these traits. Here, the distinguishing characteristic is that the candidate’s character trait for stealing, not veracity, is in issue. In other words, the newspaper wants to produce evidence to show that the candidate is a thief in order to sustain its defense of truth in this defamation action. That’s why choice (D) is a better answerthan choice (C). Choice (A) is incorrect, because FRE 405 permits proof of specific instances of a person’s conduct in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, as it is in this case.</p>
<p>21. A man and a school entered into a written contract providing that the man would be employed for one year in various capacities (athletic director, teacher, football coach) in return for an annual salary of $37,750. Shortly thereafter and prior to the July commencement date of employment, the school elected to terminate its varsity football program. The school publicly attributed the decision to economic factors. Upon hearing this news, the man sought out the headmaster of the school to inquire as to the effect, if any, of this decision on his salary and responsibilities.In order to resolve the matter, the headmaster arranged a meeting among various school officials to discuss the man’s situation. Afterward, the school sent written notice to the man of its intent to terminate his employment contract. The man then commenced suit to recover the full balance of his salary calculated on the basis of the contract. At trial, the headmaster was called to testify. On direct examination, he testified that six people (including himself) attended the meeting where it was decided to terminate the man’s employment contract. When asked to identify the attendees, the headmaster gave the names of four but, despite trying, was unable to remember the name of the fifth person.The attorney who called the headmaster to testify now seeks to show him her handwritten notes that the attorney prepared during her pretrial interview with the headmaster, in which he provided all five names.The trial court is likely to consider the showing of the notes taken as(A) a proper attempt to refresh the headmaster’s recollection.(B) a proper attempt to introduce recorded recollection.(C) an improper attempt to support the headmaster’s credibility.(D) an improper attempt to lead the witness.</p>
<p>21. (A) FRE 612 clearly states that “Except as otherwise provided . . . if a witness uses a writing to refresh his memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interest of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Refreshing may be accomplished by handing the writing to the witness, accompanied by a request to the witness to read the writing to himself. Thereupon counsel retrieves the writing and repeats the question. At this point, the witness testifies from his own jogged present recollection. In this question, the headmaster’s present recollection has been exhausted, since he is unable to remember the name of the fifth person who attended the meeting to terminate the man’s employment contract. Use of the handwritten notes prepared by examining counsel in her pretrial interview is a proper attempt to refresh the headmaster’s recollection. Choice (A) is correct. Choice (B) is incorrect in this case. As the Multistate Nuance Chart below demonstrates, a key foundational element for using someone’s recorded recollection under FRE 803(5) is a failed attempt to refresh the individual’s memory. There is nothing in the fact pattern to suggest that the attorney’s effort to refresh the headmaster’s recollection has failed. Choice (C) is wrong underthese facts, because there is no indication in the fact pattern of anyone attempting either to attack or buttress the headmaster’s credibility. Choice (D) is also wrong. Showing a witness a document to refresh his or her recoLlection is not “leading” within the meaning of FRE 611.</p>
<p>23. A husband is charged with the murder of his wife. The prosecution alleges that on December 17, the husband murdered his wife by giving her a massive injection of succinyicholine while she was asleep. Succinylcholine is a drug used in small quantities by anesthesiologists as a muscle relaxant. The prosecution claims that the fatal dose given to the wife so totally relaxed her lung muscles that she suffocated. Further allegations claim that the husband’s principal motive was to collect his wife’s $500,000 life insurance policy under which he was the named beneficiary.The defense called the physician who signed the wife’s death certificate as its first witness. The defendant’s attorney asked her, “Is it not true that the cause of death was a heart attack?” The physician answered in the negative and stated that the cause of death was unknown. The husband’s attorney then assailed her testimony as a recent fabrication and asked her if she had not stated at the coroner’s inquest that the cause of death was a heart attack. The prosecution immediately objected to this question.The trial judge should rule that this question is(A) objectionable, because a party may not impeach its own witness.(B) objectionable, because the husband’s attorney did not lay a proper foundation.(C) unobjectionable, because a party may impeach its own witness by a prior inconsistent statement.(D) unobjectionable, because the physician’s testimony at a proceeding that occurred shortly after the death would be more reliable.</p>
<p>23. (C) In accordance with FRE 607, the credibility of a witness may be attacked by any party calling him (to testify). The common law rule against impeaching one’s own witness has been abandoned. Where the impeachment is by a prior statement, it is free from hearsay dangers. For this reason, choice (C) is correct, and choice (A) is incorrect. Choice (B) is wrong under these facts, because there is no indication that the defense failed to lay a proper foundation for the physician’s testimony. The physician’s expert testimony would be admissible under FRE 702 whereby “a witness qualified as an expert by knowledge, skill, expertise, training or education may testify thereto in the form of an opinion or otherwise.” Although choice (D) is closely related to choice (C), after all, a benefit of impeaching the physician with her prior statement is the inference that a statement made closer in time to an event is more accurate than a statement made later. Choice (D) is not the best choice because it fails to specifically address the doctrine that any party may impeach a witness.</p>
<p>24. A toxicologist employed at the state crime laboratory testifies at a murder trial about the autopsy he performed on the victim. His testimony is that he detected traces of succinic acid and choline, the components of succinylcholine, in the victim’s brain tissues. Over defense objections, he testified further that, in his opinion, the victim’s cause of death was succinylcholine poisoning. On cross-examination, the toxicologist admitted that up until his findings, it had been universally accepted in the medical community that succinylcholine would be undetectable in the brain within a few minutes of its injection. He also admitted that his methods of detecting succinylcholine were experimental and that his results were not presently publishable because they were not complete enough. The defense attorney then makes a motion to strike the toxicologist’s testimony regarding the cause of death.The court will most likely(A) grant the motion, because the toxicologist’s opinion could not be substantiated.(B) grant the motion, because the toxicologist was not properly qualified as an expert.(C) deny the motion, because the toxicologist was qualified as an expert in medical matters.(D) deny the motion, because he was qualified to give an opinion on the ultimate issue of the case.</p>
<p>24. (A) With regard to facts ordata upon which expert opinions are based, FRE 703 requires that the facts or data “be of a type reasonably relied upon by experts in the particular field.” In the present case, the toxicologist admitted that his methods of detecting succinylcholine were “experimental” and that his results were incomplete and not publishable. Therefore, since the toxicologist could not substantiate his theory of death by succinylcholine poisoning, it would be struck as falling outside FRE 703. Choice (A) is also correct for another reason. FRE 702 states that an expert may give an opinion in a case if”(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Under these facts, the toxicologist’s testimony likely fails prongs (1) and (2) of the FRE 702 test. Experimental methods that have not been published and subjected to peer review are suspect under FRE 702, as well as the seminal Supreme Court case on expert testimony, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Choice (B) is incorrect, because the toxicologist meets the requirements to be qualified as an expert under FRE 702 by virtue of his knowledge, training, and experience. Choice (C) is misleading: even if an individual is qualified as an expert under FRE 702, his testimony must still satisfy the FRE 702 three-prong reliability test and FRE703’s requirement that the underlying facts or data be of a type reasonably relied on by experts in the field. Choice (D) is aLso a misleading answer. Even though FRE 704 permits experts to testify on the ultimate issue in a case, their testimony must still satisfy FRE 702’s reliability test.</p>
<p>30. While walking across the street one afternoon, a pedestrian was hit by a car and thrown down in the middle of the intersection. The driver of the vehicle did not stop. Although he never lost consciousness, the pedestrian was in excruciating pain and has been taking strong painkillers since the accident that have affected his memory of the accident. At trial, the pedestrian calls a renowned hypnotist to testify. The hypnotist proposes to testify that after he placed the pedestrian under a hypnotic spell, the pedestrian gave a detailed account of the accident and told the hypnotist that the driver ran a red light and that the driver’s license plate number was GIJO-7 14. The driver concedes that his license plate number isGIJO-7 14.The hypnotist’s proposed testimony will most likely be held to be(A) admissible, because the license plate identification substantiates that the other information is accurate and trustworthy.(B) admissible, because it is a statement of past recollection refreshed.(C) inadmissible, because it is hearsay not within any recognized exception.(D) inadmissible, because statements procured through hypnosis cannot be authenticated as truthful.</p>
<p>30. (C) The hypnotist’s testimony as to what the pedestrian told him while under the hypnotic spell, is an out-of-court assertion being offered for its truth. The statement will be inadmissible as hearsay, since no exceptions apply. Because the hypnotist’s testimony is inadmissible hearsay, the corroborating evidence of the driver’s license plate number does not matter. Thus, choice (A) is incorrect. Choice (B) is wrong because the foundational elements of past recollection refreshed have not been met. Past recollection refreshed under FRE 612 applies only when an attempt is made to refresh the recollection of a testifying witness. Here, the pedestrian is not testifying. Choice (D) asserts that hypnotically refreshed testimony that cannot be authenticated may be true, but authentication (orthe lackthereoO does not matter if a statement is inadmissible hearsay under the rules. Choice (0) is incorrect.</p>
<p>34. A shopper suffered injuries to her back and legs when she slipped on a loose piece of carpeting in a hallway connecting a department store and a cafeteria.The shopper brought suit against the owner of the entire building. The owner claimed that since he leased the cafeteria, he no longer retained any control over the connecting hallway.If the shopper offers into evidence the fact that two days after the accident, the owner had the hallway carpet re-laid, the court should rule that the evidence is(A) admissible, because it is relevant to the issue of the owner’s knowledge of the unsafe condition.(B) admissible, because it shows that the owner retained ownership and control.(C) inadmissible, because it shows subsequent repair, which is against public policy.(D) inadmissible, because the evidence is irrelevant to the accident.</p>
<p>34. (B) ALthough evidence of subsequent repair is usually excluded because its basic relevancy is outweighed by public policy considerations, evidence of subsequent remedial measures is admissible for the Limited purpose of showing ownership or control. Choice (A) is incorrect. One of the policies underlying Rule 407 is to encourage owners to repair unsafe conditions. Permitting a jury to infer that repair of an unsafe condition equates to knowledge it was unsafe at the time of the accident would discourage owners from making repairs. Although choice (C) is a true statement, it is not the best answer in this case because the exception to show ownership or control applies more specifically to the fact pattern. Choice (D) is incorrect. The evidence is relevant under FRE 401.</p>
<p>36. A man works at a tire warehouse, where his job duties consist of loading tires onto trucks. The job is exhausting, and the warehouse is always short of personnel. One day, while loading a heavy tractor tire onto a truck by himself, he experienced a sharp and excruciating pain in his lower back. He did not report the incident to his employer, but continued to work. A week later, after work, he went to the doctor for treatment. The man then sues his employer, alleging that the employer failed to provide him with adequate assistance, safety equipment, and training to load heavy tractor tires, thereby contributing to his injury. The employer alleges that the man is merely trying to obtain compensation for an old back injury, unrelated to his employment.At trial, the man’s doctor testified that the man told her that his back began hurting while he was loading the tire on the truck. The doctor’s testimony is(A) admissible as expert testimony.(B) admissible as a statement for the purposes of medical diagnosis.(C) inadmissible as a violation of the physicianpatient privilege.(D) inadmissible as hearsay not within any recognized exception.</p>
<p>36. (B) Statements made to assist a physician in diagnosing or treating a physical condition are hearsay and require the exception listed in choice (B) in order for them to be admissible. Choice (A) is wrong because the doctor is repeating the man’s statement and not giving his expert opinion. Choice (C) is incorrect because the doctor’s testimony, in such a situation, does not violate the doctor-patient privilege. Choice CD) is incorrect; although the statement is hearsay, it does meet an exception and is admissible.</p>
<p>37. A defendant was being prosecuted on a charge of manslaughter in the first degree for causing the death of a 15-year-old girl on whom he had allegedly performed an abortion in his private clinic.A witness for the defendant testified to the defendant’s non-culpability at the grand jury proceeding. The witness was later called as a defense witness at the trial. During his direct examination, defendant’s attorney asked him, “Is it not true that the defendant could not have performed the abortion on the decedent since he was assisting you in another abortion at the time?” The witness answers in the negative and states that the defendant did, in fact, perform the abortion on the girl.The defendant’s attorney then assails the witness’s testimony as a recent fabrication, and asks the witness if he had not stated to a grand jury that the defendant was not guilty of performing the abortion, thus causing the death of the girl. The prosecutor objects to this question.The trial judge should rule that this question is(A) objectionable, because the defendant’s attorney did not lay a proper foundation for impeaching his own witness.(B) objectionable, because a party may not impeach his own witness.(C) unobjectionable, because a witness’s testimony before a grand jury is more reliable because it occurred shortly after the abortion was allegedly performed.(D) unobjectionable, because a party can impeach his own witness by a prior inconsistent statement.</p>
<p>37. (D) In accordance with FRE 607, the credibility of a witness may be attacked by any party, including the party calling him. The common law rule against impeaching one’s own witness has been abandoned. Where the impeaching is by a prior statement in a grand jury proceeding, it is free from hearsay dangers and is excluded from the category of hearsay under FRE 801 (d) (1)(A). For similar reasons, choice (B), which states that a party may not impeach its own witness, and choice (A), which claims that the attorney did not lay a proper foundation for impeachment, are the wrong choices. Choice (C) is incorrect. The issue in impeachment by prior inconsistent statements is not the reliability of the prior statement, but the fact that the witness has made inconsistent statements on the same matter.</p>
<p>38. While undergoing a routine plastic surgery procedure, a patient died on the operating table. The patient’s husband is suing the plastic surgeon alleging malpractice. Two years later, at trial, the defense called another doctor as an expert witness. The expert witness testified that the patient’s death was a freak accident and that the surgeon’s performance met the highest standards for medical care. On cross-examination, the plaintiff’s attorney brings out the fact that, one week before trial, the expert witness and the surgeon signed an agreement to become partners in an outpatient plastic surgery clinic. The plaintiff’s attorney suggests that the expert’s testimony was awfully convenient and likely motivated by his desire to maintain a good relationship with the defendant. The defendant then calls another surgeon at the hospital as a witness. He is asked to tell the jury about a conversation he had with the expert inunediately following the patient’s death. The witness stated that “the expert told me the patient’s death was a textbook example of a freak accident and there was nothing anyone could have done to prevent it.”On objection to this testimony, defendant’s attorney seeks a ruling on the admissibility of this question and answer. The trial judge should(A) sustain the objection, because the testimony is hearsay.(B) overrule the objection, because a witness’s veracity may be rehabilitated by a prior consistent statement.(C) sustain the objection, because a prior consistent statement cannot be used to rehabilitate a witness’s testimony.(D) overrule the objection, because the expert’s statement is a statement against interest.</p>
<p>38. (B) Generally, the prior consistent statements of a witness are not admissible to support the witness’s testimony at trial. However, where the testimony of a witness is assailed as a “recent fabrication,” it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed. Prior consistent statements used for this purpose are not hearsay under FRE 801(d) (1). Because prior consistent statements are not hearsay under FRE 801(d)(1), choice (A) is incorrect. Choice (C) is wrong: as discussed above, prior consistent statements can be used to rehabilitate a witness’s testimony. Choice (D) is incorrect, for two reasons: (1) the statement was not against the expert’s interest; and (2) in orderto use the statements-againstinterest hearsay exception of FRE 804(b)(3), the decLarant must be unavailable. The expert, having just testified in the trial, is available.</p>
<p>41. A defendant, on trial for robbery, took the stand and testified in his own behalf. On cross-examination, the prosecuting attorney asked the defendant whether he had committed false pretenses by making long-distance telephone calls by the unauthorized use of a credit card number. The defendant replied, “That’s a lie, I never did.” In rebuttal, the prosecuting attorney called the court officer to testif’ that the defendant admitted committing false pretenses. The court officer further testified, however, that the defendant was granted immunity from prosecution in exchange for his testimony against others.The court officer’s testimony is(A) admissible, as bearing on the defendant’s credibility.(B) admissible, as bearing on the defendant’s guilt.(C) inadmissible, because the testimony is extrinsic evidence.(D) inadmissible, because the court order is thebest evidence.</p>
<p>41. (C) In accordance with FRE 608 (b), specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, otherthan conviction of crime as provided in FRE 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross- examined has testified. Choice (A) is incorrect, because of the prohibition against using extrinsic evidence. Choice (B) is also incorrect. Although the evidence does have a bearing on the defendant’s guilt, the rules prohibit using it. Finally, choice (D) is wrong because the contents of the court order are not in dispute; therefore, the best evidence rule is inapplicable.</p>
<p>43. For which of the following preliminary questions of fact will the trial court judge, not the jury, determine admissibility?(A) Whether the voice on a sound recording is that of the defendant.(B) Whether defendant’s copy of a document accurately reflects the contents of the original writing.(C) Whether a conspiracy existed and defendant and declarant were members of the conspiracy before admitting an alleged declaration by a co-conspirator.(D) A plaintiff sues on a lost writing, and the defendant contends that it was not lost because it never existed. The question to be decided is whether the original writing ever existed.</p>
<p>43. (C) Lawyers sometimes use the expression that the jury decides questions of fact, and the judge resolves questions of law. But there are numerous occasions when the judge makes factual determinations. In the pre-trial process, for example, he resolves factual disputes that may arise in connection with discovery proceedings. The judge also decides preliminary factual questions that accompany the application of the exclusionary rules of evidence. Here, choice (D) is wrong because FRE 1008 states that “when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at trial is the original, the issue is for the trier of fact to determine as in the case of other issues of fact.” Choices (A) and (B) are wrong because they also involve factual issues to be decided by the jury. Choice (C) is correct because, according to McCormick, “the judge should make the preliminary determination whether a conspiracy existed and defendant and declarant were members of it, before admitting an alleged declaration by a co-conspirator.” Evidence, pg. 139.</p>
<p>44. A defendant is on trial for robbery. The defendant’s attorney plans to call a witness. Nine years earlier, the witness had been convicted of misdemeanor battery. The defendant’s attorney has filed a motion disallowing the prosecution from questioning the witness regarding this prior conviction.The motion will likely be(A) granted, as a matter of right.(B) granted, because the prejudice to the defendant substantially outweighs the probative value of admitting the witness’s conviction.(C) denied, because the credibility of a witness may be attacked by any party.(D) denied, because a period of less than 10 years has elapsed since the date of conviction.</p>
<p>44. (A) Under FRE 609 (a)(2), “For purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (2) involved dishonesty or false statement, regardless of the punishment.” The only way a conviction of a misdemeanor can be used to impeach a witness under this rule is if the misdemeanor involves dishonesty or false statement. Since battery does not, the prosecution may not question the witness regarding this prior conviction. Choice (A) is thus correct. Choice (B) is wrong because the “balancing test” under FRE 609 applies only to convictions more than 10 years old. Choice (C) is wrong. Although any party may attack the credibility of a witness, FRE 609 specifically controls the use of convictions evidence. Choice (D) is misleading. The question is designed to attract students because everyone remembers the 10-year time limit of FRE 609. It is important to remember that misdemeanor offenses not involving dishonesty or false statements aren’t admissible under FRE 609 to impeach a witness.</p>
<p>46. A man is on trial for securities fraud. He takes the stand to testify in his own behalf. On direct examination, the man’s attorney proffers evidence of his good character.Upon objection by the prosecution, which of the following statements is correct?(A) The defendant may introduce evidence to show truthfulness.(B) The defendant may introduce evidence to show honesty.(C) The defendant may not introduce evidence to show honesty because character evidence is inadmissible.(D) The defendant may not introduce evidence of truthfulness unless it is inquired into on cross- examination.</p>
<p>46. (B) A trial for fraud is a criminally related civil proceeding. As a general rule, character evidence is not admissible in a civil case unless character is “in issue.” According to FRE 405, character is in issue if it is an essential element of a charge, claim, or defense. For the exam purposes, remember that character is generally in issue and, thus, admissible in the following civil actions: (1) defamation, (2) child custody, (3) negligent entrustment, and (4) negligent hiring. Another civil action where character is in issue is an action for fraud. In regard to a fraud or deceit action, the defendant’s character for honesty is in issue. Therefore, the defendant may introduce evidence to show his character trait for honesty. Choice (B) is, therefore, correct. Choice (A) is wrong because, in a fraud action, it is the defendant’s character trait for honesty, not truthfulness, that is in issue. Choice (C) is wrong for the same reasons that choice (B) is correct. Choice (0) is wrong because it suggests that the defendant cannot respond unless his character has been attacked on cross-examination. If the defendant testifies, he becomes a witness. His character for truthfulness may be attacked “by opinion or reputation evidence or otherwise.” FRE 608(a). Once his character for truthfulness is attacked, he can respond with reputation or opinion evidence of his positive character for truthfulness.</p>
<p>49. A man was prosecuted for assault and battery after he admitted striking a victim with a pool cue during a barroom argument. The man claimed that he acted in self-defense after he was attacked by the victim, who was drunk and belligerent.As his first defense witness, the man calls his neighbor to testify that the man is a good neighbor. The neighbor’s testimony is(A) admissible, because it is relevant to show the improbability of the man’s having committed an unprovoked attack.(B) admissible, because it is relevant to support the man’s credibility.(C) inadmissible, because it is merely the opinion of a character witness.(D) inadmissible, because it is not directed toward a pertinent trait of the man’s character.</p>
<p>49. (D) FRE 404 provides that evidence of a person’s character or a trait of his character is not admissibLe for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) when evidence of a pertinent trait of his character is offered by the accused, or (2) by the prosecution to rebut the same. The neighbor’s testimony that the man is a “good neighbor,” however, is not admissible because it is not directed to a pertinent trait of the man’s character (e.g., peacefulness, honesty, and the like). On the contrary, the neighbor can testify that the man is “non-violent” or that he has a reputation for “peacefulness” because such traits are pertinent to show circumstantially the improbability that the man was the aggressor in support of his claim of self-defense. Choice (A) is incorrect because evidence of being a good neighbor is not relevant to whether a defendant would commit an unprovoked attack. Choice (B) is wrong, because being a good neighbor is not relevant to the issue of credibility. Finally, choice (C) is inapplicable to this fact pattern. In addition, under FRE 405, character witnesses are required to testify in the form of reputation or opinion testimony. If otherwise proper under the ruLes, there is no problem with a character witness testifying as to his or her opinion.</p>
<p>50. A defendant was prosecuted for aggravated assault after he stabbed a man in the chest during a dispute over a gambling debt. The defendant claimed he acted in self-defense after the man drew a knife on him and made menacing gestures with it. The defendant called a witness to the stand to testify that the defendant had a reputation in the community for being a peaceful person.On cross-examination of the witness, the prosecuting attorney asked the witness if he had heard that the defendant had often engaged in fights and brawls.Upon objection by the defendant’s attorney, the trial judge should rule the question(A) proper, because it tends to show the witness’s knowledge of the defendant’s reputation.(B) proper, because it is relevant to prove the defendant’s violent propensities.(C) not proper, because it puts into evidence separate and unrelated offenses.(D) not proper, because character cannot be proved by generalities.</p>
<p>50. (A) FRE 405 provides that “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.” Accordingly, the witness may be asked whether he had heard or whether he knew “that the defendant had often engaged in fights and brawls.” This is allowable as to whether the witness (who is a character witness) had knowledge of the defendant’s reputation for fighting. Choice (B) is incorrect because the purpose of the cross-examination is not to contest the defendant’s character, but rather to test the witness’s knowledge. Choice (C) is wrong because the defendant’s prior fights and brawls are related to the character trait of peacefulness upon which the witness testified. Choice (D) is also wrong. Character can be provided through opinion and reputation testimony on pertinent character traits. To an extent, every character trait is a generality, a shorthand expression of a series of actions and interactions overtime.</p>
<p>53. A witness lived next door to a victim. Late one night, the witness overheard the victim scream, “The defendant, please don’t do it!” The next day the victim was found dead in her bedroom. The defendant was arrested and charged with murdering the victim.At trial, the witness proposes to testify to the victim’s statement. Upon objection by defendant’s counsel, the court should rule the witness’s testimony regarding the victim’s statement(A) admissible as a dying declaration if the jury determines that the victim believed that her death was imminent.(B) admissible as a dying declaration if the judge, by preponderance of the evidence, determines that the victim believed that her death was imminent.(C) inadmissible, because the probative value is substantially outweighed by the danger of unfair prejudice.(D) inadmissible as hearsay not within any recognized exception.</p>
<p>53. (B) Under FRE 104 (a), “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.” The judge is not bound by the rules of evidence at this point, except those with respect to privileges. To the extent that these inquiries are factual, the judge acts as a trier of fact. The judge’s decision is final and is not subject to a contrary determination by the jury. On the other hand, the jury is to determine how much, if any, probative value or “weight” to accord to the admitted evidence, as well as to decide issues of credibility (i.e., whether to believe, wholly or in part, the witness’s testimony). The judge not only decides factual issues, he also determines the appLicability of any technical evidentiary rules. He decides, for example, if a dying declarant had a sense of impending death; if an entry was made promptly in the regular course of business; if there was the necessary state of excitement to qualify a declaration as an excited utterance; if a witness is unavailable; or if an original document is unavailable so as to justify the admission of a copy under the best evidence rule. Lilly, Law of Evidence, 2d Ed., p. 459. Finally, note that preliminary questions of fact are ordinarily resolved in both criminal and civil trials by using a preponderance of the evidence standard. The witness’s testimony as to the victim’s statement will be admissible as a dying declaration if the judge, by a preponderance of the evidence, determines the victim believed her death was imminent. Choice (B) is correct. Choice (A) is incorrect because it misstates the role of the judge and jury in determining preliminary questions of admissibility under FRE 104. Choice (C) is also incorrect. There is not enough information in the fact pattern to balance the probative value and prejudicial impact of this evidence. Finally, choice (D) is wrong because the dying declaration is a recognized hearsay exception.</p>
<p>55. A man was on trial for murder. Following a recess, the man was in the hallway outside the courtroom speaking with his attorney. During their conversation, the man said, “So what if I killed him, big deal.” The man’s statement was overheard by the presiding judge as he was walking down the corridor to the rest room. The judge then informed the prosecuting attorney of the man’s comment. After trial is reconvened, the prosecutor calls the judge as a witness to testify to what he heard the defendant tell his attorney.Upon objection by defendant’s attorney, may the judge be called as a witness?(A) No, because the man’s statement was a confidential communication and protected under the attorney-client privilege.(B) No, because a judge may not testify in a matter over which he or she is presiding.(C) Yes, because a judge has a duty to disclose incriminating evidence to the prosecution.(D) Yes, because the man’s statement was not a confidential communication.</p>
<p>55. (B) According to FRE 605, a judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Choices (A) and (D) are incorrect because the man made the statement in a public hallway area. If another individual (other than the judge) had overheard the statement, she would be permitted to testify. The statement would no longer be considered confidential. Choice (C) is wrong in this context because it has nothing to do with the evidentiary issue of whether a judge presiding over a trial can testify at that trial.</p>
<p>57. A bank was robbed by a person wearing a yellow ski mask, goggles, and a fluorescent yellow jumpsuit. Three weeks after the robbery, a defendant was arrested and charged with the crime. At trial, the prosecuting attorney seeks to introduce evidence that the defendant had previously committed a robbery wearing a yellow ski mask, goggles, and a fluorescent yellow jumpsuit.Upon objection by the defendant’s attorney, the proffered evidence should be(A) admissible as circumstantial evidence that the defendant committed the crime as charged.(B) admissible, to show the identity of the defendant.(C) inadmissible, because the probative value of the evidence is outweighed by the danger of unfair prejudice.(D) inadmissible, because it constitutes improper character evidence.</p>
<p>57. (B) Under highly tested FRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This so-called MIMIC rule allows admission of other criminal acts as circumstantial character evidence to show conduct in conformity therewith, provided that the purpose for admission of such evidence is not solely to show criminal disposition or propensity to commit the crime being tried. Choice (A) is a good answer, but it is not as complete as choice (B). Without a direct identification of the defendant, the prosecution will necessarily have to present a circumstantial case. The indirect evidence of identity is circumstantial evidence. Choice (C) is incorrect. The fact pattern does not provide sufficient information to weigh the probative value and prejudicial effect of the evidence. Finally, choice (0) is wrong because the evidence is being offered for a non-character purpose.</p>
<p>62. A teenager shot and killed a man she said tried to attack her as she was walking home from an all night market. The teenager, 18 years old and 6 feet 3 inches tall, said a very short man placed a knife against her throat and unzipped her dress as she was walking down the street. She pulled a gun from her purse and shot him. The man died of a chest wound. Police said the man, who was 5 feet 5 inches tall and weighed 130 pounds, was an ex-felon, twice convicted of attempted rape. The teenager is charged with the murder of the man, as a result of the above described incident.At trial, the teenager wishes to offer evidence of the fact that the man was previously convicted of attempted rape. The evidence would be(A) admissible, because it proves the man’s disposition to commit rape.(B) admissible, because the victim’s prior convictions would be relevant on the issue of the defendant’s self-defense.(C) inadmissible, because the evidence is being used to prove propensity.(D) inadmissible, because it violates the Dead Man’s Statute.</p>
<p>62. (B) Past crimes may be introduced to show anything but disposition to commit a present crime or wrong; because no other legitimate reason, beyond disposition, appears to be raised by these facts, choice (C) is the correct answer. While there are special rules concerning sexual assault cases, this question does not involve a defendant being charged with a sexual assault crime (the defendant here is the teenager, not the man). Moreover, in a criminal case, where self-defense is at issue, a criminal defendant may offer evidence of the victim’s violent character to prove that the victim was the first aggressor; however, this may only be offered in the form of reputation or opinion evidence, not specific act evidence. Finally, the fact that the prior acts in question are convictions does not appear to impact this question, since while convictions may be specialized in terms of how they may be used to attack the credibility of a witness, this issue is not raised by the facts (the man is not a witness). For these reasons, choices (A) and (B) are incorrect. Choice (D) is incorrect, since the Dead Man’s Statute is not a rule of evidence and is inapplicable here.</p>
<p>63. A man was arrested and charged with sexually assaulting a child. At trial, in its case-in-chief, the prosecution seeks to introduce evidence that the man had twice been previously involved in similar cases with other children. The prosecution argues that these past crimes demonstrate the likelihood that the man molested this child.Defense counsel objects to the evidence regarding other children. The judge should find the evidence(A) admissible, because the man’s past crimes may be introduced to show that he is more likely to have committed the crime with which he is charged.(B) admissible, because a common plan or scheme may be proven by other similar criminal acts.(C) inadmissible, because past crimes may not be introduced to prove disposition to commit certain acts.(D) inadmissible, because the prosecution cannot initiate evidence of bad character.</p>
<p>63. (A) According to FRE 413, in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. For this same reason, choice (C) is the wrong answer. Choice (B) is a good answer, but not as strong as choice (A) in this case because FRE 413 permits the introduction of this evidence for any purpose. Choice (D) is incorrect. Under FRE 413, the prosecution can introduce this evidence on its case-in-chief.</p>
<p>64. A defendant has been charged with committing the armed robbery of a convenience store. During the defendant’s case-in-chief, the defendant called several character witnesses to testify as to his good character. As part of the prosecution’s rebuttal, the defendant’s ex-wife was called to testify that during their marriage the defendant had a violent temper, beat her frequently, and once threatened her with a knife.The ex-wife’s testimony should be ruled(A) admissible, because it is relevant to the crime charged.(B) admissible, because the defendant opened the door by introducing evidence of his good character.(C) inadmissible, because the defendant will be able to prevent the testimony using the spousal testimony privilege.(D) inadmissible, because character evidence may not be introduced in this manner.</p>
<p>64. (D) Under the FRE, once the defendant in a criminal trial opens the door by introducing evidence as to their good character, the prosecution may so rebut. However, the prosecution is constrained in the same manner as the defendant in that the evidence of character must be introduced through reputation or opinion evidence only, no specific acts. Therefore, choice (A) is incorrect. While the ex-wife’s testimony may be relevant to the crime charged, it is in the form of specific acts and, therefore, inadmissible underthe FRE. Choice (B) is incorrect for the same reasons stated above. While it is true that the defendant properly opened the door, the prosecution is attempting to rebut with specific acts, which are inadmissible. Choice (C) is incorrect because (1) the spousal testimony privilege ends at divorce, and (2) where applicable, the spousal testimony privilege allows the witness-spouse to refuse to testify, but may not be used by the defendant-spouse to prevent the testimony. Choice CD) is, therefore, the correct answer and the evidence is inadmissible.</p>
<p>68. A plaintiff files suit in federal district court against a lawnmower manufacturer, alleging strict liability, negligent manufacture, and breach of warranty. The suit is to recover damages for injuries. suffered by the plaintiff when his gasoline-powered lawnmower exploded, while the plaintiff was mowing his front lawn. At trial, the plaintiff calls a man who witnessed the explosion to testify as an eyewitness. The witness suffers from a mental illness that affects his perception of reality.Which of the following is true regarding the witness’s mental condition?(A) It disqualifies him from testifying(B) It maybe proved to impeach him as a witness(C) It has no bearing on either his competence or his credibility.(D) It must not be referred to because it is unfairly prejudicial.</p>
<p>68. (B) The FRE specify no qualifications for mental competency. FRE 601 effectively eliminates as grounds for competency the following: age, religious belief, mental incapacity, conviction of a crime, marital relationship, and interest in the litigation as a party or attorney. Such matters, generally regarded at common law as grounds for disqualification, survive under the FRE as avenues for impeachment. In this question, the witness’s mental state does not disqualify him. Choice (A) is incorrect, but it does bear upon his competence and credibility. Choice (C) is incorrect, since the defendant can use the witness’s mental illness for purposes of impeachment. Choice (B) is correct. There are two basic competency requirements under the FRE:under FRE 602, a witness must possess personal knowledge; under FRE 603, every witness must declare to testify truthfully (i.e., be capable of understanding the obligation to tell the truth). Such a two-fold approach to competency is often referred to as a test of minimum credibility.</p>
<p>71. A nephew brings an action against the administrator of his uncle’s estate based upon a contract for services rendered in the management of his uncle’s property. In order to rebut the presumption that the services rendered were gratuitous, since the nephew was a relative of his uncle, the nephew called his sister-in-law as a witness. Assume that this jurisdiction has a relevant Dead Man’s Statute in effect.The sister-in-law testified that she had lived in the nephew’s house, knew his uncle, and that she was familiar with the uncle’s handwriting. The nephew’s attorney asked her to look at a letter and to tell the court whether it was written by the uncle.Upon objection by the attorney for the administrator of the estate, the trial judge would most likely(A) sustain the objection, because the sister-in-law is not a handwriting expert.(B) sustain the objection, because of the Dead Man’s Statute.(C) overrule the objection, because the letter qualifies as a past recollection recorded, an exception to the hearsay rule.(D) overrule the objection, because an authenticating witness need not be an expert if familiar with the handwriting of the person in question.</p>
<p>71. (D) It is generally heLd that anyone familiar with the handwriting (or signature) of a given person may supply authenticating testimony in the form of his opinion that a writing or signature is in the handwriting of that person. In this regard, adequate familiarity may be present if the witness has seen the person write, or if he has seen writings purporting to be those of the person in question. FRE 901 (b) (2). Choice (A) is incorrect because a Lay witness can authenticate handwriting. Choice (B) is wrong because the sister-in-law is not a claimant to the estate. Choice (C) is incorrect. The past recollection recorded hearsay exception applies when (1) an in-court witness has forgotten something; (2) the attorney has unsuccessfully attempted to refresh the witness’s recollection; and (3) a writing is available containing matters “shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.”</p>
<p>73. A minor-plaintiff suffered permanent head injuries as a result of being hit by a car driven by a defendant. The plaintiff’s father commences this action as a parent in his own right and on behalf of his son.At trial, the plaintiff’s attorney called the only witness to the accident, the plaintiff’s friend, aged seven. The friend was four years of age at the time of the accident. It was determined that the friend lacked the capacity to perceive and relate the accident at the time it actually occurred.The court should rule that the friend would be(A) competent to testify, because he had personal knowledge of the accident.(B) competent to testify, because a seven-year-old is presumed to be chronologically mature.(C) incompetent, because he lacked the capacity to perceive and relate the accident at the time of its occurrence.(D) incompetent, because all children under the age of 10 are deemed incompetent to testify.</p>
<p>73. (C) It is necessary to measure the competency of an infant witness at the time of the occurrence or event (about which he is called to testify), and not at the time of trial. There is no rule that excludes an infant of any specified age from testifying, but in each case, the traditional test is whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels a duty to tell the truth. Choices (B) and (D) are wrong because they both incorrectly state presumptions that do not exist under the law. Choice (A) is incorrect. Although witnesses are presumed competent under FRE 601, personal knowledge alone does not make a witness competent to testify. Competency factors under the law include whether the witness can make an adequate oath or affirmation and communicate with a jury.</p>
<p>74. One day, while riding his motorcycle through a residential area, a man hit and injured a child who darted into his path. The child’s mother files suit against the man. At trial, the mother is then called to testify as to her conversation with the man at the hospital where her son was rushed immediately following the accident. According to the mother, the man told her, “Don’t worry, my insurance company will pay for all of your son’s medical expenses.”If offered into evidence, the court will most likely rule that the mother’s statement is(A) admissible, on the issue of the defendant’s negligence.(B) admissible, to show that the defendant is able to pay for the medical expenses.(C) inadmissible, because the testimony was highly prejudicial.(D) admissible, only to prove ownership or control of the motorcycle.</p>
<p>74. (D) Under FRE 411, evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully. The rule does not require the exclusion of evidence of insurance when offered for another purpose, such as proof of agency, ownership, or control of the vehicle. Therefore, choice (D) is correct, and choices (A) and (B) are incorrect. Choice (C) is also incorrect because it incorrectly states the standard for excluding evidence under FRE 403. Under Rule 403, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is not excluded merely because it is “highly prejudicial.”</p>
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<p>skip75. (D) Generally, a spouse (whether or not a party) has a privilege during the marital relationship and afterward to refuse to disclose and to prevent another from disclosing a communication if he claims the privilege, and that the communication was made in confidence between him and his spouse while they were husband and wife. However, the privilege is lost if the communication was made, in whole or in part, to enable or aid anyone to commit, or plan to commit, a crime or fraud. Thus, choice (D) is correct, and choice (A) is incorrect. Choice (B) is also wrong, since the marital privilege does not apply to fraud actions. Finally, choice (C) is incorrect because either spouse can claim the privilege.</p>
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<p>skip77. (C) In accordance with FRE 503 (b), the attorney-client privilege provides that a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, between himself or his representative and his attorney or his attorney’s representative. Choice (A) is incorrect. Whatever the man said to his attorney might have been an admission, but it was covered by the privilege. Choice (B) is also wrong. The attorney-client privilege survives the attorney-client relationship. Finally, choice (D) is an incorrect statement. Like most evidence precluded by privilege, this statement is highly relevant.</p>
<p>79. A defendant was arrested and charged with forgery for unlawfully signing her ex-husband’s signature on his pay check. Before trial, the defendant entered into plea bargain negotiations with the prosecution. During the course of these negotiations, the defendant sent a letter to the prosecuting attorney in which she stated: “I don’t want to go to jail, so if you recommend a suspended sentence, I’ll plead guilty and admit that I forged my ex-husband’s signature on the check.” Subsequently, the plea bargain negotiations fell through.Shortly thereafter, the defendant was arrested and charged with forging her ex-husband’s signature on his next pay check. She has denied culpability regarding the second forgery charge. At trial for the alleged second forgery, the prosecution seeks to introduce the letter the defendant sent to the prosecution during her earlier plea bargain negotiations.The defendant’s attorney objects to the admissibility of the letter. The trial court judge should rule the letter is(A) admissible as evidence of the defendant’s propensity for committing the crime.(B) admissible as an admission.(C) inadmissible, because it was written during the course of plea bargain negotiations.(D) inadmissible, because specific instances of misconduct are not admissible in a criminal case.</p>
<p>79. (C) FRE 410 provides that evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea: “...(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn.” The thrust of the rule is to promote the plea bargaining process by freeing the accused from the apprehension that his declarations may be used to his detriment in the pending criminal trial or in subsequent litigation. In this question, the defendant’s letter to the prosecution admitting to the forgery of the first check was written during the course of plea bargaining negotiations and, therefore, may not be used by the prosecution as an admission in the subsequent trial for alleged forgery of the next pay check. Choice (C) is the correct answer, and choice (B) is incorrect for the same reasons; plea agreements and negotiations often contain admissions. Choice (D) is incorrect because character evidence in the form of specific acts in a criminal case may be offered by the prosecution under the so-called MIMIC rule, but two similar instances of conduct do not establish a common plan or scheme. Choice (A) is incorrect because FRE 404 prohibits the use of propensity evidence in criminal cases.</p>
<p>81. After two men robbed a local bank, they left the bank and went in different directions with a plan to meet three days later at the train station. Two days after the robbeiy, one of the men was involved in an auto accident. The man was rushed to the hospital and taken to the x-ray room. A doctor positioned the man so that the x-ray technician would be able to take x-rays of his lower back area. Based on the man’s complaints about the area of pain, the doctor stated, “It seems as if you might have a fractured pelvis. If you do, you’ll have to stay in bed for several weeks.” The man responded that he couldn’t do that because he had to meet the other man tomorrow. A technician who was in the room at the time overheard the man’s response to the doctor. Subsequently, both men are charged with robbery and conspiracy.At the man’s trial, as evidence of a conspiracy, the prosecution attempts to introduce the doctor’s testimony that the man said, “I have to meet the other man tomorrow.” The defense objects.This evidence is(A) inadmissible, because it violates the physician- patient privilege.(B) admissible, because the technician overheard the conversation.(C) admissible, because of the nature of the man’s statements.(D) admissible, because the statement was not confidential, under the circumstances.</p>
<p>81. (C) The physician-patient privilege is not available to the man under the facts presented. In order fora statement to be deemed admissible under the physician-patient privilege, the information obtained from or the communication from the patient must be necessary to enable the physician to prescribe or act for the patient. Since the man’s statement to the doctor does not relate to treatment, it is not protected by the privilege. Thus, choice (A) is incorrect, and choice (C) provides the best answer. Choice (B) is an incorrect rule of law, since the privilege is not destroyed if it is overheard by an x-ray technician. Choice (D) is also wrong because the communication here remains confidential, even though it is not privileged.</p>
