MBE KAPLAN--EVIDENCE Flashcards
1
Q
- A customer at a fish market was leaving the store after purchasing an assortment of shrimp, oysters, and scallops. He was walking along the sidewalk in front of the store when he slipped on a piece of eel. He brought suit against the owner of the market claiming that he suffered leg and back injuries. The owner, although admitting that the customer was injured by slipping on the eel, denied negligence and claimed that the customer was contributorily negligent.
At trial, the owner calls a witness to testify that before the fall he heard someone call out to the customer, “Watch it, buddy, you’re going to step on that piece of fish.”
The witness’s testimony is
(A) admissible, because it is relevant as to the customer’s contributory negligence.
(B) admissible, as a statement of the declarant’s present state of mind.
(C) inadmissible, as hearsay not within any exception.
(D) inadmissible, because it was not a spontaneous utterance.
A
i. (A) Proof of utterances and writings may be made with an almost infinite variety of other purposes, not resting for their value upon the veracity of the out-of-court declarant and, hence, falling outside the hearsay classification. Here, choice (A) is correct because the witness’s testimony rests on the non-hearsay ground of evincing knowledge to show circumstantially that the customer had notice or awareness that he was about to step on the fish. Thus, the customer’s knowledge is sought to be used as the basis for a further inference that he was contributorily negligent in failing to heed the warning. Choice (B) is incorrect because the “state of mind” hearsay exception covers only statements that reveal the present mental attitude or physical condition of the declarant. Here, the statement of the declarant reveals nothing about the declarant’s own mental state or physical condition. Choice (C) is not the best answer, because choice (A) identifies a non-hearsay use for the statement. Choice (D) is a trap. The words “spontaneous utterance” tempt one to choose the excited utterance exception of FRE 803(2). The excited utterance exception requires that the declarant speak while under the stress or excitement of a startling event. There is no information in the fact pattern about the declarant’s state of mind.
2
Q
- While shopping at a grocery store, a customer tripped over a broken tile, fell, and suffered a concussion. A few months after the accident, the customer’s attorney deposed a store employee. In the deposition, the employee testified, “I’d been telling the store manager for years to get that broken tile fixed, but he wouldn’t do it.” The employee died in an automobile accident after being deposed.
At trial, the deposition should be
(A) admitted, as a dying declaration.
(B) admitted, as former testimony.
(C) not admitted, because it is hearsay not within any exception.
(D) not admitted, because the employee is not available for cross-examination.
A
- (B) Under FRE 804(b) (1), testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding is admissible as a former testimony hearsay exception. McCormick points out that the courts and textwriters generally favor the wider admission of former testimony because of its elements of special reliability, such as the oath, the solemnity of the occasion, and in the case of transcribed testimony, the accuracy of reproduction of the words spoken. Choice (A) is incorrect because the dying declaration hearsay exception of FRE 804(b)(2) requires that the hearsay statement be (1) made while the declarant’s death was imminent; and (2) concern the cause or circumstances of what the declarant believed to be impending death. Here, the statement has nothing to do with the declarant’s death. Choice (C) is incorrect. The answer meets the definition of hearsay as an out-of-court statement offered for the truth of the matter asserted, and it fits the admissibility criteria of FRE 804(b)(1). Choice (D) seems like an attractive answer, but it is deceptive:
if testimony meets the requirements of FRE 804(b)(1), it is not necessary for the declarant to be present at triaL for cross-examination. The opportunity for cross- examination would have occurred at the deposition.
3
Q
- A plaintiff was hit and injured by a falling branch on a sidewalk in front of a convenience store. The plaintiff calls a woman to testify. The woman proposes to testify that a witness who is now deceased told the woman that when he was walking past the convenience store one week before the plaintiff was hit by the branch, the witness saw an employee of the convenience store shoveling snow from the sidewalk in front of the store.
The woman’s testimony is
(A) admissible, because the witness is unavailable to testify.
(B) admissible, as relevant for the limited purpose of proving that the convenience store owner retained control over the sidewalk where the accident occurred.
(C) inadmissible, because it is hearsay not within any recognized exception.
(D) inadmissible, because of the Dead Man’s Statute.
A
- (C) According to FRE 801(c) hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The woman is attempting to testify to what the witness alLegedly told her. Choice (C) is correct because the witness’s statement is (1) an out-of-court statement that is (2) offered for the truth of the matter asserted. The statement does not, however, fit within any recognized hearsay exceptions. This is an extremely popular Multistate Evidence example because the test maker knows many students will incorrectly choose choice (B). This choice would be correct if the woman were testifying that she saw an employee of the convenience store shoveling the snow. Rather, the woman is proposing to testify to what the witness alLegedly told her he saw. Since it is being offered to prove the truth (i.e., the convenience store owner retained control over the area in front of his store) of the matter asserted, it is inadmissible hearsay. Choice (A) is incorrect because, regardLess of the fact that the witness is unavailable to testify, his out-of-court statement fails to satisfy any recognized hearsay exceptions. Although interesting, choice (D) is wrong because Dead Man’s Statutes apply only to a limited circumstance: they prohibit claimants against estates from testifying about conversations or transactions with the decedent.
4
Q
- A defendant is on trial for attempting to cash a forged check at a bank. A teller at the bank is called to testify.
The teller testified that she was on duty when the defendant came to her station and handed her a check drawn on the account of another customer. She recognized the forgery because she knew the other customer’s signature since he was one of her regulars. The teller further testified that after becoming suspicious, she placed the check down on the counter and turned to talk to her supervisor. As she did so, the defendant picked up the check and left the bank before she could say anything. The check that the defendant presented at the bank was not recovered by law enforcement authorities and was not offered as evidence.
The teller’s testimony regarding the forged signature on the check is
(A) inadmissible, because the witness is at fault in allowing the loss of the original by failing to secure the check.
(B) inadmissible, because it is not possible for the jury to compare the signature on the check since it was not presented as evidence.
(C) admissible, because it is rationally related to the witness’s perception.
(D) admissible, because the witness was familiar with the alleged victim’s handwriting.
A
- (D) Under FRE 901 (b)(2), authentication or identification as a condition precedent to admissibility is satisfied by “Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.” The teller’s testimony recognizing the forgery will be admissible because she was familiar with the other customer’s signature, since he was one of her regulars. Choice (D) is correct. FRE 701 provides for lay opinion that is rationally based on the perception of the witness. Included within the proper scope of lay testimony is familiarity with handwriting. Nonetheless, choice (D) is a more specific answer than choice (C). Choice (B) is incorrect because comparison of handwriting specimens by the jury is not required as a requisite for admissibility, although it is one way to authenticate a person’s handwriting. Choice (A) alludes to FRE 1004, which allows admissibility of other evidence of contents (i.e., the teller’s testimony) where the original is lost or destroyed, unless the proponent lost the original in bad faith. Choice (A) is incorrect because the teller was not acting in bad faith when the defendant took the check from her possession and ran out of the bank.
5
Q
- 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.
A
- (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.
6
Q
- 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.
A
- (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.
7
Q
- One year ago, while driving through an intersection, the defendant’s car collided with the plaintiff’s car. The plaintiff sued, claiming that the defendant ran a red light. In her case-in-chief, the plaintiff testified that immediately after the accident, a bystander, who was a local resident, screamed at the defendant, “You jerk.. . you drove through the red light.” In his case-in-chief, the defendant now calls a police accident investigator to testify that the plaintiff told him that she “didn’t see the color of the light when she entered the intersection because she was dialing a number on her cell phone.”
The investigator’s testimony should be
(A) admitted, because the plaintiff’s inconsistent statement has bearing on her credibility.
(B) admitted, because the accident investigator gathered the information in the course of his official duties.
(C) excluded, because the defendant failed to lay a foundation, thus not giving the plaintiff an opportunity to deny or explain her statement.
(D) excluded, because the plaintiff’s statement to the investigator is hearsay.
A
- (A) In her case-in-chief, the plaintiff claimed that the defendant drove through a red light and hit her as she was crossing the street. So obviously the plaintiff must be contending that the traffic light was green (in her favor) when she proceeded to cross the intersection. As a consequence, her statement to the investigator that she “didn’t see the color of the light when she entered the intersection because she was dialing a number on her cellphone” may be receivable in two ways: (1) as an admission by a party under FRE 801(d), and (2) as an inconsistent statement to impeach the witness under FRE 613. Choice (A) is, therefore, correct. Choice (B) is a distracting answer and is incorrect. The words “official duties” might cause a test- taker to think of FRE 803(8), the public records hearsay exception. This exception, however, applies only to “matters observed” by public officials in the course of their duties and requires personal knowledge by the official of the matter observed. Here, the investigator has no personal knowledge of the light’s color at the time of the accident. Choice (C) is the wrong answer because, from the facts, it appears that the defendant has laid a sufficient foundation to introduce the plaintiff’s statement as either an admission or to impeach. The plaintiff will be afforded an opportunity to cross-examine the officer about the statement, if she so chooses. Choice (D) is incorrect because an admission is not hearsay under Rule 801(d).
8
Q
- 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.
A
- (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.
9
Q
- In an action for malpractice, a plaintiff sued a doctor, claiming that the latter failed to properly diagnose his emphysema condition. The plaintiff contends that he went to the doctor for a medical examination after experiencing chest pains and shortness of breath. However, the doctor found no evidence of the disease and advised him that he was probably suffering from indigestion. Thereafter, the plaintiff was examined by another doctor who discovered that the plaintiff in fact was suffering from a chronic case of emphysema.
At trial, the plaintiff calls the other doctor as his first witness. The other doctor proposes to testify the x-rays of the plaintiff’s lungs showed that his respiratory organs were marked by distension, which was characteristic of emphysema. Upon objection by the defendant’s attorney, the testimony should be
(A) admitted, because a doctor is properly qualified as an expert in medical matters.
(B) admitted, because the other doctor followed accepted medical practice in arriving at his opinion.
(C) excluded, because his opinion is based upon facts not in evidence.
(D) excluded, because the x-rays are the best evidence to show the distension of the plaintiff’s lungs.
A
- (D) Here, it is necessary to distinguish that the other doctor is proposing to testify “that the x-rays showed a distension.” X-rays come within the best evidence rule, FRE 1002, which applies to the contents of writings, recordings, and photographs; according to FRE 1001 (2), x-rays are considered photographs. Choice (D) is, therefore, correct. Choice (A) is incorrect because there is no evidence in the fact pattern that the other doctor was tendered as an expert under FRE 702; doctors are not automatically expert witnesses at trial. There is not enough information in the fact pattern to determine whether the other doctor followed acceptable medical practices, so choice (B) is a wrong answer. Choice (C) is incorrect because, assuming that the other doctor was qualified as an expert witness, FRE 703 would permit him to base his conclusions on facts not in evidence.
10
Q
- 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.
A
- (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.
11
Q
- 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.
A
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.
12
Q
- A city entered into a small-cost construction contract with a construction company whereby the latter obligated themselves to perform certain minor sewer repair work. Two months after completion of the work, the company sued the city for its failure to pay under the terms of the contract.
At trial, the company’s construction supervisor who personally oversaw all the repair work was called to testify. He sought to testify about the amount of sewer pipe used, the number of hours required to complete the job, and the number of workers employed by the company during the construction repair work.
The defendant’s attorney objected on the grounds that the company routinely recorded such factual information in their log books, which were in the company’s possession.
As a consequence, the supervisor’s testimony should be ruled
(A) admissible, because it is based on firsthand knowledge.
(B) admissible, because it is a report of regularly conducted business activities.
(C) inadmissible, because such testimony would be violative of the best evidence rule.
(D) inadmissible, because no evidence was introduced to show that the original log records are not available for examination.
A
- (A) Choice (C) is incorrect because the original document rule (otherwise known as the best evidence rule) applies to those situations where in proving the terms of a writing, and the terms are material, then the original writing must be produced unLess it is shown to be unavailable for some reason other than the serious fault of the proponent. First, there are certain writings that the substantive law (e.g., the Statute of Frauds, the parol evidence rule) endow with a degree of either indispensability or primacy. Transactions to which substantive rules of this character apply tend naturally to be viewed as written transactions and writings embodying such transactions (e.g., deeds, contracts, judgments, etc.). Contrasted with the above-described types of writings are those, essentially unlimited in variety, that the substantive law does not regard as essential or primary repositories of the facts recorded. In this regard, log books would be viewed as a writing of this latter sort in that they happen to record the facts of essentially non-written transactions. Testimony descriptive of non-written transactions is not generally considered to be within the scope of the present rule and may be given without producing or explaining the absence of a writing recording the facts. [See Allen v. W. H. 0. Alfalfa Mill Co. 272 F.2d 98 (10th Cir. 1959) where costs of production were allowed without records]. As a result, choice (D) is also incorrect because the original document rule is inapplicable. Therefore, in accordance with FRE 602, “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. .. ,“ choice (A) is the best answer. Since the construction supervisor personally oversaw the entire job, he would clearly have firsthand knowledge regarding the construction work. Choice (B) is inapplicable because the witness is testifying directly as to his firsthand knowledge and is not introducing information from the company’s records under FRE 803(6), the business records exception.
13
Q
- 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.
A
- (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…
14
Q
- 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.
A
- (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.
15
Q
- 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.
A
- (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.
16
Q
- 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 be
a. 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.
A
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.
17
Q
- 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.
A
- (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.
18
Q
- 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.
A
- (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.
19
Q
- 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.
A
- (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.
20
Q
- 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.
A
- (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.
21
Q
- 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.
A
- (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.
22
Q
- On Thursday, March 7, an owner’s home was destroyed by fire. The owner’s house was insured against such fire loss by an insurance company. According to the policy contract, the insured was required to notify the insurance company within 10 days following any loss due to fire or other catastrophe.
The owner sued the insurance company to recover $750,000, which was the face amount that his home was insured for. The insurance company admitted that the owner’s house was insured for that amount, though the company denied liability because it claimed that it had not received notice of the fire within the 10-day period as required by the policy.
At trial, the owner calls his bookkeeper to testify. The bookkeeper proposes to testify that on March 11, the owner handed her an envelope and told her it contained a notice form for the insurance company, and that she mailed the envelope on his behalf.
If the bookkeeper intends to establish that the envelope that the owner handed her contained the notice of fire loss, her proposed testimony is
(A) admissible, because the owner’s statement to her is non-hearsay.
(B) admissible, because a letter properly mailed is presumed received in due course.
(C) inadmissible, because the owner’s statement to the bookkeeper is not the best evidence.
(D) inadmissible, because the owner’s statement to the bookkeeper is hearsay not within any exception.
A
- (D) Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Here, the owner’s out-of-court statement to the bookkeeper (that the envelope contained an insurance notice form) is being offered to prove the truth of the matter stated. As a consequence, it is inadmissible hearsay. Choice (A) is, accordingly, wrong, because it states that the evidence is not hearsay. Choice (B) is interesting, but wrong. Choice (B) implicates the “mailed letter presumption,” which is that one can presume a letter reached its destination if it was properly posted. The point here is subtle, but important:
the bookkeeper is testifying about what the owner told her concerning the purpose of the letter, not the fact that she posted it on a particular date. Thus, choice (B) is incorrect. Choice (C) is also incorrect. The contents of the letter are not at issue, which is a basic requirement of FRE 1002, the best evidence rule.
23
Q
- 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.
A
- (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.
24
Q
- 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.
A
- (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 FRE
703’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.
25
Q
- A collector told a local coin dealer that he wished to purchase an 1804 silver dollar. The coin dealer told the collector that he would locate one of these rare coins and the cost would be approximately $40,000 plus a commission. The coin dealer successfully located and arranged for the purchase of the 1804 silver dollar. After the collector purchased the coin, a disagreement arose as to the amount of commission. The coin dealer brought suit, claiming that the agreed-upon amount was 15%. The collector contends that they agreed upon 12%.
At trial, the coin dealer introduces photocopies of company records showing that in all his previous dealings with the collector, and all other customers as well, he charged a 15% commission when asked to locate rare coins.
The court should find that the offer of this evidence is
(A) admissible, under the business records exception.
(B) admissible as past recollection recorded.
(C) inadmissible as a violation of the best evidence rule.
(D) inadmissible as hearsay not within any recognized exception.
A
- (A) Since the coin dealer’s records are made in the course of regularly conducted business activities, they can be admitted under the business records exception. Choice (B) is incorrect because this is not an example of past recollection recorded, under which an authenticated memorandum, made by a witness, may be read into evidence where the witness is unable to recall the facts recorded in the document. Choice (C) is wrong because under the FRE, photocopies are as admissible as original documents and, therefore, do not violate the best evidence rule. Choice (D) is incorrect, since the company records are within a recognized exception.
26
Q
- A grain broker specializes in exotic grains for the growing organic-food market. Using his network of contacts across the globe, he is able to find sources for almost any kind of grain, grown anywhere in the world, to be shipped anywhere in the world. Last year, an organic food co-op asked the grain broker to find quinoa for them. The grain broker said, “I’ll do it. It’ll cost you market rate plus the commission.” The grain broker found the quinoa and had it shipped to the co-op at a cost of $15 per bushel plus a 20% commission. The co-op paid $15 per bushel plus an 8% commission. The grain broker brought suit, claiming that the appropriate commission was 20%. The grain broker introduced business records and other documentary evidence establishing that he normally charges a commission of between 10% and 20% for grains, with a higher commission for more exotic grains. The owner of the co-op called another grain broker, a competitor of the plaintiff, to testify. The witness testified that he never charges more than an 8% commission when asked to locate exotic grains for his customers.
The trial judge should rule this testimony
(A) admissible as evidence of customary business practices in the community.
(B) admissible as a proper lay opinion.
(C) inadmissible as hearsay.
(D) inadmissible as irrelevant.
A
- (A) This is a classic example of a Multistate cross-over testing pattern involving an interrelationship of both Evidence and Contracts principles. When answering a Contracts question that involves buyers and sellers, apply UCC rules when presented with a hypothetical involving a merchant. In this regard, course of dealing, usage of trade, or course of performance evidence may explain or supplement language in a writing, for it shows how the parties themselves interpreted their own deal. Thus, since the grain broker was a merchant, UCC Section 1-205(4) would permit evidence of customary business practices to aid in interpreting the agreement between the parties. Choice (B) is incorrect because the witness is giving fact testimony about business practices in the area, not rendering an opinion. Choice (C) is wrong because there are no out-of-court statements being offered for their truth. Choice (D) is incorrect. FRE 401 defines relevant evidence as having “any tendency to make the existence of any fact that is of consequence to the action more probable or less probable than it would be without the evidence.” The witness’s testimony about prevailing trade practices is highly relevant on the issue of the agreed-upon commission.
27
Q
- A buyer filed a lawsuit against a seller based on a written contract allegedly executed at the time of the sale of the seller’s hot dog stand to the buyer. Under the terms of the contract, the seller agreed not to open a hot dog stand for a period of two years within a distance of two miles of the old hot dog stand, now owned by the buyer. The buyer alleged in his complaint that the seller violated the contract by opening a hot dog stand one-half mile from the old location. The original contract was lost prior to trial. At trial, the buyer wants to introduce a duplicate carbon copy of the written contract. The seller objects as to the authenticity of the original written contract.
The copy is
(A) inadmissible, because the seller contests the authenticity of the written contract.
(B) inadmissible, because the best evidence rule requires that the original contract always be used as evidence.
(C) admissible, because the duplicate is a carbon copy.
(D) admissible, because the original contract was lost.
A
- (A) Under FRE 1003, a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Therefore, if the seller contests the authenticity of the original written contract, the duplicate introduced by the buyer would not be admitted into evidence in accordance with subsection (1) of FRE 1003. Choice (B) is an incorrect rule of law. The best evidence rule does notalways require that the original document be used as evidence. If the original document is (1) lost or destroyed, (2) not obtainable by judicial process, or (3) in the possession of an opponent who refuses to produce the original at trial, other “secondary” evidence of the writing, recording, or photograph is admissible. See FRE 1004. Choice (C) is not the best answer. Although duplicate copies are generally admissible to the same extent as originals under FRE 1003, there are exceptions to this rule. Choice (A) correctly states an exception that applies to this fact pattern, whereas choice (C) merely states the general rule. Choice (D) is misleading. The key issue is that the seller contests the authenticity of the original, an issue that brings this question squarely within FRE 1003’s rule on the use of duplicates.
28
Q
- One afternoon a motorist was driving her car when she struck a pedestrian who entered the intersection. The pedestrian was seriously injured in the accident and sued the motorist to recover damages for personal injuries. There were no witnesses to the accident. The motorist claims that the traffic light was green at the time she entered the intersection. The pedestrian now has amnesia and cannot remember how the accident occurred.
At trial, the pedestrian’s attorney calls a witness to testify. The witness proposes to testify that she was in the emergency room at the hospital when the pedestrian was brought in following the accident. The witness further testifies that while the pedestrian was being treated for his injuries, the nurse asked him, “How did you get hurt?” The pedestrian replied, “The car ran the red light and struck me as I was walking through the intersection.”
Upon objection, this evidence is
(A) admissible as a statement made for purposes of medical treatment and diagnosis.
(B) admissible as a present sense impression.
(C) inadmissible, because the witness was eavesdropping on a confidential communication between the pedestrian and a hospital representative.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (D) Hearsay is defined under FRE 801(c) as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The witness’s testimony as to the pedestrian’s out-ofcourt reply to the nurse’s question is hearsay, since it is being offered for its truth; namely, to prove that the motorist’s car ran a red light. By process of elimination, choice (D) is correct. The pedestrian’s reply is inadmissible as hearsay, since no exceptions apply. Choice (A) is incorrect because, under FRE 803(4), a statement made for purposes of medical diagnosis or treatment must describe “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.” However, statements pointing to persons responsible for the condition are considered irrelevant to medical diagnosis or treatment and do not fall within the exception. Federal Rules of Evidence Manual p.830. The pedestrian’s statement implicated the motorist and will, therefore, be inadmissible as a statement relating to the cause of the accident. Choice (B) is incorrect because, under FRE 803(1), a present sense impression must describe or explain an event or condition white the declarant was perceiving the event or condition or immediately thereafter. Here, the pedestrian’s statement was made in the emergency room fottowingthe accident. Choice (C) is incorrect because the presence of a non-essential third person, such as the witness, would destroy whatever confidentiality existed between the pedestrian and the nurse.
29
Q
- A driver has been charged with leaving the scene of an accident. The driver allegedly hit another car in a parking lot and drove away without leaving proper insurance and contact information. A bystander wrote down her license plate number and called the police. At trial, the driver proposes to testify that the day after the accident, she met with the police officer investigating the accident, and told him that she did not leave until after she had inspected both cars and determined there was no damage. The bystander is not available to testify at trial.
The driver’s testimony is
(A) admissible, because it is the statement of the witness herself, who is subject to cross-examination.
(B) admissible, because it is a statement based on firsthand knowledge.
(C) inadmissible, because the bystander is unavailable and, therefore, cannot contradict the driver.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (D) In this case, the driver is the out-of-court declarant proposing to testify as to the truth of the matter asserted that she only left the scene after determining there was no damage to either vehicle. As in the previous example, the statement itself is hearsay and will be inadmissible, since no exceptions apply. Choice (D) is, therefore, correct. Choice (A) is incorrect because the driver is proposing to testify in court as to what she said at another prior time out of court. The driver’s prior statement is, therefore, hearsay, despite the fact that she is both the witness, as well as the out-of-court declarant. By the same reasoning, choice (B) is incorrect because the driver is not actually testifying as to firsthand knowledge; rather, she is quoting herself. Choice (C) is incorrect because the rules of evidence do not predicate the admissibility of evidence on the availability of witnesses to contradict it.
30
Q
- 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 is
GIJO-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.
A
- (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.
31
Q
- Under the Federal Rules of Evidence, which of the following items of evidence is NOT self- authenticating?
(A) A pamphlet on air safety regulations that a plaintiff claims is an official publication of the Federal Aviation Administration.
(B) A copy of a magazine that a plaintiff claims contains a libelous picture.
(C) A holographic will without attesting signatures that a plaintiff claims was written by her mother in her own handwriting.
(D) A certified copy of his car registration form that, according to a plaintiff, verifies his ownership of the vehicle.
A
- (C) Choice (C) is correct, since an unattested holographic will of the plaintiffs mother will not be self-authenticating. Under FRE 902, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) domestic public documents under seal; (2) certified genuine foreign public documents; (3) certified copies of public records—such as the certified copy of the car registration form in choice CD); (4) official publications—including books and pamphlets issued by public authority—such as the Federal Aviation Administration pamphlet on air safety regulations in choice (A); and (5) newspapers and periodicals—such as the copy of a magazine in choice (B).
32
Q
- An owner of a storage facility stores flammable gases under high pressure in large spherical tanks. The facility was constructed for the owner by a company that specializes in the construction of such facilities. After the facility had been in use for three months, one of the tanks ruptured, causing a spillage and loss of the chemicals. The owner sued the company for strict liability, claiming that the storage tank had been defectively manufactured.
At trial, the owner called a photographer who testified she was hired by the owner to photograph the ruptured tank after the accident. She further testified that the roll of film was sent to a commercial film lab where the photographs were developed. Thereupon, the owner’s attorney showed the photographer the photographs, which she identified as the ones she had taken and given to the Owner.
The owner’s attorney offers 10 photographs into evidence. Upon objection by the company’s counsel, which of the following, if true, is the best reason to exclude the photographs from evidence?
(A) The photographer was not shown to be an expert or professional photographer.
(B) There was an unaccountable break in the chain of custody from the time when the photographs were taken to the period when the negatives were processed.
(C) There was no testimony that the photographs accurately portrayed the ruptured tank.
(D) The photographs are not the best evidence to prove how the tank ruptured.
A
- (C) To authenticate a photograph, it is always required that the proponent establish that the pertinent parts of the picture are a reasonable and accurate representation of the subject pictured. This requirement may be satisfied if a witness (not necessarily the photographer) has observed the scene and testifies that the picture is an accurate representation. Lilly, Law of Evidence, p.423. Choice (C) is the best answer to exclude the 10 photographs. Lack of proper authentication would preclude admissibility if no testimony were offered that the photographs accurately portrayed the ruptured tank. Choice (A) is incorrect because there is no requirement under the rules that a photographer be qualified as an expert or professional photographer. Choice (B) is wrong for two reasons: (1) it is predicated on facts that are not contained in the fact pattern; and (2) even if there were a break in the chain of custody, it would still be possible to authenticate the photographs as reasonably and accurately representing the ruptured tank. Choice (D) is wrong. The best evidence rule only applies when the contents of a writing, recording, or photograph are at issue. See FRE 1002.
33
Q
- A woman was sailing in a bay when she was struck by a motorboat. The woman, who was seriously injured in the accident, sued the motorboat operator in a personal injury action. During the course of the lawsuit, an important question of consequence was the wind speed on the afternoon the woman was sailing.
At trial, the woman calls an orthopedic surgeon to testi1’. The surgeon, who is an amateur boating enthusiast, testified that he was navigating his sailboat into the bay when the motorboat hit the woman. Furthermore, the surgeon testified that in the cockpit of his boat he maintains a sophisticated electronic weathering device that measures wind speed, temperature, and barometric pressure at periodic intervals. The woman then offers into evidence the computer printout from the surgeon’s weathering device measuring the wind speed at the time of the accident.
Upon objection by the motorboat operator, the printout is
(A) admissible as past recollection recorded.
(B) admissible as the record of regularly conducted activity.
(C) inadmissible as hearsay not within any recognized exception.
(D) inadmissible, unless there is foundation testimony as to the accuracy and good working condition of the surgeon’s electronic weathering device on the afternoon in question.
A
- (D) In the woman’s personal injury action against the motorboat operator, her witness, the surgeon, is offering into evidence a computer printout from his sophisticated electronic weathering device measuring wind speed. Regarding this computer printout, students should begin by understanding that under FRE 1001(3), “If data are stored in a computer or similar device, any printout or other output readable by sight, is an ‘original’.” There is no best evidence problem as to the admissibiLity of the computer printout. Next, a foundation for the authenticity of the scientific wind device must be laid. Under the original Frye v. United States standard, scientific evidence is admissible where the device or principle from which the deduction is made is “sufficiently established to have gained general acceptance in the particular fieLd.” McCormick, pp. 610—614. Choice (D) is correct. Choice (A) is incorrect because the “past recollection recorded” hearsay exception requires a human witness. Choice (B) is wrong; it describes the business records exception of FRE 803(6), which is not at issue here. Choice (C) is wrong because hearsay under the rules requires either a human declarant or, in the case of computer records, input generated by a human being. According to Mueller & Kirkpatrick’s treatise on evidence, “when information provided by machines is mostly a product of mechanical measurement or manipulation of data by common scientific or mathematic techniques, hearsay concerns are usually addressed by requiring the proponent to show the machine and its functions are reliable, that it was correctly adjusted or calibrated, and that basic data put into the machine are accurate.” Christopher Mueller& Laird Kirkpatrick, Evidence § 8.11 (3d ed. 2003). Mueller& Kirkpatrick go on to explain that when the output of a machine depends on human input, regular hearsay concerns apply.
34
Q
- 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.
A
- (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.
35
Q
- A man and a woman are tennis partners who play regularly. Last January, the man slipped and fell while restocking grocery shelves at work. The man is suing the grocery store for damages, claiming that he suffers from pain in his back and legs as a result of the accident. At trial, the woman testified that five days prior to the accident, the man told her, “I can’t complete the tennis match because of pains in my back and legs.”
The trial judge should rule this testimony
(A) inadmissible as hearsay.
(B) inadmissible as opinion testimony.
(C) admissible as a proper lay opinion.
(D) admissible as a statement of bodily condition.
A
- (D) As a general rule, a declaration of a physical condition (e.g., “I have pains in my back and legs”) is admissible as an exception to the hearsay rule under FRE 803(3) (then-existing mental, emotional, or physical condition). Choice (D) is, therefore, correct. Choice (A) is wrong. The statement is hearsay, but it is admissible under a recognized hearsay exception. Choices (B) and (C) are incorrect for similar reasons. The man’s statement is a description of his physical condition, not a statement of opinion.
36
Q
- 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.
A
- (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.
37
Q
- 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.
A
- (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.
38
Q
- 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.
A
- (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.
39
Q
- A defendant was charged with vehicular battery after driving through a red light and crashing into a woman’s small convertible. The woman suffered massive internal injuries and lapsed into a coma for several hours after she reached the hospital. The woman’s best friend, who was a passenger in the car, miraculously received only a few minor bruises. After the collision, the passenger stayed with the woman trying to comfort her until the ambulance arrived.
At trial, the passenger is called to testify. ‘While on the witness stand, she gazes with sorrow at the woman, who is still wearing a cast on her leg. The passenger testifies that the first thing she remembered seeing after the accident was the woman’s bloodied body trapped in the mangled wreckage. The state’s attorney then asked the passenger if the woman said anything to her before being taken to the hospital. The passenger answered, “Yes, she told me: ‘I know I’m dying. Why did he have to run that red light?”
Upon objection by the defendant’s attorney, the court should rule the passenger’s testimony
(A) admissible, because it is irrelevant that this is not a homicide case.
(B) admissible, because the woman believed her death was imminent when she made the declaration.
(C) inadmissible, because of the close relationship between the woman and the passenger.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (A) In order for a dying declaration to be admitted, the dec(arant must be unavailabLe to testify. In this example, the dying declaration exception is inapplicable because the woman is not unavailable. In accordance with FRE 804, the dying declaration exception is not excluded by the hearsay rule if the declarant is unavailable as a witness. Since the woman is in court and available as a witness, choice (B) is wrong. Consequently, choice (A) is correct because her statement, “I know I’m dying,” is admissible under FRE 803 as a statement of then-existing physical condition. In addition, her statement, “Why did he have to run the red light?” is not excluded by the hearsay rule because, under FRE 803, it qualifies as a present sense impres. sion. Note that in regard to the hearsay exceptions classified under FRE 803, the availability of the declarant is immaterial. Choice (C) is incorrect. The relationship between a hearsay declarant and a witness is immaterial in determining the admissibility of the hearsay statement. Choice (D) is also incorrect because, although the statement is hearsay, it fits within recognized hearsay exceptions.
40
Q
- A victim was standing on a street corner waiting to make a drug buy. The drug dealer was always late, so the victim continued to wait outside in the freezing cold weather because he needed a quick fix. Suddenly a car rounded the street corner and a shot rang out. The victim slumped over and fell to the sidewalk. Immediately after being shot and before he died, the victim exclaimed, “The defendant did it!” The defendant was indicted and is now on trial for the victim’s murder.
Based on these facts alone, the admissibility of the victim’s statement should be determined by
(A) the jury, after a preliminary determination by the judge.
(B) the jury, without a preliminary determination by the judge.
(C) the judge, with instruction to the jury that it may consider the dying declaration if it determines that the victim knew he was dying.
(D) the judge, without assistance from the jury.
A
- (D) FRE 804 (B) (2), also referred to as the “dying decLaration exception” to the hearsay rule, provides that “in a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule if the declarant is unavailable as a witness.” Note two important points in regard to the dying declaration exception: (1) the FRE has broadened the traditional use of dying declarations in prosecutions for homicide by now allowing such statements to be utilized in civil cases; and (2) in accordance with the FRE, the declarant does not need to die in order for his statement “made under belief of impending death” to be deemed admissible. Rather, the requirement that must be met is that the declarant be unavailable to testify. Choices (A), (B), and (C) all misstate the proper roles of the judge and the jury pertaining to the admissibility of evidence. According to FRE 104(a), questions concerning the admissibility of evidence “shall be determined by the court [judge].” Choice (D) is the only answer that correctly states the role of a judge in determining the admissibility of evidence.
41
Q
- 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 the
best evidence.
A
- (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.
42
Q
- In a suit by an investor against a speculator, a relevant fact is the price of gold as quoted on a specific date 20 years ago. The investor calls a librarian to authenticate the microfilm copy of a newspaper from that date. This copy, kept in the archives of the public library, is the only record of that particular issue of the newspaper.
The microfilm is
(A) admissible, to prove the price of gold on that day.
(B) admissible as an ancient document.
(C) admissible as past recollection recorded.
(D) inadmissible as not the best evidence.
A
- (A) Under FRE 1003, duplicates of a document are generally admissible to the same extent as the original. According to FRE 1001(4), a duplicate includes a photographic miniature. Thus, a microfilm of the newspaper would be considered a duplicate and would be admissible as an original under FRE 1003. Choice (B) is not a bad answer—the ancient documents exception of FRE 803(16) permits the admissibility of statements in a document more than 20 years old, the authenticity of which is established, but choice (A) is a better answer because the use of a microfilm copy of the newspaper raises issues regarding the admissibility of duplicates. Choice (C) is incorrect. The past recollection recorded exception applies when a witness on the stand is unable to remember an event but made a record of it close to the time of its occurrence. Choice (D) is wrong because it misstates the best evidence rule.
43
Q
- 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.
A
- (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.
44
Q
- 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.
A
- (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.
45
Q
- A plaintiff is bringing an action against a defendant to quiet title to determine ownership of lakefront riparian property. At issue is the mean water level of the lake. For the past several years, a commercial fisherman has kept daily logs of the lake’s water level. In preparation for trial, the plaintiff hired a graphic artist to prepare charts from the fisherman’s logs to establish the property’s boundary line. Based upon the information contained in the fisherman’s logs, the graphic artist compiled a number of charts, which the plaintiff now seeks to introduce into evidence. At trial, it was determined that the fisherman is an expert on water level computations.
The defendant objects to the charts being offered into evidence. The court will most likely rule the charts
(A) admissible, because the fisherman is an expert on water level computations.
(B) admissible, because they are summaries of voluminous records.
(C) inadmissible, because the charts are hearsay not within any recognized exception.
(D) inadmissible, because the fisherman’s daily logs are the best evidence of the lake’s water level.
A
- (B) According to FRE 1006, the contents of voluminous writings, recordings, or photographs that cannot conveniently by examined in court may be presented in the form of a chart, summary, or calculation.The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. In this question, the fisherman has kept daiLy Logs for severaL years on the water level of the lake. Clearly, these logs are voluminous records that may not be conveniently reviewed in court by the jury. Consequently, the charts drafted by the graphic artist may be admitted as summaries of voluminous records. Choice (A) is incorrect. There is no requirement that the compiler of records be qualified as an expert. Choice (C) is incorrect. The fisherman’s logs themselves are probably hearsay, but would be admissible under the business records exception of FRE 803(6). The reason for using a summary under FRE 1006 is that the fisherman’s records themselves could not be conveniently reviewed in court; a summary would be much better. Choice (D) misstates the best evidence rule and is wrong.
46
Q
- 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.
A
- (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.
47
Q
- A gardener sued a homeowner for breach of contract. The gardener claims that the homeowner hired him to perform landscape work at his home. After performing the gardening services, the homeowner paid him $100. The gardener, who speaks only English, contends that the homeowner, who speaks only Japanese, originally agreed to pay him $200 for the work. When the parties entered into their agreement, the gardener was accompanied by his friend, who is now deceased, who spoke both English and Japanese. This jurisdiction has a typical Dead Man’s Statute in effect.
At trial, the gardener now seeks to testify to the terms of his agreement with the homeowner as communicated to him by his friend. Upon objection by the homeowner’s attorney, the gardener’s proposed testimony is
(A) admissible as an admission by a party-opponent.
(B) admissible as non-hearsay to corroborate evidence of a verbal act.
(C) inadmissible, because of the Dead Man’s Statute.
(D) inadmissible, unless it is established that the gardener accepted the friend as the homeowner’s agent in communicating the terms of the contract.
A
- (D) Under FRE 801(d)(2)(D), a statement offered against a party by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship is admissible as a vicarious admission. If it is established that the friend was the homeowner’s agent in communicating the terms of the contract, then the friend’s statement may be offered as a vicarious admission against the party, the homeowner, by his opponent, the gardener. Choice (D) is correct. Choice (C) is incorrect. A Dead Man’s Statute typically provides that in any action commenced or defended on behalf of a decedent, any other party surviving shall be disabled from testifying as to any transaction involving the decedent. The practical consequence of this type of statute is that if a survivor has rendered services or furnished goods to a person he trusted, without an outside witness or admissible written evidence, he is helpless if the other dies and the representative of his estate declines to pay. McCormick, Evidence, p. 159. In these facts, the contract action was not commenced or defended on behalf of the friend, the deceased, so the Dead Man’s Statute will not apply. Choice (A) is incorrect because the gardener is seeking to testify as to the friend’s statements. The fact that the friend is not a party to the lawsuit precludes the use of his statements as an admission. Choice (B) is incorrect because the friend’s statements concerning the terms of the homeowner’s agreement would be inadmissible as hearsay, unless a basis for a vicarious admission is established.
48
Q
- A victim and a defendant both worked as longshoremen at a shipyard. After the victim was shot to death, the defendant was tried for murder and acquitted. Following the acquittal, the victim’s estate sued the defendant in a wrongful death action. During the civil trial, the victim’s estate called a witness to testify. The witness, who worked with both men at the shipyard, testified that two weeks before the shooting, the victim came to work with a broken nose and said that the defendant had caused it. The attorney for the victim’s estate then asked the witness the following question, “Was the defendant present during your conversation with the victim, and if so, did he say anything about the victim’s broken nose?” The witness replied, “Yes, the defendant was present, and after the victim told me that the defendant broke his nose, the defendant said, ‘And that’s only the beginning.”
Upon objection by the defendant’s attorney, the witness’s testimony is
(A) admissible, because it reports a declaration against interest.
(B) admissible, because it reports the defendant’s adoptive admission of the victim’s assertion.
(C) inadmissible, because of the principle of collateral estoppel.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (B) FRE 801(d) (2) (B), which defines an adoptive admission, provides that a statement is an admission if it is offered against a party and is “a statement of which (the party) has manifested his adoption or belief in its truth,” under circumstances where a reasonable person would deny the statement. The defendant’s silence when the victim told the witness that the defendant broke his nose, coupled by his assertion, “And that’s only the beginning,” clearly evidence the defendant’s admission that he did, in fact, break the victim’s nose. Such a “tacit admission” of a party, namely, the defendant, will be admissibLe against him. Choice (B) is correct. Choice (A) is incorrect, since a declaration against interest is a hearsay exception. But the statement being offered is not hearsay, since it is an admission. Choice (C) is incorrect, since the question of whether or not the defendant broke the victim’s nose would not have to be a necessarily determined (or even actuaLly litigated) issue concerning the murder of the victim. Choice (D) is incorrect, since admissions are defined as non-hearsay.
49
Q
- 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.
A
- (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.
50
Q
- 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.
A
- (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.
51
Q
- A defendant was charged with illegally selling arms to a foreign country without a government license. During the trial, the defendant admitted selling the weapons, which included missiles, rocket launchers, bazookas, and ammunition, to agents of the foreign country. In his defense, however, the defendant testified that he did not sell the arms as a private citizen, but rather for his employer, a federal agency. In rebutting the defendant’s testimony, the government called a high-ranking official from the federal agency to the stand. He testified that if the defendant were, in fact, a member of the agency, that information would ordinarily be contained in the agency’s employment records. Asked whether the defendant’s employment records were on file with the agency, the official then testified, “I have searched the agency employment records diligently, but I haven’t found any documentation that the defendant was employed by the agency.”
Upon objection by the defendant’s attorney, the official’s testimony is
(A) admissible, because it shows the absence of an entry in the record of a public agency.
(B) admissible, because the official had firsthand knowledge of the information contained in the agency’s employment records.
(C) inadmissible, because it is hearsay not within any recognized exception.
(D) inadmissible, because the agency employment records are the best evidence to substantiate whether the defendant was actually in the employ of the governmental intelligence agency.
A
- (A) In United States v. De Georgia, 420 F.2d 889 (1969), proof that a car rental agency’s records showed no lease or rental activity regarding a certain vehicle was admissible as tending to show that the defendant in possession of the vehicle had stolen it. FRE 803(10) provides that “to prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with FRE 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry” is admissible as a hearsay exception. As a result, the official’s testimony is admissible under this hearsay exception, so choice (C) is incorrect. Choice (D) is likewise incorrect because the mere non-existence of the employment records, not their contents, is at issue; therefore, the best evidence rule does not apply. Choice (B) is wrong because a witness has firsthand knowledge when he actually observes an event (e.g., a car accident). If a witness testifies to someone else’s statement or to a writing prepared by someone else, then a hearsay issue arises. Since the official is testifying to the contents of the employment records (which obviously were compiled by someone else), this presents a hearsay problem.
52
Q
- An incumbent was running for re-election as the mayor of a city. During one of his opponent’s campaign speeches, he stated that the mayor had once propositioned a prostitute. A television correspondent who was covering the election was present when the opponent made the statement. She recorded the opponent’s remark about the mayor in her notebook. In a stunning upset, the opponent defeated the mayor in the election. Many of the pollsters attributed the mayor’s loss to the question of his moral character following the opponent’s smear campaign depicting the mayor as a client of prostitutes.
Following the election, the mayor sued the opponent for defamation, basing his suit on the opponent’s statement that the mayor had “once propositioned a prostitute.” At trial, the mayor calls the television correspondent to testify concerning her recollection of what the opponent said during the campaign speech attended by the television correspondent.
The television correspondent’s testimony is
(A) admissible, because the television correspondent recorded the opponent’s statement in her business capacity.
(B) admissible, because the television correspondent had firsthand knowledge of the opponent’s statement.
(C) inadmissible, because the notebook entry is the best evidence.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (B) Where personal knowledge is offered as testimony to prove an event or statement, the best evidence rule does not apply. In other words, the television correspondent’s testimony is not “reliant” on the notes she recorded in her notebook; she’s testifying as to her own recollection. Therefore, the notebook entry is not the best evidence of the opponent’s remark. Choice (C) is incorrect. Generally, testimony descriptive of non-written transactions is not considered to be within the best evidence ruLe and may be given without producing or explaining the absence of a writing recording the fact. McCormick, p. 707. Likewise, in a defamation case, the actual “tortious words” of slander are oral acts which, by definition, are non-hearsay. Therefore, choice (D) is incorrect. Choice (A) is incorrect because, inasmuch as the opponent’s defamatory statement is non-hearsay, it cannot be admissible under the business record exception. Choice (B) is correct.
53
Q
- 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.
A
- (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.
54
Q
- A defendant is on trial for attempted murder. The alleged victim is called by the prosecution to testify. During her testimony, the victim recounted the incident and described how the defendant savagely beat her with a baseball bat. She was not asked by the prosecution whether she made any statements during the attack.
After the victim was excused and left the witness stand, the prosecution called another witness to testify. The witness proposes to testify that when the beating stopped, the victim screamed, “I’m dying. Don’t let the defendant get away with this.”
Upon objection by the defendant’s attorney, the witness’s proffered testimony is
a. admissible as an excited utterance.
b. admissible as a dying declaration.
c. inadmissible as hearsay not within any recognized exception.
d. inadmissible, because the victim was not questioned about the statement before being excused.
A
- (A) Under FRE 803 (2), an excited utterance is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The witness’s testimony of the victim’s statement, “I’m dying. Don’t let the defendant get away with this,” related to the savage beating (startling event) and was made when the beating stopped (while the victim was still under the stress of excitement). The testimony will be admissible substantively as an excited utterance. Choice (A) is correct. Clearly, the distractor answer was Choice (B). Under FRE 804 (b) (2), a dying declaration is a statement in a criminal homicide case or any civil proceeding made by the declarant while believing his death was imminent and concerning the cause or circumstances of what the declarant believed to be his impending death, provided the declarant is unavailable. First, the victim, the declarant, was not unavailable, since she testified at the trial. Second, the defendant is being charged with attempted murder, which is a non-homicide criminal case, so the federal rules do not allow for a dying declaration to be admissible in this situation. Choice (C) is wrong because the excited utterance is a recognized hearsay exception. Choice (D) is incorrect. There is no requirement that a hearsay declarant, even one who has already testified or will testify at trial, be questioned about their out-of-court statements.
55
Q
- 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.
A
- (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.
56
Q
- A shopper purchased a can of sardines, which had been produced by a fish company. A short while later at home, the shopper was preparing a sardine sandwich when she opened the can and, to her astonishment, she saw a decomposed mouse. The shopper became nauseated and vomited upon seeing the mouse.
After consulting her attorney, the shopper initiated a strict liability action against the company. At trial, the shopper presented into evidence the sardine can with the company’s label, along with other corroborating evidence. The attorney representing the company objected to the introduction of the label on the can.
The trial court should
(A) overrule the objection, because the label is self-authenticating.
(B) overrule the objection, because the label is the best evidence showing that the can was produced by the company.
(C) sustain the objection, because there is no corroborating evidence that the company placed the label on the can.
(D) sustain the objection, because the shopper’s proper cause of action is for infliction of emotional distress, not strict liability.
A
- (A) According to FRE 902(7), “inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control or design” are self-authenticating. In this regard, McCormick states that a manufacturer’s certificate affords prima fade authenticity to the contents of the product. Evidence, pg. 700. Choice (B) is wrong because the best evidence rule applies only when the proponent is attempting to prove the contents or terms of a writing. Here, the plaintiff is not trying to prove the contents of a writing (such as the terms of a contract) but rather is introducing the label as prima fade evidence that the company produced the can of sardines. Choice (C) is incorrect; there is no requirement to corroborate self-authenticating evidence. Choice CD) is wrong because the fact pattern and question pertain to an evidentiary issue and not the appropriate cause of action for the case.
57
Q
- 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.
A
- (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.
58
Q
- After being passed over for a promotion, an aeronautic engineer became a whistleblower. He contacted a government agency to state that the company for which he worked was submitting false safety reports on newly built aircraft. When the company learned that the engineer was leaking this information to the government agency, he was fired from his job.
Afterward, the engineer sued the company for wrongful termination of employment. During the discovery stage of litigation, the engineer was deposed by the company’s attorney. In his deposition, the engineer stated that the company submitted false safety reports to the government agency to cover up structural defects in its aircraft.
A pilot was injured when one of the company’s
airplanes he was piloting crashed. The pilot asserted
a strict products liability tort against the company.
At thal, the pilot seeks to introduce into evidence portions of the engineer’s deposition from his wrongful termination lawsuit against the company. Assume that the engineer is unavailable to testify at trial.
Upon objection by the company, the trial court judge should rule the engineer’s deposition testimony
(A) admissible as former testimony.
(B) admissible as a vicarious admission.
(C) inadmissible as hearsay not within any recognized exception.
(D) inadmissible, because the company did not have the opportunity to cross-examine the engineer on the liability issue for which the statement is now being offered.
A
- (A) Usually, formertestimony questions will involve the same parties where each had the opportunity to interrogate the witness at the earlier trial. In this question, we have a plaintiff (who was not party to the first suit) seeking to introduce former testimony against the same defendant. According to Lilly, “using the testimony against the same defendant, which was a party to both suits and had an opportunity at the first trial to interrogate the witness, appears to fit comfortably within the exception.” Evidence, p. 286. On the other hand, Lilly points out that if a plaintiff seeks to use all or part of the former testimony against a new defendant (who did not have an opportunity to interrogate the witness), then the testimony should be excluded. For these reasons, choice (A) is the correct answer, and choice (D) is incorrect. Choice (B) is wrong. Under FRE 801(d)(2)(D), a vicarious admission by an employee can occur only if made duringthe employment relationship. At the time of this deposition, the engineer no longer worked for the company. Choice (C) is incorrect. While the evidence is hearsay, it is admissible under a recognized hearsay exception.
59
Q
- A plaintiff was driving her car when she stopped at a red light at an intersection. A defendant, who was behind her, did not see the red light and failed to stop. He crashed into the rear of the woman’s car and pushed her onto the curb and into a tree.
When the plaintiff got out of her car, she felt fine physically, but was emotionally upset when she saw that the hood and trunk of her car were severely damaged. The next day she received an estimate from the mechanic for $1,950 to repair her car. She consulted an attorney the following afternoon and, that evening, suddenly developed shooting back pains.
The plaintiff filed a lawsuit against the defendant based on a theory of negligence. One day prior to trial, two years after the accident, the plaintiff went to take a photograph of the accident scene.
At trial, the photograph is
(A) inadmissible, if the defendant objects, because the photograph is non-verbal hearsay.
(B) inadmissible, if the defendant objects, because the photograph was taken two years after the accident.
(C) admissible, if the plaintiff identifies the photograph at trial.
(D) admissible, if the photograph correctly and accurately portrayed the accident scene.
A
- (D) As a general rule, a photograph is viewed merely as a graphic portrayal of oral testimony and becomes admissible only when a witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness. Moreover, the witness who lays the foundation need not be the photographer, but he needs to know about the facts represented or the scene photographed. Once this knowledge is revealed, the witness can testify as to whether the photograph correctly and accurately portrays these facts. Choice (A) is wrong because a photograph is not an “out-of-court statement.” Choice (B) is incorrect. The photograph would be admissible if it met the foundational elements, even over the defendant’s objection. Choice (C) is wrong because it suggests that admissibility depends only on the plaintiff’s identification of the photograph. In fact, she (or, for that matter, any other witness familiar with the location), must establish the foundational elements of “correct and accurate representation” of the location.
60
Q
- A man and a woman were involved in a car accident that occurred when the man abruptly switched lanes in front of the woman without signaling. Unable to stop, the woman hit the man’s car into a median. Immediately after the accident, as the two drivers emerged from their vehicles, a pedestrian, obviously emotional and upset from having just observed an accident, ran up to the man and shouted, “You careless driver, you. Didn’t you ever learn that you’re supposed to use a turn signal when you switch lanes?” The pedestrian is never identified and is not present at trial.
The pedestrian’s statement is
(A) admissible as non-hearsay.
(B) admissible, even though it is hearsay.
(C) admissible under the excited utterance exception.
(D) inadmissible, because the bystander cannot be identified and is not present at trial.
A
6o. (C) Under FRE 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule. The theory behind the “excited utterance” exception is simply that circumstances may produce a condition of excitement that temporarily stills the capacity of reflection and, thus, produces utterances free of conscious fabrication. Spontaneity is the key factor in determining whether the statement was, indeed, made without any conscious reflection. It is important to note here that choice (B) is not incorrect. Choice (A) is wrong. The statement would not qualify as an admission under FRE 801. Choice (D) is incorrect. If the proper foundational elements are met (as they are here), there is no requirement either to identify the declarant or produce him at trial.
61
Q
- An investor sued a corporation for stock fraud. In presenting his case-in-chief, the investor sought to introduce an issue of a newspaper to show the corporation’s stock price on that given day.
Upon objection by the corporation’s attorney, this evidence should be
(A) admitted, under the business records exception.
(B) admitted, under the market reports exception.
(C) excluded, because the newspaper copy does not fit within any established exception to the hearsay rule.
(D) excluded, because it violates the best evidence rule.
A
6i. (B) This exception encompasses “newspaper market reports, telephone directories, city directories, and mortality and annuity tables used by life insurance companies.”
Federal Rules of Evidence 803 (17). The basis of trustworthiness is general reliance by the public, or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate. Choice (A) is not the best answer because business records contemplate the existence of “both an informer who supplies the information from personal knowledge and an entrant-recorder who makes the written entry in the regular course of the business activity.” This, obviously, is not the case with the publication of newspaper market prices. Choice (C) is wrong for the same reasons that choice (B) is the correct answer. Choice CD) is incorrect. The best evidence rule applies when the contents of a document (in other words, what the document actually said) are at issue, which does not appear to be the case here.
62
Q
- 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.
A
- (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.
63
Q
- 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.
A
- (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.
64
Q
- 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.
A
- (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.
65
Q
- A famous comedian was acting as guest host of a popular late-night television talk show. Also appearing on the show was a professional football player. During the course of the television show, the comedian continually referred to the player as a “bench warmer.” Angered by the comedian’s insults, the player told him on the telecast, “Listen, I am a starter, not a bench warmer.”
The football player sued the comedian for slander. At trial, the football player calls a witness who saw the show in question to describe what he had heard on the broadcast. The comedian’s attorney objects, claiming that the witness’s testimony would be hearsay.
The trial judge should
(A) sustain the objection, because the witness’s testimony is not the best evidence.
(B) sustain the objection, because the witness does not have firsthand knowledge whether the comedian was reading from a script.
(C) overrule the objection, because defamatory statements aren’t hearsay.
(D) overrule the objection, because the witness is qualified to render a lay opinion as to what he heard.
A
- (C) The hearsay rule forbids evidence of out-of-court assertions to prove the facts asserted in them. Clearly, proof of utterances and writings may be made with an almost infinite variety of other purposes, not resting for their value upon the veracity of the out-of-court declarant and, hence, falling outside the hearsay classification. A few of the more common types of non-hearsay utterances include (1) verbal acts, (2) utterances and writings offered to show effect on hearer or reader, (3) declarations offered to show circumstantially the feelings or state of mind of the decLarant, and (4) knowLedge. Choice (C) is correct because (a) defamation, (b) slander, and (c) deceit are admissible as non-hearsay verbal acts. Choice (A) is incorrect because it misstates the best evidence rule, which applies only when the contents of documents, photographs, or recordings are in dispute. Choice (B) is irrelevant to the issue and, therefore, incorrect. Choice (D) is also wrong. The witness is not rendering an opinion, but rather testifying about something he personally heard and observed.
66
Q
- A college student and a man got into a fight at a bar while playing pooi. The college student allegedly started the fight when he struck the man in the head with a pool cue after the man sank a game-winning shot. At the college student’s trial for assault, the prosecution called one of the college student’s classmates to testify. The classmate was not at the bar during the fight. The classmate offered to testify that the next day at class, he approached the college student and said, “It was wrong of you to start a fight with the man over a game of pool,” at which point, the college student bowed his head and walked away.
The classmate’s testimony is
(A) admissible as part of the res gestae.
(B) admissible as an admission.
(C) inadmissible as hearsay not within any recognized exception.
(D) inadmissible as self-serving.
A
- (B) If a statement is made by a person in the presence of a party to the action, containing assertions of facts which, if untrue, the party would, under all circumstances, naturally be expected to deny, his failure to speak has traditionally been receivable against him as an admission. See Wigmore, Evidence, Section 1071. Choice (A) is wrong because a conversation the day after an incident is not part of the incident’s res gestae. Choice (C) is also incorrect. By definition, an admission is not hearsay under FRE 801(d)(2). Finally, choice (D) is incorrect. The critical aspect of this fact pattern is the college student’s admission by failure to respond to the classmate, not the classmate’s motives for asking the question or testifying at trial.
67
Q
- While a ski lift was ascending the mountain, the overhead cable broke, dropping a skier 15 feet to the ground. The skier suffered a broken pelvis on account of the fall. Thereafter, the skier sued the ski resort alleging negligent maintenance of the ski lift machinery.
The ski resort’s skier’s attorney took a discovery deposition of a witness who was seated behind the skier at the time of the accident. The witness died shortly after the deposition. At trial, the skier offers the witness’s deposition testimony into evidence.
Upon objection by the ski resort’s attorney, the deposition is
(A) admissible as former testimony.
(B) admissible, provided that the witness’s statements are more probative on the point than any other evidence the skier can procure through reasonable efforts and that the skier has given the ski resort reasonable notice that she would offer the deposition.
(C) inadmissible, because it violates the ski resort’s right to confront the witnesses against itself.
(D) inadmissible, because it is hearsay not within any recognized exception.
A
- (A) Former testimony is defined under FRE 804(b) as “Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law. In the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” . . . if the declarant is unavailable as a witness. Choice (A) is correct because the ski resort, the party against whom the deposition is being offered, deposed the deceased (i.e., unavailable) declarant, the witness. At that time, the ski resort had the opportunity to examine the witness, thereby satisfying the requirements for admissibility of former testimony. Choice (B) is incorrect because the former testimony exception does apply. Choice (C) is incorrect because a defendant’s right to confrontation allows an accused in a criminal case the right to effectively confront and cross-examine those who testify against him at trial. Choice (D) is incorrect because the statement is hearsay within a recognized exception.
68
Q
- 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.
A
- (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.
69
Q
- A testator died and through his will gave his entire estate to charity, but the gift failed because the will was executed 10 days prior to the testator’s death. A man then filed a claim against the estate, alleging that he was the son and heir of the testator. At the trial on the man’s claim, the man was unable to produce any proof of a ceremonial marriage, but established the following by undisputed evidence: (a) that his mother and the testator had cohabited for a number of years; and (b) that his mother had predeceased the testator by one day. Assume that this jurisdiction has a relevant Dead Man’s Statute in effect.
At trial, the man’s attorney called a clerk at a winter resort hotel. The clerk testified that the testator and the man’s mother had come to the hotel for many years and he often saw the testator sign the hotel register as “Mr. and Mrs. Testator.”
The trial court should rule the clerk’s testimony
(A) admissible, because the clerk had personal knowledge of the matter.
(B) admissible as a pedigree exception to the hearsay rule.
(C) inadmissible, because the clerk’s testimony is not the best evidence.
(D) inadmissible, under the Dead Man’s Statute.
A
- (A) The clerk’s testimony would be deemed admissible, since he had personal knowledge of the fact that the testator signed the hotel register as “Mr. and Mrs. Testator.” The clerk actually observed the testator signing the hotel register. Choice (B) is wrong because the pedigree exception covers community reputation of a person’s pedigree. In this case, the clerk is offering direct evidence, not reputation evidence, that the testator signed the hotel register in a particular way. Choice (C) is also wrong. The best evidence rule is applicable only where the terms or contents of a writing/document are in issue. Here, the terms of the hoteL registry are not in issue; the man is trying to prove that he is the testator’s son and heir to his estate. Moreover, in accordance with McCormick, Law of Evidence, Second Edition, Section 233, testimony descriptive of non-written transactions is not generaLly considered to be within the scope of the present rule and may be given without producing or explaining the absence of a writing recording the facts, such as evidence of a marriage, without production of the marriage certificate. Choice (D) is incorrect and somewhat misleading. Dead Man’s Statutes prohibit claimants to an estate from testifying about conversations they had with the decedent. In this case, the clerk is not a claimant to the estate.
70
Q
- A year ago, a very wealthy man died in a car accident. A woman, whose mother worked as a secretary to the wealthy man for years, filed a claim against the estate, alleging that she was the wealthy man’s daughter. At trial, the woman’s attorney called the wealthy man’s butler to testify. The butler testified that it was Common knowledge in the household that the wealthy man and the woman’s mother were having an affair. The butler also testified that the wealthy man had often confided in him and told him shortly after the woman’s birth that the woman was the wealthy man’s daughter.
Upon objection by the attorney for the executor of the wealthy man’s estate, the court will most likely
a. sustain the objection bc butler’s testimony would be violative of hearsay rule.
b. sustain, bc butler’s testimony would be violative of Dead man’s statute.
(C) overrule the objection because the butler’s testimony would be relevant to the ultimate issue in the case.
(D) overrule objection because the butler’s testimony would qualify under the pedigree exception to the hearsay rule.
A
- (D) Under FRE 803 (19), the butler’s testimony would be admitted under the pedigree exception to the hearsay rule as “reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.” Choice (A) is wrong. Even though the evidence is hearsay, it satisfies a recognized hearsay exception. Choice (B) is incorrect because the butler is not a claimant to the estate and, therefore, is not prohibited by a Dead Man’s Statute from testifying about conversations with the decedent. Choice (C) is a good answer, but the wrong choice. The butler’s testimony is, indeed, relevant to the ultimate issue in the case. Choice (D) is a better choice than choice (C) because it specifically addresses the hearsay issues raised by the use of this evidence.
