MBE Questions Flashcards
The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He callsa witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man.
Which of the following, if offered by the prosecution, would most likely be admissible?
(A) A neighbor’s testimony that the witness has beaten his wife on several occasions.
(B) A police officer’s testimony that the defendant has a general reputation in the community as a violent person.
(C) A neighbor’s testimony that the defendant has a reputation for being untruthful.
(D) Evidence that the defendant has a conviction for aggravated battery.
(B) A police officer’s testimony that the defendant has a general reputation in the community as a violent person.
Criminal = Reputation, Opinion ONLY
1) Did D open the door? YES
2) Is the character trait relevant? YES (violence)
The defendant put his character of nonviolence at issue by having his witness testify to the defendant’s nonviolent nature, which is relevant to whether he committed the crime charged.
Note: The D’s reputation for truthfulness is not relevant to whether he has committed the crime for which
he is charged. (And because the defendant has not placed his credibility in issue by taking the stand as a witness, his reputation for truthfulness cannot be offered for impeachment purposes.)
A lawyer represented a sole proprietor in a federal income tax refund case in U.S. district court in which the sole proprietor was claiming certain additional business expense deductions based on sales expenses that had inadvertently been left off of his tax return for the year.
What is most likely protected from admission into evidence under the attorney-client
A) An employment contract between the sole proprietor and a salesperson drafted by the lawyer.
B) Sales records created by the sole proprietor, and provided to the lawyer to enable the lawyer to prepare for the litigation.
C) A letter sent to the lawyer by the sole proprietor detailing business expenses.
D) The sole proprietor’s tax return for the tax year in question, which was prepared by the lawyer.
A letter sent to the lawyer by the sole proprietor detailing business expenses.
The letter is a communication by a client to his attorney about a matter under litigation.
Note: The letter protected by the attorney-client privilege, the information contained in the letter, i.e., the sole proprietor’s business expenses, is not protected by this privilege
Note: B is incorrect because, even though the records were provided by the client to the lawyer and pertained to the legal matter at hand, the records were not prepared in order to obtain legal advice.
A telecommunications company retained a lawyer to represent it in a commercial dispute in which it was the plaintiff. The fee agreement provided that the lawyer would bill the company on an hourly basis but would not collect anything except costs “unless and until the telecommunications company received a recovery or settlement in the action.”
Due to disagreements with the lawyer’s strategy for the trial, the telecommunications company discharged the lawyer and hired a new law firm on a contingency basis to represent it in the case. The company was ultimately awarded a large judgment.
The original lawyer sued the company for her uncollected fees. The company denied owing the lawyer anything, asserting that no money was due yet because the judgment had not actually been collected. The lawyer wants to introduce evidence that the judgment has been collected by showing disbursements from the new law firm’s trust account to the telecommunications company.
Is this evidence admissible?
A) No, because the evidence is protected by the attorney-client privilege.
B) No, because the evidence is irrelevant.
C) Yes, because the evidence does not constitute a confidential communication covered by the attorney-client privilege.
D) Yes, because the attorney-client privilege does not apply to disputes between the client and the attorney.
C) Yes, because the evidence does not constitute a confidential communication covered by the attorney-client privilege.
The attorney-client privilege prevents anyone from testifying about confidential communications made to an attorney for the purpose of obtaining legal services.
BUT the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.
Note: Although there is an exception to attorney-client privilege when there is a dispute between the attorney and the client, the dispute at issue is between the company and the original lawyer, not the company and the law firm that made this disbursement. Moreover, the payments made out of the trust account were not communications made for the purpose of obtaining representation, and are therefore not covered by this privilege.
A governmental inspector of a construction project was struck and injured by a truck. The inspector brought a negligence action against the construction firm, alleging that the driver of the truck was an employee of the firm. At trial, the head of the construction firm testified that the truck driver was an independent contractor. The inspector’s lawyer, in cross-examining the head of the construction firm, sought to ask whether the construction firm had purchased liability insurance for the truck.
Can the judge permit this question over the objection of the lawyer for the construction firm?
A) No, because evidence of liability insurance is inadmissible in a negligence action.
B) No, because whether the construction firm had liability insurance can only be proved by extrinsic evidence.
C) Yes, because evidence of liability insurance is subject to disclosure during discovery under the Federal Rules of Civil Procedure.
D) Yes, because the evidence tends to show that the truck driver was an employee of the construction firm.
D) Yes, because the evidence tends to show that the truck driver was an employee of the construction firm.
Other purpose: proving control
A plaintiff sued a defendant for injuries he suffered while shaving with a razor manufactured by the defendant. The plaintiff alleged that the razor was defectively designed. The plaintiff’s expert witness testified that the manufacturer should have used certain safeguards in the razor’s design that would have made the razor safer. In his testimony, the defendant did not deny that the safeguards urged by the plaintiff’s expert were feasible, but he argued that they were unnecessary and that the razor was not defectively designed. The plaintiff seeks to cross-examine the defendant about a safety modification the defendant has made to the razor since the plaintiff’s injury.
For which of the following substantive purposes may evidence of this modification be used?
A) Both to prove that the razor was defectively designed and to prove that the safeguards described by the expert were feasible.
B) Only to prove that the razor was defectively designed.
C) Only to prove that the safeguards described by the expert were feasible.
D) Neither to prove that the razor was defectively designed nor to prove that the safeguards described by the expert were feasible.
D) Neither to prove that the razor was defectively designed nor to prove that the safeguards described by the expert were feasible.
Plaintiff may not introduce evidence of remedial measure – feasibility unless the feasibility of such measures is disputed
A woman took out a loan from a large bank in order to start a new business. After she missed several payments, the bank sued the woman to collect the outstanding balance. In pre-trial settlement negotiations, the woman explained that she was unable to make the payments because her business was struggling. She noted that she should have listened to her boyfriend, who believed that debt would be the downfall of the country and that people should do whatever necessary to destroy big banks.
The parties eventually reached a compromise whereby the bank would extend the time to repay the loan, but would retain the right to sue under the original terms if the woman missed any payments. When the woman failed to make the payments, the bank properly reinstituted its suit against the woman.
At trial, the woman claimed that the loan contract was invalid because she was heavily medicated at the time she made the contract, and was thus incompetent. The woman has called her boyfriend to the stand to testify to these facts. The bank seeks to introduce the woman’s statements about her boyfriend made during the earlier settlement negotiations.
Are the woman’s statements about her boyfriend likely to be admitted?
A) No, because the statements were made during settlement negotiations.
B) No, because the statements are inadmissible hearsay.
C) Yes, because the statements prove bias or prejudice of a witness.
D) because the negotiations at issue resulted in a settlement agreement.
C) Yes, because the statements prove bias or prejudice of a witness.
Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim. Such statements may be admitted for other purposes, however, such as to prove the bias or prejudice of a witness. In this case, the bank intends to introduce the woman’s statements about her boyfriend to show his bias against banks. Accordingly, they are admissible even though they were made during a settlement negotiation.
A customer sued a home improvement store for damages due to an alleged back injury that occurred when an employee driving a forklift backed into the unsuspecting customer who was facing the opposite direction. The store asserted that the forklift accident had not caused the customer’s injury. At trial, the customer seeks to introduce an affidavit of a physician, who has since died, that she examined the customer the day after the incident and concluded that the customer had suffered a back injury within the past 36 hours. Is this affidavit admissible?
A) No, because of the physician-patient privilege.
B) No, because it is inadmissible hearsay.
C) Yes, because it is recorded former testimony.
D) Yes, because it is a statement regarding a present physical condition.
B) No, because it is inadmissible hearsay.
Out of court statement? Yes
Used for the truth of the matter asserted? Yes
Is it hearsay (exemptions)? No
Exceptions? No
Note: * statement was not made by the customer about his own physical condition but by the physician – medical treatment exception does not apply
In a murder trial, the prosecutor planned to call an eyewitness to the stand to testify that he saw the defendant kill the victim. However, the witness recently suffered a severe head injury that seriously affected his memory. The witness can no longer remember witnessing the murder. Prior to the witness’s injury, he testified to what he saw before the grand jury.
The prosecutor would like to introduce the witness’s grand jury testimony as substantive evidence that the defendant committed the murder. The defendant objects to the introduction of the evidence. Should the court admit the witness’s grand jury testimony into evidence?
A) Yes, because the witness is unavailable to testify.
B) if used to refresh the witness’s recollection.
C) No, because the witness does not meet the “unavailability” standard.
D) No, because the former testimony exception does not apply to these facts.
D) No, because the former testimony exception does not apply to these facts.
Although the witness is “unavailable” for the purposes of the hearsay rules (as will be discussed below), and there is a “former testimony” exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony.
Note that this WOULD be OK for prior inconsistent statement, but that’s not happening here.
A defendant was sued in civil court for assault. The defendant, as his first witness in his case in chief, called a friend to testify that, on the day before the day in question, the defendant had told her that he was leaving town that afternoon to drive across the country.
Is this testimony admissible to show that the defendant was not in town when the assault allegedly occurred?
A) Yes, because the defendant is available to testify.
B) Yes, because it is a declaration of the defendant’s present mental state.
C) No, because it is hearsay.
D) No, because the witness is biased.
B) Yes, because it is a declaration of the defendant’s present mental state.
A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Consequently, the defendant’s statement to his friend may be introduced into evidence to show that the defendant was not in town when the assault allegedly occurred.
A woman and her sister walked into the woman’s house. The woman went into her bedroom to say hello to her husband, while the sister waited in the other room. As soon as the woman walked into the bedroom, her sister heard her exclaim, “Where did you get all that money? There must be several thousand dollars on this dresser!” The woman came out of her bedroom shortly thereafter, and told her sister that the sister should leave immediately. That night, the woman called her sister and told her that her husband had robbed a bank. The husband was later arrested for bank robbery. At trial, the woman refused to testify against her husband, and the prosecution called the sister as a witness. The sister testified that the woman had said there was several thousand dollars on the dresser, and that the woman called her to tell her that the husband had robbed a bank. The husband objected to both pieces of testimony.
How should the judge rule regarding the sister’s testimony?
A) The judge should admit both pieces of testimony.
B) The judge should admit the testimony regarding the woman’s statement about the money on the dresser only.
C) The judge should admit the testimony regarding the woman’s statement about her husband robbing a bank only.
D) The judge should exclude both pieces of testimony.
B) The judge should admit the testimony regarding the woman’s statement about the money on the dresser only.
Excited Utterance/Present Sense Impression: woman made the statement immediately upon noticing the money on the dresser.
No exception for the later phone call.
A defendant was on trial for having committed a murder in 1995. Taking the stand, the defendant denied being present in the city where the murder occurred at the time of the killing. The prosecution sought to admit into evidence a copy of the local newspaper published the day after the killing. The newspaper contained an article in which the defendant was quoted as stating that he had heard shots on the day of the murder from inside his apartment. The defendant objected to the introduction of this evidence. Should the judge admit the newspaper article into evidence?
A) Yes, both to impeach the defendant’s credibility and to prove that he was in the city on the day of the murder.
B) Yes, but only for the purposes of impeaching the defendant’s credibility.
C) No, because the article is hearsay not within any exception.
D) No, because the article was not properly authenticated.
A) Yes, both to impeach the defendant’s credibility and to prove that he was in the city on the day of the murder.
Is it hearsay? No, inconsistent statement and opposing party statement
Newspaper exception: Ancient document
quote exception
In the prosecution of a defendant for murder, the state seeks to qualify a forensic analyst as an expert in order to have her testify as to her professional opinion of the crime scene. The defense has objected on the ground of inadequate qualifications. The prosecution now seeks to introduce a letter written by the editor-in-chief of a well-respected academic journal of forensic science, stating that the forensic analyst has published a number of well-reviewed papers on the subject of crime-scene analysis and is generally acknowledged in her field as very qualified.
On the issue of the forensic analyst’s qualifications, may the judge consider the editor’s letter?
A) Yes, because the letter is not hearsay.
B) Yes, because the judge may consider the letter without regard for the hearsay rule.
C) No, because the letter is hearsay not within any exception.
D) No, because it is the role of the jury to determine the credibility of the evidence of the forensic analyst’s qualifications.
B) Yes, because the judge may consider the letter without regard for the hearsay rule.
Whether a witness is qualified to offer expert opinion testimony is a preliminary question for the court—not the jury. The court is not bound by the rules of evidence when determining such questions.
A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property. A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen. On cross-examination, the prosecutor asked the defendant, “Didn’t you also previously buy a stolen stereo from the same man who sold you this television?” The defendant’s attorney immediately objected.
What is the strongest basis for the defense attorney’s objection?
A) The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
B) The prosecutor’s question was irrelevant because it does not establish an element that the prosecutor must prove.
C) The relevance of the prosecutor’s question depends upon whether the defendant knew the stereo was stolen, and the prosecutor has not offered sufficient proof to support that finding.
D) The risk of unfair prejudice is not substantially outweighed by the probative value of the prosecutor’s question.
A) The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
A court may exclude relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence.
Note: An FRE 403 objection requires that the court decide if the proffered evidence’s probative value is substantially outweighed by one of the above-listed dangers—not vice versa.
In his criminal trial for battery, a defendant sought to introduce evidence of his peaceful character. He had met the leader of a local animal rights group once during a recent animal rights demonstration in front of the mayor’s office, during which the defendant succeeded in calming down an angry group of protestors. The defendant planned to ask the group leader to testify about this incident to the jury. The prosecution objected to the introduction of this evidence.
How should the court rule on the objection?
A) Sustain the objection, because this testimony constitutes an inappropriate use of character evidence.
B) Sustain the objection, because the leader of the animal rights group only met the defendant once.
C) Overrule the objection, because the defendant may introduce evidence of his good character if relevant to the crime charged.
D) Overrule the objection, because specific acts are admissible in criminal cases if introduced by the defendant.
A) Sustain the objection, because this testimony constitutes an inappropriate use of character evidence.
A criminal defendant may introduce evidence that his/her character is inconsistent with the crime charged. But the defendant may only do so through reputation or opinion testimony—not specific acts of conduct.
A politician on trial for the misdemeanor assault and battery of a reporter asserts that the reporter started the altercation by shouting questions in his face and shoving him. At trial, the politician did not take the stand and did not introduce evidence of his own character, but he did call the reporter’s neighbor to testify that the reporter has a reputation among neighbors for violent outbursts. After the neighbor testified, the prosecution moved to introduce testimony by a community leader that the politician has a reputation for violence in the community as evidence that the politician started the altercation.
Is the prosecution’s evidence regarding the politician’s reputation admissible?
A) No, because the politician did not “open the door” to the introduction of evidence of his bad character by introducing evidence of his own good character.
B) No, because the politician’s character is not at issue, as he did not testify.
C) Yes, because the politician “opened the door” to the evidence of his bad character for violence by introducing evidence of the reporter’s character for violence.
D) Yes, because violence is an essential element of battery.
C) Yes, because the politician “opened the door” to the evidence of his bad character for violence by introducing evidence of the reporter’s character for violence.
A criminal defendant opens the door for the prosecution to introduce evidence of the defendant’s bad character by introducing:
(1) evidence of his/her own good character for a trait pertinent to the charged crime or
(2) evidence of the alleged victim’s bad character.
A defendant was charged with battery following a bar fight with his neighbor. At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense. In addition to testifying about the event in question, he sought to testify that the preceding night, he and a coworker had gone out for a drink at the same bar, and that the evening had passed peacefully. Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak. After testifying, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person. Following testimony introduced by the prosecution that impeached the defendant’s truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual.
Which of the proffered testimony is most likely to be successfully challenged by the prosecution?
A) The testimony of the lifelong acquaintance of the neighbor regarding the neighbor’s violent streak.
B) The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
C) The testimony of the defendant’s pastor as to the defendant’s reputation as a nonviolent person.
D) The testimony of the defendant’s employer that the defendant was a truthful individual.
B) The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.
A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through reputation or opinion testimony—not specific instances of conduct.
A defendant was charged with burglary. One of the key pieces of evidence in the case was a note left by the burglar that read, “It’s just 2 easy.” At trial, the defendant testified in his defense, asserting that he did not commit the crime. On cross-examination, the prosecutor, having a proper factual basis, asked the defendant if he had been convicted of felony burglary five years ago after having left a note at the crime scene that read, “It’s just 2 easy.” The defendant’s attorney, having received proper notice from the prosecutor regarding use of the prior conviction, objected to the prosecutor’s question as seeking to elicit improper criminal-propensity evidence. The court, after determining that the probative value of this evidence and its prejudicial effects were equal, overruled the objection and instructed the defendant to answer the question.
Has the court acted properly?
A) No, because evidence of the defendant’s prior conviction constitutes improper criminal-propensity evidence.
B) No, because the court did not find that the probative value of the conviction outweighed its prejudicial effects.
C) Yes, because the defendant may be impeached by a prior conviction of burglary within the last 10 years.
D) Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.
D) Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.
Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
A defendant was charged with aggravated assault arising from an altercation following a car accident. The defendant called a witness who testified that, in his opinion, the defendant was a nonviolent person. On cross-examination, the prosecutor asked the witness whether he was aware that the defendant had been involved in a bar fight during the past year. Although the defendant was actually involved in such a fight, the prosecutor herself was not aware of the incident, as the defendant had not been arrested or charged. However, the prosecutor had witnessed the defendant’s short temper during her interactions with the defendant and knew that he was a drinker. As it happened, the witness was aware of the defendant’s involvement in the fight.
Should the court require the witness to answer the prosecutor’s question?
A) Yes, because the witness’s knowledge of defendant’s past behavior goes to the witness’s credibility.
B) Yes, as a specific instance of the defendant’s conduct.
C) No, because the defendant was not arrested or charged in connection with the bar fight.
D) No, because the prosecution did not know the defendant had been involved in a bar fight.
D) No, because the prosecution did not know the defendant had been involved in a bar fight.
A criminal defendant may call a witness to testify that the defendant’s character is inconsistent with the charged crime.
The prosecution may then
(1) ask the witness about a specific act committed by the defendant or
(2) call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.
Here, the prosecutor asked the defendant’s character witness about a bar fight (specific act) the defendant had within the past year. This question would affect the witness’s credibility because it raises a doubt about the witness’s opinion that the defendant was a nonviolent person. But since the prosecution did not know the defendant had been involved in a bar fight, she asked the question on a hunch. Therefore, the question was not asked in good faith, and the court should not require the witness to answer it
A defendant was charged with assault. Upon learning that the defendant intended to testify in his own defense, the government gave the defense proper notice of its intent to introduce as impeachment evidence the defendant’s conviction for embezzlement nine years prior. The defense filed a motion to exclude all evidence of the defendant’s conviction, arguing that it would prejudice the defendant. In a pretrial hearing, the judge noted that the conviction would likely have little prejudicial effect.
Is the judge likely to grant the defendant’s motion?
A) No, because the conviction relates to a crime involving dishonesty and occurred within the last 10 years.
B) No, because the probative value of such a conviction outweighs its prejudicial effect.
C) Yes, because a prior conviction may not be used to impeach a defendant who testifies in his own defense.
D) Yes, because the conviction for embezzlement is not probative in determining whether the defendant committed an assault.
A) No, because the conviction relates to a crime involving dishonesty and occurred within the last 10 years.
Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.
Note: The embezzlement conviction is not probative in determining whether the defendant committed an assault. But the conviction may still be used to impeach the defendant’s character for truthfulness
A defendant is on trial for bank robbery. In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller on her first day of work. The teller testified that the note presented to her on the witness stand was the note that she had received from the robber. The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the defendant, who was a bank customer, based on her comparison of the note with 10 customer signature cards, including the defendant’s, presented to her by the prosecutor after the robbery.
Is the teller’s testimony that the handwriting on the note matches that on the defendant’s customer signature card admissible?
A) No, because a lay witness may not testify as to whether a document is in a person’s handwriting.
B) No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
C) Yes, because the process was not unduly suggestive since the prosecutor presented the teller with 10 customer signature cards.
D) Yes, because a lay witness may testify as to whether a document is in a person’s handwriting.
B) No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
A lay witness with personal knowledge of a claimed author’s handwriting may testify as to whether a document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.
A defendant was charged with fraud in connection with the sale of nutritional supplements. The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements. In fact, the defendant had no medical training. The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician. The sole issue in dispute is whether the defendant made such representations.
At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant. The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the ground that the prosecution was required to introduce an original contract under the best evidence rule. The court sustained the defendant’s objection.
Did the court err in making its ruling?
A) Yes, because the best evidence rule allows for the introduction of an original or duplicate document.
B) Yes, because the best evidence rule is not implicated in this case.
C) No, because the best evidence rule applies to a document that has a legal effect, such as a contract.
D) No, because a photocopy is not admissible when the absence of the original is not explained.
B) Yes, because the best evidence rule is not implicated in this case.
*Duplicates are admissible unless original’s authenticity is questioned or it would be unfair to admit them.
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the contents of the document are at issue.
A boat owner initiated a products liability action against the manufacturer of the boat’s engine. The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine and that improper operation of the switch caused the owner’s injuries. The boat owner offered evidence that the manufacturer had begun including a written warning about the switch for all boats manufactured beginning in the year after the owner’s boat was manufactured. The owner had owned his boat for five years prior to his injury.
Is this evidence admissible?
A) No, because evidence of the manufacturer’s warning is inadmissible as a remedial measure.
B) No, because the remedial-measures exclusion is limited to negligence cases.
C) Yes, because the manufacturer began providing the warning before the boat owner’s accident.
D) Yes, because evidence of the need for a warning is not subject to the remedial-measures exclusion.
C) Yes, because the manufacturer began providing the warning before the boat owner’s accident.
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
Two officers, a veteran and a novice, brought an experienced drug-sniffing dog on patrol one evening. They properly pulled over a driver on a bridge for erratic driving, and the veteran waited in the car to let the novice handle the stop. As the novice officer questioned the driver through the driver’s window, the dog circled the car and began barking and pawing desperately at the passenger-side door. The novice officer noticed that the driver had a package sitting on his passenger seat. When asked about the package, the driver responded that it was just meat from a butcher shop. As the novice officer stepped away from the window to write a ticket, the driver grabbed the package and threw it out of the passenger window and over the railing of the bridge. The dog immediately stopped barking. The veteran officer saw the whole event.
Assuming that the parties stipulate that the veteran is an expert in the training and reactions of drug-sniffing dogs, is the veteran officer’s testimony describing the dog’s reactions to the package admissible in a trial of the driver for possession of illegal drugs?
A) No, because the dog’s behavior was assertive conduct, making it hearsay not within any exception.
B) No, because the dog’s presence at the stop resulted in an improper search.
C) Yes, as evidence that the package contained illegal drugs.
D) Yes, because evidence generated by a machine or animal falls under an exception to the hearsay rule.
C) Yes, as evidence that the package contained illegal drugs.
The rule against hearsay bars the admission of an out-of-court statement made by a person—not a machine or animal—that is offered to prove the truth of the matter asserted therein.
Here, the prosecutor seeks to introduce the veteran officer’s testimony describing the dog’s reactions to the package. Although the dog’s behavior was assertive conduct, the veteran officer’s testimony does not implicate the hearsay rule because it relates to evidence generated by an animal
A witness to an armed robbery identified a suspect in a proper police lineup that was not attended by the suspect’s attorney. Charges were brought against the suspect, but the witness, a tourist from out of the country, had returned to her home country before the trial began. At trial, the prosecutor seeks to introduce the witness’s prior statement of identification into evidence. The defendant objects to the introduction of the evidence.
Should the court allow the prior statement of identification into evidence?
A) Yes, because it is admissible as nonhearsay.
B) Yes, because the witness is unavailable, so the statement of identification falls under a hearsay exception.
C) No, because the defendant’s attorney was not present at the identification.
D) No, because the witness is unavailable.
D) No, because the witness is unavailable.
A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.
Here, the witness’s statement identifies the defendant as someone the witness perceived earlier. But since the witness returned to her home country before trial, she is unavailable to testify and is not subject to cross-examination about her statement.
In a criminal trial for arson, a prosecution witness testifies under oath that she saw the defendant set fire to the victim’s home. The defendant’s attorney does not cross-examine the witness but seeks to introduce testimony that the witness gave at a deposition several months before the trial. At the deposition, the witness testified under oath that she did not see the defendant set fire to the victim’s home.
Should the court admit the deposition testimony?
A) The court should admit the witness’s deposition testimony for impeachment purposes but not as substantive evidence.
B) The court should admit the witness’s deposition testimony for impeachment purposes and as substantive evidence.
C) The court should not admit the witness’s deposition testimony because the defendant’s attorney did not allow the witness the chance to explain her inconsistent testimony.
D) The court should not admit the witness’s deposition testimony because it is hearsay.
B) The court should admit the witness’s deposition testimony for impeachment purposes and as substantive evidence.
A prior inconsistent statement is admissible nonhearsay if
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and
(2) the declarant testifies and is subject to cross-examination.
It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about the statement.
Here, the witness’s prior inconsistent statement—that she did not see the defendant set fire to the victim’s home—was given under penalty of perjury at a deposition. And since the witness testified and was subject to cross-examination at trial, her deposition testimony is admissible nonhearsay and can be used as substantive evidence
A defendant is acquitted of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim’s family members object to the introduction of the judgment.
May the defendant introduce the copy of the final judgment from his criminal case?
A) No, because a judgment in a criminal case is inadmissible in a subsequent civil action.
B) No, because the judgment is inadmissible hearsay.
C) Yes, because the copy of the judgment satisfies the original document rule.
D) Yes, because the level of proof in a civil action is less than that in the murder case.
B) No, because the judgment is inadmissible hearsay.
Hearsay: One exception exists for judgments of conviction. However, no such exception exists for judgments of acquittal
A defendant was charged with and tried for a crime. During the presentation of its case-in-chief, the prosecution introduced an inculpatory statement made by the defendant in an email regarding the commission of the crime. The defendant requested the immediate introduction of a subsequent related email sent by the defendant that contained an exculpatory statement. The defendant established that fairness requires that the two statements be considered at the same time.
Should the court honor the defendant’s request?
A) No, because the exculpatory statement was not made at the same time as the inculpatory statement.
B) No, because the statement the defendant seeks to introduce is exculpatory.
C) Yes, as a matter of judicial notice.
D) Yes, because fairness requires that the two statements be considered at the same time.
D) Yes, because fairness requires that the two statements be considered at the same time.
Rule of completeness = a party may introduce any part of a previously admitted writing or recorded statement, or any other writing or recorded statement, that in fairness should be considered at the same time
Note: The rule of completeness does not require that the responding writing or recorded statement be part of or made at the same time as the previously admitted statement.
A plaintiff sued a defendant under a disabilities discrimination statute, alleging that the defendant refused to hire the plaintiff because of her physical disability. The defendant has asserted that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant sought to testify that the plaintiff’s former employer advised him not to hire the plaintiff because she was unable to work productively for more than three hours each day.
Is the defendant’s testimony admissible?
A) No, because the defendant’s opinion of the plaintiff’s abilities is not based on personal knowledge.
B) No, because the former employer’s statement is hearsay not within any exception.
C) Yes, as evidence of the defendant’s reason for refusing to hire the plaintiff.
D) Yes, as evidence that the plaintiff would be unable to work longer than three hours each day.
C) Yes, as evidence of the defendant’s reason for refusing to hire the plaintiff.
Non-hearsay purpose: effect on the listener. Even if the former employer’s statements were not true, they had an effect on the defendant.
A plaintiff sued a defendant for libel after the defendant published an article on his website calling the plaintiff an adulterer. At trial, the defendant’s attorney called the plaintiff’s wife, who testified that on two separate occasions, the wife had found the plaintiff in a hotel with another woman. The plaintiff objected to the wife’s testimony.
Should the court sustain the plaintiff’s objection?
A) No, because character may be proven by specific instances of conduct in civil cases.
B) No, because the plaintiff’s infidelity is directly at issue in the trial.
C) Yes, because the wife’s testimony is barred by spousal privilege.
D) Yes, because the wife’s testimony is improper character evidence.
B) No, because the plaintiff’s infidelity is directly at issue in the trial.
Character evidence is admissible if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense.
While driving through her neighborhood, a woman was involved in a car accident with her neighbor. The neighbor alleged that the woman failed to stop at a stop sign. The neighbor brought an action for negligence against the woman. At trial, the woman intends to call a witness to testify that the woman stops at the stop sign each time she encounters it. The witness is the woman’s coworker and frequently carpools with the woman to work, driving on a route with the same stop sign. However, the witness was not present for the accident with the neighbor.
Should the court admit the witness’s testimony?
A) No, because the testimony is improper character evidence.
B) No, because the witness did not observe the accident.
C) Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.
D) Yes, because the woman’s character for careful driving is an essential element of her defense.
C) Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.
Evidence of a person’s habit is admissible to prove that the person acted in accordance with that habit on a particular occasion.
Note: A witness who is familiar with the person—and his/her habit—may testify to prove the existence of that habit The witness need not have been present at the event in question to do so
The driver of a car was involved in an accident with a bicyclist. The bicyclist died as a result of his injuries, and the state has brought a vehicular manslaughter case against the driver, alleging that the driver caused the accident when he failed to stop at a red light. At trial, the driver calls his friend, who was not present at the scene of the accident, as a witness. The friend plans to testify that he knows that the driver is a safe driver, and that the driver could not have failed to stop at a red light on the day of the accident. The prosecution objects, seeking to exclude the friend’s testimony.
Which of the following is the best basis for the prosecution’s objection?
A) The friend is biased in favor of the driver.
B) The friend is not an expert on the issue of traffic accidents.
C) The friend lacks personal knowledge of the accident.
D) The friend’s testimony offers character evidence in a criminal case.
D) The friend’s testimony offers character evidence in a criminal case.
A lay witness may testify to any relevant matter of which he/she has personal knowledge.
This requires that the witness
(1) perceived the matter firsthand and
(2) have a present recollection of that observation
Note that the friend is likely biased in favor of the driver BUT OC can impeach the witness for bias at a later time, if the court allows the friend to testify
In a civil assault suit between a plaintiff and a defendant, a witness testified that the defendant had been with her on the night of the alleged assault, more than 200 miles away from where the assault was alleged to have occurred. To challenge the witness’s credibility, the plaintiff’s attorney sought to present evidence of the witness’s juvenile conviction for voluntary manslaughter five years ago. The defendant objected to the admission of this evidence.
Should the judge admit the evidence?
A) No.
B) No, but only if the judge concludes that the probative value of this evidence is outweighed by its prejudicial effect to the witness.
C) Yes, but only if the judge concludes that the probative value of this evidence outweighs its prejudicial effect to the witness.
D) Yes.
A) No.
Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.
A pedestrian was struck by a school bus while crossing a major intersection. The pedestrian brought suit against the bus company for negligence. At trial, the pedestrian testified that he always waits for the pedestrian-crossing signal before crossing major intersections. On cross-examination, the bus company asked the pedestrian about a ticket he had received for jaywalking at a major intersection three months before the accident in question.
Is the bus company’s question likely permissible?
A) No, because the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
B) No, because the receipt of a ticket for jaywalking is not probative of the truthfulness of the recipient of the ticket.
C) Yes, because the evidence contradicts the pedestrian’s testimony that he always waits for the pedestrian-crossing signal.
D) Yes, because the prior ticket demonstrates that the pedestrian did not wait for the crossing signal when the accident occurred.
C) Yes, because the evidence contradicts the pedestrian’s testimony that he always waits for the pedestrian-crossing signal.
A witness may be impeached by evidence that directly contradicts the witness’s testimony on a material issue. Both intrinsic and extrinsic evidence may be used for this purpose.
Note: The receipt of a ticket for jaywalking does not, in and of itself, relate to the truthfulness of the recipient. But in this instance, the ticket calls into question the pedestrian’s truthfulness as to his statement that he always waits for the pedestrian-crossing signal.
During the filming of an action movie, a stuntman was injured when he jumped out of a window and fell onto a negligently installed safety net. A cameraman, who had been hired to shoot behind-the-scenes footage, taped the stuntman falling onto the safety net and the net collapsing beneath him, causing him serious injury.
The stuntman has sued the movie producer for negligence and seeks to enter a digital copy of the cameraman’s video footage into evidence at trial. The stuntman also plans to call an expert witness to testify that, based upon the video, the stuntman’s jump out of the window followed all safety protocols and that the safety net could only collapse if it was not installed properly. The cameraman has already testified that, based on his personal knowledge, the video that the stuntman seeks to admit is an accurate digital copy of the video the cameraman recorded of the accident.
Assuming there is no genuine question as to the authenticity of the original video recording, is the digital copy of the video admissible?
A) No, because the digital copy violates the best evidence rule.
B) No, because the digital copy is not a reliable form of evidence as it can be easily manipulated.
C) Yes, because the cameraman has properly authenticated the digital copy.
D) Yes, because the expert witness can guide the jury through the video and explain how and why the stuntman was injured.
C) Yes, because the cameraman has properly authenticated the digital copy.
Here, there is no question about the authenticity of the original recording and no indication that circumstances make it unfair to admit a copy. Therefore, admission of the copy does not violate the best evidence rule.
Note: The expert witness can likely guide the jury through the video and explain how and why the stuntman was injured. But this has no bearing on the admissibility of the recording.
A defendant was charged with theft of merchandise from a store. On the witness stand, the defendant admitted to taking the merchandise on the day in question but contended that she lacked the intent to do so. A rebuttal witness testified that she was standing outside the store after purchasing something, and she saw the defendant outside the store furtively removing the merchandise from her coat. When asked about her recollection of the date, the witness testified that she knew that it was the day in question because that date was on her receipt. The defendant objected, asserting that the prosecution must produce the receipt.
How is the court likely to rule on this objection?
A) Overrule the objection, because the date is a collateral issue.
B) Overrule the objection, because the date is irrelevant.
C) Sustain the objection, because the receipt is the most reliable evidence of the date.
D) Sustain the objection, because the witness’s knowledge of the date is based on the receipt.
A) Overrule the objection, because the date is a collateral issue.
Under the best evidence rule, an original or reliable duplicate is not required, and other evidence of content is admissible, when the contents go toward a collateral issue.
Note: Here, the witness relied on the date on the receipt when testifying about the date of the theft. But the date of the theft is collateral (i.e., undisputed) because the defendant has already admitted to taking the merchandise on the day in question. This means that the prosecution need not produce the receipt (or a reliable duplicate) for the witness to testify about it.
A plaintiff brought a defamation action against his friend, an internet blogger, for the publication of defamatory accusations against the plaintiff that the friend allegedly published on his internet blog. The plaintiff testified that because he had always been a daily reader of the friend’s writing, he read the defamatory remarks on June 10, the same day they were published. When the plaintiff’s attorney asked the plaintiff how he remembered the date, the plaintiff answered, “When I called his house to demand that he take down the post, his girlfriend answered the phone and said that he was out seeing a movie that had come out that day.” The friend’s attorney objected and moved to strike the testimony.
Should the court strike the plaintiff’s testimony about the girlfriend’s statement on the phone?
A) No, because the court may take judicial notice of the movie release date.
B) No, because the statement is not being offered for its truth.
C) Yes, because a court may refuse to admit evidence related to a collateral issue.
D) Yes, because the plaintiff has not established that the girlfriend is unavailable to testify.
B) No, because the statement is not being offered for its truth.
An out-of-court statement implicates the rule against hearsay only when it is offered to prove the truth of the matter asserted therein. Therefore, a statement offered for some other purpose is not barred by this rule.
Here, the plaintiff is offering the girlfriend’s statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day. Since the statement is not being offered for its truth, it is not barred by the hearsay rule.
A defendant is on trial for embezzling $50,000 from his former employer. The prosecution wishes to offer into evidence an anonymous letter, in its entirety, that was received by the defendant’s former supervisor. The supervisor testified that the letter was written in the defendant’s handwriting, which the supervisor knew from their years of working together. The letter reads, “I am consumed by guilt for what I have done. Here is half the money I took from you, and if you promise not to prosecute, I will send you the rest later this year. If you accept this arrangement, please post a personal ad in the local paper using the phrase ‘All is forgiven.’” The note was accompanied by $25,000 in cash. The defense objects to the admission of the letter.
Is the letter admissible?
A) No, because public policy calls for the exclusion of statements made in a negotiation to settle a claim.
B) No, because the letter has not been properly authenticated.
C) Yes, because the letter contains statements by an opposing party to the current litigation.
D) Yes, because statements of the declarant’s present intent, motive, or plan are excepted from hearsay.
C) Yes, because the letter contains statements by an opposing party to the current litigation.
Note: The prosecution authenticated the letter when it had the supervisor, a lay witness with personal knowledge of the defendant’s handwriting, testify that the letter was written by the defendant.
A woman sued her neighbor for conversion, alleging that the neighbor and his nephew took the woman’s vintage automobile from her garage and sold it on the black market. Prior to trial, the nephew was in a car accident in which his leg was badly broken. The nephew was rushed to the hospital for emergency surgery. On his way into surgery, the nephew told a nurse that he and the neighbor had taken and sold the woman’s automobile. The nephew later died in surgery due to unforeseen complications.
Which of the following hearsay exceptions will allow admission of the nurse’s testimony as to the nephew’s statement?
A) Dying declaration.
B) Excited utterance.
C) Statement against interest.
D) Statement of then-existing state of mind.
C) Statement against interest.
The statement against interest exception applies to hearsay statements
(1) that are contrary to an unavailable declarant’s proprietary or pecuniary interest;
(2) tend to invalidate the declarant’s claim against someone else, or
(3) expose the declarant to civil or criminal liability.
Note: The “dying declaration” exception applies to statements that (1) were made while an unavailable declarant believed his/her death was imminent and (2) concerned the circumstances of that impending death. But here, there is no indication that the nephew believed his death was imminent, and his statement did not pertain to the circumstances of his death.
A plaintiff filed suit against a supermarket for injuries that he sustained when he slipped on a piece of lettuce in the supermarket’s produce aisle. A supermarket employee who witnessed the plaintiff’s fall immediately prepared a written summary of the events that had occurred in order to alert the supermarket’s management. At trial, the supermarket’s lawyer called the employee as a witness. The employee testified that she could not recall the events, even after looking through her written summary while on the witness stand. The supermarket’s lawyer then asked her to read her summary to the jury. The plaintiff objected to the testimony.
May the court admit the testimony at this time over the plaintiff’s objection?
A) No, because it is hearsay not within any exception.
B) No, because such testimony may only be offered into evidence by an adverse party.
C) Yes, because the employee is on the witness stand and can be cross-examined.
D) Yes, because the employee is unable to remember the actual events even after referencing her summary.
D) Yes, because the employee is unable to remember the actual events even after referencing her summary.
Recorded recollection: allows a record to be read into evidence if it (
1) concerns a matter that a witness once knew but cannot recall at trial; (2) was made or adopted by the witness when the matter was fresh in his/her mind, and
(3) accurately reflects the witness’s personal knowledge at the time it was made.
Note: The employee is on the witness stand and can be cross-examined. But this is not a basis to admit a witness’s hearsay statement. Instead, the statement must fall under a hearsay exclusion or exception—e.g., the recorded recollection exception
A defendant is on trial for burglary. The jurisdiction has a statute that a charge of burglary may be elevated to aggravated burglary if the crime is committed with a firearm. An eyewitness, who is the burglary victim’s neighbor, called the police on the night in question and reported that she saw the defendant climb out of the victim’s window and that he was carrying a gun. The eyewitness wrote a detailed description of the incident and the weapon in her diary soon after she called the police.
During the trial, the prosecutor put the eyewitness on the stand, but she could no longer recall whether the defendant was holding anything. The prosecutor asked her to read the diary entry to herself to see if it refreshed her memory. When the eyewitness admitted that it did not, the prosecutor sought to have the eyewitness read the diary entry to the jury and to introduce the diary entry as an exhibit. The defendant objects to both.
How should the court rule?
A) The court should sustain both objections.
B) The court should sustain the objection as to the eyewitness’s reading of the diary entry but overrule the objection as to entering it as an exhibit.
C) The court should overrule the objection as to the eyewitness reading the diary entry to the jury but sustain the objection as to entering it as an exhibit.
D) The court should overrule both objections.
C) The court should overrule the objection as to the eyewitness reading the diary entry to the jury but sustain the objection as to entering it as an exhibit.
Recorded recollection: only an adverse party may introduce the record
Here, the eyewitness’s memory was not refreshed by having her read the diary entry to herself. And since the diary entry satisfies the criteria for admission under the recorded recollections hearsay exception, the court should allow the eyewitness to read the diary entry into evidence
A defendant is on trial for armed robbery and felony murder. The prosecution seeks to admit testimony by the first witness to arrive at the scene of the crime. The witness discovered the victim just before he died of a gunshot wound, and the victim identified the defendant as his assailant only moments before he died. The defense asserts that the victim was too delirious from blood loss to know that he was dying and hopes to present a statement from the victim’s widow to support this assertion. However, both parties agree that the widow’s statement is privileged under federal law.
In what manner should the court determine whether the victim’s statement is a dying declaration?
A) Allow the prosecution to admit the testimony only if the judge determines that the witness is credible.
B) Allow only the unprivileged evidence from both sides at the jury trial so the jury may decide whether the victim believed he was dying.
C) Consider all of the evidence from both sides outside the presence of the jury.
D) Consider only the unprivileged evidence from both sides outside the presence of the jury.
D) Consider only the unprivileged evidence from both sides outside the presence of the jury.
The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified.
Any hearing on these matters must be conducted outside the jury’s presence if
(1) the matter involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests: OR
(3) justice so requires.
The court may only consider unprivileged evidence when making this determination, so the widow’s privileged statement may not be considered. And since the victim’s statement identifying the defendant as the assailant would clearly prejudice the defendant, the hearing should be conducted outside the jury’s presence.
Note: the court must decide the preliminary question of whether the victim knew that he was dying before ruling on the admissibility of the victim’s statement as a dying declaration.
A woman is on trial for a burglary that took place at about 6:00 p.m. on November 1. A surveillance video from a local gas station shows that the woman visited the gas station at 7:00 p.m. on November 1. The woman alleges as an alibi that she was actually at the gas station at 6:00 p.m. She argues that the gas station failed to change the time display on its camera to reflect the end of Daylight Savings Time on the morning of November 1. The judge, on his own initiative and after first giving the prosecutor the opportunity to object, took judicial notice of the fact that Daylight Savings Time did end in the year in question on November 1. The judge instructed the jury that it may or may not accept any judicially noticed fact as conclusive.
Were the judge’s actions with regard to judicial notice of this fact proper?
A) No, because the court should have instructed the jury that it is required to accept the noticed fact as conclusive.
B) No, because the fact is not one that is generally known within the territorial jurisdiction of the trial court.
C) Yes, because the court gave the prosecution an opportunity to be heard on the propriety of taking judicial notice before doing so.
D) Yes, because the court may take judicial notice on its own initiative.
D) Yes, because the court may take judicial notice on its own initiative.
A court may take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it
(1) is generally known within the territorial jurisdiction of the trial court or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
But this fact can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned (e.g., calendar, almanac), so the court may take judicial notice of this fact on its own initiative.
Note: a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact.
A female and a male candidate were both competing for a junior coaching position with a college football team. Although the female candidate was more qualified and experienced, the head coach chose the much less competent male candidate for the coaching position. The female candidate subsequently sued the head coach for employment discrimination. At trial, the female candidate’s lawyer sought to introduce testimony by a football player on the team claiming that the head coach had told him that “women don’t belong on the football field unless they are wearing a cheerleading uniform.”
Is the head coach’s statement admissible?
A) No, because the probative value of the statement is substantially outweighed by its prejudicial effect.
B) No, because the statement is hearsay that does not fall within an exception.
C) Yes, because it is relevant to the claim of employment discrimination against the head coach.
D) Yes, because the statement falls within the state of mind exception to the hearsay rule.
C) Yes, because it is relevant to the claim of employment discrimination against the head coach.
Non-hearsay: illustrate the declarant’s world view or belief system.
Note: The then-existing state of mind exception to the hearsay rule allows statements of a declarant’s then-existing mental state—e.g., motive, intent, or plan—to be admitted as substantive proof that the declarant later acted in accordance with that mental state. But here, the coach’s statement is not hearsay, so no exception is needed. Additionally, the statement is not one of motive, intent, or plan.
A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building. The prosecution called a female witness who lived in the defendant’s prior apartment building to testify that she also received a number of unidentified but identical threatening phone calls while the defendant lived in her building. The defense objected to the testimony on the ground of relevance. The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant.
Is the witness’s testimony admissible?
A) No, because calls by an unidentified caller are not relevant to the case.
B) No, because the witness’s statement cannot be admitted prior to the production of evidence establishing that the defendant made the calls to the witness.
C) Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
D) Yes, on the condition that the court finds by a preponderance of the evidence that the caller was the defendant.
C) Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
Conditional relevance: When the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence. However, the court may admit the proposed evidence on the condition that such proof be introduced later.
A plaintiff manufacturer brought an action for breach of contract against a defendant retailer for the amount due under a contract for a shipment of widgets. The contract, which was admitted into evidence, indicated that the plaintiff was entitled to payment of the contract price once the widgets were delivered to a commercial carrier. The plaintiff called a witness who has worked in the plaintiff’s shipping warehouse for many years. The witness testified that the shipment of widgets ordered by the defendant was delivered to the commercial carrier with instructions to deliver the widgets to the defendant’s shipping address. The receipt for this delivery to the commercial carrier was entered into evidence.
When the defendant’s attorney asked the witness how he knew the defendant’s shipping address, the witness stated, “We keep all of our customers’ addresses in our shipping records, but I know that one by heart because they have been a regular customer for years. They order a lot of widgets, and they always call to make sure I used the right address.” The defendant’s attorney then objected to the witness’s testimony about the defendant’s shipping address and asked that the testimony be stricken from the record on the ground that the shipping records had never been shown to the defense or offered as evidence.
Should the court sustain the defendant’s objection to the witness’s testimony?
A) No, because the witness can testify about the plaintiff’s regularly conducted business with the defendant.
B) No, because the witness had personal knowledge of the shipping address used to send the shipment of widgets.
C) Yes, because the defense has not been given the opportunity to examine the plaintiff’s shipping records.
D) Yes, because the plaintiff must offer its original shipping records to establish the defendant’s shipping address.
B) No, because the witness had personal knowledge of the shipping address used to send the shipment of widgets.
A witness may testify to any relevant fact about which he/she has personal knowledge—i.e., firsthand experience or observation—even when other evidence may contain the same information.
Note: The mere fact that the witness can testify about the plaintiff’s regularly conducted business with the defendant is not sufficient for the witness to testify about the defendant’s shipping address. Instead, the witness can testify about the shipping address because he has personal knowledge of it
A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. At trial, the only witness to the accident testified that he clearly remembered that the car’s traffic light had been red and that the car ran the light. However, in the investigating officer’s report, which was made hours after the accident, the witness is quoted saying, “I saw the whole thing. The car had the green light.” The car driver did not cross-examine the witness, and the witness was dismissed and left the jurisdiction.
After the truck driver presented his case, the car driver moved to introduce the witness’s statement from the investigating officer’s report solely to impeach the witness’s testimony. The truck driver objected.
How should the court rule?
A) Overrule the objection, and admit the statement as impeachment evidence only.
B) Overrule the objection, and admit the statement as substantive evidence that the car driver did not run the red light.
C) Sustain the objection, because extrinsic evidence may not be used to impeach a witness under these circumstances.
D) Sustain the objection, because the statement is inadmissible hearsay.
C) Sustain the objection, because extrinsic evidence may not be used to impeach a witness under these circumstances.
Note: Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires).
