Missed MBE Qs Flashcards
PRESENTATION OF EVIDENCE: Burdens & Presumptions
The user of a power tool sued the tool’s manufacturer in state court. The action was based on a strict product liability claim that the manufacturer’s failure to adequately warn the user of a defect in the power tool caused the user’s injury. The manufacturer properly removed the case to federal court. The applicable law of the state that governs the existence of the strict product liability claim also recognizes a rebuttable heeding presumption. This presumption assumes that an injured plaintiff would have heeded an adequate warning if one had been given. Under state law, this presumption does not shift the burden of persuasion on this issue to the manufacturer. The manufacturer did not present evidence that the user would not have heeded a different warning had it been given. The court instructed the jury that it must apply the presumption that the warning, if given, would have been heeded. Is the court’s instruction correct?
A. No, because the jury may, but is not required to, apply the presumption.
B. No, because state law presumptions are not recognized in a federal diversity action.
C. Yes, because the manufacturer failed to offer evidence to rebut the presumption.
D. Yes, because the Federal Rules of Evidence apply the bursting bubble approach to presumptions.
Answer choice C is correct. In a diversity action, when state substantive law determines the existence of a claim or defense, state law also governs the effect of presumptions related to that claim or defense. Because state law determines the existence of the user’s strict product liability claim, state law governs the effect of the heeding presumption that is related to that claim. Since the manufacturer failed to offer evidence in rebuttal to the presumption, the court properly gave it preclusive effect. Answer choice A is incorrect because, as noted with respect to answer choice C, a rebuttable presumption that has not been rebutted must be given preclusive effect. The trier of fact does not have a choice in such case as to whether to apply the presumption. Answer choice B is incorrect because a state law presumption related to a claim or defense is treated as going hand-in-hand with the related state substantive law on the claim or defense, rather than as a state evidentiary rule that the federal court is not required to apply. Answer choice D is incorrect because, although the Federal Rules of Evidence do apply the bursting bubble approach to presumptions, here state law governs as to the effect of the presumption. In this case, state law also applies the bursting bubble approach to presumptions, but this is irrelevant because the manufacturer did not offer evidence to rebut the presumption.
WITNESS: Impeachment
A witness testified in a federal case on behalf of a criminal defendant. On cross-examination, the government sought to impeach the witness with a state court conviction for felony assault nine years prior. The witness had started a ministry for other prisoners during his short time in prison, and became an active religious and community leader following his release. He has not had any arrests or convictions since being released from prison, and he was previously pardoned by the outgoing governor based on his efforts on behalf of the community. The defense has filed a motion to exclude evidence of the conviction. When presented with the motion, the judge noted that the conviction was probative of the veracity of the witness, and would have little prejudicial effect. Is the judge likely to allow evidence of the assault conviction to be admitted?
A. Yes, because the conviction is less than 10 years old.
B. Yes, because the probative value of the conviction is not outweighed by its prejudicial effect.
C. No, because assault is not a crime of dishonesty or false statement.
D. No, because the witness was pardoned and has not been convicted of another felony.
Answer choice D is correct. A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony. In this case, the witness was pardoned and has not been subsequently convicted of another felony, so the conviction would be inadmissible. Answer choice A is incorrect because although a conviction for a felony that is less than 10 years old may be admissible under other circumstances, it is not admissible in this case because of the pardon. Answer choice B is incorrect because even if the probative value is not outweighed by the prejudicial effect, the conviction would be inadmissible in this case because of the pardon. Answer choice C is incorrect because a conviction for a crime not involving dishonesty or false statement that is less than 10 years old may generally be admitted against a witness.
PRIVILEGES & OTHER POLICY EXCLUSIONS: Privileges
A plaintiff brought suit against a defendant for injuries she sustained in a car accident that she accused the defendant of negligently causing. Prior to filing suit, the plaintiff’s attorney had the plaintiff visit a physician to determine the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit. After the plaintiff’s examination, while the attorney, plaintiff, and physician were discussing the extent of the plaintiff’s injuries, the plaintiff admitted that she “may have had a few beers” right before the accident. At trial, the defendant’s counsel sought to call the doctor to testify about the statement. The plaintiff properly objected to the introduction of this testimony. How should the judge rule on the plaintiff’s objection?
A. Sustain the objection, as the attorney-client privilege is applicable.
B. Sustain the objection, as the physician-patient privilege is applicable.
C. Overrule the objection, as the statement was made by an opposing party.
D. Overrule the objection, as the physician would constitute an expert witness.
Answer choice A is correct. Under attorney-client privilege, a confidential communication between a client and an attorney is privileged. While the presence of a third party can destroy privilege, a communication to a representative of the attorney is also privileged. A representative of an attorney is a person who is employed to assist the attorney in providing legal services. Here, the physician has been employed to assist the plaintiff’s attorney in determining the damages to be sought when filing the lawsuit. The physician’s presence would therefore not destroy the privilege, and the attorney-client privilege would apply. Answer choice B is incorrect, as the statement was not made for the purpose of medical treatment of the plaintiff, but only to assist the attorney in determining the extent of the injuries to make a claim for damages in the lawsuit. Answer choice C is incorrect because, while the statement was made by a party to the current litigation and is being offered by an opposing party (and therefore is not hearsay under Rule 801(d)(2)(A)), the fact that it was spoken by the plaintiff means that the attorney-client privilege prevents it from coming into evidence. Remember that even if a statement is admissible under one rule (for example, a hearsay exception), it may still be inadmissible under another rule. Answer choice D is incorrect, as it does not matter if the physician here would constitute an expert witness. The physician here is not being called by the defendant’s counsel to give expert testimony, but to provide evidence that the plaintiff may herself have been negligent.
WITNESSES: Competence
In a negligence action in a jurisdiction that had adopted comparative negligence, a jury rendered a verdict that the plaintiff suffered $90,000 in damages and was 10 percent at fault. The plaintiff’s attorney had presented evidence and argued in his closing argument that the plaintiff’s damages were $100,000. Immediately after the verdict, the plaintiff, with permission from the court, discussed the case with all six of the jurors together before they left the courtroom. The plaintiff discovered that each of the jurors thought, contrary to the court’s instructions, that the damage amount was the amount that the plaintiff would receive, rather than the amount from which 10 percent would be deducted. The plaintiff seeks to offer testimony from each juror to that effect in order to increase the amount of the verdict to $100,000. Is the testimony of the jurors admissible?
A. Yes, because a mistake was made by the jury in rendering its verdict.
B. Yes, because the jury misunderstanding was related to the applicable law, rather than the facts.
C. No, because a juror cannot be questioned about a verdict in the presence of the other jurors.
D. No, because a juror cannot testify as to any juror’s mental processes concerning a verdict.
Answer choice D is correct. The basic rule that a juror cannot impeach his own verdict applies in this case. A juror cannot testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law. For this reason, answer choice B is incorrect. Answer choice A is incorrect because a juror generally cannot testify regarding the validity of a verdict. The mere fact that the verdict is based on a mistake, even one made by all of the jurors, is insufficient to permit a juror to impeach the verdict. Answer choice C is incorrect because the limitation on a juror testifying as a witness before the other jurors only applies during the trial, and not after it has concluded.
HEARSAY EXCEPTIONS: Declarant’s Availability Immaterial
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.
Answer choice B is correct. Evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act is hearsay; it is an out-of-court statement of the court or jury that is offered for its truth. Although there is an exception to the hearsay rule for judgments of conviction, there is no such exception that allows for the admission of a judgment of acquittal. Answer choice A is incorrect because a criminal judgment of conviction for a crime that is punishable by death or imprisonment for more than one year can be introduced in a civil action to prove any fact essential to sustain the judgment. Answer choice C is incorrect because, although the certified copy of the judgment satisfies the original document rule, it is nevertheless inadmissible because it is hearsay. Answer choice D is incorrect because, although there is a lesser standard of proof required in a civil action, this does not change the fact that the judgment is inadmissible hearsay.
TANGIBLE EVIDENCE: Authentication
A plaintiff sued a forklift manufacturer in a product liability action after a forklift exploded when the propane tank powering the forklift detached from the body of the vehicle. In the action, the parties disputed the make and model of the forklift at issue. Without notice to the defendant forklift manufacturer, and without preliminary authenticating testimony, the plaintiff produced three sets of exhibits for admission into evidence at trial. The exhibits consisted of certified copies of a third-party retailer’s business records identifying the make and model of the unit at issue (Exhibit A); a laser-etched metal plaque that had been affixed to the forklift that identified the make, model, and serial number of the unit (Exhibit B); and a certified copy of the license issued by a state agency identifying the forklift at issue (Exhibit C). The defendant objected to the admission of the exhibits into evidence on the ground that it should have been given written notice before the trial stating the plaintiff’s intent to offer these items into evidence.
How should the judge rule on the defendant’s objection?
A. Sustain the objection as to Exhibit A only.
B. Sustain the objection as to Exhibit B only.
C. Sustain the objection as to Exhibit C only.
D. Sustain the objection as to all three exhibits.
Answer choice A is correct. The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it. Here, the plaintiff should have sent the defendant notice of its intent to offer business records into evidence to give the defendant time to examine and prepare any appropriate challenges to the records. Answer choice B is incorrect because the metal plaque would be considered a self-authenticating trade inscription which does not require prior written notice before being offered into evidence at a hearing or trial. Answer choice C is incorrect because the signed, sealed public operating license likewise is a self-authenticating document that does not require prior written notice to the adverse party. Answer choice D is incorrect because only the business records in Exhibit A would require prior written notice to the adverse party.
TANGIBLE EVIDENCE: Best Evidence Rule
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 grounds 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.
Answer choice B is correct. The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying. In this case, the contents of the document are not at issue because the sole issue is whether the defendant made verbal representations that he was a physician. Accordingly, the best evidence rule is not implicated in this case. Answer choice A is incorrect because, although it is true that the best evidence rule allows for the introduction of the original or a reliable duplicate, the best evidence rule is not implicated in this case. Answer choice C is incorrect because the best evidence rule applies only when the contents of a document with a legal effect are at issue. The contents of the contract are not at issue in this case. Answer choice D is incorrect because a reliable duplicate may be admissible without any explanation as to why the original was not produced.
TANGIBLE EVIDENCE: Best Evidence Rule
husband was on trial for the murder of his wife. The wife’s death was attributable to a fall which the prosecution alleged was purposefully caused by her husband. Shortly after the wife’s death, the husband told a friend that there was a video recording in which he had stated that his wife’s death “was no accident.” The video recording was found during a proper search of the husband’s office, and is now in police custody. The prosecution, worried that the video recording makes the husband look sympathetic, intends to instead call the friend to testify as to the husband’s statement. The defense has objected to admission of the friend’s testimony.
Should the court permit the friend to testify as to the husband’s statement to him?
A. Yes, because the statement is a statement of a party opponent.
B. Yes, because the husband’s statement to his friend is not subject to the original document rule.
C. No, because the testimony is hearsay.
D. No, because the video recording must be produced.
Answer choice D is correct. The original document rule requires the production of a recording when its contents are at issue. Here, the husband’s statement to his friend is not a direct inculpatory statement, but instead is an admission of making such a statement in a recording. Consequently, the contents of the recording are at issue and the recording itself must be produced since it available. Although there is an exception to the original document rule for an adverse party’s admission as to the contents of a recording, this exception applies only when the admission was made in a deposition, testimony, or written statement. Answer choice A is incorrect because, although the statement would be exempt from the hearsay rule as an admission of a party opponent, the testimony runs afoul of the original document rule. Answer choice B is incorrect because the husband’s statement to his friend concerns a recording. The statement is thus subject to the original document rule because the contents of the recording (i.e., the husband’s statement that his wife’s death was no accident) are at issue. The original document rule requires production of the recording or a satisfactory explanation as to why it cannot be produced. Answer choice C is incorrect because the husband’s statement to his friend, as well as his statement in the video, are statements of a party opponent and thus not hearsay. However, despite clearing the hearsay hurdle, the testimony runs afoul of the original document rule.
HEARSAY EXCEPTIONS: Declarant Unavailable as a Witness
At a trial for burglary, the prosecutor called a witness who lived next door to the victim. The witness testified that on the night of alleged burglary, she heard the victim shout, “[The defendant] has a gun pointed right at me and said he is going to kill me! I’m going to die! Please help!” The victim was not available to testify at trial because the traumatic incident had caused her to suffer from severe anxiety and depression. The defendant objected to the neighbor’s testimony on the grounds that it was hearsay. In response, the prosecutor contended the testimony was admissible as a dying declaration.
Is the neighbor’s testimony admissible as a dying declaration?
A. Yes, because the victim believed that death was imminent.
B. Yes, because the victim is unavailable to testify.
C. No, because the defendant is being tried for burglary.
D. No, because the victim did not actually die.
Answer choice C is correct. A statement qualifies as a “dying declaration” if (i) the declarant believes that her death is imminent, and (ii) the statement pertains to the cause or circumstances of the death she believes to be imminent. Although the declarant must be unavailable, the declarant need not have actually died in order for the statement to avoid exclusion as hearsay. However, the dying-declaration exception applies only in homicide prosecutions and civil cases. Here, the prosecution was for burglary. Therefore, the dying-declaration exception does not apply. Answer choice A is incorrect. Although the victim’s statement was made under the belief that her death was imminent and the statement pertained to the circumstances of the death she believed imminent, the dying-declaration exception does not apply to burglary cases. Answer choice B is incorrect. While the victim must be unavailable for the dying-declaration exception to apply, this exception is only available in homicide or civil cases. Answer choice D is incorrect. The declarant need not have actually died in order for the dying-declaration exception to apply.
PRESENTATION OF EVIDENCE: Burdens & Presumptions
A defendant was on trial for mail fraud in violation of federal law. The prosecutor presented evidence that the defendant had properly addressed letters to numerous victims and delivered them to the post office. Based on this, the prosecutor claimed that the letters were delivered and received by the victims, as required by the federal law. The letters were designed to elicit monetary payments from the recipients based on a fraudulent sweepstakes. The defendant did not submit any evidence demonstrating that the letters were not properly addressed or that the letters were not delivered to the post office. Due to the lack of a dispute on this issue, the judge informed the jury that absent any evidence to the contrary, they must presume that the letters were delivered and received. At the conclusion of all evidence, the judge instructed the jury as follows: “If you find that the defendant properly addressed the letters and delivered them to the post office, you must conclude that the letters were received by the victims.”
Is the judge’s instruction to the jury proper?
A. No, because it improperly shifts the burden of proof regarding the use of the mail for fraud to the defendant.
B. No, because presumptions, whether conclusive or rebuttable, are disallowed in criminal cases.
C. Yes, because the presumption is rebuttable.
D. Yes, because the judge has discretion to determine whether the jury may or must accept a particular presumption.
Answer choice A is correct. A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying set of facts. Here, if a party established that a letter is properly stamped, addressed, and mailed, there is a presumption that the letter has been received. However, in a criminal case, the prosecution is responsible for proving every element of a crime, and whether the victims received the letters is an element of the crime. Therefore, the judge’s jury instruction was not proper, because shifted the burden of disproving an element to the criminal defendant. Answer choice B is incorrect because there is no such limitation. Presumptions are not prohibited in criminal cases, but a presumption cannot serve to shift the burden of proof of an element of the crime to the defendant. Answer choice C is incorrect. Although the presumption is rebuttable, it still forces the defendant to disprove an element of the crime, rather than requiring the prosecution to prove each element. Answer choice D is incorrect because while the judge may instruct the jury that it may or may not draw a conclusion from the presented set of facts when considering a rebuttable presumption, conclusive presumptions are treated as rules of law.
PRESENTATION OF EVIDENCE: Introduction of Evidence
In a civil action being tried before a jury, a party objected to the introduction of evidence on the grounds that disclosure of the evidence was protected by the psychotherapist-patient privilege. In ruling on this objection, the court considered evidence protected by the attorney-client privilege.
Has the court acted properly in making its ruling?
A. No, because the court considered privileged evidence in making its ruling.
B. No, because the issue of the existence of a privilege is a matter for the jury, not the court to decide.
C. Yes, because the court is not bound by the rules of evidence when making determinations as to admissibility.
D. Yes, because the action was a civil action, not a criminal action.
Answer choice A is correct. In determining a preliminary question, such as the existence of a privilege, although the court is not generally bound by the rules of evidence, the court cannot consider privileged evidence. Answer choice B is incorrect because the existence of a privilege is a matter for the court, not the jury to decide. Answer choice C is incorrect because, while the court is not generally bound by the rules of evidence in making preliminary determinations, it cannot consider privileged evidence in making its determination. Answer choice D is incorrect because the rule allocating preliminary questions to the court rather than the jury applies to both criminal as well as civil action.
RELEVANCE: Character Evidence
A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher’s character for violence, objected to this testimony.
Should the court admit this testimony?
A. Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait.
B. Yes, because character evidence may be introduced through reputation testimony.
C. No, because the plaintiff had not introduced evidence of the teacher’s character for violence.
D. No, because such evidence is not admissible in a civil action.
Answer choice D is correct. Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense. Since the defendant’s character for peacefulness is not an element of either battery or self-defense, the principal’s testimony is not admissible. Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case. Answer choice B is incorrect because, although reputation testimony is an acceptable form of presenting character evidence when such evidence is permitted, character evidence is generally not admissible in a civil action. Answer choice C is incorrect because it is not relevant that the plaintiff has not introduced such evidence. Such evidence is not permitted in a civil case, whether introduced by the plaintiff or the defendant.
RELEVANCE: Habit Evidence
While riding home on his bike, a cyclist struck his next-door neighbor who was walking across the street. The neighbor suffered serious injuries and sued the cyclist to recover damages stemming from those injuries. The neighbor established, through eyewitness testimony, that the cyclist was travelling at an excessive speed at the time of the accident. On the witness stand, the cyclist was asked by his own attorney about the neighbor’s tendency of carelessly crossing the street without looking. The defense has no other witness to corroborate this tendency.
Which of the following is the neighbor’s best argument to prevent the introduction of cyclist’s testimony as habit evidence?
A. The cyclist’s testimony is self-serving.
B. Habit evidence is not admissible when there is an eyewitness to the event.
C. The evidence is not sufficiently specific.
D. Habit evidence is not admissible because it cannot be corroborated.
Answer choice C is correct. In order for evidence of a person’s conduct to be admissible as habit evidence, the evidence must be sufficiently specific. A tendency to cross the street carelessly is not likely a sufficiently regular response to a particular situation to qualify as a habit; therefore, this is the neighbor’s best argument against admissibility of this evidence. Answer choice A is incorrect because most evidence offered by a party is self-serving. There is no prohibition against such evidence even when the evidence is a party’s own oral testimony. Answer choice B is incorrect because under the Federal Rules of Evidence (the default rules on the MBE), habit evidence is admissible regardless of whether there is an eyewitness to the event. Answer choice D is incorrect because habit evidence need not be corroborated to be admissible.
WITNESS: Competence
The prosecutor called a witness to the stand at a trial for armed robbery. The prosecutor sought to question the witness about the defendant’s statements during the armed robbery. The witness was present at the scene of the crime and had video recorded the entire incident on his cellular phone, although the video and audio quality was poor. The prosecutor did not introduce the witness’s video recording into evidence.
Is the witness’s testimony admissible?
A. No, because the defendant’s statements constitute hearsay not within any exception.
B. No, because the best evidence rule requires the admission of the video recording.
C. Yes, because the witness had personal knowledge of the defendant’s statements.
D. Yes, because the witness may testify as to the contents of the video recording.
Answer choice C is correct. A witness must have personal knowledge of a matter in order to testify about that matter. Here, the witness was present when the armed robbery occurred and observed the entire incident. Consequently, the witness has personal knowledge of the statements made by the defendant during armed robbery, and can testify as to the defendant’s statements. Answer choice A is incorrect. A statement made by a party to the current litigation is not hearsay if an opposing party offers it. In this case, the prosecution (the opposing party) seeks to introduce the defendant’s statements through the testimony of the witness. Thus, the defendant’s statements are not hearsay. Answer choice B is incorrect. The best evidence rule (also known as the original document rule) requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. In this case, the witness is testifying based on what he heard and saw, not on the contents of the video recording, even though the video recording also contains those statements. Therefore, the witness’s testimony is admissible even though the video recording was not admitted into evidence. Answer choice D is incorrect. The witness is not testifying as to the contents of the video recording; rather, he is testifying to facts based on his personal knowledge of the incident. If the prosecutor had asked the witness to testify as to the contents of the video recording, then the best evidence rule would require the admission of the video recording.
TANGIBLE EVIDENCE: Best Evidence Rule
A plaintiff sued a defendant for breach of contract. The plaintiff claimed that she had ordered 250 widgets from the defendant and that the defendant had only delivered 150 widgets. In his answer, the defendant claimed that the plaintiff had only ordered 150 widgets. On the witness stand, the defendant testified that the plaintiff had ordered the widgets by filling out a purchase order form provided by the defendant. The defendant’s counsel then asked the defendant “What number did the plaintiff fill in on the form for the number of widgets ordered?” The defendant answered “150.” The plaintiff objected to the question, and asked the judge to strike both the question and the answer. How should the judge rule?
A. Deny the motion, as the statement was made by an opposing party.
B. Deny the motion, as the statement falls under the exception to the hearsay rule for records of a regularly recorded activity.
C. Grant the motion, as the best evidence rule applies.
D. Grant the motion because the statement constitutes hearsay not within any exception.
Answer choice C is correct. The best evidence rule requires that the original document be produced in order to prove the contents of that document, when the contents of the document are at issue. Here, the defendant is giving testimony about the contents of a written document, the contract, which are directly at issue in the case. Further, the defendant has not produced the original document or shown an excuse for nonproduction. Answer choice A is incorrect because, even though the statement would be a statement by a party to the litigation, the best evidence rule requires that to prove the content of a writing, the original writing is generally required. Note that if the contents of the document had been admitted by the plaintiff in another writing, the best evidence rule would not apply. Answer choice B is incorrect because even though the document itself might possibly come under the business records exception to the hearsay rule, the best evidence rule would still apply. Remember that a piece of evidence that is admissible under one rule (such as a hearsay exception) may still be inadmissible for another reason. Answer choice D is incorrect, as the statement was one made by an opposing party, which Rule 801(d)(2)(A) expressly defines as nonhearsay. The motion should be granted under the best evidence rule.
