Missed questions

Question 1

Hearsay

The plaintiff is suing the defendant for injuries he suffered when his car was struck by the defendant’s truck, allegedly because the defendant had fallen asleep at the wheel after driving all night. At trial, the defendant’s girlfriend testified that she had been with the defendant in the truck and had taken over the driving duties for several hours that night while the defendant napped. The plaintiff calls to the stand an acquaintance of the defendant’s girlfriend, to testify that the girlfriend told him that she had been unable to get out of bed the weekend the accident occurred because of severe back pain. The testimony of the acquaintance is admissible/not admissible?

Answer 1

The testimony of the acquaintance is admissible, but only for impeachment purposes. Under the Federal Rules, declarations of present bodily condition are admissible as an exception to the hearsay rule when made to anyone, not just a physician, whereas declarations of past physical condition are admissible as a hearsay exception only if made to assist in diagnosing or treating the condition.

Question 2

hearsay

A witness’s nephew was visiting her from a foreign country. One evening, the nephew went out with friends. At 11 p.m. that night, he appeared back at the witness’s house, pounding loudly on the door. She let him in, and noted that he was panting and out of breath. He immediately told her, “You won’t believe what I just saw! I was walking past your neighbor’s house just now and the wife ran up to me with a gun in her hand. She looked me straight in the eyes and said, ‘I killed the philandering fool’ before running off down the street.” After the nephew returned to his country, the wife was put on trial for the murder of her husband. The prosecution wants to put the witness on the stand to testify regarding the nephew’s statement to her. The defense objects.

Can the witness testify to the nephew’s statement?

Answer 2

Yes, because the nephew’s statement qualifies as an excited utterance.

Here, two separate statements are really being offered for the truth of the matter asserted therein: First, the nephew’s statement is being offered to prove that he actually said that the wife admitted killing the husband. Second, the wife’s statement is being offered to prove that she killed the husband.

Question 3

Testimony

A plaintiff brought a civil action against a defendant for embezzlement of funds missing from a trust account, for which the defendant also is being investigated by the district attorney. At trial, the plaintiff calls the defendant as an adverse witness and asks him one question, “Is it not true that you embezzled funds from the trust?” The defendant refuses to answer, claiming a privilege against self-incrimination.

How should the trial court rule on the defendant’s claim of privilege?

Answer 3

Sustain his claim of privilege, because no witness can be compelled to answer questions that may tend to incriminate.

The Fifth Amendment of the United States Constitution provides that a witness cannot be compelled to testify against himself. Pursuant to this privilege, a witness may refuse to answer any question if its answer might tend to incriminate him. Testimony is incriminating if it ties a witness to the commission of a crime or would furnish a lead to evidence tying the witness to a crime. The privilege against compelled self-incrimination can be claimed at any proceeding, whether civil or criminal, at which the witness’s appearance and testimony are compelled. Here, the defendant’s answer to a question as to whether he embezzled funds from the trust might tend to incriminate him by tying him to the commission of a crime (e.g., embezzlement). Thus, the defendant is privileged to refuse to answer the question posed by the plaintiff.

Question 4

Witness

A witness is called in a contract action between a plaintiff and a defendant. The witness takes his oath and testifies. During cross-examination, the defendant’s attorney asked the witness this question: “Isn’t it true that even though you took an oath to tell the truth so help you God, you are an atheist and don’t even believe in God?”

Upon the proper objection, will the judge require that the witness answer this question?

Answer 4

No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.

The judge should not require that the witness answer the question because evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.

Question 5

Witness Testimony

A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter’s high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.

Will the principal’s testimony likely be held to be admissible?

Answer 5

Yes, because the principal personally saw the interview on television.

The principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness’s own testimony.

Question 6

Character evidence

The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence. Should the court sustain the objection?

Answer 6

Yes, because the character of a victim can be established only by reputation or opinion evidence.

Question 7

An admission of fact accompanying an offer to pay medical expenses is admissible.

Question 8

Question ID: ME034

The defendant is on trial for embezzlement. He does not take the stand.

Assuming all notice requirements have been met, which of the defendant’s previous convictions is most likely to be admitted into evidence against him?

A) seven-year-old conviction for arson, a felony.

B) A 12-year-old conviction for embezzlement, a felony.

C) A six-month-old conviction for disorderly conduct, a misdemeanor.

D) A two-year-old conviction for felonious sexual assault.

Answer 8

Answer: B

Defendant did not take the stand, which means evidence is not being offered for impeachment purposes and, thus, the 10-year time limit does not apply.

Evidence of other crimes is admissible against an accused in a criminal case if it is relevant to some issue other than the defendant’s character or disposition to commit the crime charged. Where, as here, the crime charged is embezzlement, evidence that the defendant committed embezzlement before might be admissible to establish fraudulent intent.

(A) and (D) are felonies would be important only if this were impeachment evidence, which it is not.

Question 9

Police sketches - prior identification can be admissible and the sketch could be deemed a prior identification. However, to be admissible, the witness must be there to testify at trial and be subject to cross-examination.

Question 10

A defendant was charged with murdering his boss. After obtaining a valid search warrant and executing a valid search of the defendant’s office, an officer found a love letter from the defendant’s wife to his boss describing their sexual relations. The letter stated, “I can no longer hide my love for you from my husband. I intend to tell him about us and leave him for you.” At trial, the officer seeks to testify about the contents of the letter as proof of the defendant’s motive for killing his boss.

The defense counsel should object on which of the following grounds?

A The letter was not authenticated as being from the defendant’s wife.
B The testimony violates the best evidence rule.
C The testimony is hearsay not within any exception.
D The probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Answer 10

B The testimony violates the best evidence rule.

Under the best evidence rule, the original writing must be produced when proving the material terms of that writing

Here, the terms of the letter are material and no justification has been given for why it cannot be produced. Thus, the original letter must be produced and the officer’s testimony violates the best evidence rule.

Question 11

A plaintiff is suing her former physician for slander, based on statements allegedly made by the physician to the plaintiff’s co-worker that the plaintiff had difficulty conceiving children as a result of her history with venereal disease. The physician denies making any statements about the plaintiff. During the trial, the plaintiff calls as a witness her neighbor to testify that during her last visit to the physician’s office, the physician told the neighbor that she was angry with the plaintiff for posting a negative review of her medical practice on a popular website, and that she made sure to “even the score” by sharing with others some opinions about the plaintiff. The physician objected to the testimony.

How should the court rule on admissibility of the statement?

A Admissible, as an exception to the hearsay rule for a declaration against interest.
B Admissible nonhearsay.
C Inadmissible because of the physician-patient privilege.
D Inadmissible hearsay not within any exception.

Answer 11

B Admissible nonhearsay.

This is a statement by an opposing party (aka statement by a party-opponent).

Here, the statement is admissible because it was made by the physician and is relevant because it directly conflicts with her contention at trial-that she did not make any slanderous statements about the plaintiff.

P is calling the W to offer the statement the physician made to the W so the P can use that statement to contradict the physicians claim about not making the slanderous statement.

Question 12

Judicial notice operates as a substitute for proof as to facts that are matters of common knowledge in the community or are capable of certain verification through easily accessible, well-established sources

Question 13

In civil trials, character evidence is inadmissible to prove that the litigant acted in conformity with that character. An exception exists when the litigant’s character is directly in issue (defamation, child custody etc)

Question 14

In criminal trials, evidence of character is admissible only if the party puts his character in issue.

Question 15

The rules of evidence allow a witness’s recollection to be refreshed by just about anything. The witness may not read from the writing while he testifies; it is used solely to jog his memory.

While the opposing counsel is allowed to examine the item being used to refresh the witness’s testimony and may cross-examine the witness about it, he may not object to it.

Question 16

Past recollection recorded - If a witness cannot remember a fact while testifying, counsel may attempt to refresh his memory, as counsel has done here.

If the witness still cannot remember, the thing used to refresh the witness’s recollection can be read into evidence if a proper foundation is laid for its admissibility.

In such a case, the “thing” must be a writing made by the witness at a time when the facts were known to him.

Question 17

A brother and a sister were arrested on the federal charge of tax evasion in connection with the family business. Prior to trial, the prosecutor told the sister that he believed he could get her sentence reduced to probation if she pleaded guilty to a lesser charge and agreed to testify against her brother; the sister reluctantly agreed. During the jury trial, the sister is called by the prosecution. On cross-examination, the defense attorney brings out the fact that the sister was arrested on the same charge. The attorney then asks her whether it is true that after her arrest, the prosecutor told her that if she testifies against her brother her sentence can be reduced to probation. The prosecutor objects.

How should the court rule on the objection?

A Sustained, because it is against public policy to reveal information about plea bargains to a jury.

B Sustained, because it calls for hearsay.

C Overruled, because the question goes to bias or interest.

D Overruled, because the sister waived the attorney-client privilege by testifying.

Answer 17

C Overruled, because the question goes to bias or interest.

(A) is wrong because it misapplies and misstates the rule with regard to plea bargains. Under Federal Rule 410, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are inadmissible against the defendant who made the plea or was a participant in the plea discussions. This rule does not apply in this case because it does not apply to accepted guilty pleas, and the sister is not the defendant. The rule applies only to offers and withdrawn pleas. After the plea is accepted, it is admissible.

Question 18

At the defendant’s trial for grand theft auto and other offenses, the prosecution offers to introduce the testimony of a police officer. The officer will testify that he showed a photographic lineup containing the defendant’s picture to a witness who had seen the defendant fleeing from the stolen vehicle at the conclusion of a high-speed chase, and the witness selected the defendant’s picture. The witness has left the state and she refuses to return.

Should the court admit the evidence?

A Yes, because the witness is unavailable to testify.
B Yes, because it is a prior identification.
C No, because it is inadmissible hearsay.
D No, because the picture has not been properly authenticated.

Answer 18

C No, because it is inadmissible hearsay.

The officer is attempting to testify to the statement of a witness (an out-of-court declarant) that the defendant was the person she saw fleeing from a stolen vehicle. The testimony is being offered to prove the truth of the matter asserted-that the witness saw the defendant flee from a stolen vehicle.

Would be (B) but not in this question b/c prior ID is hearsay unless W is subj to cross-examination. Here W is unavailable and thus cannot be cross-examined therefore, statement remains as hearsay.

Question 19

At the trial of the plaintiff’s personal injury action against the defendant, a pedestrian, who was near the accident scene but did not see what happened, testifies that an eyewitness to the accident shouted, “Good Lord! The green car just ran through a red light and hit the red car!” Previous evidence had established that the defendant drove a green car and the plaintiff a red one. The defendant offers to call to the stand the brother of the eyewitness, who will testify that he spoke with the eyewitness the day after the accident, and he said that the light was green when the green car drove through the intersection. The eyewitness had moved to a foreign country prior to trial.

Should this evidence be admitted over the plaintiff’s objection?

A No, because the eyewitness is not available to explain or deny the contradiction.
B No, because it is hearsay not within any exception.
C Yes, for the purpose of impeachment and as substantive evidence.
D Yes, for the purpose of impeachment only.

Answer 19

D Yes, for the purpose of impeachment only.

Question 20

The defendant is charged with arson for hire in the burning down of an old office building. The prosecution offers to introduce the testimony of a neighbor of the defendant, who will state that the day after the fire, she went to the defendant’s apartment. The defendant had burnt a roast in her oven, and the apartment was full of smoke. The neighbor, coughing and choking, said, “What did you do, burn down that old office building again?” The defendant made no reply.

Should this evidence be admitted over the defendant’s objection?

A No, because it is hearsay not within any exception.
B No, if the court determines that a reasonable person would not deny such a statement under the circumstances.
C Yes, because a party-opponent’s silence is admissible.
D Yes, because it is a declaration against penal interest.

Answer 20

B No, if the court determines that a reasonable person would not deny such a statement under the circumstances.

The defendant’s silence cannot constitute an adoptive statement by an opposing party if the defendant reasonably did not respond to the neighbor’s statement.

A statement made by a party that is offered against that party (commonly called an admission) is admissible nonhearsay.

A party may expressly or impliedly adopt someone else’s statement as her own, thus giving rise to an adoptive statement. However, for silence to constitute an adoption of the other person’s statement, the circumstances must establish that the party would naturally have responded to it were it untrue.

Here, the prosecution is offering the neighbor’s testimony to show that the defendant impliedly admitted the neighbor’s charge by not replying to it. However, if the court determines that the defendant would not reasonably deny the statement under these circumstances (because it apparently was made in jest), it will not qualify as an adoptive statement of the defendant and the court will not admit the evidence.

Question 21

The defendant, a competitive athlete, was charged with the murder of another athlete against whom she was scheduled to compete in two weeks. Autopsy results revealed that the victim was poisoned with a lethal mixture containing a variety of substances. During the prosecution’s case in chief, evidence was introduced establishing that a bottle of a particular drug, which was among the substances listed in the autopsy report, was discovered in the defendant’s medicine cabinet when she was arrested. On direct examination by her own attorney, the defendant states that when she was arrested and the bottle of the drug was found, she told the officers, “My doctor prescribed that for me to cope with the excruciating back pain from which I suffer.”

If the prosecution moves to strike this testimony, how should the court rule?

A For the defendant, because it is a prior consistent statement.
B For the defendant, because it tends to explain prosecution evidence.
C For the prosecution, because it is hearsay not within an exception.
D For the prosecution, because it is a self-serving statement.

Answer 21

C For the prosecution, because it is hearsay not within an exception.

This question illustrates that a hearsay problem can arise even when the out-of-court declarant and the in-court witness are the same person. The defendant is attempting to testify as to a statement made by her out of court, and this statement is being offered to prove the truth of the matter asserted. Thus, the statement is hearsay. Because it is not within any exception to the hearsay rule, it must be excluded.

The defendant’s out-of-court statement is being offered to prove the truth of the matter asserted therein, i.e., that she used the drug for her back pain. The defendant is free to make that assertion as part of her in-court testimony, but cannot use her out-of-court statement for that purpose. Thus, the statement is hearsay.

Question 22

While walking down a city street, the plaintiff was seriously injured when a rotten limb fell off of a tree and hit him on the head. The tree was located on a vacant lot next to the defendant’s house. The lot appeared to be a part of the defendant’s property. The plaintiff sued the defendant to recover damages for his injuries, alleging that the defendant was negligent with respect to the care of the tree. The defendant’s defense was that he did not own the lot or the tree, and that both the lot and the tree were the property of the city. At trial, the plaintiff calls a witness to testify that shortly after the plaintiff was taken to the hospital, he observed the defendant cutting down the rotten limbs on a number of trees on the vacant lot.

Should the witness’s testimony be admitted?

A Yes, to help prove that the defendant was negligent in not removing the rotten limbs sooner.

B Yes, to help prove that the defendant owned the lot.

C No, because subsequent repairs are encouraged for reasons of public safety.

D No, because the evidence does not prove that the defendant owned the lot.

Answer 22

B Yes, to help prove that the defendant owned the lot.

Subsequent repairs or precautionary measures following an injury (such as cutting down rotten limbs after one fell) are not admissible if offered to prove that the defendant was negligent (e.g., in not cutting down the limbs sooner).

However, such evidence may be admissible, if it is relevant to some other issue in the case, such as ownership or control

In this case, ownership of the lot…People do not usually make repairs to property for which they have no responsibility.

(C) is wrong because the evidence is not being offered to establish negligence; since it is offered only to show proof of ownership, it is admissible.

Question 23

Only the criminal defendant can put his character in issue. The prosecution cannot initiate evidence of the defendant’s character, and the mere filing of criminal charges against a person does not put that person’s character in issue

Answer 23

At the defendant’s trial for assault with a deadly weapon, the defendant’s counsel calls a witness to the stand and asks him, “What is the defendant’s reputation for honesty and veracity in your community?” The prosecutor objects before the witness can answer.

Should the court admit the testimony?

A Yes, because reputation evidence is admissible under these circumstances to establish a character trait.
B Yes, because the prosecution put the defendant’s character at issue when they filed charges against him.
C No, because the evidence offered is irrelevant to any material issue in the case.
D No, because the evidence offered is inadmissible hearsay.

NOT (B) b/c Only the criminal defendant can put his character in issue.

(A) is incorrect because reputation evidence is not always admissible to establish a character trait. The trait that needs to be established must be pertinent to the crime that is charged. Here, assault with deadly weapon is not relevant to honesty and veracity.

Question 24

The victim collapsed at her desk while drinking her morning coffee and was rushed to the hospital. Later that night, the victim’s brother went to visit the victim in the intensive care unit. Barely conscious, the victim said, “I’ve thought about this all day and it must have been my assistant. She brought me my coffee this morning before I could make it for myself, and she’s never done that before. Don’t let her get away with murder.” The victim soon lost consciousness and lapsed into a coma, and she remains in this vegetative state. It was determined that she was poisoned. The assistant is arrested and charged with attempted murder.

At the assistant’s trial, the prosecution wishes to call the victim’s brother to testify to the victim’s statement about the assistant.

The court should find the statement:

A Admissible, because it is a dying declaration.
B Admissible, because it is an excited utterance.
C Admissible, as a statement of identification.
D Inadmissible, because it is hearsay not within any exception.

Answer 24

D Inadmissible, because it is hearsay not within any exception.

(B) is incorrect. Despite the fact that the declaration related to a startling event (being poisoned), the statement does not qualify under the excited utterance exception because the victim was not still under the stress of the event when she made the statement.

(A) is incorrect because the assistant is being tried for attempted murder. Use of dying declarations in criminal prosecutions is limited to homicide cases.

(C) is incorrect. A statement identifying a person as someone the declarant perceived earlier is not hearsay under the FRE. However, this hearsay exclusion only applies where the declarant testifies and is subject to cross-examination about the prior identification. Here the victim is in a vegetative state and will not be testifying at trial. Additionally, the victim simply told her brother what the assistant had done that day, and this probably does not constitute an “identification” for purposes of the rule.

Question 25

As a result of an automobile accident at an intersection, the plaintiff sued the defendant, claiming that the defendant’s car was traveling at a high rate of speed and went through a red light just before the crash. A witness for the plaintiff testified that he observed the accident and that the plaintiff’s car was traveling at a low speed with a green light at the time of the accident.

Which of the following will the court find NOT admissible to admit to impeach the credibility of the witness?

A A certified copy of a certificate of conviction for felony assault and battery seven years ago.
B The testimony of the witness’s friend that, last month, while having a drink at a bar, the witness told her that the plaintiff’s light was red.
C A record of an arrest one week ago for embezzlement.
D On cross-examination of the witness, the question, “Isn’t it a fact that you lied to your employer last year concerning your meal expenses on a business trip?”

Question 26

A witness is called in a contract action between a plaintiff and a defendant. The witness takes his oath and testifies. During cross-examination, the defendant’s attorney asked the witness this question: “Isn’t it true that even though you took an oath to tell the truth so help you God, you are an atheist and don’t even believe in God?”

Upon the proper objection, will the judge require that the witness answer this question?

A Yes, because the question is relevant to the witness’s character for truthfulness.

B Yes, because instead of taking the oath, the witness could have requested to testify by affirmation without any reference to God.

C No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.

D No, because an attack on the competency of a witness must be made at the time the witness is sworn.

Answer 26

C No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.

Question 27

For a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it.

Question 28

Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation’s gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries.

What is the best basis for allowing the guard to testify as to the member’s statements?

A As a statement of a party-opponent’s co-conspirator.

B As a statement against interest.

C As a statement of present state of mind.

D As a dying declaration.

Answer 28

B As a statement against interest.

(A) is wrong because for a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it. Here, the member’s statements were not made in furtherance of the conspiracy but instead served to thwart its success.

(C) is wrong because the member’s statements are not being used to show his then-existing state of mind but rather the scope of the conspiracy and the defendants’ participation in it.

(D) is wrong because, even assuming that the member made the statements while believing his death was imminent (which the facts do not clearly establish), dying declarations are admissible under the Federal Rules only in a prosecution for homicide or in a civil action, and this case was neither of those.