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Course: Evidence Quiz Fall 2003
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Year: 2003
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Evidence Quiz




1. In a personal injury accident for negligence arising out of a car accident, π seeks to put on a witness who will testify that he saw ∆ speeding, and recklessly passed him, about 10 miles up the road from where the accident eventually occurred. Is this evidence relevant under Rule 401?


1. Yes. Evidence is relevant if it has “any” probative value on a matter “of consequence” to the action. Here, the evidence of prior speeding does not conclusively show that ∆ was negligent, and it does not even make it more likely than not that ∆ was negligent. However, it does make his negligence more likely than it would have been in the absence of the evidence. Thus, it is relevant.


2. Suppose the judge in question 1 strongly suspects that the witness is lying. May the judge exclude the evidence as being irrelevant?


2. No. The judge may not consider the believability of a witness when he is making his preliminary finding that an offer of evidence is relevant. It is the job of the jury to determine whether the witness is lying. The judge is limited to determining whether the testimony, if believed, would tend to make the matter more or less probable.


3. Plaintiff’s deceased was a passenger in a car that was hit from behind. The gas tank exploded, killing the deceased. π brings a products liability action against the manufacturer for negligence in design of the car. The person who caused the accident has pleaded guilty to involuntary manslaughter, and has admitted to going about 68 mph. Should evidence of the faulty driver’s guilty plea be admissible in the civil action?


3. No. The judge should exclude the evidence under FRE 403 because the danger of confusion of the issues substantially outweighs the probative value of the evidence. There is a danger that the jury will consider the guilty plea to be dispositive of the issue of fault in the civil case. Even if the driver was negligent, this does not have much probative value on the issue of liability of the manufacturer, who may also be at fault.


4. A landlord mails a notice of eviction to a tenant. The landlord addresses the letter to “Bob & Steve.” Steve is subsequently arrested for selling drugs, and Bob is also arrested on a conspiracy to sell charge. Steve pleads guilty and refuses to testify against Bob. So the prosecution offers the letter addressed by the landlord as evidence that Bob and Steve lived in the same house, and therefore it was likely that Bob knew of the illegal activity. Bob objects to the letter as being inadmissible hearsay. Is the letter hearsay?


4. No. Hearsay is an out of court statement offered to prove the matter asserted. Statements can be writings, however they must be an assertion to be hearsay under the definition of “statement” in 801(a). Here, the landlord is not trying to assert that Bob lived with Steve. He is merely doing the non-assertive act of addressing an envelope. Thus, the letter envelope is admissible to show the landlord’s belief that Bob and Steve lived together.


5. At a trial for murder, the defendant puts on a witness who is willing to testify that she was with the victim after the defendant attacked the victim, and that the victim told her, “Please help me, I’m still alive.” The defendant offers this evidence to show that although he attacked the victim, he did not kill her, and so she must have die from some other cause. The prosecution objects on the grounds that the victim’s statement is hearsay. Is it hearsay?


5. No. Although this is an out of court statement offered to prove the truth of the matter asserted in the statement, it is not hearsay because it is not dependent on the veracity or accuracy of the declarant for its value. The mere fact that the victim said anything is what is being proved. It does not matter that the victim happened to say “I’m alive” because her act of speaking is independent evidence of her being alive. It is the verbal act which has significance. It is only coincidence that the matter asserted in the statement is the matter sought to be proved.


6. Two men conspire to rob a bank. As the first leaves the bank, he is arrested. As the second leaves the bank, the first says to him, “Don’t worry, I didn’t tell them about you.” At the second man’s trial, the prosecution offers this statement to prove that the second man was involved. Is this hearsay?


6. Yes. Although it is not, by its terms, literally being used to prove the matter asserted by the words (i.e. whether the first man told the cops anything about the second man), it does support the clear inference that the first man was asserting that the second man was involved. The jury is very likely to adopt this assertion as the plain meaning of the statement. Thus, it is hearsay because the matter asserted is that the second man was involved.


7. Bob and Ed are arrested for bank robbery. After arrest, and after being read his miranda warning, Bob confesses to the bank robbery. The confession states facts which implicate Ed. The prosecutor at Ed’s trial wishes to have the confession statements admitted to proved that Ed was involved in the bank robbery, claiming that they fall under the co-conspirator admission rule and are thus not hearsay. What result?


7. The co-conspirator admission rule requires that the statement be made in furtherance of the conspiracy. The statement here is clearly hearsay because it was made out of court by a non-co-conspirator. Once a person is arrested, and begins to confess, the confession is clearly not in furtherance of the conspiracy.


8. A nine-year old child is attacked by a dog while walking home from school. She manages to get away from the dog and runs 1 mile home to tell her parents. She tells her parents that “The big brown dog on the corner attacked me.” At the civil action by the parents on behalf of the child against the owners of the dog, the dog’s owner seeks to prevent the parent from testifying as to what her daughter told her on the grounds that it is hearsay, and does not fall within one of the exceptions. How should the court rule?


8. The statement is clearly hearsay. However, it may fall under the exception 803(2) for excited utterances, which requires that the statement be made while under the stress or excitement caused by the event or condition. Given the child’s age, it is likely that she was still under the stress of the excitement of the attack when she got home (probably about 10 minutes later). Although the statement was not immediate, there was probably enough excitement to last until she got home, to prevent her from fabricating the story, particularly if she had serious injuries that were causing her pain.


9. Husband comes home and tells wife, “This morning I hurt my back while lifting heavy boxes at work.” Later that evening, the husband dies from a heart attack. At trial to get death benefits, the wife seeks to prove that his death was caused by on the job injury by testifying as to what her husband told her. The defendant company objects on the basis of hearsay. How should the court rule?


9. There is a hearsay exception for then existing physical condition. However, it does not cover statements of memory. Thus, the only way that this statement would fit the exception is if he was asserting that he was then in pain. If he were merely asserting that his back hurt earlier in the day, that would fall outside of the exception because it would be relaying his memory of past events. The rationale is that a person then experiencing pain is not likely to have the presence of mind to fabricate a story. However, a person remembering past pain would have the opportunity to lie.


10. John says to his friends, “I am going to the airport to meet Jim, and we are both going to Hawaii together.” John thereafter disappears. Jim is unable to provide witnesses to account for his whereabouts during the time in question. At Jim’s trial for murder, he seeks to prevent John’s friends from testifying as to his statement concerning meeting Jim at the airport. What result?


10. This is hearsay. However, it appears to fit the exception for then existing mental condition - i.e. intent of the declarant. The statement asserts that John intends to meet with Jim. Although the statement also implies the intent of Jim, that only makes the likelihood less of the meeting actually occurring. It does not make the reliability of John’s statement about his intent any less reliable (it is still free from memory lapse because it is being made at the time of intention being present). Thus, the statement fits under the exception, even though it implies action or intention of a second party as well.


11. Eyewitness at bank robbery sees the license number of the getaway car. He quickly runs into the bank and tells the security guard, who immediately writes it down. At the bank robber’s trial, the defendant seeks to prevent the security guard from testifying as to the contents of the note where he wrote down the license plate claiming 1) the note is hearsay because it was written out of court, 2) the contents of the note are hearsay because the statement to the security guard was made out of court. The security guard is unable to remember the license number that he wrote down, but he testifies that he would not have written it down incorrectly. What result?


11. The note could come in if it met the hearsay exceptions for both levels of hearsay: 1) the writing of the note, and 2) the telling of the license plate number. First of all, the present sense impression exception would probably apply to the eyewitness account of the license number of the car because he had personal knowledge, and he described the license number immediately after perceiving it. The note could come in under the past recollection recorded exception because the security guard 1) is unable to remember, 2) wrote it down while it was fresh in his memory, 3) he had personal knowledge that he was being told the number (but not that the number was correct), 4) he testified as to the accuracy and truthfulness of the content of the writing.



12. Vicki wants to buy a condo. Before she does buy the condo, she hires an inspector to come out and take a look at the house. While the inspector is walking through the house, Vicki notes that one of the water faucets is dripping, and she tells him. He says, “thank you” and writes it down. However, he does not independently verify the leaky faucet; he merely takes her word for it. After Vicki moves in, she is killed when she slips on a wet floor. At trial for wrongful death, the previous owner seeks to prevent the record of the inspection report from being admitted, claiming that it is hearsay. What result?


12. The record is hearsay, and it does not really fit the business records exception because the courts have interpreted that exception as requiring that the record be based on the personal knowledge of someone acting on behalf of the business. Here, Vicki is not acting on behalf of the business. She is a third party who made an independent statement, that the record keeper merely wrote down. Thus, the record created here does not concern the business activity of the inspector, per se.


13. Jim is driving recklessly. He is pulled over by a police officer who performs a field sobriety test, which is videotaped from the officer’s car. Jim fails the test, and is arrested for drunk driving. At his criminal trial, Jim seeks to prevent the prosecutor from introducing the videotape as evidence, claiming that it is hearsay. Is it hearsay? If so, is there an available exception to admit it anyway?


13. The videotape is recording conduct, and communication. Thus, the question is whether this conduct is an assertion. It probably is an assertion by Jim that he is not drunk (that is what he is trying to communicate to the officer), and an assertion by the police officer that he is drunk (that is what the prosecutor is trying to communicate to the jury). Thus, it probably is hearsay. There is a public records exception for matters observed pursuant to duty imposed by law as to which matters there was a duty to report. However, this exception excludes, in a criminal case, matters observed by police officers and other law enforcement personnel. But since the hearsay dangers involved in the presentation of a video tape are minimal, it is likely that it will come in anyway because the video tape does not represent a risk of faulty memory, or inability to cross-examine, as long as the police officer is present.


14. John is injured by a car battery charger that has defective wiring. At his trial for products liability against the manufacturer of the charger. John calls an expert witness to the stand to testify as to the industry requirements of wiring safety contained in the UL Handbook, and to enter the Handbook into evidence. The manufacturer seeks to exclude the writing as hearsay, since the author(s) of the handbook are not able to testify. What ruling?


14. The handbook is technically hearsay. However, it fits under the exception for learned treatises. However, the learned treatise exception only allows the contents of the writing to be read into evidence. The handbook itself is not to be received into evidence as an exhibit.


15. The border patrol chases a truck full of illegal aliens. The truck swerves to hit the border patrol van, knocking the van off the highway and injuring the border patrol agents. The truck full of aliens is promptly captured by police, and the aliens are detained, deposed under oath at a preliminary hearing attended by counsel, and then they are deported. The government seeks to press charges against the driver of the truck for attempted murder. In several of the statements by the illegal aliens, there are statements to the effect that the driver intended to run the van off the road. The prosecutor seeks to have the statements read into evidence, and the defense objects on the grounds of hearsay. What result?


15. The statements are hearsay. They do not fit under the public records exception because this is a criminal trial. They seem to fit under the 804(1) exception for former testimony, since they were given in a deposition taken in compliance with law in the course of a prior proceeding and cross-examinable by defendant’s counsel. However, the 804 exceptions require that the declarant be unavailable. Here the illegal aliens are beyond service of process. However, there is a question of whether they are legally “unavailable” because the proponent of the statement (the government) procured their absence by deporting them. Since there are procedures for bringing in foreign citizens to testify, the government probably has not made a “genuine and bona fide” effort to produce them. Thus, it is likely that the statements will be inadmissible hearsay.


16. In an action for personal injury arising from an automobile accident, Pete sues Donna for negligence. Pete puts on a witness, William, who said that the light was green for Pete. Donna puts on a witness, Wanda, who said that that light was green for Donna. The case is settled out of court. Later, a passenger in Pete’s car, Pedro, sues Donna on the same accident. William and Wanda are no longer available, both having died in an unrelated car crash. Pedro seeks to read into evidence William’s statement that the light was green for Pete, and Donna seeks to read into evidence Wanda’s statement that the light was green for Donna. May either of these statments come in?


16. Both statements are hearsay. Both statements were made under oath in a prior proceeding. However, only Donna had an opportunity and similar motive in the prior proceeding to develop the testimony by cross-examination. Thus, Williams testimony is admissible because it has been properly tested by cross-examination by Donna herself. Pete, although he had the same interest in discrediting the statement of Wanda on cross-examination as Pedro now does, is not a “predecessor in interest” for the purposes of 804(b)(1). There exists no privity between the two. However, since this is not a criminal case, the court may read the “predecessor in interest” more broadly, and let it in under 804(b)(1), or perhaps even under the catchall exception of 804(b)(5).


17. Jim is hit by a car. As he lays on the sidewalk bleeding, he tells a passerby, Steve, “I’m dying. I was on my way to testify in court against Big Eddie. Please tell the jury that I saw the Big Eddie kill his wife.” Then Jim dies. Steve finds the correct courtroom, and the prosecution wants him to take the stand in Jim’s place to relay the testimony. The defense immediately objects on the grounds of hearsay. What result?


17. Clearly, the statement is hearsay. There is an exception for an unavailable defendant’s dying declaration. Here the statement was made under belief of impending death, and it is being used in a homicide case. However, it does not concern the circumstances surrounding Jim’s death. Thus, it does not fit the exception, and Jim’s testimony dies with him.


18. Jim and Bill are arrested and charged with drug smuggling. Shortly before his arrest, Jim tells a friend that, “Me, Joe and Shorty went to the airport to pick up the stuff.” Jim dies in custody before trial. At his trial, Bill wishes to introduce Jim’s statement to his friend as evidence that Bill was not involved. What result?


18. The statement is hearsay. However, there is an exception for statements against penal interest. Here, Jim is unavailable, and the statement he made clearly implicates him in a crime. However, there is a requirement that in criminal cases, a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. The supreme court has allowed such a statement, reasoning that the statement, besides implicating Jim directly (“me...”), also implicates him indirectly (“Joe, and shorty...”) because only someone who was there could know who else was there. Thus, the part of the statement that fails to implicate Bill is admissible as being contrary to Jim’s penal interest. The corroborating circumstances are that the statement has two parts, each tending to implicate Jim.


19. Jim drank a bottle of what he thought was Coca-Cola. The bottle had the Coca-Cola label on it. However, Jim died, apparently from some sort of poisoning. At the products liability trial of Coca-Cola, Coca-Cola seeks to prevent Jim’s heirs from introducing the bottle into evidence in order to prove that the bottle was bottled at the Coca-Cola bottling company. Coca-Cola claims that the bottle is being used for a hearsay purpose. What ruling?


19. The label on the bottle is technically hearsay because it is being offered to prove the truth of the matter asserted on it (that it was bottled at the Coca-Cola bottling plant) and it depends on the veracity (authenticity) of the label for its value. There appears to be no exception in the rules that directly applies to this situation. However, it does fit under the catch-all exception of either 803(24) or 804(b)(5) becuase it 1) has equivalent guarantees of trustworthiness as the listed exceptions, 2) it is probative on a material fact, 3) it is more probative than any other evidence available on that issue, and 4) it serves the general purposes of truth and justice to let it in. However, Jim must let Coca-Cola know sufficiently in advance of trial that it will be offered.


20. Bob and Steve get into a violent fight at a bar. Steve is charged with battery. At his trial, the issue is who started the fight. Steve offers testimony as to his Bob’s bad character by putting on a witness who to say “Bob is an agressive fight picker.” The prosecution then offers a first witness to testify that “Steve is a bully,” and a second witness to testify that “Bob is a peaceable fellow.” Which, if any, of these statements are allowable character evidence?


20. The general rule is that evidence of character is not allowable to prove conduct on a particular occasion. However, the accused may offer evidence of a pertinent character trait of the character of the victim, and then the prosecution may rebut that evidence. Here, Steve has offered evidence of a pertinent trait of the victim, Bob (fight picker) to prove that Bob started the fight. However, the only one of the pieces of testimony introduced by the prosecution rebuts that claim (Bob is peaceable). The other testimony directly attacks the accused’s character, which is disallowed unless the accused has put his character in issue. Here, the accused has only put the victim’s character in issue.



21. In the same fight as above, Steve offers to testify that “Bob said he was going to punch me” in order to prove that Bob started the fight. Is this statement admissible?


21. The statement is being used for a hearsay purpose. It is being offered to prove that Bob was going to punch Steve. However, it may be admissible for the purpose of showing that Steve was reasonable in his fear of Bob in order to support a claim of self-defense.


22. Leslie claims to have been date raped by Fred after a fraternity party. Fred claims consent, and offers testimony that he and Leslie previously had sexual relations, testimony by a friend Greg that “Leslie is very sexually active” and “known as an easy mark”, and another friend Thomas, that he had sex with Leslie earlier on the night in question. Is the testimony of Fred, Greg and Thomas admissible?


22. The testimony of Fred is admissible under 412(b)(1)(B) because it is evidence of “specific instances of sexual behavior” with the accused “offered to prove consent.” However, Greg’s testimony is barred under 412(a)(1) as being offered to prove that Leslie “engaged in other sexual behavior”, and 412(a)(2) as being offered to prove “sexual predisposition.” However, Fred might argue that at least Thomas’ remarks are admissible under 412(b)(1)(A) to prove that Thomas was “the source of semen, injury, or other physical evidence.”


23. Same fight as above. At trial the defense offers testimony that the other other person “started at least six other fights in the last year or so, mostly in” the location of this place in order to prove that Bob started the fight. Is the testimony is admissible?


23. No. FRE 405 allows testimony of specific instances of conduct only 1) on cross-examination, or 2) when character is “an essential element of a charge, claim, or defense.” Here, the victim’s character is not an essential element of a charge, claim or defense. However, if the defendant was claiming self-defense, he may be able to get the testimony admitted for the purpose of proving that he was reasonable in his fear of the victim (i.e. if the victim started 6 fights in one year, then the defendant was likely to know of the fights, and reasonably fear the victim.)


24. In a prosecution for murder, the prosecution offers evidence that the defendant stole a Ford Mustang, and that the murdered victim had witnessed the theft in order to prove that the defendant murdered the victim. The defendant objects that this would 1) be improper use of character evidence of prior bad acts to show propensity for crime in this case, and 2) that evidence of specific bad acts can only be brought up on cross-examination. What result?


24. The prosecution is offering evidence of other crimes. However, they are not being offered to show a propensity for crime, but rather to show that defendant had a motive for killing the victim (i.e. to prevent him from identifying defendant as the car thief). Thus, they are admissible under 404(b) for that purpose. As to the objection as to bringing up prior bad acts only on cross-examination, Rule 405(a) only applies to methods of proving character (i.e. by opinion or reputation). Here, the evidence is not being used to prove character, but rather motive.


25. A former roomate of the defendant approaches police as a volunteer informant, and sets up a deal with an undercover officer to buy a large amount of cocaine from the defendant. At the proposed exchange, the defendant does not sell cocaine to the undercover buyer, but he is carrying a small vial of cocaine. The defendant claims that the aborted sale was a scam between him and his former roomate to take the buyer’s cash without selling the cocaine. At trial, the prosecution offers testimony by the former roomate of numerous previous drug sales. Is testimony concerning the defendant’s prior drug sales admissible?


25. Yes. The prior drug sales are admissible under 404(b), not to show the propensity of the defendant to sell drugs, but rather that he had the intent to sell drugs. In other words, it is not being offered to show that since he sold drugs in the past that he is a criminal, and that as a criminal he is more likely to have sold drugs in this instance. The issue here is whether he intended to sell drugs or just rip off the undercover agent for money. Proof of his prior drug sales tend to show that he had the intent to sell drugs; that it was his plan to sell drugs, rather than merely steal money.


26. Jim brings a libel action against Charlie for Charlie’s statement in front of the PTA that “Jim beats his children.” At trial, Charlie seeks to introduce evidence that Jim was arrested for child abuse last year. Jim objects that this is improper use of prior bad acts as character evidence to show conduct on a particular occasion. What ruling?


26. Overruled. Rule 405(b) allows specific instances of conduct to be admissible when the character of a person (here the defendant) is an essential element of the defense (here truth is a defense to libel).


27. At his criminal trial for battery, ∆ seeks to put on a witness to testify on direct examination that: 1) ∆ donated $500 to charity last year, 2) ∆ is a scoutmaster, 3) ∆ volunteers at the local nursing home. Is any of this testimony admissible?


27. No. Although rule 404(a)(1) states that a criminal defendant may offer evidence of his good character, 405(a) limits the manner in which that character may be proved. Specifically, 405(a) allows the proponent to offer opinion and reputation evidence of character only. Specific instances of conduct may only be inquired into on cross-examination (i.e. for the purpose of exposing any weaknesses in the basis for the opinion or reputation).


28. An illegal immigrant was deported, and then returned to the U.S., subjecting himself to the higher penalties for re-entry. He claims that he was not served with the papers telling him of the higher penalties for repeat offenders. As proof that he was served, the government seeks to introduce testimony by an INS officer (not the one who deported the alien) that it is the standard procedure of the agents to sign the warrant, get a thumb print, and give the notice to the deported person. Is the evidence of the normal process of deportation is allowable here to show that it was followed in this particular instance?


28. Yes. This represents evidence of a routine practice of an organiation under FRE 406. The evidence does not need to be corroborated.


29. Jerry slips and falls on a wet stairway at a hotel owned by Harry. At trial for personal injury damages for premises liability, Jerry claims that the hotel was negligent in failing to provide either a warning sign or non-skid surfacing on the stairs. Harry denies that he had a duty of care to provide non-skid surfacing, claiming that it would not be cost effective or feasible, and that in any event, the slipperyness of the stairs was “obvious” and so Jerry is contributorily negligent. May Jerry introduce evidence that a week after the suit was instituted, Harry posted a warning sign, and installed the non-skid surfacing on the stairs?


29. Although Rule 407 prohibits evidence of subsequent remedial measures to prove negligence or culpable conduct. However, it also expressly provides that such evidence is admissible for the purpose of showing the feasibility of such precautionary measures, if disputed, or for the purposes of impeachment. Here, Harry’s denial of the feasibility of the non-skid surfacing had the effect of putting feasibility in issue. As such, evidence of his taking these subsequent remedial measures rebuts his claim of feasibility. As to the warning sign, Harry’s testimony that the hazard was “obvious” is impeached by his inconsistent act of placing a warning sign.


30. Sally and Patty get into an automobile accident. Both get out of their car. As Patty approaches, she says, “It looks like there is some damage to your car. Let me just give you $100 and we’ll call it even.” Sally says no, and brings an action for property damages. Sally seeks to testify as to what Patty said at the accident scene in order to prove that the accident was Patty’s fault. Is her testimony admissible?


30. Rule 408 prohibits evidence of offering to pay damages in order to settle a claim which is disputed either as to validity or amount. Here, there has been no claim, so there can not be a disputed claim. Patty said these words on her own, without prompting from Sally. Thus, these words consist of the admission of a party opponent and are admissible to show liability.


31. Tim hits a pedestrian while driving his car. Tim visits the victim in the hospital, and when he finds out that the victim is uninsured, Tim offers to pay his medical expenses, stating, “I’ll pay your doctor bill because I feel bad about hitting you while I was speeding.” At the victim’s trial against Tim for personal injury, the victim seeks to introduce the statement to prove that Tim was, in fact, speeding, and was therefore negligent. Tim objects on the ground that offers to pay medical bills are inadmissible. What ruling?


31. Rule 409 prohibits evidence of offers to pay medical bills from being used as evidence of liability. However, the statement made by Tim had two parts: 1) I’ll pay your doctor bills, and 2) I was speeding. The second part of the statement is unrelated to the offer to pay the medical bills, and is therefore collateral. As to collateral statements, the rule does not protect them just because they were made in the same breath as the offer to pay medical bills. Also, this does not fall under offers to settle, because there was no claim in dispute. Thus, the portion of the statement concerning Tim’s admission of speeding is admissible to prove that he was speeding.


32. Gary is sued for negligence in an automobile accident. He calls to the stand his own insurance adjuster, from his own insurance company, to testify that the damages to the plaintiff’s car were less than what the plaintiff is claiming. On cross-examination, the plaintiff asks the insurance adjuster what his relationship with Gary is. Gary immediately objects, claiming that evidence of liability insurance is inadmissible. What result?



32. Overruled. Here, Gary has chosen to put on his own insurance adjuster. The plaintiff is entitled to bring out any relationship that might implicate bias or prejudice of the witness. Since Gary has a business relationship with the adjuster, that is probative of bias. It does not matter that the questioning also reveals that Gary has liability insurance because it is not being offered to prove that Gary is liable, but that his witness is biased.


33. Tanner was convicted of a crime. After his trial, the defense sought to introduce evidence that many members of the jury were drinking and taking drugs during recesses, and so they were not competent to return a verdict. Is this evidence admissible?


33. No. Rule 606(b) prevents inquiry into the validity of a verdict. The juror may not testify as to what internal influences affected the vote of the jury. Only external influences on the jury’s deliberation may be testified to. Here, drug use is not an external influence on the jury.


34. Able is a crafty lawyer. In order to prepare his witnesses for a depostion, he had them study from a binder full of materials that he had collected on the subject of the litigation. Able’s adversary, Cain, wants copies of the testimony preparation materials, claiming that he has a right to inspect them, and even enter them into evidence, under FRE 612. Able chuckles slyly and tells the judge, “He can’t have them, your honor. They are protected by both attorney client privilege, and the work product doctrine.” What ruling?


34. Cain is entitled to them under FRE 612 if the judge, in his discretion, determines that it is necessary in the interests of justice. The adverse party may inspect the materials, cross-examine the witness thereon, and even enter the relevant portions into evidence in order to discredit the witness. The rule has been interpreted as being broad enough to overcome a privilege or work product objection. As such, Able waived his privilege or work product objection when he used the documents to refresh the witness’ memories.


35. In a civil suit for personal injury damages arising out of an automobile accident, the π puts on a witness to testify that the ∆ was drunk at the time of the accident. On cross-examination, for impeachment purposes the defense attorney asks the witness, “Isn’t it true that you crashed last year for drunk driving?” Is this proper impeachment? What if the attorney asked, “Isn’t it true that you embezzled money from your employer last year?” If the witness denies the accusation, may the defense attorney produce the arrest report that shows, in fact, that he had been arrested?


35. The drunk driving question is not proper. Rule 608(b) allows probing into specific instances on cross examination, at the discretion of the court, of conduct not resulting in conviction. However, the evidence must be probative on veracity. Since driving drunk is not a crime of deception, then it has no probative value for veracity. In contrast, the embezzlement is probative on veracity because it is a crime involving deception. However, if the witness were to deny it, the defense attorney may not prove it by extrinsic evidence because of the collateral matter doctrine (whether the witness embezzled is not a material issue in the personal injury case).


36. Dennet is charged with bank robbery. He has a prior robbery conviction 6 years ago. The prime witness for the defense, and the prime witness for the prosecution both have prior robbery convictions, each 8 years ago. May evidence of the prior convictions be allowed as to each witness and the defendant to impeach their testimony if they choose to testify?


36. Rule 609 provides that prior conviction for impeachment of a witness is admissible subject to Rule 403, as long as it was punishable by >1 yr imprisonment, and happened within the last 10 years. So the prior conviction of each of the witnesses should be allowed unless its probative value is “substantially outweighed” by its prejudicial effect (Rule 403). Here, there appears to be no great prejudicial effect, since the witnesses prior convictions do not implicate the defendant. However, with regard to the defendant himself, Rule 609 states that the probative value must “outweigh” the prejudicial effect. As such, the balancing standard is higher. Since the prior conviction was so similar to the present charge, there is great danger of prejudice. Thus, it should probably stay out unless it can be shown (under 404(b)) to be part of a common plan or evidence of a “signature” crime.


37. Pratt sues Denko for personal injury damages from a car accident. After Pratt testifies, Denko seeks to impeach him by bringing out prior felony convictions for manslaughter and forgery. Are either of these prior convictions admissible for the purpose of impeachment?


37. Certainly for the forgery. Rule 609(a)(2) provides that crimes involving dishonesty or false statement are admissible, regardless of the who they are offered against, and regardless of the level of punishment, unless they are more than 10 years old, and then if justice and the circumstances require. The prior manslaughter conviction will come in also unless it is excluded by rule 403, because this is a civil case and so the evidence is not subjected to the higher balancing standard of 609(a)(1). It may be excludable under Rule 403 as lacking sufficient probative value with regard to truthfulness.


38. Durston is charged with assault, and testifies to an uncorroborated alibi at trial. He has 5 prior convictions. Which of the following convictions would be admissible to impeach his testimony:


1. recent falsifying of motel register

2. recent drug sale

3. recent conviction for larceny

4. first degree armed assault

5. forging a bank application, released from prison >10 years ago


38. 1. recent falsifying of motel register - Yes. 609(a)(2) dishonesty.

2. recent drug sale - No. 609(a)(1) not very probative on veracity, and very prejudicial. Prejudice slightly outweighs probative value - it stays out since offered against an accused.

3. recent conviction for larceny - If it involved deceit in execution, it will come in. Depends on underlying facts. 609(a)(2). If it doesn’t involve deceit, it will probably be excluded as being less probative on veracity than it is prejudicial against character.

4. recent first degree armed assault - No. 609(a)(1) great danger of prejudice, very little probative value on veracity. Possible exception if prosecutor can show a common plan or intent, or “signature”.

5. forging a bank application, released from prison >10 years ago - No. 609(b) time limit. But, depends on underlying facts, may be admissible if, “in the interest of justice”, and considering the circumstances, if the probative value “substantially” outweighs prejudice (reverse 403).


39. Welch testifies on direct that Plimpton’s attack on Dirk was unprovoked. During cross-examination, adverse counsel makes no inquiry into any prior statements of Welch. Welch is then dismissed and goes to Singapore (beyond service). Adverse counsel then calls a police officer to testify that Welch told him that the attack may have been provoked. Is the police officer’s statement admissible?


39. No. 613(b) allows extrinsic evidence [here, the police officer’s testimony] of a prior inconsistent statement at any time, as long as the witness is afforded an opportunity to explain or deny it, or if the interests of justice otherwise require. Since the witness is not available to explain or deny the prior inconsistent statement, and since the adverse counsel had a chance to cross-examine him, it is probably not in the interest of justice that the statement be let in. Note that there is not a hearsay problem here because the prior inconsistent statement is being used to impeach (non-hearsay purpose), not for the truth of the matter asserted (although the jury might not be able to tell the difference, even with a limiting instruction).


40. During a personal injury trial, William testifies that he saw the accident from the window of the USD law school building. He also testifies that he is a 2L (when in fact he is only a 1L). Adverse counsel knows for a fact that William is lying as to his class standing, and confronts him with it on cross-examination. William again asserts that he is a 2L. May adverse counsel then put on the school record administrator to testify that he is only a 1L?


40. No. Although the statement is false, it is only a lie as to a collateral matter. As such, extrinsic evidence of its falsity neither desired nor admissible.


41. Oswald is charged with a robbery. Ardiss, the owner of a local restaurant, testifies that Oswald was at the restaurant on the night in question. On cross, the prosecutor gets Ardiss to testify that Oswald was in the restaurant every day for a month prior to the robbery. He then offers testimony by a Police Officer that the police officer saw Oswald elsewhere 2 weeks prior to the robbery, in order to impeach Ardiss. Is this allowable?


41. No. Counsel may not contradict as to a collateral matter. The police officer’s testimony is collateral because there is no substantive issue of where Oswald was 2 weeks before the robbery. However, if this fault in his alibi were viewed as a “linchpin” (i.e. if it is not true, the whole story seems to fall apart) then it might be admissible at the discretion of the judge.


42. Charlie is on trial for bank robbery. Walter, his star witness, testifies that Charlie did not do it because they were together on that day. On cross-examination, the prosecutor asks, “Didn’t you tell the police that you and Charlie had robbed a bank 13 years ago?” The prosecutor knows that this is true. If Walter denies it, would the prosecutor be able to prove it by introducing the police officer to testify that it was true?


42. No. The prosecutor may not “open his own door” by eliciting a lie from a witness, solely for the purposes of impeaching him with evidence that would not otherwise be admissible. Here, the prior statement would have been otherwise inadmissible hearsay, and also prejudicial to the defendant as a prior bad act that may not normally be proved by extrinsic evidence (608(b)). Thus, the prosecutor may not “trick” the witness into giving him an opportunity to get it in for impeachment purposes because he did not offer it on direct.



43. Chauncy is charged with bank robbery. At trial, the prosecutor shows a videotape of the robbery, in which a person resembling Chauncy is seen robbing the bank (same physical size, skin color). The prosecutor then puts on a witness who states that she was at the bank during the hold up, and that she saw the bank robber, and that the man on the videotape looks a lot like the defendant. Is this testimony proper?


43. No. Although the witness may testify as to other matters within her personal knowledge, rule 701(b) requires that the witness’ opinion testimony be “helpful” to the trier of fact. Here, the testimony that she thinks that the man on the video looks a lot like the defendant does not help the jury, because they can see the video themselves, and so they can draw their own conclusions as to who the defendant resembles.


44. π was injured due to complications arising after an open heart surgery. The π brings on an expert witness doctor to testify that, on the basis of reading what a resident (not present) wrote on the chart about the tube falling out during surgery, that the tube falling out caused air to enter the π’s bloodstream, injuring him. May the expert witness may testify as to what was written on the chart in explaining the basis for her opinion?


44. Yes. Under Rule 703, an expert witness may rely on information reasonably relied upon by her profession, and resident’s notes on a medical chart fall into that category. The fact that it is hearsay does not prevent an expert from relying on it. Anyway, the medical record itself may be admissible under the business records exception.


45. At a criminal trial for DUI, the ∆ successfully has blood test evidence suppressed since it was taken in violation of the informed consent law. However, the prosecution calls the doctor who performed the blood test to testify that in his opinion, she was drunk, based on the blood test, which measured .24 BAC. Is the doctor’s testimony as to the basis for his opinion admissible?


45. No. Although the expert is able to rest his opinion on inadmissible evidence under Rule 703 (including evidence illegally obtained), a criminal case also requires that the ∆’s constitutional rights be preserved. Here, the opinion that she was drunk is probably admissible, but he may not disclose the blood test as the basis for his opinion, because that is tantamount to introducing the evidence itself. It is clear that the jury would not be able to disregard the .24 BAC level as being evidence of drunkeness.


46. Jane is hit by a car. Jane brings an action against the parents of the driver, and introduces evidence that: 1) the driver was 16 years old, and 2) the driver was driving his parents car. If the parents introduce evidence that the car was in good working order, how should the judge instruct the jury on whether the driver was driving with the permission of his parents?


46. This is a mandatory presumption. According to FRE 301, a presumption shifts the burden of production (but not persuasion) on that issue to the opponent to meet or rebut it. If the proponent can prove the basic facts (minor, parent’s car), then the jury must find the presumed fact (parent’s permission) in the absence of any counterproof on that issue, because the opponent has failed his burden of production.


47. Assume the same facts as above, but this time the parents introduce evidence that it was not their car that the minor was driving. How should the judge instruct the jury?


47. This is still a mandatory presumption. However, now the parents have introduced evidence to rebut one of the basic facts (parent’s car) that supports the presumed fact (parent’s permission). Thus, whether the presumed fact is true depends on how the basic fact in dispute is resolved by the jury. Since FRE 301 only shifts the burden of production, but not the burden of presuasion, the judge should instruct the jury that if they find that the minor was driving his parents car, then they must find that the minor had the parents permission. Note that since the burden of persuasion stays with the proponent, they must get over the initial hurdle of persuading the jury of the basic fact in the face of counterproof on that basic fact.


48. Assume the same facts as above, except now the parents introduce evidence that the minor took the car without their permission. How should the court instruct the jury?


48. Here, the parents have attacked the presumed fact (parent’s permission) itself. Thus, since FRE 301 does not shift the burden of persuasion with regard to any basic or presumed fact, the presumption disappears. This is because the proponent still has the burden of persuasion with respect to the presumed fact. In the previous examples there was no counterproof entered against the presumed fact. Thus, just like evidence on any proposition, if the opponent does not counter it, then the proponent has a preponderance of the evidence by default. But if the opponent does counter the evidence, then the jury must weigh each side to determine where the preponderance lies. Such is true here with the presumption. Since the presumed fact has been countered, the jury has to weigh the evidence of the presumed fact on both sides. Thus, the presumption has no further effect (it is no longer a shortcut). The judge should not mention the existence or non-existence of a presumption in this case, but rather let the jury decide normally.


49. John is charged with murder for shooting his wife. In the state in which he is tried, there is a statute which states that “in a murder case, the prosecution is required to prove malice. If the prosecution proves that the murder was committed with a deadly weapon, then the jury must find that the defendant acted with malice, unless the defendant produces evidence that he did not act with malice.” At trial, the prosecution is able to prove that he shot his wife (deadly weapon), and John does not produce any evidence of lack of malice. John is convicted. Is this state statute constitutional?


49. No. In a criminal case, the prosecution is required to affirmatively prove all elements of the crime beyond a reasonable doubt, including the mental state of the defendant. The prosecution may not shift this burden of proof to the defendant. Although the jury is permitted to infer that the defendant acted with the requisite malice based solely on his use of a deadly weapon, the statute is worded such that they are required to do so. Mandatory presumptions are unconstitutional in a criminal case because they have the effect of a partial directed verdict. The statutory language could be changed to “may infer” instead of “must.”


50. Same facts as above, except this time the statute reads, “in a murder case, the defendant is required to prove any affirmative defense by a preponderance of the evidence.” John introduces evidence that he acted in the heat of passion, but he is nonetheless convicted. Is this state statute constitutional?


50. Yes. The prosecution bears the burden for proving all of the elements of the offense, but not all elements of an affirmative defense. This was so at the time of ratification of the 5th and 14th amendments, and so it does not offend due process. The preponderance standard is not too high of a burden to put on the defense with respect to affirmative defenses.


51. Auto accident. π asks judge to take judicial notice of the fact that it did not rain at the location on the day of the accident, and that the intersection was dry, and provides the judge with weather report as support. May the judge take judicial notice of these facts given the supporting weather report?


51. Yes as to the fact that it did not rain. That is a point that really indisputable. Even though the weather report is hearsay, it is probably reliable. Regardless, the “necessary information” of FRE 201 does not have to be admissible. However, since there are other reasons that the intersection may have been wet (broken water main, etc.), the judge should not take judicial notice of the fact that the intersection was dry, only that it was not covered with rain.


52. In a trial for theft, Joe, a law student is charged with stealing a beer from a liquor store. The theft occurred during class time. As part of Joe’s defense, he alleges that he was too busy to take the beer because law school is so demanding. Joe wishes the judge to take judicial notice of the fact that law school takes at least 40 hours a week of his time. The judge, remembering his law school days, agrees. He instructs the jury that they must find that Joe spent at least 40 hours a week at school. Is this instruction proper?


52. There are two problems with this instruction. First, the judge is not allowed to take judicial notice of facts solely based on his own knowledge or experience. FRE 201 requires that they be not subject to reasonable dispute. That means they must either be 1) a matter of a general knowledge in the jurisdiction, or 2) subject to quick verification by reliable sources. The amount of time a particular student spends in law school is a matter which is subject to reasonable dispute, and so it is not the proper subject of judicial notice. However, even if it were, this is a criminal case, and so the judge is not allowed under 201(g) to tell the jury that they must accept a judicially noticed adjudicative fact as true, even if it favors the defendant (and thus does not offend due process). (note that legislative or legal facts judicially noticed are still conclusive in a criminal trial)


53. At Sally’s criminal trial for tax evasion, a witness who is a tax auditor is put on the stand. The tax auditor testifies that the signature on a particular tax return appears to belong to Sally. When questioned on the basis for her opinion, the tax auditor states that “since I started the investigation of this case, I have seen the defendant’s signature hundreds of times, and so I am familiar with it.” Is this proper authentication of the testimonial evidence of the signature?



53. Maybe. Rule 901 provides that a non-expert may testify as to the genuineness of handwriting, based upon familiarity. Here, the tax auditor has personal knowledge of the handwriting, and is familiar with it. However, the familiarity must not have been acquired for the purpose of litigation. It is arguable here that the tax auditor’s sole purpose in examining the signature was to prepare for litigation. After all, she was conducting a criminal investigation.


54. What if the testimony in the above example were given by an expert on handwriting who had been called in solely for the purpose of comparing the signatures?


54. Then the testimony would be properly authenticated under 901(b)(3) as a comparison by an expert witness. Note also that the document with the signature may be given to the jury for their own comparison.


55. A law student calls the managing partner of a law firm at his country club. A voice comes on the line and says, “This is O’Rourke.” They negotiate a start date, and the student declines other offers. After a few months, the student hears nothing more, and so files a breach of contract suit. May the law student testify as to the identification of the called party even though he is not familiar with the party’s voice?


55. Yes. Since the law student initiated the call, and not the other way around, a prima facie case has been made out once the student demonstrates that he called the correct number, and that a person on the other end identified himself as the managing partner. This is sufficient authentication of a voice based on 901(6).


56. A mayor sues a reporter and a private citizen for libel based on an article published in the newspaper, allegedly written by the reporter, and a letter to the editor, allegedly written by the private citizen. May the newpaper may be offered into evidence as self-authenticating?


56. Yes. FRE 902(6) provides that newpapers are self-authenticating. However, this does not conclusively establish that the content of the article or the letter was actually written by the persons attributed as the authors. It only establishes that the newspaper is who it claims to be. They may still introduce evidence that they were not the authors.


57. A doctor was asked by an adopted child for information concerning who her parents were. The information is confidential, but the doctor makes a copy and gives it to the child anyway. The child contacts the parents, who are greatly distressed by the visit. The parent brings an action for intentional infliction of emotional distress. The parent attempts to have the photocopy that the doctor gave to her daughter entered into evidence. The doctor objects, citing the best evidence rule. Should the photocopy be allowed as evidence?


57. Absolutely. Yes. The photocopy IS THE ORIGINAL in this case. There is no best evidence problem. The π is not trying to prove the contents of the original adoption record, she is trying to prove the contents of the photocopy that was provided to her daughter.


58. Dan sues Eva over a contract. At trial, Dan offers what he asserts to be a photocopy of the original. Eva testifies that the photocopy is not an accurate reproduction of the original, claiming that it includes clauses that were not in the original. Dan testifies that he made the copy directly from the original.

Should the judge should allow the alleged photocopy into evidence, even though Rule 1003 provides that duplicates are admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original?


58. Yes. This is not a question as to the authenticity of the orignial. Eva does not dispute that a contract exists. She only disputes that the photocopy is an inaccurate representation. Thus, the issue of authenticity then becomes a fact for the jury to decide under Rule 1008(c), i.e. whether the “copy” “correctly reflects the contents” of the original “is for the trier of fact to determine.”





























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