Evidence Cumulative Quiz (Lapp)

Hal and Falstaff got into a fight in a bar, and Hal pushed Falstaff to the ground and repeatedly kicked him in the head. Hal was arrested for assault, and Falstaff sued Hal for battery. One week before the criminal trial, Hal paid Falstaff $10,000 and Falstaff dropped the battery case against him. During the criminal trial, the prosecutor calls Falstaff to the stand and asks him whether Hal paid money to him after the assault. The defense attorney objects. Falstaff's answer would be: 1. Inadmissible to prove Hal's guilt because it is irrelevant. 2. Inadmissible to prove Hal's guilt under Rule 408. 3. Inadmissible to prove Hal's guilt under Rule 410. 4. Admissible to prove Hal's guilt.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 2. Inadmissible to prove Hal's guilt under Rule 408.

Peter is suing Doctor Nevins for malpractrice, claiming he was not properly warned of the side effects of the drug Nevins prescribed. In his defense, Nevins calls a nurse who was present when Nevins prescribed the medication to Peter, and who will testify word for word as to the detailed warnings that Nevins gave Peter about potential side effects of the drug. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Ford Motor Company is being sued by the victim of a car accident. In its own defense, Ford offers the report which was filed by the foreman of the factory on the day the car was built to prove that the car that was involved in the accident left the factory with no defects. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Greg is suing Greyhound Bus Co., alleging that it negligently hired Will as a driver, and that Will subsequently plowed a bus into Greg's car. Greg offers into evidence Will's employment application to Greyhound, in which Will admitted to having received six moving violations in the year preceding the application. Greg offers the application not just to prove Greyhound had notice, but also as proof that Will actually did receive six moving violations. Will was killed in the bus crash and is not a party to the action. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

While shopping at the Kwik-E-Mart, Homer slipped on a puddle of spilled liquid in the aisle and cracked his tailbone. Homer is now suing Kwik-E-Mart for negligence in not cleaning up the spill before the accident. Apu, the manager of the Kwik-E-Mart, testifies on direct that his employees regularly patrol the store and that "since the accident, we haven't even felt the need to change our policies." On rebuttal, Homer's attorney offers evidence that a week after the accident, Apu ordered store employees to patrol for spills every half an hour instead of every hour. Apu's attorney objects. The evidence is: 1. Inadmissible under Rule 407, since it is evidence of a subsequent remedial measure. 2. Admissible because it impeaches Apu's testimony. 3. Admissible because increasing the rate at which employees patrol for spills would not be considered a "subsequent remedial measure." 4. Admissible to prove Apu had control over her the actions of his employees.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 2. Admissible because it impeaches Apu's testimony.

Laertes sues Hamlet after the two of them were involved in a car accident. After the lawsuit is filed, Hamlet's attorney meets with Laertes and presents him with a report made by Rosencrantz, an expert in accident reconstruction. The report states that in Rosencrantz's opinion, Hamlet and Laertes were both going over 60 mph in a 45 mph zone, and that the axle in Hamlet's car broke, causing Hamlet to swerve and strike Laertes. Hamlet's attorney argues that this proves that Hamlet was not at fault, and he offers to pay Laertes' attorney's fees if the case is dismissed. Laertes rejects the offer. At trial, Hamlet calls Rosencrantz to testify. Rosencrantz testifies that in his expert opinion Hamlet was travelling at the speed limit when his axle broke, causing his car to swerve. On cross-examination, Laertes asks Rosencrantz about the earlier report he had prepared which stated that Hamlet was speeding. Hamlet objects, citing Rule 408. Assume that Rosencrantz's report was discoverable under the Rules of Civil Procedure. How should the court rule on Hamlet's objection? 1. Allow Laertes to use the report to impeach the expert, but not allow it as substantive evidence that Hamlet was speeding. 2. Allow Laeertes to use the report to impeach the expert and as substantive evidence that Hamlet was speeding. 3. Allow Laertes to use the report as substantive evidence that Hamlet was speeding but not to impeach the expert. 4. Preclude Laertes from using the report for either purpose.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 2. Allow Laeertes to use the report to impeach the expert and as substantive evidence that Hamlet was speeding.

Romeo is visiting his friend Juliet at her house, and as he enters the house, the brick stairs leading up to her front door collapse. Romeo falls and breaks his leg. Juliet rushes out of the house immediately and says: "Omigod, I'm so sorry, I knew I should have gotten those fixed. I'll pay whatever it takes to get your leg fixed. Don't worry about the cost, my insurance company will pay for everything." Romeo sues Juliet and wishes to testify about the statements she made to him as evidence that he has admitted liability. What is your ruling? 1. The entire statement is precluded under Rule 408. 2. The first sentence is admissible, but the next two are precluded. 3. The first and third sentences are admissible, but the statement about paying for the leg getting fixed is precluded. 4. The entire statement is admissible.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 2. The first sentence is admissible, but the next two are precluded.

Ophelia is entering a Get Fit! sporting goods store in a shopping mall when her heel gets caught in a heating grate at the threshold between the mall and the store. She falls, is injured, and sues the store. After the accident, Get Fit! installs signs just inside the threshold, warning customers to watch their step. A few months later, the mall installs new thresholds with the heating grates on the ceiling instead of the floor. At trial, the manager of Get Fit! testifies that he had no control over the location of the heating grates on the threshold, since the threshold was owned by the mall. On rebuttal, the plaintiff wants to bring in evidence of both the sign installation and the re-design of the grate. 1. Preclude both the sign installation and the re- design of the threshold as inadmissible. 2. Preclude evidence about the re-design of the threshold but possibly allow evidence of the sign installation to prove ownership and control. 3. Preclude evidence of the sign installation but possibly allow evidence of the re-design of the threshold as a third-party repair. 4. Allow evidence of both the re-design of the threshold and the sign installation.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 3. Preclude evidence of the sign installation but possibly allow evidence of the re-design of the threshold as a third-party repair.

In a landlord/tenant dispute, the landlord wishes to admit the lease, written by the landlord and signed by the landlord and the tenant, to prove the amount of rent agreed to by both parties. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Wendy was pulling into her driveway when she saw a strange man through one of the windows of her house. She called 911 and described the man as she watched him move about the house. She remained calm and collected throughout the entire phone call. In its case-in-chief, the prosecutor seeks to admit the 911 call to prove the truth of the matter asserted. Assume Wendy also testifies at trial. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

George was driving down Highway 33 when a herd of cattle stampeded across the road in front of him. He struck one of the cows and totaled his car. He then sued the state for maintaining an unsafe road. Two days later, the state erects a number of signs along the road, warning drivers of the cow crossing. Two weeks after that, the landowner (who is a not a party to the case) puts up a fence along the road to prevent the cows from wandering into traffic. At trial, the state expert testifies that although the state has an easement on the land running alongside the road which allows the state to place signs on the property, it has no legal right to erect a barrier of any kind. The state expert concedes on cross-examination that warning signs might make the road slightly safer, but argues that the road is adequately safe without signs and points out that there were no prior accidents involving cars striking cows on the highway. On rebuttal, the plaintiff's attorney seeks to admit evidence of the signs and the fence erected after the accident. The judge should: 1. Preclude evidence of both. 2. Admit evidence of both. 3. Preclude evidence of the signs, but perhaps admit evidence of the fence. 4. Preclude evidence of the fence, but perhaps admit evidence of the signs.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 3. Preclude evidence of the signs, but perhaps admit evidence of the fence.

Prospero is arrested for illegally selling handguns. After he is arrested, the police read him his Miranda rights and put him in the sqaud car. Before they ask him any questions, Prospero tells them: "Look, I'll plead guilty and I can tell you where I got the guns if you promise me probation." The officer replies: "You'll have to talk to the prosecutor about that." After his arraignment, Prospero's defense attorney brings him to the prosecutor's office, where she offers to plead Prospero guilty if the prosecutor will recommend probation. During this meeting, the defendant admits to the prosecutor that he sold the guns. The prosecutor refuses to make a deal,and the case goes to trial. During the defendant's case, Prospero testifies that he has never sold nor even possessed a gun in his life. The prosecutor wishes to admit both the defendant's statement to the police in the squad car, and the statements he made to the prosecutor in her office. The court should: 1. Preclude both statements under Rule 410. 2. Allow the statement in the squad car for any relevant purpose, and admit the statements made in the prosecutor's office but only for impeachment purposes. 3. Allow the statement made in the squad car, but only for impeachment purposes, and allow the statements in the prosecutor's office, but only for impeachment purposes. 4. Allow the statement in the squad car for any relevant purpose, but preclude the statements made in the prosecutor's office completely.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 4. Allow the statement in the squad car for any relevant purpose, but preclude the statements made in the prosecutor's office completely.

Viola and Antonio collide while skateboarding at the local Skate Park. Both of their skateboards are totalled, and both parties are injured. The day after the collision, Antonio gives Viola a brand new skateboard. The next week, Viola sues Antonio for negligence, and at trial she seeks to testify that Antonio gave her a new skateboard the day after the event. Antonio objects. The judge should: 1.Preclude the evidence under Rule 401, since it is irrelevant. 2.Preclude the evidence under Rule 403. 3.Preclude the evidence under Rule 408. 4.Admit the evidence.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 4.Admit the evidence.

Who of the following would be allowed to testify as a witness at trial? 1. A party to the case who has already watched five other witnesses testify. 2. A juror who wishes to testify about alleged drug use during jury deliberations. 3. A psychotic woman who cannot distinguish between fantasy and reality. 4. The trial judge in the case, in order to advise the jurors of her opinion about the credibility of the witnesses they have heard.

[Article VI (Rules 601-615)] 1. A party to the case who has already watched five other witnesses testify.

Julian and Jake are accountants who work for Sisko Industries, and are both indicted for tax fraud after a lengthy I.R.S. investigation. Juilan agrees to plead guilty to a lesser offense in exchange for his cooperation in the case against Jake. After Julian testifies on direct, the defense attorney begins his cross by asking: "Isn't it true that the prosecutor agreed to let you plead to a much less serious crime?" The prosecutor objects. The question should be: 1. Allowed. 2. Barred by Rule 611. 3. Barred by Rule 410. 4. Barred by Rule 403.

[Article VI (Rules 601-615)] 1. Allowed.

Same fact pattern as #2--Pam is contesting her father's will, and on direct she testifies that at the time he signed the will, his mental condition had deteriorated to the point where he always seemed confused and could only mumble unintelligibly. On cross-examination, opposing counsel asks her: "Isn't it true that the day after the will was signed, you were talking to your friend Marge, and you said: 'I can't believe Daddy's mind is so sharp at his age!'" Pam's attorney objects, and is overruled. Pam denies that she said this. During his own case-in-chief, the defendant's attorney calls Marge to testify to the conversation. Pam's attorney objects to that as well. How would you rule on these two objections? 1. Overrule both objections--allow the attorney to ask Pam the question and allow Marge to testify. 2. Allow the attorney to ask Pam about the prior statement, but do not allow him to call Marge to the stand. 3. Allow the attorney to call Marge to the stand, but do not allow him to ask Pam about the prior statement. 4. Sustain both objections--preclude the question and Marge's testimony.

[Article VI (Rules 601-615)] 1. Overrule both objections--allow the attorney to ask Pam the question and allow Marge to testify.

Alex is killed on February 21st in New York City. One week later the police arrest Alex's friend and co-worker Derek for the murder. In his defense at trial, Derek calls his boss George, who testifies that George and Derek were together on a business trip in Cuba from February 20th through February 24th. On cross-examination, the prosecutor asks George if it is true that last year George forged some figures in the accounts for his company before submitting the accounts to government auditors. The question is: 1. Permissible. 2. Impermissible, since it is beyond the scope of the direct. 3. Impermissible, since it refers to a prior bad act that is not relevant to the underlying cause of action. 4. Impermissible, since the defendant has not "opened the door" by offering any evidence on George's character.

[Article VI (Rules 601-615)] 1. Permissible.

To prove that Irene was working the entire week of November 8th through the 12th, Irene offers a statement she made to her husband Frank on November 8th in which she says: "I worked all day today, and I'll be working the rest of the week." 1. Entire statement is admissible. 2. At least part of the statement is inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. At least part of the statement is inadmissible.

Pam is contesting her father's will. She testifies that her father was not in his right mind when he signed a new will that left all of his money to her stepmother. On cross-examination, the defendant's attorney holds up a copy of the resume she used to get her current job and asks if everything on it is true. Pam states that it is. The attorney then seeks to call Pam's current employer, who will testify that Pam claimed to have graduated from college on her resume, and she later admitted that she never in fact graduated. Pam's attorney objects. The testimony is: 1. Admissible, since it proves that Pam lied in the past and is therefore more likely to be lying now. 2. Inadmissible, because this is extrinsic evidence on a collateral matter. 3. Inadmissible, because it is irrelevant to her credibility. 4. Inadmissible, because Pam's employer does not have firsthand knowledge of whether Pam graduated from college.

[Article VI (Rules 601-615)] 2. Inadmissible, because this is extrinsic evidence on a collateral matter.

Charles Dawson is on trial for murder. He wishes to testify about his alibi, but he has two prior criminal convictions: (1) a misdemeanor conviction for filing a false police report fifteen years ago; and (2) a felony drug sale conviction from eleven years ago. Dawson spent three years in prison for the robbery. Which of these (if either) are admissible against him? 1. Both crimes are admissible only if their probative value substantially outweighs their unfair prejudicial effect. 2. The false police report is automatically admissible; the drug sale is admissible only if its probative value substantially outweighs its unfair prejudicial effect. 3. The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect. 4. Both crimes are admissible if their probative value outweighs their prejudicial effect.

[Article VI (Rules 601-615)] 3. The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect.

Same lawsuit, Bare-Bones v. James. The plaintiff Bare- Bones has rested and James calls Montgomery, the chief mechanic for Bare-Bones. Direct consists of three questions: "You're the head mechanic for Bare-Bones, is that correct?" "You worked on James' car before it was sold to James, isn't that correct?" "Isn't it true that when you worked on the car you rolled back the odometer on this car to make it appear to seem new?" The plaintiff objects to all three questions. Assume that there are no Fifth Amendment problems with Montgomery's testimony; i.e., no answer that he gives could subject him to criminal liability. What should the judge do? 1. Preclude all three questions. 2. Allow the first question but sustain the objections to the second two. 3. Allow the first two questions but not the third. 4. Allow all three questions.

[Article VI (Rules 601-615)] 4. Allow all three questions.

While walking her child Wesley to school one day, Beverly was struck by a cement truck that pulled out of a construction site. Beverly sued the construction company for negligence. As a result of the accident, Beverly suffered brain damage which caused her to have difficulty communicating through speech, although her mental faculties appeared unharmed. At trial, her attorney proposes that Beverly be allowed to testify through American Sign Language, which she has learned over the past few months. Beverly's attorney has brought Beverly's brother Will as an interpreter: he is a former sign language instructor at a school for the deaf and he has been tutoring Beverly since the accident. Beverly's attorney also wishes to have Beverly's child Wesley testify as to the event. Wesley is four years old, and when questioned by the court, says he remembers what happened on that day and that he knows the difference between a lie and the truth, and that he always gets punished by his parents when he tells a lie. Wesley does not understand what a trial is, and makes no comment when the judge tells him that "a courtroom is a special place where you always have to tell the truth." Wesley says he does not believe in God. However, he agrees when the judge comments that lying is the wrong thing to do. The judge should: 1. Preclude both the plaintiff and the child from testifying at all due to incapacity. 2. Preclude the child from testifying on the grounds of incapacity, but allow the plaintiff to testify with her brother as an interpreter. 3. Allow the plaintiff to testify ONLY if a neutral interpreter can be found, and allow the child to testify. 4. Allow the plaintiff to testify with her brother as an interpreter, and allow the child to testify.

[Article VI (Rules 601-615)] 4. Allow the plaintiff to testify with her brother as an interpreter, and allow the child to testify.

Frank is on trial for telephone harassment. His victim Harriet is on the stand. The prosecutor asks Harriet to tell the jury in exact words what Frank said to her over the phone. Harriet says: "I'm sorry, I know he said bad words, but I can't remember the exact words he used." This is not sufficient to prove the crime. What are the prosecutor's options? 1. Ask if seeing a transcript of the phone call would help her to remember the exact words; if she says yes, show it to her and have her read the transcript to the jury. 2. Ask if seeing a transcript of the phone call would help her to remember the exact words; if she says yes, show it to her and then take it away from her and then have her testify as to what the exact words were. 3. Ask a leading question by quoting the exact words to her, and then asking if those were the words he used. 4. Either II or III are permissible, but not I.

[Article VI (Rules 601-615)] 4. Either II or III are permissible, but not I.

Last year, James purchased a car from Leonard's Bare-Bones Car Shoppe. Two months after the purchase, he discovered the car was not new as had been represented by Christine, one of Leonard's employees. James stopped payment on the car at that point, and Bare-Bones sued James for payment. Bare-Bones calls Leonard as its first witness. PLAINTIFF ATTORNEY: How are you employed? LEONARD: I work for Bare-Bones Car Shoppe. PLAINTIFF ATTORNEY: Are you in fact the owner of Bare- Bones Car Shoppe? DEFENSE ATTORNEY: Objection! The judge should: 1. Sustain the objection, since this is a leading question on direct examination. 2. Overrule the objection, since this is a non- leading question. 3. Overrule the objection, since the witness is an adverse party. 4. Overrule the objection, since leading questions are permissible for this type of question on direct examination.

[Article VI (Rules 601-615)] 4. Overrule the objection, since leading questions are permissible for this type of question on direct examination.

Greg is being prosecuted for manslaughter under the theory that he blocked the fire exits to his nightclub, resulting in three deaths when the nightclub caught fire. The prosecutor wishes to introduce the fire marshal's report made the day after the fire which concludes that the fire exits were in fact blocked by furniture at the time of the fire. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. Inadmissible.

Harry, a landlord, is being sued by his tenant Kathryn for failing to repair dangerous conditions in the apartment that he leases to her. Kathryn's attorney calls Harry to the stand and asks him: "Isn't it true that Kathryn sent you several letters complaining about conditions in the apartment?" Harry replies that he never received any such letters. Kathryn's attorney then approaches Harry with papers in her hand and asks whether seeing copies of the letters that Kathryn had sent him would refresh his recollection. Harry's attorney objects. How should the judge rule? 1. Overrule the objection and allow Kathryn's attorney to show Harry the letter to refresh his recollection. 2. Sustain the objection, since you cannot refresh a witness' recollection on cross-examination. 3. Sustain the objection, because the letters are not in evidence. 4. Sustain the objection, because Harry never said he had trouble remembering whether he received any letters.

[Article VI (Rules 601-615)] 4. Sustain the objection, because Harry never said he had trouble remembering whether he received any letters.

Harry, a pharmacist, is charged with killing his employer Kathryn by running her down in the parking lot with his truck. Harry admits to killing Kathryn but claims that the death was accidental. As its first witness, the prosecutor calls Kes, a fellow employee of Harry's, who testifies that the day before the incident, she saw Harry pouring a large amount of white powder into into Kathryn's morning coffee (which Kathryn never drank). She later looked at the bottle from which Harry poured the powder and saw that the substance was Dilithiade, which is fatal in anything other than minute doses. Harry's attorney objects to this testimony under Rule 404, and the objection is overruled. On cross-examination, Harry's attorney asks Kes: "Isn't it true that you and Harry used to be engaged?" The prosecutor objects on relevance grounds and is overruled, and Kes answers yes. Harry's attorney then asks "Isn't it true that Harry broke off the engagement because he met another woman?" The prosecutor objects again and the objection is sustained. How should the judge have ruled on these various objections? 1. The judge should have precluded the evidence of Harry's attempted poisoning but allowed the evidence of Harry's relationship with Kes. 2. The judge should have allowed the evidence of Harry's attempted poisoning but precluded the evidence of Harry's relationship with Kes as irrelevant. 3. The judge should have allowed the evidence of Harry's attempted poisoning but precluded the question about Harry's relationship with Kes as beyond the scope of direct (but Harry's attorney could re-call Kes on the defense case and ask about the relationship). 4. The judge should have overruled all objections and let all the questions be asked.

[Article VI (Rules 601-615)] 4. The judge should have overruled all objections and let all the questions be asked.

Francis was living on board his Yacht "Charity" when it exploded one morning, killing him instantly. Investigators determine that the cause of the accident was propane from the stove in the boat that escaped and filled the cabin, causing an explosion when Francis tried to light the stove in the morning. Francis' estate sues the manufacturer of the stove, claiming that it developed a leak which caused the gas to escape. The defendant manufacturer has some (inconclusive) physical evidence recovered by divers that the gas for the stove might have been negligently left on the night before, causing gas to escape into the boat, and the defendant claims that Francis was at fault for not turning off the gas after he was done cooking the night before. At trial, the attorney for Francis' estate calls Samantha, who has been on the boat with Francis at least twenty nights over the past year, though she was not with him on the night before the explosion. She testifies that every night before going to bed, Francis would always take five minutes to check the anchor, the sail ties, the motor lock, and the cooking gas. The defendant manufacturer objects. The evidence should be: 1. Admitted under Rule 406. 2. Precluded under Rule 411. 3. Precluded under 404(a). 4. Precluded under Rule 403.

[Character and Rape Shield (Rules 404-406, 412-415)] 1. Admitted under Rule 406.

The Columbus Dispatch published a front-page story calling the lottery commissioner of Ohio "a thief who steals money from the public purse for his own personal gain." The commissioner sues the Dispatch for libel. In its defense, the Dispatch wishes to offer evidence that: (1) the commissioner diverted funds from the Ohio state lottery to pay for renovations to his home; (2) five years ago the commissioner was working for the Indiana state lottery and used funds from that lottery to buy a new car; and (3) last year the commissioner was arrested for drunk driving but used his connections in state government to cover it up. What are the proper rulings for these pieces of evidence? 1. (1), (2), and (3) are all admissible. 2. (1) and (2) are admissible, but not (3). 3. (1) is admissible, but not (2) or (3). 4. (1), (2), and (3) are all inadmissible.

[Character and Rape Shield (Rules 404-406, 412-415)] 2. (1) and (2) are admissible, but not (3).

Frieda is the manager of a small bank in Fairbanks. On the night of January 10th, a male individual posing as a U.P.S. deliveryman approached her house with a package. Once inside her house, he put on a mask, grabbed Frieda, tied her to a chair and raped her, then spent the night in the house, leaving her bound. In the early morning he untied her and forced her at gunpoint to drive him to the bank, unlock the doors, and de-activate the alarm. He then went inside and took all the money from the cash registers and fled on foot. Calvin was arrested two days later on an anonymous tip, and the police found large stashes of money in his house. He was picked out of a line-up by Frieda, who admits she only saw his face for the first few moments when he approached her house the night before. Calvin was charged with rape, kidnapping, and armed robbery. In the prosecution's case in chief, they wish to offer the following evidence: (1) The testimony of Ted, the bank manager of a small bank in Akron. Ted will testify that five years ago, Calvin posed as a U.P.S. deliveryman and thus gained entry to Ted's home. He tied Ted to a chair and left him bound all night, and the next morning forced Ted to drive him to Ted's bank, unlock the doors and disarm the alarm system. Calvin then stole all the money in the cash registers. (2) A certificate of conviction for rape, in which Calvin was convicted of raping a woman ten years ago in his house after they had come home from a date. What should the judge do? 1. Preclude both (1) and (2). 2. Admit (1) (subject to a Rule 403 balancing test) and preclude (2). 3. Preclude (1) and admit (2) (subject to a Rule 403 balancing test). 4. Admit both (1) and (2) (both subject to a Rule 403 balancing test).

[Character and Rape Shield (Rules 404-406, 412-415)] 2. Admit (1) (subject to a Rule 403 balancing test) and preclude (2).

Sam is charged with raping his girlfriend Vicky. In his case in chief, he calls his friend Tom, who testifies that the day after the alleged rape, Sam told him "Vicky and I went all the way last night; I wasn't sure if we were ready, but she wouldn't take no for an answer." Sam offers the statement to prove consent. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. Inadmissible.

Samantha is charged with stealing jewelry from Theresa's home in Denver on January 12th. During the defense case, Samantha's attorney calls an alibi witness who claims to have been with Samantha on January 12th all day in Miami, where they were vacationing together. In rebuttal, the prosecution wants to introduce evidence that (1) Samantha was working as a housekeeper in Theresa's house during the month of January, that (2) she was working there on a work release program from a halfway house (a correctional facility in which inmates are allowed to work outside the facility during the day, but must return every night to sleep), and (3) that Samantha was in the halfway house serving a 2 month sentence for petty theft. The court should: 1. Admit the fact that Samantha was working as a housekeeper, but preclude the fact that she was on a work release program and that she had been convicted of theft. 2. Admit the fact that Samantha was working as a housekeeper, preclude the fact that she had been convicted of theft, and conduct a Rule 403 balancing test to determine whether the fact of her being on a work release program should come in. 3. Admit all the evidence. 4. Preclude all the evidence.

[Character and Rape Shield (Rules 404-406, 412-415)] 2. Admit the fact that Samantha was working as a housekeeper, preclude the fact that she had been convicted of theft, and conduct a Rule 403 balancing test to determine whether the fact of her being on a work release program should come in.

Sally crashed into Lucy's car, and Lucy claimed Sally was negligent and sued Sally for damages. At trial, Lucy wishes to call Sally's brother Charlie, who will testify that Sally "is always speeding, and never pays attention to the road when driving." Sally objects. The court should: 1. Preclude this testimony as irrelevant. 2. Preclude this testimony under Rule 404(a). 3. Admit this testimony under Rule 406. 4. Admit this testimony under Rule 404(b) with a limiting instruction that it is not to be considered to prove propensity.

[Character and Rape Shield (Rules 404-406, 412-415)] 2. Preclude this testimony under Rule 404(a).

Timothy is on trial for tax evasion. The prosecution alleges that he intentionally understated his income in 2006, and thus underpaid his taxes by over $100,000. The prosecution has three pieces of evidence it would like to admit: (1) Part of a letter Timothy wrote to the IRS in 2007, in response to a letter the IRS had sent him after filing a civil claim against him and demanding that he pay back taxes for 2006. In the letter, Timothy denied owing any taxes or making any mistake in his 2006 return, but at the end of the letter he wrote: "I would agree to pay $105,000 in back taxes and penalties to settle the issue." The government seeks to admit only this statement from the letter. (2) One of Timothy's business partners will testify that Timothy "is the kind of guy who would always try to cut corners and get away with something if it meant he could make some more money."; (3) A few weeks before trial, Timothy agreed to plead guilty to a lesser crime of obstructing official business; however, that plea was withdrawn after the judge refused to go along with the prosecutor's lenient sentence recommendation. Which (if any) of the three are admissible? 1. (1) only. 2. (1) and (3) only. 3. (2) only--and only in rebuttal if Timothy calls his own character witness first. 4. (1)--only if Timothy testifies and claims he never offered to settle the civil claim; and (2)--only in rebuttal if Timothy calls his own character witness first.

[Character and Rape Shield (Rules 404-406, 412-415)] 3. (2) only--and only in rebuttal if Timothy calls his own character witness first.

Ted is on trial for killing Steve while both men were watching their sons play football. Ted testifies in his own defense, and says that he and Steve were arguing about a ruling on the field when Steve suddenly came at his throat with a knife. Ted calls no character witnesses during his case. In rebuttal, the prosecutor calls Helen, Steve's wife, to testify (over the defendant's objection) that she knew Steve for twenty-two years and that he was "peaceful and non-violent." On cross-examination, the defense attorney asks Helen if she knew that Steve had been arrested for assaulting a man with a knife nine years ago. What are the proper evidentiary rulings? 1. Allow Helen's direct testimony under Rule 404, but preclude the question on cross-examination under Rule 405. 2. Allow Helen's direct testimony under Rule 404, but only if she also testifies as to specific instances of conduct on the part of Steve to support her opinion. The question on cross-examination should be permitted under Rule 405. 3. Allow Helen's direct testimony under Rule 404, and allow the question on cross-examination under Rule 405. 4. Preclude Helen's testimony entirely, based on Rule 404.

[Character and Rape Shield (Rules 404-406, 412-415)] 3. Allow Helen's direct testimony under Rule 404, and allow the question on cross-examination under Rule 405.

John is on trial for raping Cynthia. Cynthia claims that they met in a bar, and after an hour he offered to give her a ride home. She claims that when she got into his car he drove her to a secluded location and raped her in the car. John's defense is consent. He claims that they met in a bar, and after an hour Cynthia said: "Want to take me for a ride?" When John agreed, they went to his car and she directed him to the secluded location, saying it was "my favorite spot; nobody around for miles." They parked and had consensual sex. At trial, John wishes to introduce the following evidence: (1) Three different men will testify that on separate prior occasions over the past month, Cynthia has met each of them in the same bar and after some conversation asked "Do you want to take me for a ride?", then directed them to the same secluded area, describing it as her "favorite spot, nobody around for miles" and had sex with them. (2) A witness will testify that ten minutes before John and Cynthia left the bar together in John's car, he saw them in a back room in the bar "kissing passionately and feeling each other up." (3) Testimony by the bartender at the bar that he is familiar with Cynthia's reputation, that she is present at the bar almost every night, and that she is known as "easy," and that "everyone knows she always goes all the way on the first date." Which of these (if any) are admissible? 1. (1), (2), and (3) 2. (1) and (2), but not (3) 3. Only (2) 4. None of them.

[Character and Rape Shield (Rules 404-406, 412-415)] 3. Only (2)

Sarah is a software engineer at WebCo, a small company that designs software protocols. She is currently on trial for insider trading after selling 5,000 of her own shares of the company on June 1st, the day before the company publicly announced that it had lost its bid to contract with Microsoft in developing its new web browser. At trial, the prosecutor seeks to admit (1) evidence from Sarah's computer files that on June 1st, a few hours before she made the sale, Sarah illegally hacked into the management's e-mails discussing the lost bid; and (2) evidence that three years ago, Sarah was convicted of insider trading after she was working at Oracle, illegally hacked into management's e-mails there, and dumped a large amount of Oracle stock the day before Oracle announced lower-than-expected profits. Sarah's attorney objects to both pieces of evidence. How is a judge likely to rule? 1.Preclude both pieces of evidence under Rule 404. 2.Allow (1) but preclude (2) under Rule 404. 3.Allow (1) and perhaps allow (2), since (2) tends to show knowledge and ability 4.Allow (1) and perhaps allow (2), since (2) tends to show that Sarah has a tendency to commit this crime.

[Character and Rape Shield (Rules 404-406, 412-415)] 3.Allow (1) and perhaps allow (2), since (2) tends to show knowledge and ability

Tom is suing Eli for battery, claiming that on February 3rd, a few hours after Tom and Eli exchanged tense words inside a bar, Tom was leaving the bar when Eli jumped him from behind in the street, knocking him to the ground. Tom then claims Eli took off both his (Eli's) shoes and beat Tom on his head with the shoes. In his defense, Eli claims that he left the bar immediately after he and Tom had the verbal argument inside the bar and went straight home. At trial, Tom calls Brett to the stand, who will testify that two weeks before the alleged assault on Tom, Eli had a verbal altercation with Brett in the same bar, and that when Brett left the bar a few minutes later, Eli jumped him from behind in the street and then Eli took off both his shoes and beat Brett in the head with the shoes. Eli was arrested for the prior assault, but the criminal case was dismissed a week later, and Brett never filed a civil suit. The court should: 1. Preclude the evidence, because this is a civil case, so 404(b) does not apply. 2. Preclude the evidence, because its only relevance is to prove propensity, and the evidence does not fall into one of the 404(a) exceptions. 3. Preclude the evidence because there is insufficient evidence that Eli committed the earlier assault. 4. Conduct a 403 analysis and if the probative value of the evidence is not substantially outweighed by its unfair prejudicial effect, admit the evidence.

[Character and Rape Shield (Rules 404-406, 412-415)] 4. Conduct a 403 analysis and if the probative value of the evidence is not substantially outweighed by its unfair prejudicial effect, admit the evidence.

Wendy, an avid Obama supporter, snuck into a campaign rally held by John McCain and shouted "Down with McCain! Vote for real change!" At that point someone standing next to Wendy punched her in the face and dislocated her jaw. Wendy accused Jack of the assault and sued him for battery in a civil suit. Jack is a loyal McCaim supporter who was attending the campaign rally and standing near Wendy while she was heckling. At trial, Jack's attorney offers (1) a witness who will testify that at a McCain campaign event six months earlier, Jack was standing right next to a heckler from the Romney campaign who screamed obscenities at McCain for five minutes until security escorted her out, and that the whole time Jack simply smiled at the situation, and (2) a witness who would testify that he has known Jack for ten years and that in his opinion Jack is a peaceful man who never loses his temper. The court should: 1. Admit both pieces of evidence. 2. Admit the evidence of Jack's actions at the prior McCain rally but preclude the opinion evidence of his character. 3. Preclude the evidence of Jack's actions at the prior McCain rally but admit the opinion evidence as to his character. 4. Preclude both pieces of evidence.

[Character and Rape Shield (Rules 404-406, 412-415)] 4. Preclude both pieces of evidence.

Barack files a libel suit against a company, "Chicago Citizens for Truth," which has run commercials in which members of the organization call Barack a "crook" who "took backdoor money from developers in exchange for votes." At trial, Chicago Citizens offers the following evidence: (1) testimony from a staffer who worked for Barack when he was a state legislator, who testifies that he was present in the room when developers gave Barack suitcases full of cash; and (2) testimony from a former college friend who testifies that he observed Barack smoking marijuana and drinking heavily while he was a state legislator. After this evidence is admitted, Barack's attorney offers (3) testimony from a developer in Chicago who states that he once offered to take Barack out to dinner to discuss a pending bill, and that Barack refused, saying that he couldn't accept any favors from private developers. Which (if any) of this testimony should be admitted? 1. The court should have precluded all three pieces of evidence under Rule 404. 2. The court properly allowed in all three pieces of evidence. 3. The court should have allowed in (1), Chicago Citizens' evidence of Barack taking suitcases full of cash, but should have precluded the other two pieces of evidence. 4. The court should have allowed in (1) and (3), but should have precluded the evidence of Barack's drinking and marijuana use.

[Character and Rape Shield (Rules 404-406, 412-415)] 4. The court should have allowed in (1) and (3), but should have precluded the evidence of Barack's drinking and marijuana use.

John Grisham, a famous author, is accused of killing Xavier Daniels. When Grisham was arrested, the police found a letter in his coat pocket written by Daniels and addressed to Grisham. The letter said: "I know you plagiarized almost all of your last novel from my father's work. I demand that you pay me $500,000 or I will sue you in court and destroy your reputation." The prosecutor wishes to admit the letter as evidence against Grisham. The letter is: 1. Hearsay if used to prove motive. 2. Hearsay if used to prove that Grisham plagiarized his last novel. 3. Hearsay for either of the two purposes. 4. Not hearsay no matter what it is meant to prove.

[Hearsay Definition (Rules 801 & 802)] 2. Hearsay if used to prove that Grisham plagiarized his last novel.

Ronald, a news reporter who used to work for ABC news, is suing his former employer for breach of contract. Ronald claims that his producer Terri promised him a large bonus for the last calendar year in exchange for filing ten extra news reports, but that even though Ronald filed the reports, the bonus was never paid. To support his claim, he offers two pieces of evidence: (1) a contract, signed by Ronald and Terri (as a duly authorized representative of ABC), which states that Ronald will be paid a $5,000 bonus if he files ten extra stories in the year, and (2) a letter Ronald wrote to his wife, dated the day after the contract was signed, which states: "Honey, we can go ahead and plan our trip to Hawaii! Terri has just promised me an extra $5,000 if I do ten more stories this year!" ABC News objects to both pieces of evidence as hearsay. What is the proper ruling? 1. Both the contract and the letter are hearsay. 2. The letter is hearsay but the contract is not. 3. The contract is hearsay but the letter is not. 4. Neither the contract nor the letter are hearsay.

[Hearsay Definition (Rules 801 & 802)] 2. The letter is hearsay but the contract is not.

Late one night, Officer Reynoso and Officer Girardi noticed a suspicious person loitering outside a convenience store. Reynoso stayed back near the car as Officer Girardi approached the individual to ask some questions. Suddenly Officer Reynoso saw Girardi drop to the ground, pull out his gun and begin shooting at the individual. Reynoso immediately drew her own gun and shot six rounds at the individual. The individual was struck by a total of eleven bullets and was killed instantly. A firearm was found near the victim's body, but there is some evidence that it might have been planted there after the shooting took place. The two police officers were charged with second-degree murder following the incident. Their cases were severed, and Officer Reynoso is now on trial. Her defense is that she reasonably believed that the victim had a gun and thus the shooting was justified. In her defense, Reynoso wants to testify as to the fact that Girardi drew his own gun and began shooting it. The prosecutor objects to this evidence. What is the proper ruling? 1. Girardi's drawing of his gun is inadmissible for any purpose because it is hearsay. 2. Girardi's drawing of his gun is admissible only to prove Reynoso reasonably believed the victim had a gun. 3. Girardi's drawing of his gun is admissible to prove both that the victim had a gun and to prove Reynoso reasonably believed the victim had a gun. 4. Girardi's drawing of the gun is inadmissible for any purpose because it is irrelevant.

[Hearsay Definition (Rules 801 & 802)] 3. Girardi's drawing of his gun is admissible to prove both that the victim had a gun and to prove Reynoso reasonably believed the victim had a gun.

Ed is riding in a rodeo when his horse steps into a huge gopher hole in the southwest corner of the arena, causing the horse to fall and throwing Ed into the fence of the arena. Ed breaks his leg and sues Andy, the owner of the arena, for negligently maintaining the grounds. During the trial, Ed calls Jack as a witness. Jack works at the arena and and will testify that the day before the incident, he overheard a conversation between Ron, another rodeo rider, and defendant Andy. Jack testifies that during this conversation Ron told Andy: "There's a large hole near the southwest corner; my horse almost stepped into it." Andy's attorney objects to Jack's testimony, claiming the statement by Ron is hearsay. Which of the following is correct? 1. The statement should be entirely precluded as hearsay. 2. The statement should be admitted with no limiting instruction. 3. The statement should be admitted with a limiting instruction that the statement should only be considered for the purposes of proving Andy knew there was a hole (assuming that is a relevant fact), not to prove there was in fact a hole. 4. The statement should be admitted with a limiting instruction that the statement should only be considered for the purpose of proving the existence of the hole and for no other purpose.

[Hearsay Definition (Rules 801 & 802)] 3. The statement should be admitted with a limiting instruction that the statement should only be considered for the purposes of proving Andy knew there was a hole (assuming that is a relevant fact), not to prove there was in fact a hole.

Gary is on trial in the Southern District Court of Florida for shooting and killing Francis as part of a contract killing. The killing occurred onboard a private yacht off the coast of Florida. Gary's primary defense is that he did not kill Francis until the yacht had reached international waters, and so United States courts have no jurisdiction over his actions. In his defense, Gary calls Ernie, who testifies that he was on board the yacht on the night of the killing and he heard the captain of the yacht tell the pilot: "Blow the horn three times when we reach international waters." A few minutes later Ernie heard the boat horn blow three times, and a moment later Ernie heard a gunshot. The prosecution objects to Ernie's testimony as hearsay. What is the correct ruling? 1. The statement by the captain and the blowing of the horn are both hearsay. 2. Neither the statement by the captain nor the blowing of the horn are hearsay. 3. The statement by the captain is hearsay, but the blowing of the horn is not hearsay. 4. The statement by the captain is not hearsay, but the blowing of the horn is hearsay.

[Hearsay Definition (Rules 801 & 802)] 4. The statement by the captain is not hearsay, but the blowing of the horn is hearsay.

Last year one of Patriot Mining's coal mines suffered a cave-in, trapping and killing three of it's miners. When the bodies of the miners were discovered, there was a handwritten note found next to one of the bodies. It read: "I was placing the blasting units along the far wall and they detonated prematurely, knocking out support beam. Cave collapsed. Now it's getting hard to breathe. I'm the last one alive." The families of the dead miners are suing the manufacturers of the blasting units, claiming that the blasting units were defective. They offer the handwritten note into evidence after it is properly authenticated. The defendant corporation objects on hearsay grounds. The note is: 1. Admissible as a dying declaration. 2. Admissible as a statement against interest. 3. Admissible as a present sense impression. 4. Inadmissible.

[Hearsay Exceptions (Rules 803-804)] 1. Admissible as a dying declaration.

Alexander is on trial for assaulting Spike in a bar. During the trial the prosecution calls Rupert, who was also present in the bar at the time of the incident. Rupert testifies that he was standing on an indoor balcony in the bar, looking down onto the first floor, when he saw Alexander come up from behind Spike and hit Spike in the back of the head with a beer bottle. On cross-examination, the defense attorney asks Rupert whether he spoke to his girlfriend about the incident the next day. Rupert agreed. The defense attorney then asked whether Rupert told his girlfriend: "Boy, I got lucky last night--I was on the indoor balcony at The Bronze and I dropped a beer bottle on some guy's head by accident and the police arrested someone else for it." The prosecutor objects. The evidence is: 1. Admissible as impeachment evidence only. 2. Admissible to impeach and also for the truth of the matter asserted under the state of mind exception of 803(3). 3. Inadmissible for any purpose. 4. Admissible to impeach and also for the truth of the matter asserted as a prior statement by the witness under 801(d)(1)(A).

[Hearsay Exceptions (Rules 803-804)] 1. Admissible as impeachment evidence only.

Unsatisfied with a mere life sentence, the prosecutor for Prince William County in Virginia tries Lee Malvo, one of the "DC snipers," for another murder he allegedly committed in the same jurisdiction. In this case the victim was shot in the back of the head, and the killer took the body to a farm in the country and buried it between two trees next to an old barn. Malvo's defense is that the killing was carried out by another man, Howard Drexel, who committed suicide the day after the shooting. There is no evidence that Drexel and Malvo were working together; thus if Drexel committed the crime, Malvo is innocent. At Malvo's trial, the defense attorney calls Sam, a local bartender, who testifies that the day after the shooting, Howard Drexel came into his bar and had a couple of drinks. As Howard was leaving he laughed and said to the bartender "There's a surprise waiting for the police underground between the two trees next to the old Franklin barn." The bartender said he thought that Howard was joking until the body was found in that location three weeks later. The prosecutors object to the evidence as hearsay. The court should rule that: 1. The statement can be admitted for a non-hearsay purpose. 2. The statement is hearsay and therefore inadmissible. 3. The statement is admissible under 801(d)(2). 4. The statement is not hearsay, but it is irrelevant.

[Hearsay Exceptions (Rules 803-804)] 1. The statement can be admitted for a non-hearsay purpose.

Kobe Bryant is charged with rape. The alleged victim is V, a worker at the hotel where Bryant was staying. At trial V testifies to the incident. On cross-examination, Bryant's attorney asks V if it was true that two days after the alleged rape, her manager Frank learned that she had slept with Bryant and threatened to fire her for fraternizing with hotel guests. Bryant's attorney also asks whether it was true that Frank only agreed not to fire her after she told him the sex was non-consensual. V agrees that all this was true. The prosecutor then calls Melinda, V's best friend, who testifies that V came to her on the night in question and said "Kobe raped me an hour ago." The prosecutor also calls Frank, the hotel manager, who testifies that he did indeed have a conversation with V two days after the incident and during that conversation V broke down crying and said "You don't understand, he forced me to have sex." The defense objects to Melinda and Frank's testimony. How should the judge rule? 1. Allow both Melinda and Frank's testimony. 2. Allow Melinda's testimony but not Frank's. 3. Allow Frank's testimony but not Melinda's. 4. Preclude both Melinda and Frank's testimony.

[Hearsay Exceptions (Rules 803-804)] 2. Allow Melinda's testimony but not Frank's.

Uma and Charles are going through a divorce and are currently engaged in a custody dispute over their twelve- year-old daughter Lana. While the court case is pending, they are living apart and sharing custody. Neither one wants to call Lana to the stand in court. Instead, Uma testifies in her case in chief that Lana told her one night: "I am so happy living with you, Mom. I love you very much." Charles takes the stand in his case in chief and testifies that Lana told him: "Last week Mom spanked me so hard I couldn't even lie on my back in bed." What are the proper rulings? 1. Both statements are inadmissible. 2. Lana's statement to Uma is admissible, but Lana's statement to Charles is inadmissible. 3. Lana's statement to Uma is inadmissible, but Lana's statement to Charles is admissible. 4. Both statements are admissible.

[Hearsay Exceptions (Rules 803-804)] 2. Lana's statement to Uma is admissible, but Lana's statement to Charles is inadmissible.

BigIndustry Inc. is being sued by several landowners in rural Ohio for illegally dumping garbage on their property. In their case-in-chief, the landowners call Walt, an inspector for the state environmental agency. He testifies that he investigated BigIndustry's practices as part of his duties as an inspector and filed a report with the agency based on his investigations. He testifies to his findings, which were that several tons of waste traceable to BigIndustry were found on the properties in question. The plaintiffs then show him a copy of the report and he verifies that it is the report that he filed after his investigation. The plaintiffs then offer the report into evidence, and the defendant objects. What is the proper ruling? 1. The report can be read to the jury as a recorded recollection, but not admitted into evidence. 2. The report is admissible as a public record. 3. The report is both a recorded recollection AND a public record. 4. The report is inadmissible because the witness has testified live on the stand as to its contents.

[Hearsay Exceptions (Rules 803-804)] 2. The report is admissible as a public record.

Gumbel has sued Alvert for breach of contract. Gumbel claims he purchased an order for 1,000 basketballs, and they were never delivered. Alvert claims that he delivered them on time and that Gumbel is fraudulently claiming he never received them. At trial, Alvert testifies that one week before the order was due, he told his partner Costas "I'm going to ship the Gumbel order tomorrow." Gumbel objects to the statement as hearsay. 1. The statement is not hearsay because the declarant is now testifying on the stand and can be cross-examined as to the statement. 2. The statement is hearsay but is admissible under 803(3). 3. The statement is admissible as a party-opponent admission. 4. The statement is inadmissible hearsay.

[Hearsay Exceptions (Rules 803-804)] 2. The statement is hearsay but is admissible under 803(3).

Daniel Osborne, a former guitarist in the band Dingoes Ate My Baby ("DAMB") has recently launched a successful solo career. His first album: "Werewolves in California," has sold over one million copies on the Capitol Records label. Unfortunately the remaining members of DAMB, Osborne's former band, are suing Osborne. They claim that the lyrics to the title track of his new album were stolen from a DAMB song of the same name from four years ago. At trial, the lead singer for DAMB presents handwritten lyrics which he claims to have written four years ago and which are identical to the lyrics to "Werewolves in California." Later in the plaintiffs' case, in order to prove damages, the plaintiffs present the jury with sales records obtained from Capitol Records that purport to show that "Werewolves in California" sold 1.2 million copies. Osborne's attorney objects to the admissibility of the handwritten lyrics and to the admissibility of the sales figures from Capital Records. The judge should should: 1. Preclude the lyrics and the sales figures, since both are hearsay. 2. Preclude the lyrics as hearsay but admit the sales figures. 3. Admit both the lyrics and the sales figures. 4. Admit the lyrics but preclude the sales figures as hearsay.

[Hearsay Exceptions (Rules 803-804)] 3. Admit both the lyrics and the sales figures.

Late one night, Officer Reynoso and Officer Girardi noticed a suspicious person loitering outside a convenience store. They approached the individual to ask some questions, and Officer Reynoso heard Girardi yell: "Look out, he's pulled out a gun!" Reynoso then saw Girardi pull out his gun and begin shooting at the individual. Reynoso immediately drew her own gun and shot six rounds at the individual. The individual was struck by a total of eleven bullets and was killed instantly. A firearm was found near the victim's body, but there is some evidence that it might have been planted there after the shooting took place. The two police officers were charged with second-degree murder following the incident. Their cases were severed, and Officer Reynoso is now on trial. Her defense is that she reasonably believed that the victim had a gun and thus the shooting was justified. In her defense, Reynoso wants to testify as to (1) the statement "Look out, he's pulled out a gun!" made by Girardi, and (2) the fact that Girardi drew his own gun and began shooting it. The prosecutor objects to both pieces of evidence on hearsay grounds. What is the proper ruling? 1. Both the statement by Girardi and Girardi's drawing of his gun are inadmissible for any purpose. 2. The statement by Girardi is inadmissible for any purpose, and Girardi's drawing of his gun is admissible only to prove Reynoso reasonably believed the victim had a gun. 3. Both the statement by Girardi and Girardi's drawing of his gun are admissible for any purpose. 4. Both the statement by Girardi and Girardi's drawing of the gun are admissible to prove Reynoso reasonably believed the victim had a gun, but cannot be used as evidence that the victim actually had a gun.

[Hearsay Exceptions (Rules 803-804)] 3. Both the statement by Girardi and Girardi's drawing of his gun are admissible for any purpose.

Jason Giambi and Barry Bonds, major league baseball players, are indicted along with Gary Anderson, a professional trainer, for illegal distribution and possession of prescription drugs. Both Bonds and Anderson plead guilty before trial. Anderson refuses to testify against Giambi, but Bonds is called by the prosecution against Giambi. On direct, Bonds testifies that he and Anderson met one day in San Francisco last year and that Anderson told him: "You can only have half of this batch of steroids; the others I'm sending to Giambi in New York so he can hand them out in the Yankee clubhouse." A federal narcotics officer then takes the stand and testifies that when he arrested Anderson, they recovered a letter written by Giambi to Anderson requesting "more deliveries" as soon as possible. The officer further testifies that Anderson gave a full confession, in which Anderson explained that he sent Giambi over twenty shipments of illegal steroids over the past three years. Giambi's attorney objects to (I) Bonds' testimony regarding Anderson's statements to him; (II) the letter sent by Giambi to Anderson; and (III) Anderson's confession. Which (if any) of these three statements are admissible? 1. None of them. 2. All of them. 3. I and II, but not III. 4. II, but not I and III.

[Hearsay Exceptions (Rules 803-804)] 3. I and II, but not III.

Michael Jackson is on trial for allegedly molesting C, an eleven-year old child. In the prosecution's case-in-chief, C testifies to being molested by Jackson at his "Neverland" estate. On cross-examination, Jackson's attorney asks C whether or not he remembers telling his mother the day the criminal charges were filed against Michael: "Don't worry, mom, Michael never even touched me." The prosecutor objects to the question and is overruled. C answers by denying having made that statement. Jackson's attorney then seeks to call C's mother to testify as to C's statement to her. The prosecutor objects. What are the proper rulings? 1. The question about the statement on cross- examination was improper, and the mother's testimony about the statement is inadmissible. 2. The question about the statement on cross- examination was proper, but the mother's testimony about the statement is inadmissible. 3. The question about the statement on cross- examination was proper, and the mother's testimony about the statement is admissible, but it is admissible ONLY for impeachment purposes, not for the truth of the matter asserted. 4. The question about the statement on cross- examination was proper, and the mother's testimony about the statement is admissible for any relevant purpose.

[Hearsay Exceptions (Rules 803-804)] 3. The question about the statement on cross- examination was proper, and the mother's testimony about the statement is admissible, but it is admissible ONLY for impeachment purposes, not for the truth of the matter asserted.

Ari Fleischer, the former White House Spokesman, is testifying for the prosecution against Scooter Libby. On direct, Fleischer testifies that on July 11, 2003, Libby told him about the identity of a CIA agent and told him to give the information to reporters. On cross-examination, Libby's attorney notes that Fleischer had been under investigation by the special prosecutor beginning in June of 2004, but that in December 2004 he was told he was not going to be indicted. Libby's attorney asks Fleischer if he changed his story to implicate Libby in order to avoid being charged with a crime himself. Fleischer denies that he ever changed his story. On re-direct, the prosecutor offers into evidence notes which Fleischer himself had made on July 11, 2003, which stated "Scooter told me about CIA operative today & said I should tell reporters." The defense attorney objects to this statement as hearsay. 1. The statement can be admitted, but only to prove that Fleischer is credible, not for the truth of the matter asserted. 2. The statement is admissible as a party-opponent admission, since Fleischer and Libby were co-conspirators. 3. The statement is admissible under 801(d)(1) for any purpose. 4. The statement is inadmissible for any purpose.

[Hearsay Exceptions (Rules 803-804)] 3. The statement is admissible under 801(d)(1) for any purpose.

Martha Stewart has been charged with insider trading--that is, trading a stock based on confidential information from the corporation. Her defense is that she had a pre- existing agreement with her stockbroker to sell the stock once it dropped below a certain price, and the sale was based on that agreement, not any newly acquired inside information. Assume Martha testifies on direct that she had a conversation with her stockbroker three months before the stock was sold in which she said: "Make sure you sell the IMClone stock as soon as it drops below 60," and her stockbroker said "Good idea, I'll do that." The prosecution objects to this testimony as hearsay. On cross, the prosecution plays a tape recording of a message Martha left on a friend's answering machine the day after the stock was sold in which she says: "Veronica, you absolutely MUST start using my stockbroker. Yesterday he passed along some very useful information about a stock and I was able to save a bundle of cash." The defense attorney objects to the tape as hearsay. How should the judge rule? 1. Preclude both statements as inadmissible hearsay. 2. Allow Martha's testimony on direct and allow the tape on cross-examination ONLY for impeachment. 3. Preclude Martha's testimony on direct and allow the tape on cross-examination ONLY for impeachment. 4. Admit Martha's testimony on direct for a non- hearsay purpose and allow the tape on cross- examination for the truth of the matter asserted.

[Hearsay Exceptions (Rules 803-804)] 4. Admit Martha's testimony on direct for a non- hearsay purpose and allow the tape on cross- examination for the truth of the matter asserted.

Tara is shot outside her dormitory by an unknown assailant. The next day while in the hospital, she is visited by Officer Snyder, who asks her questions about the shooting. Officer Snyder takes notes on the interview but does not show them to Tara. The officer then shows Tara ten pictures of possible suspects. Tara studies them carefully and then points to picture #4, saying: "He's the one who shot me, I'm sure." Picture #4 is a picture of Warren, who is immediately arrested and charged with attempted murder. At trial, Tara is unable to identify Warren as the assailant. She testifies that she remembers looking through the photographs at the hospital, but is unable to remember which one she chose. The prosecutor then asks Tara if seeing the officer's notes would refresh her recollection, and Tara says yes. Tara looks at the notes and then testifies that she selected picture #4 from the series of photos. The defense attorney objects. What should the judge do? 1. Preclude the testimony because Tara's statement identifying picture #4 is inadmissible hearsay. 2. Preclude the testimony because the police report cannot be used against Warren in this way. 3. Preclude the testimony for both reasons--the prior identification is inadmissible hearsay AND the police report cannot be used against Warren in this way. 4. Admit the testimony.

[Hearsay Exceptions (Rules 803-804)] 4. Admit the testimony.

Gaylor Industries is a small biomedical research firm that uses irradiation to help develop new vaccines. Last year Noah and Hatfield, two of its top researchers, were both diagnosed with cancer, which they claim was the result of being exposed to the high levels of radiation at Gaylor. Noah sued Gaylor Industries as a result. At Noah's trial, Noah called Dr. Green, who testified that in his expert opinion the levels of radiation at Gaylor were so strong that they would likely cause cancer in any employee who worked there full-time. After Noah's case was over, Hatfield also sued Gaylor, with an identical complaint. Horford subpoenaed Dr. Green, but Dr. Green did not appear in court and his whereabouts were unknown. Hatfield sought to admit Dr. Green's testimony as part of his case-in chief. Gator objected to this, and when Gaylor's objection was overruled, Gaylor called Noah's attorney as a witness and asked him if it was true that he paid Dr. Green $20,000 for his testimony in Noah's case. Hatfield objected to this testimony. What are the proper rulings? Assume (correctly) that there is no problem with attorney/client privilege. 1. Both Dr. Green's prior testimony and the live testimony from Noah's attorney should probably have been precluded. 2. Dr. Green's prior testimony should probably have been admitted, but the live testimony from Noah's attorney should have been precluded. 3. Dr. Green's prior testimony should probably have been precluded, but once admitted, the live testimony from Noah's attorney should be allowed. 4. Both Dr. Green's prior testimony and the live testimony from Noah's attorney were probably admissible.

[Hearsay Exceptions (Rules 803-804)] 4. Both Dr. Green's prior testimony and the live testimony from Noah's attorney were probably admissible.

Joyce runs a small art gallery specializing in sculptures and masks. Last year she sold Riley a set of sculptures that she claimed were "genuine Chumash tribe artifacts." As it turned out, the artifacts were covered in a thin green moss which caused Riley's hands to blister and itch uncontrollably. He brought the statues with him to the emergency room and told the intake nurse that: "My hands started to turn red and itch right after I picked up these stupid statues." Riley later sued the gallery for selling him the poisoned statues. He seeks to admit the statement he made to the nurse in the emergency room. In her defense, Joyce denies ever selling him the statues, and as evidence she seeks to admit inventory and sales records from her store showing that she never owned nor sold any item fitting Riley's description. How should the judge rule? 1. Both Riley's statement to the nurse and Joyce's inventory and sales records are inadmissible. 2. Riley's statement to the nurse is inadmissible, but Joyce's inventory and sales records are admissible. 3. Riley's statement to the nurse is admissible, but Joyce's inventory and sales records are inadmissible. 4. Both Riley's statement to the nurse and Joyce's inventory and sales records are admissible.

[Hearsay Exceptions (Rules 803-804)] 4. Both Riley's statement to the nurse and Joyce's inventory and sales records are admissible.

Rosenberg and Summers are arrested for robbing a convenience store. The judge grants a mutual defense motion for severance and Rosenberg is tried first. At Rosenberg's trial, the prosecution calls Faith, the clerk at the convenience store, who was the only eyewitness to the crime. Faith testifies that a woman wearing a yellow jacket came into the store and put a gun to her head while a second woman wearing a denim jacket emptied the cash register. A police officer later testifies that Rosenberg and Summers were arrested minutes later one block from the store, and Rosenberg was wearing a yellow jacket and Summers was wearing a denim jacket. Rosenberg is convicted, and Faith, the eyewitness, dies shortly thereafter. At Summers' trial, the prosecutor seeks to admit the court transcript of Faith's testimony. The defense attorney objects. The evidence is: 1. Admissible under Rule 804(b)(1). 2. Admissible under Rule 801(d)(1). 3. Admissible under Rule 803(8). 4. Inadmissible.

[Hearsay Exceptions (Rules 803-804)] 4. Inadmissible.

Brady was working outside in his yard when he saw a car pull up the driveway to his house. A man stepped out of the car carrying a shotgun and fired two blasts of the gun at Brady. The man then re-entered the car and drove away quickly. Brady's wife heard the shots and heard her husband yell "Help! Davis has shot me!" She came out to find Brady lying in the yard bleeding from the leg. He is taken to the hospital and two hours later is being prepped for surgery when the doctor tells him: "Do you know who shot you?" Brady replies in a calm tone of voice: "Yes. I am certain it was Davis." Davis is arrested and charged with attempted murder. Brady is unavailable to testify at trial, so the prosecutor calls the wife and the doctor to testify as to Brady's statements to them on the day of the shooting. What are the proper rulings? 1. Both statements are admissible. 2. Neither statement is admissible. 3. The statement to the doctor is admissible, but the statement to the wife is not. 4. The statement to the wife is admissible, but the statement to the doctor is not.

[Hearsay Exceptions (Rules 803-804)] 4. The statement to the wife is admissible, but the statement to the doctor is not.

Same fact pattern as the last question. Assume (rightly or wrongly) that the court allows Billy to testify to his opinion about the cause of the fire. On cross-examination, the defense attorney asks Billy to repeat exactly the statements that were made to him that allowed him to form his opinion. The prosecutor objects based on hearsay. The judge should: 1. Admit the statements but give a limiting instruction which explains they may only be considered for the purpose of explaining the basis of Billy's testimony, and not for the truth of the matter asserted. 2. Admit the statements only if the defense attorney proves that their probative value outweighs their unfair prejudicial effect, and then only with the limiting instruction mentioned above. 3. Admit the statements with no limiting instruction. 4. Preclude the statements.

[Opinion Testimony (Rules 701-706)] 1. Admit the statements but give a limiting instruction which explains they may only be considered for the purpose of explaining the basis of Billy's testimony, and not for the truth of the matter asserted.

Sally is suing the Humboldt Pharmaceutical Company for manufacturing and distributing Docoral, a new drug that was prescribed to Sally to treat her heart disease. After taking Docoral for six months, Sally developed liver cancer, and she claims that Docoral caused the cancer. At trial, she calls Dr. Gregorio, who will testify that he ran a number of tests using lab rats and determined that Docoral does indeed cause liver cancer. At a pre-trial hearing, Dr. Gregorio concedes that he uses a new method of testing potential carcinogens in laboratory rats--it is almost three times as fast as the standard test, but it has not been generally accepted by the biomedical community. However, there is a growing body of literature supporting the technique that has been peer-reviewed, and overall the judge determines that the testing technique seems reliable. What should the judge do? 1. Allow the expert to testify if the jurisdiction has adopted the Frye rule. 2. Allow the expert to testify of the jurisdiction has adopted the Daubert rule. 3. Preclude the expert from testifying regardless of the rule the jurisdiction has adopted. 4. Allow the expert to testify regardless of the rule the jurisdiction has adopted.

[Opinion Testimony (Rules 701-706)] 2. Allow the expert to testify of the jurisdiction has adopted the Daubert rule.

Terry is on trial for arson. At trial, the prosecution calls Billy Blazes, an investigator for the fire department. Billy joined the fire department immediately after graduating from college and had no schooling in arson investigation. However, Billy worked with two senior fire department investigators over the first three years of his career, and he has now been working at the job for over ten years, having investigated hundreds of fires. At trial, he will testify that he spoke to a number of individuals who saw the fire burning at different stages and based on their statements to him he concludes that the fire was set intentionally. On cross-examination Billy admits that he has never heard of a case where an arson investigator relied on the observations of witnesses, but in this case there was almost no physical evidence left, and so he was forced to base his conclusions on what they saw. The defense attorney objects to Billy's testimony. The judge is likely to rule that: 1. Billy is not a qualified expert and so his testimony is inadmissible. 2. Billy's conclusion about the cause of the fire is based on improper underlying data. 3. The evidence is inadmissible for both reasons. 4. The evidence is admissible.

[Opinion Testimony (Rules 701-706)] 2. Billy's conclusion about the cause of the fire is based on improper underlying data.

Which of the following opinions is a court LEAST likely to allow a lay witness to give? 1. "The house smelled like gas just before the explosion." 2. "The car that passed through the intersection was driving at least fifty miles per hour." 3. "The damage to the basement was caused by water that seeped through the walls and into the carpet." 4. "The driver seemed drunk when he stepped out of the car."

[Opinion Testimony (Rules 701-706)] 3. "The damage to the basement was caused by water that seeped through the walls and into the carpet."

David is suing the Ford Motor Company for damages arising from a car accident in which the passenger compartment collapsed, breaking David's legs. David contends that car was negligently manufactured, and a properly built passenger compartment would not have collapsed. At trial David calls Dr. Matthews, who is certified as an expert in orthopedics. Dr. Matthews testifies that she examined David personally and examined the wreckage of the car and concluded that the collapsed passenger compartment caused the injuries and that David will likely never walk again. David's attorney then asks whether the passenger compartment would still have collapsed if the compartment had been buttressed by six steel rods instead of just four. Ford's attorney objects to this question. What is the proper ruling? 1. The proposed testimony is inadmissible because it is irrelevant. 2. The proposed testimony is inadmissible because the underlying data that forms the bases of the opinion would be based on inadmissible evidence. 3. The proposed testimony is inadmissible because it calls for an opinion beyond the scope of the witness' expertise. 4. The proposed testimony is admissible.

[Opinion Testimony (Rules 701-706)] 3. The proposed testimony is inadmissible because it calls for an opinion beyond the scope of the witness' expertise.

Sharon is on trial for murder; her defense is mistaken identity. To prove Sharon was the killer, the prosecutor calls Dr. Crick, who is prepared to testify that she ran numerous DNA tests on a hair found on the murder weapon and determined that the odds were one in six billion that it could have come from anyone other than Sharon. On voir dire (outside the presence of the jury), the defense attorney elicits the following two facts: (1) Dr. Crick did not personally conduct all the necessary DNA tests herself in order to reach this conclusion; rather, she runs a laboratory in which many different technicians run different tests and report the results to her. However, she says that it is standard practice in the field for laboratory teams to work together in this way; (2) Although the science of DNA identification is well-established, the amount of DNA recovered from the weapon in this case was so small that Dr. Crick and her team used a new technique to test the DNA. Dr. Crick invented this technique herself--no other scientist in the field knows about this technique, she has not yet published it in any scientific journal, and she has not established any error rates for the technique. What is the proper ruling? 1.The testimony should probably be admitted, not withstanding (1) and (2). 2.The testimony should probably be barred because of (1). 3.The testimony should probably be barred because of (2). 4.Both (1) and (2) would probably be enough to bar the testimony.

[Opinion Testimony (Rules 701-706)] 3.The testimony should probably be barred because of (2).

The Columbus zoo is being sued for damages after a white tiger escaped from its exhibit and mauled a small child. The director of the zoo contacted the zoo's attorney the day after the incident and said: "I think we're going to be in trouble. I just reviewed the records for the tiger exhibit and it turns out that a year ago we hired an independent safety consultant who wrote up a report which said the exhibit was unsafe and might result in tigers escaping. We took no action as a result of the report." The attorney makes a record of the conversation and then asks to see the report. The director sends the report to the attorney. During the lawsuit, the family of the mauled boy issues an interrogatory to the zoo's attorney, asking for notes of "any record of statements made by the zoo's director after the incident" as well as "any safety reports or reviews that were made of the tiger exhibit." What is the proper response by the attorney? 1. Refuse to respond to either interrogatory because of attorney-client privilege. 2. Provide a copy of the safety report but not the record of the zoo director's statement. 3. Provide the record of the zoo director's statement but not a copy of the safety report. 4. Provide a copy of both the zoo director's statement and the safety report.

[Privileges (Article V)] 2. Provide a copy of the safety report but not the record of the zoo director's statement.

Machines That Kill Inc. ("MTK") is a large corporation that manufactures weapons systems for the United States military. Last year, three small attack submarines manufactured by MTK were lost at sea. The United States Navy is suing MTK for breach of contract and negligent manufacture of the submarines. While the litigation is pending, MTK's general counsel received a letter from Fran, who is an assembly line worker in MTK's helicopter production facility. The letter read in part: "I assume you will keep this confidential, but I thought you ought to know. I go to visit the submarine production facility sometimes during my breaks to watch the work, and it is clear to me that their production methods are shoddy and their quality control system is virtually nonexistent." Is the letter covered by the attorney-client privilege? 1. The letter is not privileged since Fran does not have the power to act on any legal advice the attorney might give her regarding the lawsuit. 2. The letter is not privileged since Fran's statement did not concern a matter within the scope of her job. 3. The letter is privileged because Fran is an employee of MTK and thus considered a "client" for the purposes of the attorney- client rule. 4. The letter is privileged because Fran expected it to be kept in confidence.

[Privileges (Article V)] 2. The letter is not privileged since Fran's statement did not concern a matter within the scope of her job.

Wellington Watermelon Inc. is being sued by the federal government for allegedly using illegal pesticides in growing its watermelon crop. Wellington retains Astor & Astor as its lawyer. Astor hires an independent chemical testing company to go out to Wellington's fields and take soil samples, which the company then tests for various pesticides. The results of the test are sent to Astor. The government then issues a subpoena to both Wellington and Astor asking for any and all results from any soil test conducted over the past three years. What is the best analysis of the situation? 1. The results of the soil test are probably protected by the attorney-client privilege but not the work product privilege. 2. The results of the soil test are protected by the work product privilege but probably not the attorney-client privilege. 3. The results of the soil test are protected by the privilege against self-incrimination. 4. The results of the soil test are not protected by any privilege.

[Privileges (Article V)] 2. The results of the soil test are protected by the work product privilege but probably not the attorney-client privilege.

Daniel is accused of murder. The day after he was arrested he met with his attorney Andy and the two spoke for more than two hours. One week later, Andy files a motion to withdraw as counsel, which is granted. At trial, the prosecution calls Andy to the stand as a hostile witness and asks whether it was true that at their initial meeting Daniel told Andy that he committed the crime but "I want you to do everything you can to get me off." The new defense attorney objects, claiming privilege. How should the judge rule? 1. The attorney-client privilege does not apply because Andy is no longer Daniel's attorney. 2. The attorney-client privilege does not apply to this statement under the crime-fraud exception because Daniel had asked Andy to help him avoid liability for a crime Daniel committed. 3. The attorney-client privilege applies unless Andy the former attorney agrees to waive the privilege. 4. The attorney-client privilege applies and the question is improper.

[Privileges (Article V)] 4. The attorney-client privilege applies and the question is improper.

During Daniel's murder trial, Terry testifies for the defense that she was with Daniel the entire day of the murder and that he never went near the crime scene. The prosecutor offers Terry's grand jury testimony in which she said she had not seen Daniel at all on the day of the murder. The prosecutor wishes not only to impeach Terry, but also to use Terry's grand jury testimony as substantive evidence that she was not with Daniel on the day of the murder. 1. Admissible (for the truth of the matter). 2. Inadmissible (for the truth of the matter).

[Quick Hearsay Review (Rules 801-804)] 1. Admissible (for the truth of the matter).

A prosecutor wants to admit a written confession by the defendant into evidence to prove the defendant's guilt. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Plaintiff is suing the defendant for damages suffered in an automobile accident on November 2nd. Defendant has conceded liability in the pleadings and a trial is held on the question of damages. Plaintiff is claiming physical as well as emotional damages as a result of the accident. During the defendant's case, the defense attorney calls the plaintiff's wife to the stand and asks the wife if she is still living with the plaintiff. She explains that she is not; she took the children and moved out on the morning of November 2nd after she discovered the plaintiff was having an affair. Plaintiff's attorney objects. The judge sustains the objection. The defense attorney asks to make an offer of proof. What should the court do? 1. Out of the presence of the jury, allow the defendant to make an offer of proof; admit the evidence if he can show a link between the plaintiff's wife moving out and the plaintiff's emotional trauma. To cure any Rule 403 problem, the judge can instruct the witness not to testify as to the reason she moved out. 2. Out of the presence of the jury, allow the defendant to make an offer of proof and admit the evidence if he can show a link between the plaintiff's wife moving out and the plaintiff's emotional trauma OR to who caused the car accident. To cure any Rule 403 problem, the judge can instruct the witness not to testify as to the reason she moved out. 3. Conduct an offer of proof and admit the evidence if it has any bearing on emotional damages or the causation of the accident. The jury should be present during the offer of proof so that it can properly evaluate the testimony if admitted. There is no danger of unfair prejudice from the testimony, so Rule 403 will not preclude the evidence. 4. Preclude the evidence under Rule 403 as the fact that the plaintiff was having an affair is irrelevant and might unfairly prejudice the jury against him.

[Relevance and Prejudice (Rules 401 & 403)] 1. Out of the presence of the jury, allow the defendant to make an offer of proof; admit the evidence if he can show a link between the plaintiff's wife moving out and the plaintiff's emotional trauma. To cure any Rule 403 problem, the judge can instruct the witness not to testify as to the reason she moved out.

Charles Rogers is accused of robbing a bank by breaking into the bank's vault after hours. The prosecution seeks to introduce evidence that a blowtorch was found in his garage. The defendant objects, pointing out that Rogers' brother, who shares the home with Rogers, is a professional pipe-fitter and uses the blowtorch every day for legitimate work. The evidence is: 1. Relevant, but only if the crime that was committed involved the use of a blowtorch. 2. Relevant, but only if the prosecution can prove that Charles Rogers and not his brother was the actual owner of the blowtorch. 3. Irrelevant, assuming the defendant can prove to the court in an offer of proof that his brother does in fact use the blowtorch for professional purposes. 4. Irrelevant, since it is not information that a person would want to know in deciding whether the defendant committed the crime.

[Relevance and Prejudice (Rules 401 & 403)] 1. Relevant, but only if the crime that was committed involved the use of a blowtorch.

Greg is on trial for murder. The prosecutor produces an eyewitness who identifies the defendant, although on cross examination he admits to being very intoxicated at the time of the crime. The prosecutor then calls an expert witness who testifies that DNA from blood samples found at the scene which belonged to the perpetrator were a "match" with DNA from the defendant's blood, stating that "only one in 500,000 people could have produced the sample found at the scene." After the prosecution's case is over, the defendant makes a motion to dismiss, claiming that based on the evidence presented (the one eyewitness and the DNA expert), no reasonable jury could convict the defendant. The court should: 1. Grant the motion, since complex statistical evidence is not admissible under Rule 403 on the grounds that it is likely to mislead the jury. 2. Deny the motion, since the jury has been presented with more than purely statistical evidence; in fact, the testimony of the eyewitness alone would be sufficient to bring the case to the jury. 3. Grant the motion, since the eyewitness is not credible and the DNA expert testimony confirms that there is a statistical hypothesis, however unlikely, that is consistent with innocence. 4. Deny the motion, since the statistical evidence is so strong that it would be wrong for the court to conclude that no reasonable jury could convict.

[Relevance and Prejudice (Rules 401 & 403)] 2. Deny the motion, since the jury has been presented with more than purely statistical evidence; in fact, the testimony of the eyewitness alone would be sufficient to bring the case to the jury.

Greg is suing the Ohio State University for age discrimination, claiming he was fired from his position as Assistant Coach because the Athletic Director claimed he was too old. Through discovery, Greg discloses that he intends to introduce evidence that Ohio State has fired ten assistant coaches over the past three years, and all of them have been over fifty years old. Before trial, the attorney for Ohio State files a motion in limine, seeking to suppress the evidence of the previous firings on the grounds that they are irrelevant. Greg's response should be: 1. "Your honor, the jury decides questions of relevance, not the judge." 2. "Your honor, the fact that Ohio State has fired so many older coaches over the past three years proves by a preponderance of the evidence that the institution discriminates against older coaches." 3. "Your honor, the evidence of these prior firings tends to make the fact that Greg was fired because of his age more likely than the fact would be without this evidence." 4. "Your honor, the defendant's objections to my evidence must wait until after I formally offer it at trial."

[Relevance and Prejudice (Rules 401 & 403)] 3. "Your honor, the evidence of these prior firings tends to make the fact that Greg was fired because of his age more likely than the fact would be without this evidence."

On July 1, 2003, two Columbus police officers pulled over Paul's car for speeding. After Paul was pulled over, he got out of his car and began verbally abusing the police officers. Uncontroverted videotaped evidence shows that the officers responded to the verbal abuse by hitting Paul in the head and body thirteen times with their nightsticks. At no time did Paul act violently or physically threaten the officers. Paul is now suing the Columbus police department for using excessive force against him during the incident. The police department argues that its officers acted in the reasonable belief that such force was necessary at the time. In support of this argument, the police wish to introduce evidence that on three prior occasions, Paul has physically attacked police officers who have pulled him over. This evidence is: 1. Relevant, since it tends to prove that Paul has a violent nature. 2. Relevant, but only if the police officers on the scene were aware of Paul's previous confrontations with the police. 3. Irrelevant, since Paul took no violent action towards the police officers on this occasion. 4. Irrelevant, since past actions by Paul are no indication of what may or may not have happened in this circumstance.

[Relevance and Prejudice (Rules 401 & 403)] 3. Irrelevant, since Paul took no violent action towards the police officers on this occasion.

George is being prosecuted for breaking into Victor's home in downtown Columbus on the night of December 28th. George takes the stand in his own defense and claims that he was in Florida from Christmas until New Year's Day. On cross- examination, the prosecution wishes to introduce evidence that early in the morning on December 30th, the defendant was arrested in Columbus for drunk driving. This evidence is: 1. Irrelevant, since it does not make the fact that the defendant robbed the house on December 28th any more or less likely. 2. Probably inadmissible, since it will unfairly bias the jury by exposing them to prejudicial information about the defendant and the information, though technically relevant, has very little probative value. 3. Probably admissible, since it tends to prove that the defendant was lying when he claimed to be in Florida. Any issue of unfair prejudice can be cured with a limiting instruction to the jury. 4. Probably admissible, since it proves that the defendant has a propensity to break the law and thus is more likely than a law-abiding citizen to have committed the robbery. Any issue of unfair prejudice can be cured with a limiting instruction to the jury.

[Relevance and Prejudice (Rules 401 & 403)] 3. Probably admissible, since it tends to prove that the defendant was lying when he claimed to be in Florida. Any issue of unfair prejudice can be cured with a limiting instruction to the jury.

Same fact pattern as last question. Assume the trial judge denies Ohio State's motion in limine to preclude the evidence of the prior firings. Greg presents the evidence at trial and Ohio State makes no further objection. After Greg wins at trial, Ohio State appeals the case, arguing that the evidence of the prior filings was improperly admitted. The appellate court should: 1. Sustain the lower court because Ohio State did not make a timely objection to the evidence at trial as required by Rule 103(a)(1). 2. Overrule the lower court if and only if the appellate court determines that the trial court was incorrect in ruling that the evidence was admissible. 3. Overrule the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence. 4. Overrule the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence and the mistake affected a substantial right of Ohio State.

[Relevance and Prejudice (Rules 401 & 403)] 4. Overrule the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence and the mistake affected a substantial right of Ohio State.

Henry is suing Susan in a wrongful death action for Henry's wife Florence. Henry alleges that Florence was a passenger in Susan's car, and that Susan was driving 90 miles an hour down an icy road, lost control of the car, hit the side of an overpass. This collision caused Florence to fly through the windshield, resulting in fatal injuries. Henry offers into evidence several photographs which show Susan's car with a mangled front end and graphic bloodstains on the inside of the windshield. Henry claims the extensive damage to Susan's car tends to prove how quickly Susan was driving, and that the bloodstains and the hole in the windshield help to prove cause of death. Susan's attorney objects under Rule 403. She states that she is willing to stipulate that Susan was traveling at 90 miles per hour, and also to the fact that Florence was killed by being thrown through the windshield as a result of the collision. How do you rule? 1. Sustain the objection, since a stipulation which proves the same fact in consequence is superior to graphic evidence which carries a risk of prejudice. 2. Sustain the objection, because courts follow a general rule to exclude bloody or otherwise violent images from a jury's consideration. 3. Overrule the objection, since the photos carry no risk of prejudice and are relevant. 4. Overrule the objection, since the probabtive value of the photos are not substantially outweighed by their unfair prejudice.

[Relevance and Prejudice (Rules 401 & 403)] 4. Overrule the objection, since the probative value of the photos are not substantially outweighed by their unfair prejudice.

Late on the night of September 5th, Ronald was repeatedly stabbed during a fight outside a bar. He died two hours later. Sammy was arrested three days after the killing. At trial, the prosecution offers an expert witness who testifies that the injuries to the victim show that the murder weapon was not an ordinary knife, but instead a rather unusual dagger called a stiletto, which has a long, thin blade and leaves deep but narrow cuts. The prosecutor shows the expert a stiletto that he brought to the courtroom and asks her if this were the type of weapon that could cause the injury. The expert agrees, and then over the objection of the defense attorney, the expert shows how the distinctive blade of the stiletto caused the wounds found on the victim's body. The prosecution then offers the testimony of an eyewitness, who says that the day before the killing, he saw Sammy brandishing a "wicked-looking knife with a really long, skinny blade." The prosecutor then shows the witness the same stiletto used by the expert witness and asks if the stiletto "fairly and accurately resembles" the knife that Sammy had brandished. The eyewitness answers: "Yeah, it looked almost exactly like that, only the handle was black, not brown." The prosecution offers the stiletto into evidence, and the defense attorney objects. What should the court do? 1. Sustain the objection, as there is no evidence that the stiletto is the same stiletto that was used on the night of the killing. 2. Overrule the objection--if this were the actual stiletto used in the crime, it would be admissible, and there is no difference between the actual stiletto and one that looks similar to it. 3. Sustain the objection, since the eyewitness testified the stiletto offered into evidence looked different from the one used in the killing. 4. Overrule the objection, since the prosecutor has laid a sufficient foundation tying the defendant to this type of knife, and the expert has tied this type of knife to the killing.

[Relevance and Prejudice (Rules 401 & 403)] 4. Overrule the objection, since the prosecutor has laid a sufficient foundation tying the defendant to this type of knife, and the expert has tied this type of knife to the killing.

Tom and Jerry got into a fight at a local bar, and Jerry ended up beating Tom so badly that Tom was taken to a hospital. Jerry is prosecuted for assault. At trial, he admits to the assault but claims he was acting in self- defense and that Tom started the fight after having drunk too many beers. In his defense, Jerry wishes to introduce evidence that on three prior occasions in the past week, Tom had drunk too much in the bar and picked a fight with another patron. The prosecution objects, pointing out that Jerry had not been present for any of these prior occurrences and had no knowledge of Tom's propensity for violence at the time of the alleged assault. The evidence of Tom's three prior fights is: 1. Irrelevant, since Jerry had no knowledge of the fights at the time of the alleged assault. 2. Relevant, but only if the judge determines that Jerry does not have a similar history of getting into fights when drunk. 3. Irrelevant, since the judge may conclude that Tom's supposed propensity for violence would lead the jury to automatically conclude that he was the aggressor. 4. Relevant, since a person who tends to get violent when he drinks is more likely to start a fight than a person who does not.

[Relevance and Prejudice (Rules 401 & 403)] 4. Relevant, since a person who tends to get violent when he drinks is more likely to start a fight than a person who does not.