Evidence Questions

In a lawsuit involving a contract, at issue is whether a plaintiff provided a defendant with required notice at the defendant's office "in the state capital." The plaintiff introduced evidence that he gave notice at the defendant's office in a certain city in the state where the court sits. Although the city is indeed the state's capital, the plaintiff failed to offer proof of that fact. Which of the following statements is most clearly correct with respect to possible judicial notice of the fact that the city is the state's capital? A-The court may take judicial notice, even if the plaintiff has not requested it. B-The court may take judicial notice, only if the plaintiff has provided the court with an authenticated copy of the statute that designates the city as the capital. C-If the court takes judicial notice, the burden of persuasion on the issue of whether the city is the capital shifts to the defendant. D-If the court takes judicial notice, it should instruct the jury that it may, but is not required to, accept as conclusive the fact that the city is the capital.

(A) is correct. A court may take judicial notice of facts not subject to reasonable dispute, whether or not requested. (B) is incorrect. Judicial notice will be taken of the body of facts that well-informed persons generally know and accept. Though usually facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting. The fact that the city is the state capital is a fact generally known in the community. Thus, there is no requirement that the plaintiff provide statutory authority for the fact. A judicially noticed fact is conclusive in a civil case but not in a criminal case. This is a civil case, and thus the court must advise the jury to accept the judicially noticed fact as conclusive.

An eyewitness to an accident testified that the defendant went through a red light and crashed into the plaintiff's car. The defendant produced a witness who testified that he had known the eyewitness for 10 years and that, in his opinion, he was a pathological liar. On cross-examination, the plaintiff's attorney asked the witness if he had filed a fraudulent income tax return the previous year. How should the trial judge rule on the question? A-Improper, because an impeaching witness cannot be impeached. B-Improper, because character cannot be proven by specific instances of conduct. C-Proper, as an attack on the witness's credibility. D-Proper, if the witness was convicted for filing a fraudulent tax return.

(A) is correct. Extrinsic evidence of a prior inconsistent statement can be used to impeach a witness if the witness is afforded an opportunity to explain or deny the allegedly inconsistent statement. The opportunity need not come before introduction of the statement under the Federal Rules. Here, the passenger is still in the courtroom and can be recalled and examined on the statement. (B) is incorrect. A prior inconsistent statement by a witness offered to prove the truth of the matter asserted therein is considered nonhearsay only when it was made under penalty of perjury. Since the statement to the neighbor was not made under penalty of perjury and does not fall within any hearsay exception, it is not admissible as substantive evidence that the driver had the green light. (C) is incorrect. As stated above, the opportunity to explain or deny the allegedly inconsistent statement need not come before the introduction of the statement. Here, the witness is still in the courtroom and can be recalled and examined regarding his statement, which is all that is required. (D) is incorrect. The neighbor is going to testify to the passenger's out-of-court statement that is inconsistent with the passenger's testimony in this proceeding. If the passenger's prior statement is offered to prove the truth of the matter asserted (that the light was green), it is hearsay. It does not fall within the hearsay exclusion for prior inconsistent statements because it was not made under penalty of perjury, and it does not fall within a hearsay exception. However, the passenger's prior inconsistent statement is still admissible to impeach the passenger.

A truck driven by a truck driver struck a pedestrian, causing extensive injuries that eventually resulted in the pedestrian's death one month after the accident. The pedestrian's widow sued the truck driver as a result of the accident. A bystander who witnessed the accident gave a signed, written statement about the accident to an investigator several days after the accident. She stated that the pedestrian had crossed the street at a time when the truck driver had a green light. At trial three years later, after being called by the truck driver's attorney, the bystander testified on direct examination that the truck driver went through a red light and hit the pedestrian. How may the truck driver's attorney use the bystander's signed, written statement from three years earlier? A-Upon proper authentication of the bystander's signature, introduce the statement to prove that the truck driver had a green light at the time of the accident. B-Ask the bystander about her prior written statement for the purpose of impeaching the bystander's credibility. C-Hold the statement until the bystander gets off the stand and is excused from the courtroom, and then introduce the statement through the in

(B) is correct. A witness may be impeached by any party, and questioning a witness about her prior inconsistent statement is a proper method of impeachment. (A) is incorrect. If the statement (which is an out-of-court statement) were being offered to prove that the truck driver had a green light at the time of the accident, it would be an attempt to prove the truth of the matter asserted in the statement and would therefore be hearsay. Although a testifying witness's prior inconsistent statements made under penalty of perjury are considered nonhearsay, the bystander's statement to the investigator was not made under penalty of perjury. Furthermore, the bystander's statement does not fall within the recorded recollection hearsay exception because she has not claimed that she is unable to remember the facts of the accident, and no other hearsay exception applies. Thus, the statement is hearsay and inadmissible as substantive evidence.

At the beginning of a trial, the plaintiff's attorney moved for all prospective witnesses to be excluded from the courtroom. The defendant corporation's attorney objected and, in the alternative, requested that the defendant's treasurer, who was going to be a witness at the trial, be exempted from the sequestration order. Which of the following statements is correct? A-The trial judge must grant the plaintiff's motion as to all witnesses. B-The trial judge must grant the plaintiff's motion as to all witnesses except the treasurer. C-The trial judge may grant the plaintiff's motion, if the judge determines that exclusion is necessary to prevent collusion. D-The trial judge must deny the plaintiff's motion, because prospective witnesses have the right to observe a public trial.

(B) is correct. The sequestration of witnesses is governed by FRE 615. At the request of a party, the court must order a witness excluded so that she cannot hear other testimony. The court may also order sequestration on its own motion. However, the Federal Rules do not permit exclusion of: (i) a party who is a natural person; (ii) an officer or employee designated by the attorney of a party who is not a natural person; or (iii) a person whose presence is shown by a party to be essential to the presentation of his case. Here, the defendant is a corporation and is not a natural person. Thus, the treasurer, an officer of the corporation, may be designated by the attorney to remain as the corporation's representative. (D) is incorrect. Under the Federal Rules, certain witnesses must be excluded from the courtroom upon a party's request, and a court may also exclude witnesses on its own motion.

An attorney wants to impeach a witness by introducing a certified copy of the witness's 18-year-old conviction for voluntary manslaughter. The witness was sentenced to prison for the crime and was released 11 years ago. The attorney gave notice to the opposing party of her intent to use the conviction for impeachment. Under what circumstances may the judge admit the evidence of conviction? A-If the judge determines that the probative value of the conviction substantially outweighs its prejudicial effect. B-If the judge determines that the probative value of the conviction is not substantially outweighed by its prejudicial effect. C-Under no circumstances, because the conviction was not for a crime involving dishonesty or false statement. D-Under no circumstances, because the conviction is more than 10 years old.

A conviction is usually too remote to be admissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here the witness was convicted 18 years ago and released from prison 11 years ago. Evidence of a conviction outside the 10-year limit may still be admitted under the Federal Rules, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment.

A 60-year-old employee who was fired by a corporation after 25 years of employment filed an age discrimination suit against the corporation. While the corporation's excuse was that the reorganization and merger required a trimming of personnel, at trial the employee seeks to have a board member testify that the chairman of the board had convinced the board to fire the employee because he "didn't fit our corporate image of youthful vigor." It was typical practice that all directors' meetings be recorded, and that the corporate secretary use the recording to type up a formal transcript of the proceedings. The meeting at which the employee's dismissal was discussed was no exception. If the defense objects to the board member's proposed testimony, how should the court rule? A-The testimony is admissible, because it is based on the board member's firsthand knowledge. B-The testimony is inadmissible, because it is hearsay not within any recognized exception to the hearsay rule. C-The testimony is inadmissible, because the audio recording of the directors' meeting is the best evidence. D-The testimony is inadmissible, because the corporate secretary's transcription of the directors' meeting is

A is Correct. The board member's testimony should be admissible because it is relevant nonhearsay based on firsthand knowledge. The testimony is relevant to the employee's age discrimination suit because it is being offered to prove that the board's motivation in firing the employee was his age. It is not hearsay, even though the board member is repeating the statement of an out-of-court declarant (the chairman of the board), because it is not being offered to prove the truth of what the chairman was asserting (i.e., that the employee was in fact too old to fit the corporate image). Rather, it is being offered to show its effect on the board; i.e., it is being offered as circumstantial evidence of the board's motivation in deciding to fire the employee, which is the critical issue in the case. Finally, the board member is competent to testify to the chairman's statement since he heard it firsthand, and no other restrictions on the admissibility of relevant evidence are applicable in this case.

While driving east on a two-lane highway, a pickup truck collided with a westbound motorcycle. The accident was observed by a cab driver. Because the cab driver had a passenger, she did not stay at the scene of the accident but made some notes shortly thereafter. She made her statement to the police the next day, in which she stated that just before the accident, the pickup swerved into the westbound lane, hitting the motorcycle. At the trial of the motorcyclist's personal injury action against the truck driver, the cab driver was having difficulty remembering some of the facts. The motorcyclist's attorney sought to let her review the notes she had made. Should the court permit the cab driver to review her notes? A-Yes, because it is a present recollection refreshed. B-Yes, because it is a past recollection recorded. C-No, because the cab driver is required to report all accidents to her employer, and the record is thus privileged. D-No, because there is no showing that the cab driver had used her notes when she gave her statement to the police officer.

A is Correct. The court should permit the cab driver to review her notes. Under the rule of present recollection refreshed, a witness may be shown any writing or other thing that may refresh her memory of an event. The writing is not authenticated, is not in evidence, and may be used solely to refresh her recollection. (B) is wrong because the doctrine of past recollection recorded applies when a party is seeking to introduce a memorandum or other record into evidence. To have the record read into evidence, a foundation must be laid. Here, the motorcyclist's attorney is not seeking to introduce the notes into evidence; he merely wants the cab driver to review them. (C) is a misstatement of the law and makes no sense in this situation. (D) is wrong because the cab driver is not testifying to the contents of her statement, but to her recollection of the accident.

A defendant was on trial for murdering his wife. The defendant was called to testify on his own behalf concerning matters surrounding the death of his wife. On cross, he was asked, "Isn't it true you were convicted of perjury?" Although the defendant had been convicted of perjury eight years before, he denied ever being convicted of perjury. The prosecution offered into evidence a copy of the official court record of the defendant's conviction. Should the trial judge admit the record? A-Yes, because an attorney is not bound by a defendant's denial of a conviction and may prove it by extrinsic evidence. B-Yes, because the perjury conviction is relevant to the issue of the defendant's guilt. C-No, because the defendant has not introduced evidence of his own good character. D-No, because specific instances of bad conduct of a defendant may not be proved by extrinsic evidence.

A party is allowed to attack the credibility of a witness using evidence of a prior conviction. If the conviction is within the 10-year limit and for a crime involving dishonesty or false statement, it is permissible to use evidence of the conviction to impeach the witness (including a criminal defendant) as a matter of right. Here, since the defendant denied the conviction on cross-examination, extrinsic evidence in the form of the official record of his conviction is admissible to prove the conviction.

A defendant was on trial for murdering his wife. The defendant was called to testify on his own behalf concerning the death of his wife. On cross-examination, he was asked, "Isn't it true you were convicted of perjury?" The defendant had in fact been convicted of perjury eight years ago. How should the trial judge rule on this question? A-It is proper, because once the accused testifies on his own behalf, he waives his right to assert the privilege against self-incrimination. B-It is proper, because on cross-examination, an attorney may inquire into matters bearing upon the credibility of a witness. C-It is improper, because the purpose of the question is to elicit highly prejudicial evidence. D-It is improper, because cross-examination is limited to matters testified to on direct examination.

A party is allowed to attack the credibility of a witness using evidence of a prior conviction. Since the conviction is less than 10 years old and for a crime involving dishonesty or false statement, evidence of the conviction may be used for impeachment of the witness (including a criminal defendant) as a matter of right.

A criminal defendant took the stand on her own behalf. She had the following felony convictions on her record: (1) a fraud conviction that is more than 15 years old; (2) a conviction that was under appeal; (3) a conviction for arson that is less than 10 years old; and (4) a juvenile conviction. Which of these convictions is inadmissible to impeach her credibility, even if the trial judge believes that the probative value of the evidence substantially outweighs its prejudicial effect and the adverse party has been notified? A-The fraud conviction that is more than 15 years old. B-The conviction that is under appeal. C-The conviction for arson that is less than 10 years old. D-The juvenile conviction.

Evidence of a criminal defendant's own juvenile adjudications generally is not admissible under any circumstances. Answer A is incorrect. Under the Federal Rules, a judge has discretion to allow evidence of a conviction of a crime that is more than 10 years old if the court determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party has been properly notified.

A defendant was being tried for the common law rape of a victim by force. The defendant alleged consent. A defense witness testified that he overheard the victim invite the defendant to become intimate with her. The prosecution possessed a certified copy of the witness's three-year-old conviction for arson, a crime punishable by five years' imprisonment. Without asking the witness about the conviction on cross-examination, the prosecution offered the copy of the conviction into evidence to impeach the witness's credibility. Is the copy of the conviction admissible? A-No, because the prosecution failed to call the witness's attention to the conviction on cross-examination. B-No, because evidence of a conviction to impeach the character of a witness cannot be shown by extrinsic evidence. C-Yes, but only if the trial judge finds that the probative value of admitting the evidence outweighs its prejudicial effect. D-Yes, unless the trial judge finds that its probative value is substantially outweighed by the danger of unfair prejudice.

Evidence of certain criminal convictions is admissible under the Federal Rules to impeach a witness's credibility. Such a conviction may be proven by a certified copy. If the crime did not involve dishonesty or false statement, the court has discretion to exclude the conviction under the general Rule 403 balancing test (note that a stricter balancing test applies when the witness is the defendant in a criminal case). Here, the witness is not the defendant and the crime of arson does not involve dishonesty or false statement, so the conviction will be admissible to impeach the witness as long as its probative value is not substantially outweighed by its prejudicial effect (i.e., meets the Federal Rule 403 balancing test).

At a defendant's trial for burglary, a witness supported the defendant's alibi that they were fishing together at the time of the crime. On cross-examination, the witness was asked whether a statement he made on a credit card application—that he had worked for his present employer for the last five years—was false. The witness denied that the statement was false. The prosecutor then called the witness's employer to testify that although the witness had first been employed by him five years earlier, and is now employed by him, there was a three-year period during which he was not so employed. Is the employer's testimony admissible? A-Yes, in the judge's discretion, because the witness's credibility is a fact of major consequence to the case. B-Yes, as a matter of right, because the witness "opened the door" by his denial on cross-examination. C-No, because whether the witness lied in his application is a matter that cannot be proved by extrinsic evidence. D-No, because the misstatement by the witness could have been caused by a misunderstanding of the application form.

Extrinsic evidence cannot be used to establish specific instances of conduct of a witness for the purpose of attacking the witness's credibility (other than conviction of a crime). A party may, in the discretion of the court, inquire into a witness's character for truthfulness on cross-examination, but the party is bound by the answer given by the witness. Thus, the prosecutor here is bound by the witness's answer, and the employer's testimony is inadmissible. Answer A is incorrect. Although the credibility of the witness may be important to the case, if a witness denies a prior act of misconduct (other than conviction of a crime) on cross-examination, the attorney may not present extrinsic evidence of the act to impeach the witness.

A driver brought suit against a cabbie following an automobile collision. A passenger, who was riding in the cab, testified that the driver ran a red light just prior to the collision, and that the cabbie was proceeding through the intersection on a green light. On cross-examination, the driver's attorney asked the passenger about the speed of the vehicles but did not inquire into the traffic signals. The driver's attorney then indicated that he was finished with cross-examination, but requested that the judge ask the passenger to remain in the courtroom. In rebuttal, the driver's attorney called a neighbor of the driver, who had helped the passenger out of the cab and brought him to his house after the accident. The neighbor is prepared to testify that the passenger said that the driver had the green light at the time of the accident. Over objection from the cabbie's attorney, how should the trial court rule on the admissibility of the neighbor's testimony? A-Admissible to impeach the passenger's credibility, provided that the driver's attorney then recalls the passenger to the stand and permits him to explain the statement. B-Admissible, to prove that the driver had the green light.

Extrinsic evidence of a prior inconsistent statement can be used to impeach a witness if the witness is afforded an opportunity to explain or deny the allegedly inconsistent statement. The opportunity need not come before introduction of the statement under the Federal Rules. Here, the passenger is still in the courtroom and can be recalled and examined on the statement. (B) is incorrect. A prior inconsistent statement by a witness offered to prove the truth of the matter asserted therein is considered nonhearsay only when it was made under penalty of perjury. Since the statement to the neighbor was not made under penalty of perjury and does not fall within any hearsay exception, it is not admissible as substantive evidence that the driver had the green light. (C) is incorrect. As stated above, the opportunity to explain or deny the allegedly inconsistent statement need not come before the introduction of the statement. Here, the witness is still in the courtroom and can be recalled and examined regarding his statement, which is all that is required. (D) is incorrect. The neighbor is going to testify to the passenger's out-of-court statement that is inconsistent with the passenger's testimony in this proceeding. If the passenger's prior statement is offered to prove the truth of the matter asserted (that the light was green), it is hearsay. It does not fall within the hearsay exclusion for prior inconsistent statements because it was not made under penalty of perjury, and it does not fall within a hearsay exception. However, the passenger's prior inconsistent statement is still admissible to impeach the passenger.

A defendant was charged with murder in connection with a carjacking incident during which the defendant allegedly shot a victim while attempting to steal the victim's car. The prosecutor called the victim's four-year-old son, whose face was horribly disfigured by a bullet fired by the defendant in that same incident, to testify that the defendant shot the victim. There were no other witnesses to the shooting. Is the son's testimony admissible? A-Yes, only if the prosecutor first presents evidence that persuades the judge to find that the son is competent to testify despite his tender age. B-Yes, provided there is a sufficient basis to believe that the son has personal knowledge and understands his obligation to testify truthfully. C-No, because under the Federal Rules of Evidence a four-year-old child is too young to testify. D-No, because the probative value of the evidence is substantially outweighed by the risk of unfair prejudice.

Federal Rule 601 provides that every person is competent to be a witness except as otherwise provided in the rules. The rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations: (i) the witness must have personal knowledge of the matter he is to testify about (i.e., he observed the matter and has a present recollection of his observation); and (ii) the witness must declare he will testify truthfully. As long as the son meets these requirements, his testimony is admissible. His age is not an automatic exclusion (see below).

A defendant is on trial for receiving stolen goods. On cross-examination, she was asked if she had been convicted two years ago of filing false reports with the Social Security office, which is a misdemeanor. If the defense attorney objects to the question, should the trial judge admit the question? A-Yes, but only if the trial judge finds its probative value outweighs its prejudicial effect. B-Yes, even without a finding by the trial judge that its probative value outweighs its prejudicial effect. C-No, because the crime for which the defendant was convicted is only a misdemeanor. D-No, if the trial judge finds that its probative value is substantially outweighed by its prejudicial effect.

Filing false reports with the Social Security office is a crime of dishonesty or false statement. Evidence of conviction of a crime involving dishonesty or false statement is allowed as a matter of right to impeach a witness. No distinction between felony and misdemeanor is made with these types of crimes, and no discretion is given to the judge to exclude evidence of such convictions that are within the 10-year limit. Answer A is incorrect. The judge does not have discretion to exclude convictions for crimes involving dishonesty or false statement offered to impeach a witness (unless they are too remote). It is immaterial whether the judge finds that the probative value of the evidence outweighs its prejudicial effect. Answer C is incorrect. Filing false reports with the Social Security office is a crime of dishonesty or false statement. Evidence of conviction of a crime involving dishonesty or false statement is allowed to impeach a witness as a matter of right, even if the crime is only a misdemeanor.

A defendant was indicted for armed robbery. She took the stand and testified that she did not commit the crime. On cross-examination, the district attorney asked the defendant if she had been convicted of obtaining a prescription by forging a doctor's signature. Although the defendant was in fact convicted of that offense, her attorney objected to the question. Which of the following facts concerning the conviction would be the best reason for the trial judge to sustain the objection? A-The conviction has been appealed to the U.S. Supreme Court, which has not yet rendered a decision. B-The defendant was sentenced to one year in prison for the crime and released at the end of her sentence 12 years ago. C-The defendant was convicted but placed on probation rather than sentenced to jail. D-The crime of obtaining a prescription by forging a doctor's signature is punishable by a maximum jail sentence of six months.

Generally, a prior conviction is too remote if more than 10 years have passed since the date of conviction or release from confinement, whichever is later. Such a conviction may be admissible only in extraordinary circumstances if the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. Here, because the defendant was released 12 years ago, the conviction is too remote. Of the four choices, this is the best reason for the judge to sustain the objection. A conviction for a crime involving dishonesty or false statement—whether the crime was a felony or a misdemeanor—is admissible to impeach a witness as a matter of right; the actual or potential penalty for the crime is irrelevant. The court has no discretion to exclude such a conviction unless it is too remote. Answer D is incorrect. In this case, the conviction being offered to impeach is for a crime of dishonesty or false statement. The conviction of a crime involving dishonesty is admissible (unless it is too remote) regardless of the length of the maximum sentence. It is only for crimes not involving dishonesty or false statement that the length of the maximum sentence (i.e., whether it is a felony or misdemeanor conviction) is relevant.

A driver sued a trucking company for damages arising from an automobile accident between the driver and a trucker, who was employed by the trucking company. The driver and the trucker were the only witnesses to the accident. Shortly after the accident, the trucker became employed by an out-of-state corporation and now resides there. At trial, the trucking company introduced several witnesses to impeach the driver, but it did not produce the trucker. In his closing argument, the driver's attorney argued that he produced one of the only two witnesses who could testify as to what actually happened, that the driver's testimony was not contradicted, and that the jury must believe that the trucking company's failure to put the trucker on the stand means that his testimony would have been adverse to it. Was the closing argument by the driver's attorney proper? A-No, because it permits the jury to draw an improper inference. B-No, because the absence of a witness never gives rise to unfavorable inference. C-Yes, and there is a presumption that the trucking company failed to call the trucker because his testimony would have been adverse to it. D-Yes, and the judge should instruct the jury that

Generally, when one party has control over a witness (e.g., when the witness is an employee of the party) and the witness does not testify, an inference can be drawn that the testimony of that witness is unfavorable to the party with control. Here, however, the witness was no longer an employee of the trucking company and could no longer be deemed under its control. This argument was prejudicial to the defendant because it permitted the jury to draw an improper inference about the testimony of an eyewitness to the accident.

The owner of a jewelry store brought a civil action against a former clerk for the value of various pieces of jewelry missing from the store. The defendant had been fired after another employee had reported that the defendant was stealing jewelry. At the trial, the plaintiff calls his employee as a witness. The witness testifies that he does not remember either having seen the defendant take anything from the store or having told the plaintiff that she had done so. The plaintiff then takes the witness stand and proposes to testify to what the witness had told him about seeing the defendant stealing pieces of jewelry from the store. Assuming appropriate objection by the defendant, would such testimony by the plaintiff be admissible? A-Yes, as a statement against interest by the witness. B-Yes, as proper impeachment of the witness's testimony. C-No, as irrelevant. D-No, as inadmissible hearsay if offered to prove theft by the defendant.

If offered to prove that the defendant stole the jewelry, the testimony by the plaintiff would be hearsay and, thus, inadmissible. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] A hearsay statement, to which no exception to the hearsay rule is applicable, must be excluded upon appropriate objection. [Fed. R. Evid. 802] The proffered testimony of the plaintiff relates to a statement made by the witness other than while testifying at the instant trial. Therefore, if the witness's out-of-court statement is offered to prove that the defendant stole the pieces of jewelry, the statement is hearsay. Because no exceptions to the hearsay rule apply, the statement is inadmissible. (A) is incorrect because the statement is not against the interest of the declarant (the witness). Under the statement against interest exception to the hearsay rule, statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made are admissible. [Fed. R. Evid. 804(b)(3)] Here, the witness may be deemed to be unavailable because he has testified to a lack of memory of the subject matter to which his original statement to the plaintiff relates. However, the statement contained in the proposed testimony of the plaintiff is not against any interest of the witness, who is the declarant, but is rather against the interest, both penal and civil, of the defendant. Therefore, the statement does not qualify for admissibility as a statement against interest.

A grantor transferred a deed to a grantee. The grantor's legal guardian brought suit against the grantee to set aside the deed on the ground that the grantor was incompetent at the time of the transfer. The guardian called the grantor's friend to testify about a conversation he had with the grantor shortly before the deed was delivered. In that conversation the grantor told the friend that he was guided by spiritual voices that told him what to do. The guardian's attorney asked the friend, "The grantor was serious about listening to the voices, wasn't he?" Is this question objectionable? A-Yes, because it is leading. B-Yes, because it calls for an opinion. C-Yes, because it calls for hearsay. D-No.

Leading questions are generally forbidden on direct examination with a few exceptions not applicable here. A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Questions calling for "yes" or "no" answers and questions framed to suggest the answer desired are usually leading. (B) is incorrect. A lay witness is permitted to testify as to her opinion if it is rationally based upon her own perceptions and helpful to a clear understanding of her testimony. Here, the friend had observed the grantor's demeanor and was capable of forming an opinion about the grantor's seriousness in making the statement. A witness is not required to have special training or expertise to testify as to this kind of opinion.

An antiques purchaser who did not speak English sued a dealer for breach of contract, alleging that he had agreed to sell her an antique chair for $15,000 but had refused to accept her certified check when she came to pick up the chair. At the trial, the purchaser, through an interpreter, testified that she asked her brother to communicate to the dealer her offer to purchase the chair. She wishes to testify that her brother told her, "The dealer has agreed to sell you the chair for $15,000." The agreement was not reduced to writing and the brother died a few days after that conversation. If the jurisdiction has a typical "Dead Man Act," what effect will the Act have upon the admissibility of the purchaser's conversation with her brother? A-It will render the conversation inadmissible because a civil action is involved. B-It will render the conversation inadmissible because the purchaser is an interested party. C-None, because the dealer is not a protected party. D-None, because a civil action is involved.

The Dead Man Act will have no effect on the admissibility of the purchaser's conversation with her brother because the dealer is not a protected party. A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased. Such statutes are designed to protect those who claim directly under the decedent from perjured claims. Here, the dealer is not a representative or successor in interest of the brother, such as an executor, administrator, heir, legatee, or devisee. Therefore, the dealer is not a protected party for purposes of a Dead Man Act. Because the testimony of the purchaser is not being offered against a representative or successor in interest of the decedent (her brother), the Dead Man Act is inapplicable. Regarding (A), it is true that the bar to competency created by a Dead Man Act applies only to civil cases. However, the mere fact that a civil action is involved will not trigger applicability of a Dead Man Act. As explained above, the absence of someone who is deemed to be a protected party will prevent a Dead Man Act from having any effect. Thus, (A) is incorrect.

A plaintiff sued a defendant over a claimed debt. At the trial, the plaintiff established the existence of the debt and testified that he never received payment. In response, the defendant presents evidence sufficient to establish that she took her check to the post office and sent it to the plaintiff's proper address by certified mail. The defendant offers a certified mail receipt with an illegible signature, which she claims is the plaintiff's signature. The defendant also presents evidence that her basement flooded on March 28, and she claims that she cannot produce a canceled check because her box of canceled checks was destroyed from the water damage. Evidence is also presented that, due to a computer glitch, the defendant's bank cannot reproduce her checking account records for the months of February and March. After the defendant's testimony, which of the following is correct? A-The burden of persuasion and the burden of going forward with the evidence are on the plaintiff. B-The burden of persuasion is on the plaintiff, but he has no burden of going forward with the evidence. C-The plaintiff has satisfied his burden of persuasion, but he has a burden of going forward with the e

The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant's testimony raises a rebuttable presumption that the check had been delivered in the mail. The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives. The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Here, when the plaintiff made out a prima facie case of the defendant's debt, the burden of going forward with the evidence shifted to the defendant. The defendant met this burden through the use of a presumption. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption. The defendant's evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check). (B) is incorrect because, as discussed above, the defendant's testimony raised a rebuttable presumption that the check was delivered in the mail, which shifted the burden of going forward with the evidence to the plaintiff. The fact that the plaintiff met his burden of going forward with the evidence of the debt once, when he made out his prima facie case, does not mean the burden cannot shift

Undercover police arrested a brother and a sister after a four-month investigation into a series of residential burglaries. During interrogation, the brother admitted that he had committed eight of the burglaries, including one where he stole a valuable painting that he "fenced" to the sister. According to the brother, the sister subsequently sold the painting and gave the brother a share of the sale price. The sister was charged with receipt of stolen property, a misdemeanor offense, and was subsequently convicted. The painting was not recovered and the owners filed suit against the sister for damages. At trial, the brother testified to having "fenced" the painting to the sister. If the owners' attorney tries to introduce a certified copy of the record of the sister's conviction to corroborate the brother's testimony that the sister possessed and sold the painting, on proper motion will this evidence be admitted? A-No, because it is not the best evidence of what happened to the painting. B-No, because it is hearsay not within any exception. C-Yes, because a conviction is evidence of the facts necessary to sustain the judgment of the court. D-Yes, because it is an official record.

The certified copy of the record of the sister's conviction will be excluded because it is inadmissible hearsay. A misdemeanor conviction is hearsay not admissible under any exception. A felony conviction, on the other hand, is admissible under an exception to the hearsay rule. Thus, (C) and (D) are incorrect.

A plaintiff who was a citizen of State A was traveling to adjoining State B to visit his relatives. While still in State A, the plaintiff's auto was struck in the rear by a vehicle driven by the defendant, a citizen of State B. The plaintiff suffered personal injuries and damage to his vehicle amounting to approximately $90,000. The plaintiff filed suit in the federal district court for State A and obtained proper service of process on the defendant. Under the laws of State A, the driver of a vehicle that strikes another vehicle in the rear is presumed to have acted negligently, regardless of the surrounding circumstances. Neither the law of State B nor the federal statutes or case law has adopted such a rule. Should the court apply the presumption in question? A-No, because federal law does not recognize such a presumption. B-No, because the law of State B does not recognize such a presumption. C-Yes, because in a diversity case a federal court applies the substantive and procedural laws of the state in which it sits. D-Yes, because the presumption at issue operates upon elements of the prima facie case.

The court should apply the presumption. Federal Rule of Evidence 302, which follows the Erie doctrine requiring the application of substantive state law, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. The presumption at issue here, by presuming negligence on the part of a driver who strikes another vehicle in the rear, impacts on the prima facie case elements of duty and breach of duty. Matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters. Consequently, the presumption of negligence recognized by State A should be applied by the court on this issue, and (A) is therefore incorrect. (B) is incorrect because it is immaterial whether State B recognizes the presumption. (C) is incorrect because it states that a federal court applies both the substantive and procedural law of the state in which the federal court sits. It applies only substantive state law.

A witness was stopped at an intersection when she saw a car run a red light, strike the victim in the crosswalk, and proceed through the intersection. The witness gave a very detailed description of the driver to the police officer at the scene. Based on this description, the police apprehended the defendant and charged him with several criminal counts for the accident that seriously injured the victim. The witness testified at the trial, but the defendant was acquitted. The victim then filed a civil suit against the defendant to recover for her injuries. Before the trial of the victim's suit, the witness died. In her suit against the defendant, the victim offers into evidence the police report containing the witness's description of the driver. The defendant objects. How should the court rule on the admissibility of the report? A-Admissible, because the report is relevant, and it is not hearsay. B-Admissible, because the report falls within the business records exception to the hearsay rule. C-Inadmissible, because the report is hearsay not within any exception. D-Inadmissible, because the report is not the best evidence.

The court should not admit the report because it is hearsay not within any exception. The report contains an out-of-court statement being offered for its truth; i.e., that the person who hit the victim fits the description given by the witness. Thus, (A) is incorrect. The report does not fall within any exception to the hearsay rule. It is not a business record because the witness was not under a business duty to convey the information to the police. (B) is therefore incorrect. (D) is incorrect because the report is the original document, and the best evidence rule expresses a preference for original.

In litigation over whether a holographic will and codicil were prepared by the testator, the defendant, in response to a challenge to the validity of the instruments, calls the testator's former business partner to testify that he has seen the testator's handwriting on many business documents and that the handwriting on the will and codicil is that of the testator. The plaintiff objects to the testimony of the business partner. How should the court rule? A-The testimony is inadmissible because the witness has not been qualified as a handwriting expert. B-The testimony is inadmissible because a proper foundation has not been laid. C-The testimony is admissible because the witness is familiar with the testator's handwriting. D-The testimony is admissible because the witness is not interested in the outcome of the case and therefore is competent to testify.

The court will allow the witness to testify as to the testator's handwriting simply because he is familiar with it by virtue of his former business relationship with the testator. As long as such a foundation is laid to show familiarity with the handwriting, a lay opinion is permissible. Thus, because the witness became familiar with the testator's handwriting when they worked together, he will be permitted to testify that the handwriting on the instruments is that of the testator. (A) is incorrect because expert testimony is not required for handwriting identification. Because the witness's testimony is based on his previous familiarity with the testator's handwriting, it will be admissible as nonexpert opinion testimony.

The plaintiff was injured when she slipped at the defendant restaurant. The defense attorney asked the manager on duty at the time of the incident to prepare a report of the accident. This report was given to the defense attorney prior to trial. During discovery, the plaintiff demands that a copy of the report be produced. Will the court order the defendant to produce the report? A-Yes, because business reports are not privileged. B-Yes, because it is the best evidence. C-No, because it is covered by the attorney-client privilege. D-No, because it is hearsay.

The court will not order the defendant to produce the report. Communications between an attorney and client, made during professional consultation, are privileged from disclosure. A business report prepared as a communication from client to attorney is privileged. Here, the manager prepared the report at the request of the restaurant's attorney. As such, the report constitutes a privileged communication between an attorney and client and its production is not required. Thus, (C) is correct.

A bank was robbed on March 18. As the perpetrator escaped, she was struck in the right leg by a bullet fired by a bank guard. In July, the police arrested the defendant at the home of her mother and charged her with the bank robbery. At trial, the prosecution called the defendant's mother to the stand and asked her if the defendant had a surface wound on her right leg when she came home on March 18. The mother answered, "No." The prosecution then asked the mother if she had been convicted of bank robbery five years earlier and sentenced to two years in a federal penitentiary. In fact, the mother had been so convicted, and the prosecution possessed a certified copy of that conviction. The defendant's attorney objected. Should the trial court allow the questions? A-No, because proof of prior crimes to impeach credibility is not permissible during direct examination. B-No, unless the probative value of the evidence outweighs its prejudicial effect. C-Yes, unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. D-Yes, regardless of how unfairly prejudicial the evidence is.

The crime of armed robbery is not considered a crime of dishonesty or false statement; thus, the court has discretion to exclude the conviction. The defendant's mother, not the defendant herself, is being impeached here. When a witness to be impeached is not a criminal defendant, the standard Rule 403 balancing test applies. In such a case, the court may exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

In a personal injury case involving a two-car collision, the plaintiff wishes to introduce a sworn deposition taken from a witness who died two weeks before the case came to trial. In the deposition, the witness stated that she saw the defendant run a red light at the time of the collision with the plaintiff's car. Both the plaintiff's and the defendant's attorneys were present at the deposition. The defendant objects in the appropriate manner to the introduction of the witness's statement. How should the court rule on the admissibility of the deposition? A-Admissible, because the defendant had an opportunity to cross-examine the witness at the time the deposition was taken. B-Admissible, as a dying declaration. C-Inadmissible, because the statement was not made while the witness was testifying in court. D-Inadmissible, because the defendant has no opportunity to cross-examine the witness at trial.

The deposition testimony of the now unavailable witness is admissible under the former testimony exception to the hearsay rule. The witness's statement is hearsay because it is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Unless such a statement falls within a recognized exception to the hearsay rule, it must be excluded upon appropriate objection to its admission. Pursuant to the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful. Here, the plaintiff is offering the deposition testimony of the witness to prove the truth of the matter asserted therein; i.e., that the defendant ran a red light at the time of the accident. Thus, the testimony is hearsay. The witness is unavailable because she is dead. Also, because the deposition was taken in connection with the same case that is currently the subject of the trial, there is an exact identity of parties and issues between the deposition and the trial. Thus, the defendant had an opportunity and a motive to develop the testimony of the witness at the time of the deposition by cross-examination. As a result, the elements of the former testimony exception are satisfied, and the deposition testimony of the witness is admissible in the trial.

A defendant is charged with the burglary of a warehouse. At the request of the police investigating the burglary, the night watchman at the warehouse who had seen the thief leaving the premises wrote out a description of the thief, who bore a strong likeness to the defendant. However, the night watchman died of a heart attack before the defendant was arrested and brought to trial. The prosecution attempts to offer the description written out by the night watchman into evidence. Is the description admissible? A-Yes, as a past recollection recorded. B-Yes, as an identification of a person the night watchman knew committed the crime in question. C-No, because it is hearsay not within an exception. D-No, because it is an opinion of a non-expert.

The description is inadmissible as hearsay not within an exception. (B) is wrong. Under the Federal Rules of Evidence, a prior identification is considered non-hearsay, but only if the declarant testifies at the trial and is subject to cross-examination. Since the night watchman died, this requirement cannot be satisfied. On these facts, there are no exceptions to the hearsay rule that would make the description admissible. (A) is wrong because before a document can be admitted as a past recollection recorded, the person whose statement appears in the document must be on the witness stand and certain foundational requirements must be met. Here this is not possible because the night watchman is dead. (D) would have no bearing on the admissibility of the description.

A boy and his parents sued a driver for $75,000 for injuries they claim were caused when the driver's car hit the boy one night when the boy was out delivering papers. The boy was knocked unconscious in the accident, and the driver claims that it was not his car that hit the boy. Except for damages, the main issue in the suit is whether it was the driver's car that hit the boy. The driver's own attorney asks him, "Could the boy have mistaken your car for another?" Is this question objectionable? A-Yes, because the answer would be hearsay. B-Yes, because the answer would be an opinion. C-No, because the answer would be relevant to the issue of whose car hit the boy. D-No, if a proper foundation has been laid.

The driver's answer could only reflect his opinion of what the boy did or thought, and is thus impermissible opinion evidence. A layperson's opinion is admissible if it is rationally based on the perception of the witness, helpful to a clear understanding of the witness's testimony on the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge. The driver's opinion does not meet those requirements; he is speculating rather than testifying to his own perceptions. (A) is wrong because the question does not call for the driver to testify about an out-of-court declaration.

The plaintiff filed a personal injury action against a restaurant. The plaintiff alleges that she suffered food poisoning after consuming the restaurant's daily special—extra-strong coffee and chili over eggs. The restaurant defends by claiming that the special on the day in question was an exotic tea served with a yogurt and fruit blend and that the extra-strong coffee drink was not even on the menu that day. Counsel for the restaurant called a former waitress to testify as to whether the extra-strong coffee drink was on the menu that day. The former waitress, who lives with the plaintiff, testified that it was always on the menu. The restaurant's attorney then asked, "Didn't you in fact, at your deposition, state extra-strong coffee drink was not on the menu that day?" The plaintiff's attorney objects. Is the question proper? A-Yes, because the former waitress is hostile. B-Yes, because it constitutes refreshing the witness's recollection. C-No, because this is a leading question on direct examination. D-No, because the restaurant cannot impeach its own witness.

The question is proper. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony. Under the Federal Rules, any party may impeach any witness (even its own witness), so (D) is incorrect.

An officer was driving in her squad car when she spotted the defendant, whom the officer knew because she had arrested him for an armed robbery in the past. She followed the defendant for awhile and noted that he kept looking nervously over his shoulder at the squad car and that he was carrying a brown paper bag in his hand. Suddenly, the defendant darted into an alley. A few moments later, he emerged from the alley without the paper bag and began running. The officer put on her siren and pursued the defendant. He was quickly apprehended and searched by the officer. She then drove back to the alley to search it. About six feet from the entrance to the alley, the officer found a paper bag that contained a handgun. She copied the gun's serial number before taking the gun back to the police station. The defendant was charged with illegal possession of a handgun and carrying a concealed weapon. At his trial, while the officer is testifying, the prosecution seeks to admit the gun that the officer found into evidence against the defendant. The defense attorney objects on the grounds that the gun lacks proper identification. Should the objection be sustained? A-Yes, because the gun was not in

The gun should be admitted into evidence. The gun is a form of real evidence, in that the object in issue is presented for inspection by the trier of fact. To be admissible, the object must be authenticated (i.e., identified as being what the proponent claims it to be). One method of authentication is recognition testimony, in which a witness may authenticate the object by testifying that it is what the proponent claims it is. Here, the officer found the gun in a paper bag in the alley shortly after having seen the defendant run into the alley holding a paper bag and emerge from the alley without the bag. The officer could now be called to identify the gun being offered into evidence as the one she found in the alley. This should be particularly easy in this case because the officer noted the serial number of the gun when she found it. The fact that the gun was found in the alley is circumstantial evidence that the gun was carried by the defendant on the night of the arrest. The evidence here is sufficient to withstand an objection to its admissibility on the ground that the gun has not been properly identified.

In a tort case involving personal injury, a hospital orderly is called to the stand. There is some dispute as to whether the plaintiff ever lost consciousness. The plaintiff's attorney wishes to have the orderly, who was working in the hospital emergency room when the plaintiff was brought in, testify that the plaintiff was unconscious at the time she entered the emergency room. Would such testimony be admissible over the defendant's objection? A-No, because the orderly is not an expert witness. B-No, because it impermissibly intrudes upon the province of the jury. C-Yes, because it is the best evidence. D-Yes, because it is proper opinion testimony by a lay witness.

The orderly's testimony should be admitted because it is proper opinion testimony by a lay witness. Where an event is likely to be perceived as a whole impression, rather than as more specific components, opinions by lay witnesses are generally admitted. Lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] One matter about which a lay witness may testify is the general appearance or condition of a person. In contrast, expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. Here, the orderly is not being asked to describe specific injuries that may have been incurred by the plaintiff; that would more appropriately be left to the specialized knowledge of an expert. Rather, he is being asked to testify as to the plaintiff's general condition (i.e., whether she was conscious or unconscious). Having been on duty in the emergency room when the plaintiff was brought in, the orderly had the opportunity to observe the plaintiff. Thus, he is in a position to offer an opinion as to the plaintiff's unconscious condition based on his own perception. It is easier for the orderly to express his testimony this way than to go into detail about specific manifestations of the plaintiff's condition. Also, this opinion aids in the determination of a disputed factual issue (i.e., whether the plaintiff ever lost consciousness). Therefore, the orderly's testimony is admissible as proper lay opinion testimony.

In an automobile collision case, the plaintiff introduced evidence that a bystander made a statement, admitted by the court as an excited utterance, that the defendant had run through a red light. The defendant called a witness to testify that a week later, the bystander, now deceased, told him that the defendant had gone through a yellow light. Is witness's testimony admissible? A-No, because it is hearsay not within any exception. B-No, because the bystander is not available to explain or deny the inconsistency. C-Yes, only for the purpose of impeaching the bystander. D-Yes, to impeach the bystander and as substantive evidence of the color of the light.

The plaintiff had already introduced the bystander's excited utterance concerning the fact that the defendant ran a red light. Under the Federal Rules, the credibility of a hearsay declarant (here, the bystander) can be attacked by evidence that would be admissible for impeachment purposes if the declarant had testified as a witness. Here, the witness proposes to testify to a prior inconsistent statement made to him by the bystander. Although prior inconsistent statements made under oath by a testifying witness are not hearsay, here the bystander is not a testifying witness and the statement was not made under oath. Additionally, the bystander's statement does not fall within a hearsay exception. Therefore, the statement may not be admitted as substantive evidence of the color of the light, but it can be offered for the purpose of impeaching the bystander.

A merchant sued a company for breach of contract, alleging that the products she purchased failed to conform to contract specifications. Shortly before the trial was to begin, the merchant suffered a stroke that left her paralyzed and virtually unable to communicate. Her guardian was properly substituted as the plaintiff in the lawsuit. At trial, following presentation of the plaintiff's case, the company calls as a witness a priest to question him about a conversation he had with the merchant at a church fundraiser. In this conversation, the merchant told the priest in confidence that the products she received were actually quite functional, but that she had become aware of a lower price being offered by another vendor, and thus wanted to get out of her contract with the company. The plaintiff's attorney immediately objects on the basis of clergy-penitent privilege. How should the court rule on the objection? A-Sustained, because the merchant's statement was made to the priest in confidence. B-Sustained, because this is not a criminal case. C-Overruled, because the privilege can be invoked only by the person who made the confidential statement. D-Overruled, because the circumstances un

The plaintiff's objection on the basis of the clergy-penitent privilege should be overruled. Pursuant to the clergy-penitent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member's capacity as a spiritual adviser. The operation of this privilege is very similar to that of the attorney-client privilege. Here, the merchant made the statement to the priest during a conversation at a social occasion. There is no indication that this was a communication made to the priest in his capacity as a spiritual adviser, as would be the case, for instance, with a statement made in the confessional or during a counseling session. Thus, the matters stated to the priest by the merchant do not come within the clergy-penitent privilege, and the priest cannot be prevented from disclosing the contents of the conversation on the basis of this privilege. (A) is incorrect because, although the merchant undoubtedly made the statement in confidence (i.e., intending and expecting that it would not be disclosed to third persons), as explained above, it was not made to the priest in his capacity as a spiritual adviser. Therefore, the clergy-penitent privilege is inapplicable. (B) is incorrect because it implies that the clergy-penitent privilege does not apply to civil cases. Actually, this privilege applies to both civil and criminal cases.

A pedestrian sued the defendant for injuries suffered in a hit and run accident. The car that struck the pedestrian was linked to the defendant, but she denies that she was driving the car when the pedestrian was hit. The only eyewitness, other than the pedestrian, was a six-year-old child. During the trial, the pedestrian put the child on the stand, and he testified that he saw the defendant driving the car that hit the pedestrian. The defense elected not to cross-examine the child. The plaintiff's next witness was a child psychologist who had never met the child before but was prepared to testify that, based on his observations of the child on the witness stand, it was highly probable that the child was telling the truth. The psychologist was qualified as an expert witness with many years of experience dealing with children. However, the defense objected to any questions regarding the veracity of the child. Should the psychologist be allowed to testify about the child? A-Yes, because parties may put witnesses on the stand to reinforce or challenge the veracity of other witnesses. B-Yes, because an expert may be needed to explain how children testify in order to avoid confusing the ju

The psychologist should not be allowed to testify because the child's credibility has not been impeached. Evidence of a witness's character is admissible only after the witness's character for truthfulness has been attacked. [Fed. R. Evid. 608(a)] The psychologist's testimony would have been admissible if the child's veracity had been attacked on cross-examination, but here the defense did not cross-examine the child. (A) is incorrect because the rule for reinforcing a witness's veracity differs from the rule for challenging it. A party may put witnesses on the stand to bolster another witness's credibility only when the witness's credibility has been attacked.

A plaintiff filed a trademark infringement suit against a defendant company. While the defendant's director of marketing was on the stand, the defendant's attorney produced a "product recognition survey," a document generated by the defendant's marketing division. The plaintiff's attorney objects that the record is hearsay. The defendant's attorney responds that it is a business record admissible under an exception to the hearsay rule. The plaintiff's attorney counters that the document was prepared for this litigation and not made in the ordinary course of business. The plaintiff's attorney demands a hearing to determine whether the document qualifies as a business record. Which of the following is the most appropriate way for the issue to be decided? A-The issue should be decided by the judge after hearing evidence from the defendant's attorney outside the presence of the jury. B-The issue should be decided by the judge after hearing evidence from the defendant's attorney and the plaintiff's attorney and may be conducted in the presence of the jury. C-The issue should be decided by the jury after hearing evidence from both sides. D-The issue should be decided by the judge after heari

The question of the existence or nonexistence of preliminary facts other than those of conditional relevance is to be determined by the court. All preliminary fact questions involving the standards of trustworthiness of alleged exceptions to the hearsay rule are to be determined by the court. Thus, the court, not the jury, must decide whether a purported business record was made in the regular course of business. In the case at bar, the question to be decided is whether the "product recognition survey" was in fact made during the regular course of business. Thus, this issue must be decided by the judge. During the hearing at which the judge makes the preliminary fact determination, both parties must be given an opportunity to present evidence with regard to the fact to be determined. Also, it is within the judge's discretion whether the jury should be excused during the preliminary fact determination.

The defendant is being tried for murder. A witness to the crime had aided the police artist in making the composite picture by which the defendant was identified. This witness disappeared before trial, and the prosecutor now wants to offer the sketch into evidence. The sketch is: A-Inadmissible, under the best evidence rule. B-Inadmissible, as hearsay not within any exception. C-Admissible, as a record by a public employee. D-Admissible, as a prior identification.

The sketch is inadmissible. Under Rule 801 of the Federal Rules, prior identification can be admissible and the sketch could be deemed a prior identification. However, to be admissible, the witness must be there to testify at trial and be subject to cross-examination. The witness in this case is unavailable; hence, this exception does not apply. (D) is therefore incorrect. (A) applies to documentary evidence and has no relevance to this question. (C) is likewise not applicable, because this exception applies only to information within the personal knowledge of the public employee. In this case, the public employee gained the knowledge from the hearsay statement of an absent witness.

A state court is LEAST likely to take judicial notice of which of the following? A-The blood type that occurs with greatest frequency in the population is O-positive. B-Main Street, upon which the courthouse is situated, runs north and south. C-The sun rose at 6:52 a.m. on Friday, December 12, of last year. D-In Australian law, there is no private action for environmental issues.

The state court is least likely to take judicial notice of the Australian law. Most state courts will not take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court.

The plaintiff is suing the defendant for misrepresentation, alleging that the defendant claimed his business was valued at $250,000 when he sold it to the plaintiff, but that an appraiser hired by the plaintiff concluded that it was only worth $150,000. At trial, the defendant's attorney offers a report prepared by an accountant shortly after the transfer agreement was signed. While reports of this kind are not normally prepared by the accountant, he prepared this one as a favor to the defendant. The report contained an extensive analysis of the financial condition of the business and concludes that the value of the business could be placed at $250,000 instead of $150,000. The plaintiff's attorney objects to the introduction of the report as evidence of the value of the business. How should the court rule on the report? A-Admissible nonhearsay, because the report constituted the opinion of the accountant. B-Hearsay, but admissible as a past recollection recorded. C-Hearsay, but admissible as a business record. D-Inadmissible hearsay.

The testimony is hearsay on the issue of the value of the business. It is inadmissible because it does not fit into any exception to the hearsay rule. (A) is wrong because the value in the report is being offered as a fact due to the accountant's expertise. In addition, even if the report constituted only an opinion, it would still be hearsay. (B) is wrong because a past recollection recorded is a record about a matter about which the witness once had knowledge but now has insufficient recollection. Here, the accountant has not been called as a witness. (C) is wrong because such a report does not fall under the business records exception to the hearsay rule because it was not made in the normal course of business, since the accountant does not normally make such reports.

The defendant was at work when her husband called her and said, "The neighbor just tripped over those roots I told you to take out. He's badly hurt and I'll bet he sues us for all we're worth." The defendant then told her secretary, "The neighbor just got hurt because I forgot to do my yard work." On returning home, however, the defendant discovered that the neighbor had actually tripped over roots from his own tree in his own yard. The neighbor disagreed and sued the defendant and her husband. At trial, the neighbor called the defendant's secretary to testify as to the defendant's statement to him. Will the secretary's testimony be admitted? A-No, because the defendant had no firsthand information when she made her statement to the secretary. B-No, because it is inadmissible lay opinion. C-Yes, because it is not hearsay. D-Yes, to impeach the defendant's expected testimony as to the result of her own investigation.

The testimony is not hearsay because the defendant's statement constitutes an opposing party's statement—i.e., a statement by a party (the defendant) being offered against her. An opposing party's statement (commonly known as an admission) is not considered a hearsay statement under the Federal Rules. [Fed. R. Evid. 801(d)(2)] Thus, (C) appears to be correct—that the secretary's testimony about the defendant's statement will be admitted because it is not hearsay. (C) is not an ideal answer, though, because it is so incomplete. The fact that an item of evidence is nonhearsay does not automatically render it admissible. For example, if nonhearsay evidence is irrelevant, it would not be admissible. Thus, deciding whether (C) is the best answer requires a thorough assessment of the alternatives.

The plaintiff is suing the defendant for injuries he suffered when his car was struck by the defendant's truck, allegedly because the defendant had fallen asleep at the wheel after driving all night. At trial, the defendant's girlfriend testified that she had been with the defendant in the truck and had taken over the driving duties for several hours that night while the defendant napped. The plaintiff calls to the stand an acquaintance of the defendant's girlfriend, to testify that the girlfriend told him that she had been unable to get out of bed the weekend the accident occurred because of severe back pain. The testimony of the acquaintance is: A-Admissible for impeachment purposes only. B-Admissible for impeachment purposes and as substantive evidence as a declaration of physical condition. C-Inadmissible, because this means of impeachment can be done only through cross-examination. D-Inadmissible, because the plaintiff has not first given the girlfriend an opportunity to explain or deny the statement.

The testimony of the acquaintance is admissible, but only for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony. Here, the acquaintance is prepared to testify that the girlfriend stated that she had been unable to get out of bed because of severe back pain at the time that she testified that she was with the defendant and had taken over the driving, a fact that would be material to the allegations in the lawsuit. Thus, the testimony is properly admissible for purposes of impeachment.

The plaintiff sued the defendant for bodily injuries suffered by the plaintiff as a result of a collision between the cars they were driving. The accident occurred on a rainy day, when the defendant's car skidded across the center line and struck the plaintiff's car. A principal issue is whether the defendant was driving too fast for the wet conditions. At trial, the plaintiff calls a witness who is prepared to testify that he has lived next door to the defendant for 15 years, and that the defendant is notorious in the neighborhood for driving his car at excessive rates of speed. The defendant's attorney objects. May the witness's testimony be allowed? A-Yes, because the defendant's character as a careless driver is in issue. B-Yes, because character may be proven by reputation evidence. C-No, because the testimony is improper character evidence. D-No, because the testimony is hearsay, not within any exception.

The testimony of the witness is inadmissible character evidence; i.e., it describes the defendant's general behavior patterns. Evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Here, the plaintiff is trying to employ the circumstantial use of prior behavior patterns to draw the inference that the defendant drove at an excessive rate of speed at the time of the incident here at issue. Such a use of character evidence is not permitted. (D) is also incorrect. While it is true that testimony as to a person's reputation in the community may in some sense be considered hearsay (i.e., such testimony reflects what people are saying about a person), reputation testimony is a permissible (and in fact, the most common) means of showing character. Thus, (D) does not present a basis for refusing to allow the testimony.

At a homicide trial, the prosecution presented evidence that, on the day of the fatal shooting, the defendant and several members of his gang engaged in a running gun battle with the victim and members of his gang. The prosecution additionally presented evidence tending to prove that the defendant had been seen at the scene of the shooting around the time that the victim was killed. In his defense, the defendant proffered testimony of a witness that, one day before the victim's death, the defendant had said to him, "I'm flying to the state capital tonight for a two-day visit." Should the witness's testimony be admitted over the objection of the prosecution? A-Yes, because it is not being offered for the truth of the matter asserted. B-Yes, because it tends to prove that the defendant was in the state capital at the time the charged crime was committed. C-No, because it is inadmissible hearsay. D-No, because it violates the propensity rule.

The testimony should be admitted. When analyzing questions involving the admissibility of hearsay evidence, ask two things: (i) Is the proffered evidence hearsay (i.e., an out-of-court statement by a declarant, being offered to prove the truth of the matter asserted in the statement)? (ii) If hearsay, is the proffered evidence nevertheless admissible because it fits within an exception to the hearsay rule? The witness's proffered testimony is hearsay because it matters whether the defendant's statement is true or false. If his statement is true (if the defendant actually intended to go to the state capital, as stated), then the likelihood that he actually went there is increased. (This is because people tend to act in a manner consistent with their previously stated intentions.) Since the witness's testimony would be used for the purpose of establishing the truth of the defendant's statement, it is hearsay evidence. However, the testimony fits within a hearsay exception. A declarant's statement of present intention to take an action in the future fits within the "state of mind" exception contained in Federal Rule of Evidence 803(3). One's intent is a part of one's state of mind. Thus, the testimony should be admitted. This two-step analysis of hearsay evidence also makes clear that (A) and (C) are incorrect.

A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff's attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff's attorney. The state recognizes only the common law privileges. Should this testimony be admitted? A-Yes, because the plaintiff's statements are the statements of a party-opponent. B-Yes, because the plaintiff waived the physician-patient privilege by placing his physical condition in issue. C-No, because the plaintiff's statements are protected by the attorney-client privilege. D-No, because the plaintiff's statements are protected by the physician-patient privilege.

The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney's client is necessary to help the client convey his condition to the attorney. (A) is incorrect because admissions by party-opponents, while not hearsay under the Federal Rules, are still subject to potential privilege assertions. (B) is a true statement; the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff's suit, so (D) is incorrect. However, (B) is incorrect because when a client is examined by a doctor at the attorney's request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated.

During the course of their marriage, a husband told his wife that he stole a famous painting from a federal museum. Six months after the admission, the couple divorced. Shortly after the divorce, the husband was killed in an automobile accident. Later, the wife read in the paper that a man had been charged with the theft of the painting her husband admitted to stealing and was about to be tried in federal district court. She told her friend that the man was probably innocent because the husband told her that he had stolen the painting himself. The friend told several other people what the wife had told her, and eventually the story got back to the defense attorney. The attorney now wants the wife to testify in court to the husband's statement. Can the wife be compelled to testify? A-Yes, but only because the husband is dead and cannot invoke his privilege. B-Yes, because there is no privilege when the defendant is not a spouse. C-No, because the couple was still married at the time of the disclosure. D-No, because her testimony is not essential to prevent a fraud on the court.

The wife can be compelled to testify because her husband is dead and cannot invoke the privilege. There are two separate privileges related to marriage. There is spousal immunity, under which: (i) a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and (ii) a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, this privilege belongs to the witness-spouse so that she may not be compelled to testify, but neither may she be foreclosed from testifying. This privilege terminates upon divorce. There is also a privilege for confidential marital communications, under which either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Both spouses jointly hold this privilege. Divorce does not terminate this privilege retroactively. Because the communication must be made in reliance upon the intimacy of the marital relationship, if the communication is made in the known presence of a stranger, it is not privileged. Similarly, if one spouse voluntarily reveals the contents of the communication to a stranger, that spouse waives the protection of the privilege as to herself (i.e., she cannot use the privilege to refuse to disclose, or to prevent another from disclosing, the communication), but the other spouse (i.e., the one who did not reveal the communication) retains this privilege. Here, the spousal immunity between the husband and the wife terminated upon their divorce. Thus, the only consideration is the applicability of the privilege for confidential marital communications. The husband's statement to the wife came during their marriage and was made in reliance upon the intimacy of their relationship (marital communications are presumed to be confidential). Thus, the statement was covered by the privilege for confidential marital communications. Their subsequent divorce did not terminate this privilege. However, when the wife revealed to her friend what her husband had told her concerning the theft of the painting, the wife lost her privilege to refuse to discl

The defendant was on trial for statutory rape. He denied that the alleged victim was even in his presence on the night of the alleged offense, when he was working as the night clerk at a convenience store. The prosecution offers to have a witness testify that, in a phone conversation on the evening in question, the victim, who is available to testify at the trial, said that she had to leave because the defendant wanted her to stop by the store while he was working. The defense objects to the proposed testimony. Should the court allow the witness's testimony? A-Yes, as the victim's present sense impression. B-Yes, as evidence that the victim was in the defendant's company that night. C-No, because the victim is available as a witness. D-No, because the victim's state of mind is not in issue.

The witness's testimony is admissible under the present state of mind exception to the hearsay rule. Under Rule 803(3), a statement of a declarant's then-existing state of mind is admissible as circumstantial evidence tending to show that the intent was carried out. [See Mutual Life Insurance Co. v. Hillmon (1892)] Here, the victim's statement to the witness is being offered to show that she probably went to the store where the defendant was working that night, which is a material issue in the case.

At the defendant's trial for arson, the prosecution seeks to impeach the defendant through a record of the defendant's conviction of a misdemeanor robbery five years ago. The defendant objects. Should the court admit this evidence over the defendant's objection? A-No, unless the prosecution shows that its probative value as impeachment evidence outweighs its prejudicial effect. B-No, because the conviction is a misdemeanor and the crime did not involve dishonesty. C-Yes, because the conviction is less than 10 years old. D-Yes, because a witness may be impeached by any crime.

Under the Federal Rules, a witness may be impeached by a record of conviction of any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. A witness also may be impeached by any felony, whether or not it involves dishonesty or a false statement. In a criminal case in which the accused is being impeached, a felony conviction that does not involve dishonesty or a false statement will be admitted only if the government shows that its probative value as impeachment evidence outweighs its prejudicial effect. Here, the evidence the prosecution is seeking to introduce is a misdemeanor that does not involve dishonesty or a false statement; thus, (B) is correct and (A) is incorrect.