Evidence Hypos

The IRS initiates civil proceedings against Professor Graham for recovery of back taxes. Concurrently, the U.S. Attorney's office files criminal charges against Graham for not paying his taxes. In settlement negotiations with the IRS, Graham acknowledges that he owes $25,000,000 for his back taxes (assume that this is not a full concession as to amount owed). The government seeks to use this statement against Graham in the criminal case. Graham objects, citing FRE 408. How should the court rule?

Objection overruled; the statement is admissible under FRE 408(a)(2) as a prior statement to a civil branch of the gov't

In the course of settlement discussions, SCU offers Professor Graham, as a compromise, a Scholar in Residence position in Antarctica. Graham refuses. At trial, SCU tries to introduce evidence of this offer, and Graham's refusal, as evidence that it did not fire Graham with discriminatory intent, and that Graham isn't mitigating his damages. Graham objects, citing FRE 408. How should the court rule?

Objection sustained. Evidence of a compromise offer is inadmissible when adduced "on behalf of any party" - in this case, SCU, the offeror, which wants to show the invalidity of Graham's claim.

Dann's friend Frank was called to testify that Smith had a reputation among the people with whom he lived and worked for law-breaking and frequently engaging in brawls. The trial judge should rule the testimony: (A) admissible to support Dann's theory of self-defense, touching on whether Dann or Smith was the aggressor. (B) admissible if Frank testifies further as to specific acts of misconduct on Smith's part of which Frank has personal knowledge. (C) inadmissible on the question of Dann's guilt because Dann, not Smith, is on trial. (D) inadmissible, because Frank failed to lay a proper foundation.

(A) admissible to support Dann's theory of self-defense, touching on whether Dann or Smith was the aggressor.

In a contract suit by Perez against Drake, each of the following is an accepted method of authenticating Drake's signature on a document offered by Perez EXCEPT: (A) A non-expert who, in preparation for trial, has familiarized himself with Drake's usual signature testifies that, in his opinion, the questioned signature is genuine. (B) The jury, without the assistance of an expert, compares the questioned signature with an admittedly authentic sample of Drake's handwriting. (C) A witness offers proof that the signature is on a document that has been in existence for at least 20 years, that was in a place where it would be if it was authentic, and that has no suspicious circumstances surrounding it. (D) A witness testifies that Drake admitted that the signature is his.

(A) A non-expert who, in preparation for trial, has familiarized himself with Drake's usual signature testifies that, in his opinion, the questioned signature is genuine.

In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct that he came to a full stop at the intersection. On cross-examination, the defendant's lawyer asked whether the plaintiff claimed that he was exercising due care at the time, and the plaintiff replied that he was driving carefully.At a sidebar conference, the defendant's lawyer sought permission to ask the plaintiff about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at stop signs. The plaintiff's lawyer objected.Should the court allow defense counsel to ask the plaintiff about the two prior incidents? (A) No, because improperly failing to stop on the recent occasions does not bear on the plaintiff's veracity and does not contradict his testimony in this case. (B) No, because there is no indication that failing to stop on the recent occasions led to convictions. (C) Yes, because improperly failing to stop on the recent occasions bears on the plaintiff's credibility, since he claims to have stopped in this case. (D) Yes, because improperly failing to stop on the recent occasions tends to contradict the plaintiff's claim that he was driving carefully at the time he collided with the defendant.

(A) No, because improperly failing to stop on the recent occasions does not bear on the plaintiff's veracity and does not contradict his testimony in this case.

A man sued a railroad for personal injuries suffered when his car was struck by a train at an unguarded crossing. A major issue is whether the train sounded its whistle before arriving at the crossing. The railroad has offered the testimony of a resident who has lived near the crossing for 15 years. Although she was not present on the occasion in question, she will testify that, whenever she is home, the train always sounds its whistle before arriving at the crossing. Is the resident's testimony admissible? (A) No, due to the resident's lack of personal knowledge regarding the incident in question. (B) No, because habit evidence is limited to the conduct of persons, not businesses. (C) Yes, as evidence of a routine practice. (D) Yes, as a summary of her present sense impressions.

(A) No, due to the resident's lack of personal knowledge regarding the incident in question. The answer is (A) because FRE 406 applies not only to personal habits but also to the "routine practices" of a business; this situation would qualify as such.

In a narcotics conspiracy prosecution against Daly, the prosecutor offers in evidence a tape recording of a telephone call allegedly made by Daly. A lay witness is called to testify that the voice on the recording is Daly's. Her testimony to which of the following would be the LEAST sufficient basis for admitting the recording? (A) She had heard the same voice on a similar tape recording identified to her by Daly's brother. (B) She had heard Daly speak many times, but never over the telephone. (C) She had, specifically for the purpose of preparing to testify, talked with Daly over the telephone at a time after the recording was made. (D) She had been present with Daly when he engaged in the conversation in question but had heard only Daly's side of the conversation.

(A) She had heard the same voice on a similar tape recording identified to her by Daly's brother.

Pat sues Dan for battery. In his defense case, Dan offers as a witness Wallace, who if permitted will testify that Dan has a reputation in the community as a peaceful person and that he has seen Dan "back down" from fights on numerous occasions. Assuming proper objections, this evidence should be: (A) Admitted in full. (B) Admitted as to Dan's reputation, but excluded as to the "specific acts." (C) Admitted as to the "specific acts," but excluded as to Dan's reputation. (D) Excluded in its entirety.

(D) Excluded in its entirety.

Dirk is on trial for the brutal murder of Villas. Dirk's first witness, Wesley, testified that in her opinion Dirk is a peaceful and nonviolent person. The prosecution does not cross-examine Wesley, who is then excused from further attendance. Which of the following is inadmissible during the prosecution's rebuttal? (A) Testimony by Wesley's former employer that Wesley submitted a series of false expense vouchers two years ago. (B) Testimony by a police officer that Dirk has a long-standing reputation in the community as having a violent temper. (C) Testimony by a neighbor that Wesley has a long-standing reputation in the community as an untruthful person. (D) Testimony by Dirk's former cell mate that he overheard Wesley offer to provide favorable testimony if Dirk would pay her $5,000.

(A) Testimony by Wesley's former employer that Wesley submitted a series of false expense vouchers two years ago.

PullCo sued Davidson, its former vice president, for return of $230,000 that had been embezzled during the previous two years. Called by PullCo as an adverse witness, Davidson testified that his annual salary had been $75,000, and he denied the embezzlement. PullCo calls banker Witt to show that, during the two-year period, Davidson had deposited $250,000 in his bank account. Witt's testimony is: (A) admissible as circumstantial evidence of Davidson's guilt. (B) admissible to impeach Davidson. (C) inadmissible, because its prejudicial effect substantially outweighs its probative value. (D) inadmissible, because the deposits could have come from legitimate sources.

(A) admissible as circumstantial evidence of Davidson's guilt.

Dexter is being tried for the homicide of a girl whose strangled body was found beside a remote logging road with her hands taped together. After Dexter has offered evidence of alibi, the state calls Wilma to testify that Dexter had taped her hands and tried to strangle her in the same location two days before the homicide but that she escaped. The evidence is: (A) admissible as tending to show that Dexter is the killer. (B) admissible as tending to show Dexter's violent nature. (C) inadmissible, because it is improper character evidence. (D) inadmissible, because it is unfairly prejudicial.

(A) admissible as tending to show that Dexter is the killer.

Dann, who was charged with the crime of assaulting Smith, admitted striking Smith but claimed to have acted in self-defense when he was attacked by Smith, who was drunk and belligerent after a football game. Dann offered the testimony of Employer, who would say that he had known and employed Dann for 12 years and knew Dann's reputation among the people with whom he lived and worked to be that of a peaceful, law-abiding, nonviolent person. The trial judge should rule this testimony: (A) admissible, because it is relevant to show the improbability of Dann's having committed an unprovoked assault. (B) admissible, because it is relevant to a determination of the extent of punishment if Dann is convicted. (C) inadmissible, because whether Dann is normally a person of good character is irrelevant to the specific charge. (D) inadmissible, because it is irrelevant without a showing that Employer was one of the persons among whom Dann lived and worked.

(A) admissible, because it is relevant to show the improbability of Dann's having committed an unprovoked assault.

Pack sued Donlon for slander, alleging that Donlon had publicly accused Pack of being a thief. In his answer, Donlon admitted making the accusation, but alleged that it was a true statement. At trial, Donlon offers evidence that Pack stole a ring worth $10,000 from a jewelry store. Evidence concerning this theft should be: (A) admitted, because specific instances of conduct may be proved when character is directly in issue. (B) admitted, because Pack's action constituted a felony. (C) excluded, because character must be shown by reputation or opinion. (D) excluded, because its relevance is substantially outweighed by the danger of unfair prejudice.

(A) admitted, because specific instances of conduct may be proved when character is directly in issue.

Drew was tried for the July 21 murder of Victor. In his case in chief, Drew called his first witness, Wilma, to testify to Drew's reputation in his community as a "peaceable man." The testimony is: (A) admissible as tending to prove that Drew is believable.(B) admissible as trying to prove that Drew is innocent.(C)inadmissible, because Drew has not testified. (D) inadmissible, because reputation is not a proper way to prove character.

(B) admissible as trying to prove that Drew is innocent.

Defendant is on trial for nighttime breaking and entering of a warehouse. The warehouse owner had set up a camera to take infrared pictures of any intruders. After an expert establishes the reliability of infrared photography, the prosecutor offers the authenticated infrared picture of the intruder to show the similarities to Defendant. The photograph is: (A) admissible, provided an expert witness points out to the jury the similarities between the person in the photograph and Defendant. (B) admissible, allowing the jury to compare the person in the photograph and Defendant. (C) inadmissible, because there was no eyewitness to the scene available to authenticate the photograph. (D) inadmissible, because infrared photography deprives a defendant of the right to confront witnesses.

(B) admissible, allowing the jury to compare the person in the photograph and Defendant.

On cross-examination of Employer, the state's attorney asked Employer if he had heard that Dann often engaged in fights and brawls. The trial judge should rule the question: (A) not objectionable, because evidence of Dann's previous fights and brawls may be used to prove his guilt. (B) not objectionable, because it tests Employer's knowledge of Dann's reputation. (C) objectionable, because it seeks to put into evidence separate, unrelated offenses. (D) objectionable, because no specific times or incidents are specified and inquired about.

(B) not objectionable, because it tests Employer's knowledge of Dann's reputation.

Paulsen Corporation sued Dorr for ten fuel oil deliveries not paid for. Dorr denied that the deliveries were made. At trial, Paulsen calls its office manager, Wicks, to testify that Paulsen employees always record each delivery in duplicate, give one copy to the customer, and place the other copy in Paulsen's files; that he (Wicks) is the custodian of those files; and that his examination of the files before coming to the court revealed that the ten deliveries were made. Wicks's testimony that the invoices show ten deliveries is: (A) Admissible, because it is based on regularly kept business records. (B) Admissible, because Wicks has first-hand knowledge of the contents of the records. (C) Inadmissible, because the records must be produced in order to prove their contents. (D) Inadmissible, because the records are self-serving.

(C) Inadmissible, because the records must be produced in order to prove their contents.

Cukor is charged with murder. A witness, Hayes, testifies on defendant's behalf. He testifies, without objection, that he has never, ever been convicted of a crime. On cross examination, the prosecution seeks to impeach Hayes by asking him whether, fourteen years ago, he incurred a felony conviction for vandalism (for which he served eighteen months in prison). The defense objects, citing only FRE 609 (not FRE 403). The court should: (A) Sustain the objection, because the conviction is more than 10 years old. (B) Sustain the objection, because the probative value of the conviction is outweighed by its unfair prejudice. (C) Overrule the objection, because the conviction contradicts Hayes's testimony. (D) Overrule the objection, because it goes to bias.

(C) Overrule the objection, because the conviction contradicts Hayes's testimony.

A defendant's house was destroyed by fire and she was charged with arson. To prove that the defendant had a motive to burn down her house, the government offered evidence that the defendant had fully insured the house and its contents. Should the court admit this evidence? (A) No, because the probative value of the evidence of insurance upon the issue of whether the defendant intentionally burned her house down is substantially outweighed by the dangers of unfair prejudice and confusion of the jury. (B) No, because evidence of insurance is not admissible upon the issue of whether the insured acted wrongfully. (C) Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house. (D) Yes, because any conduct of a party to the case is admissible when offered against the party.

(C) Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house.

Plaintiff is suing Doctor for medical malpractice occasioned by allegedly prescribing an incorrect medication, causing Plaintiff to undergo substantial hospitalization. When Doctor learned of the medication problem, she immediately offered to pay Plaintiff's hospital expenses. At trial, Plaintiff offers evidence of Doctor's offer to pay the costs of his hospitalization. The evidence of Doctor's offer is: (A) admissible as a non-hearsay statement of a party. (B) admissible, although hearsay, as a statement against interest. (C) inadmissible, because it is an offer to pay medical expenses. (D) inadmissible, because it is an offer to compromise.

(C) inadmissible, because it is an offer to pay medical expenses.

Passenger is suing Defendant for injuries suffered in the crash of a small airplane, alleging that Defendant had owned the plane and negligently failed to have it properly maintained. Defendant has asserted in defense that he never owned the plane or had any responsibility to maintain it. At trial, Passenger calls Witness to testify that Witness had sold to Defendant a liability insurance policy on the plane. The testimony of Witness is: (A) inadmissible, because the policy itself is required under the original document rule. (B) inadmissible, because of the rule against proof of insurance where insurance is not itself at issue. (C) admissible to show that Defendant had little motivation to invest money in maintenance of the airplane. (D) admissible as some evidence of Defendant's ownership of or responsibility for the airplane

(D) admissible as some evidence of Defendant's ownership of or responsibility for the airplane

Duncan was charged with aggravated assault. At trial Duncan did not testify; however, he sought to offer opinion evidence of his good character for truth and veracity. This testimony should be: (A) admitted, because a criminal defendant is entitled to offer evidence of his good character. (B) admitted, because a party's credibility is necessarily in issue. (C) excluded, because character is not admissible to prove conduct in conformity therewith. (D) excluded, because it is evidence of a trait not pertinent to the case.

(D) excluded, because it is evidence of a trait not pertinent to the case.

Paul sues David for assault. In his defense, David seeks to call William, a longtime friend, who will testify that David has a reputation for peacefulness in the community. This evidence is: (A) admissible as tending to prove that David is believable.(B) admissible as tending to prove that David did not commit the assault. (C)inadmissible, because David has not testified. (D) inadmissible, because David cannot introduce character evidence for this purpose

(D) inadmissible, because David cannot introduce character evidence for this purpose

In a tort action, Fisher testified against Dawes. Dawes then called Jones, who testified that Fisher had a bad reputation for veracity. Dawes then also called Weld to testify that Fisher once perpetrated a hoax on the police. Weld's testimony is: (A) admissible, provided that the hoax involved untruthfulness. (B) admissible, provided that the hoax resulted in conviction of Fisher. (C) inadmissible, because it is merely cumulative impeachment. (D) inadmissible, because it is extrinsic evidence of a specific instance of misconduct.

(D) inadmissible, because it is extrinsic evidence of a specific instance of misconduct.

John Smith has denied his purported signature on a letter which has become critical in a breach of contract suit between Smith and Miller. At trial, Miller's counsel calls Alice, a teacher, who testifies that she taught John Smith mathematics in school 10 years earlier, knows his signature, and proposes to testify that the signature to the letter is that of John Smith. Smith's counsel objects. The trial judge should: (A) sustain the objection on the ground that identification of handwriting requires expert testimony and the teacher does not, per se, qualify as an expert. (B) sustain the objection on the ground that the best evidence of Smith's handwriting would be testimony by a person who had examined his writing more recently than 10 years ago. (C) overrule the objection on the ground that a schoolteacher qualifies as an expert witness for the purpose of identifying handwriting. (D) overrule the objection on the ground that a layman may identify handwriting if he has seen the person in question write and has an opinion concerning the writing in question.

(D) overrule the objection on the ground that a layman may identify handwriting if he has seen the person in question write and has an opinion concerning the writing in question.

Poole sued Darrel for unlawfully using Poole's idea for an animal robot as a character in Darrel's science fiction movie. Darrel admitted that he had received a model of an animal robot from Poole, but he denied that it had any substantial similarity to the movie character. After the model had been returned to Poole, Poole destroyed it. In order for Poole to testify to the appearance of the model, Poole: (a) Must show that he did not destroy the model in bad faith. (b) Must give advance notice of his intent to introduce the oral testimony. (c) Must introduce a photograph of the model if one exists (d) Need to do none of the above, because the "best evidence rule" applies only to writings, recordings, and photographs.

(d) Need to do none of the above, because the "best evidence rule" applies only to writings, recordings, and photographs.

Negligence action by P against D's Heating and Cooling for injuries suffered when D allegedly failed to fix P's heater during a sub-zero cold snap. P, who is elderly and housebound, alleges that she phoned D as soon as the heater failed, that D promised to respond "within two hours," that P waited in vain for an entire night, and that D never appeared. While waiting for D, P alleges that she suffered cold-related injuries to her fingers and toes. P testifies that she placed her call to the number for D listed in the phone book, and that a voice answered, "heating service." D denies ever receiving the call and moves to strike P's testimony from the record. How should the court rule? A. The court should deny D's motion because there is sufficient evidence to support a finding that the call was actually placed to D. B. The court should deny the motion if it finds that the call was not placed to D. C. The court should grant the motion because the party answering the phone did not identify itself as D's Heating and Cooling. D. The court should deny the motion because P has already testified, and it is too late to keep the evidence from the jury.

A. The court should deny D's motion because there is sufficient evidence to support a finding that the call was actually placed to D.

During settlement negotiations, Dean Kloppenberg tells Professor Graham, "we would have liked to keep you, but you are just too darn dumb." On the stand, Kloppenberg testifies that Professor Graham is brilliant, and that he was let go solely because of budget cuts. Graham seeks to cross-examine Dean Kloppenberg , using the earlier statement. SCU responds with an FRE 408 objection. How should the court rule?

Objection sustained; Graham is trying to use this statement for impeachment, which is impermissible under FRE 408.

Defendant is charged with improperly counting his barber as a dependent on his tax return. Defendant says - I had no idea that doing so was unlawful. Prosecution seeks to introduce evidence that he tried to do the same two years before, and that the IRS sent him a letter two years earlier, telling him he couldn't do so. Defense objects, citing FRE 404(a). Sustained or overruled?

Overruled; goes to knowledge Note the FRE 104(b) issue here: the prosecution would have to convince the judge that jurors could find that defendant received (and read) the letter

Breach of contract action by P against D. P claims D failed to deliver the goods called for in the contract. D asserts the doctrine of impossibility, based on the claim that severe storms caused flooding which destroyed all the goods in D's warehouse. To prove impossibility, P offers in evidence what appears to be a newspaper published in the town in which D's business is located, and which is dated a few days before D was supposed to ship P's order. An article in the paper reports the loss of all the goods in D's warehouse due to storm-related flooding. D objects on grounds of lack of authentication. How should the court rule? A. The court should sustain the objection if it finds that P has failed to show by a preponderance of the evidence that this is the newspaper P claims it to be. B. The court should sustain the objection because the newspaper is not the best evidence of whether flooding caused the destruction of the goods in D's warehouse. C. The court should sustain the objection if it finds there is insufficient evidence to support a finding that this is the newspaper P claims it to be. D. The court should overrule the objection.

C. The court should sustain the objection if it finds there is insufficient evidence to support a finding that this is the newspaper P claims it to be.

Defendant is charged with breaking into a secure safe at Bank. There are no signs of forced entry. The prosecution seeks to introduce evidence that two weeks before the break-in, defendant stole a key to the safe from the Bank. Defense objects, citing FRE 404(a). Sustained or overruled?

Overruled; goes to opportunity and common plan.

Defendant is charged with robbing a bank using a sterling silver bow and arrow, then throwing the stolen money to poor people on the street outside. Prosecution wants to introduce evidence that defendant robbed five other banks, all using a sterling silver bow and arrow, and in all cases, defendant threw money at poor people outside. Defense objects, citing only FRE 404(a). Sustained or overruled?

Overruled; the MO is sufficiently distinctive (like a "signature") that it is properly introduced to show identity

Murder case. Defendant allegedly committed a prior crime with the murder victim, who was prepared to testify against the defendant. The prosecution seeks to admit evidence of the earlier crime. Defense objects, citing FRE 404(a). Sustained or overruled?

Overruled; the evidence goes to motive.

Defendant is charged with trafficking in illegal mushrooms. Defendant admits to having the mushrooms on him, but says he had no idea that they could be used as a drug. The prosecution seeks to introduce evidence that on two prior occasions, defendant was convicted of trafficking in similar mushrooms. Defendant objects under FRE 404(a). Sustained or overruled?

Overruled; the prior convictions can be introduced to show defendant's knowledge of the nature of the murshrooms.

Assume the same facts. As its next witness, the defense calls Walter, who is prepared to testify that Victim pointed a gun at him and threatened to kill him two weeks earlier. Assume all proper objections. This testimony would be: A. Permissible in both federal and CA state court. B. Permissible in federal court, but not in CA state court. C. Permissible in CA state court, but not in federal court. D. Impermissible in both federal and CA state court.

C. Permissible in CA state court, but not in federal court.

Assume the same facts. In cross-examining Witness, the defense seeks permission to ask him whether he was convicted in 2010 for misdemeanor lewd and lascivious conduct. Assume all proper objections. This question would be: A. Permissible in both federal and CA state court. B. Permissible in federal court, but not in CA state court. C. Permissible in CA state court, but not in federal court. D. Impermissible in both federal and CA state court.

C. Permissible in CA state court, but not in federal court.

Assume the same facts. In the Government's case in rebuttal, assume that the prosecutor seeks to call Witness, who will testify that defendant threatened him with a knife two months before the incident. Assume all proper objections. This question would be: A. Permissible in both federal and CA state court. B. Permissible in federal court, but not in CA state court. C. Permissible in CA state court, but not in federal court. D. Impermissible in both federal and CA state court.

C. Permissible in CA state court, but not in federal court.

Negligence action by P against D arising from an intersection collision controlled by traffic signals. P was driving east on one street, and D was driving north on the cross-street. Both parties claim the other ran the light at the intersection, leading to the collision. The photograph was taken by a passerby, who gave it to P. The passerby is not called to testify. P seeks to authenticate the photograph by testifying that it accurately depicts the scene as it appeared immediately after the collision. D objects, claiming lack of authentication. How should the court rule? A. The court should sustain the objection because P has not called the photographer to testify. B. The court should sustain the objection because the cars might have been moved between the time of the collision and the time the photograph was taken (fifteen minutes later). C. The court should sustain the objection because the photograph is not the best evidence of what happened at the time of the accident. D. The court should overrule the objection.

C. The court should sustain the objection because the photograph is not the best evidence of what happened at the time of the accident.

On continued cross-examination of David, Paul's attorney seeks permission to ask David whether he cheated on the bar examination in 2010. Assume all proper objections. This question would be: A. Permissible in both federal and CA state court. B. Permissible in federal court, but not in CA state court. C. Permissible in CA state court, but not in federal court. D. Impermissible in both federal and CA state court.

B. Permissible in federal court, but not in CA state court.

David is charged with aggravated assault for punching Victim. While testifying on his own behalf, David says that he merely acted in self-defense when Victim lunged at him with a knife. On cross-examination, the prosecutor seeks permission to ask David about a 2010 incident in which he attacked a police officer, but was never convicted. Assume all proper objections. This question would be: A. Permissible in both federal and CA state court. B. Permissible in federal court, but not in CA state court. C. Permissible in CA state court, but not in federal court. D. Impermissible in both federal and CA state court.

D. Impermissible in both federal and CA state court.

Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charged Peters with contributory negligence and alleged that Peters failed to have his lights on at a time when it was dark enough to require them. Davis calls Bystander to testify that Passenger, who was riding in Peters's automobile and who also was injured, confided to Bystander at the scene of the accident that "we should have had our lights on." Bystander's testimony is: (A) admissible as an admission of a party opponent. (B) admissible as a declaration against interest. (C) inadmissible, because it is hearsay not within any exception. (D) inadmissible, because it is opinion.

Explanation: The answer is (C), basically, because Passenger isn't a party to the case. This seems like a party admission, but it isn't, for this very reason. As we'll discuss, it also doesn't qualify as a present-sense impression, which is probably the "closest" other exception to the hearsay rule.

Graham is found shot to death. Smith is charged with murder, and argues self-defense. Smith seeks to introduce testimony that Graham previously had threatened to kill him, instilling a reasonable fear in Salinas's mind. Is the testimony regarding Graham's threat hearsay?

No; it's not being used to prove the truth of the matter(s) asserted, just to show the effect of the threat on the listener's state of mind

Assume plea negotiations in a criminal proceeding in California state court In said negotiations, defense provides a psychologist's report re: defendant to prosecutor At trial, prosecutor seeks to impeach defendant's testimony with contrary statements in report* Assume only a CEC 1153 objection by the defense. How should the court rule?

Objection overruled. CEC 1153 does not bar the use of these statements for impeachment purposes. Q: Does any aspect of CEC 1153 survive Proposition 8? Note: A different outcome would result under FRE 410

A BP oil rig explodes, covering the Gulf Coast with oil. BP spends $50,000,000 to clean up the oil. A bunch of plaintiffs sue BP for the spill. BP, stunningly, says that it wasn't responsible for the spill. Plaintiffs seek to introduce evidence of BP's cleanup efforts. BP responds with an FRE 409 objection. What result?

Objection overruled; FRE 409 applies only to medical and "similar" expenses (e.g., physical rehab, but not lost wages, auto repairs, etc.)

Professor Graham is fired by Santa Clara. As part of his termination package, he is offered severance pay in exchange for signing a waiver of any potential claims he might bring against the University. Professor Graham later decides to sue the University for intelligence discrimination, retains an attorney, and seeks to introduce the termination package into evidence. The University responds with a FRE 408 objection. How should the court rule?

Objection overruled; because Graham had not made a pre-filing "claim" at the time the package was offered, FRE 408 doesn't apply

A defendant is charged with negligent homicide and leaving the scene of an automobile accident. A witness claims to have seen the defendant's car strike the victim and then speed away. The defendant claims that the witness was not near the accident scene and could not have witnessed the accident. In deciding whether the witness has sufficient personal knowledge to testify, the judge should determine the question by which of the following standards? (A) By evidence sufficient to support a finding. (B) By a preponderance of the evidence. (C) By clear and convincing evidence. (D) Beyond a reasonable doubt.

The answer is (A) because this issue poses a FRE 104(b) issue, not a FRE 104(a) issue. In essence, whether the witness or the defendant is telling the truth is a classic dispute of fact that we trust juries to decide. It's not the sort of issue with a large embedded legal component, or as to which we're concerned about the jury having to engage in difficult parsing of questions of law (e.g., what is a conspiracy?), such that it's more likely to fall under FRE 104(a), such that the judge has a more significant "gatekeeping" role.

Plaintiff sued Defendant for illegal discrimination, claiming that Defendant fired him because of his race. At trial, Plaintiff called Witness, expecting him to testify that Defendant had admitted the racial motivation. Instead, Witness testified that Defendant said that he had fired Plaintiff because of his frequent absenteeism. While Witness is still on the stand, Plaintiff offers a properly authenticated secret tape recording he had made at a meeting with Witness in which Witness related Defendant's admissions of racial motivation. The tape recording is: (A) admissible as evidence of Defendant's racial motivation and to impeach Witness's testimony. (B) admissible only to impeach Witness's testimony. (C) inadmissible, because it is hearsay not within any exception. (D) inadmissible, because a secret recording is an invasion of Witness's right of privacy under the U.S. Constitution.

Why B is correct: A prior inconsistent statement by a witness, not made under oath, can be used to impeach that witness (only - it can't come in for its truth, as discussed above). The D>W statement is an admission by a party-opponent, as discussed above, so that's taken care of as a hearsay problem. The W>P statement remains hearsay, not subject to an exception, but since it was made by Witness, it can come in for impeachment purposes (only). Why A is incorrect: A looks attractive, but recall that the statement here isn't admissible under the FRE as a prior inconsistent statement because the out-of-court statement wasn't made under oath in a trial or proceeding, as is required under FRE 801(d)(1)(A). (Note that although there's two levels of hearsay here (D>W, W>P), the D>W level is "cleared" of its hearsay problem as an admission by a party opponent.) The problem is with the W>P level of hearsay "Hey, Defendant told me that he fired you because of your race." Note that on the bar exam, you have to appreciate that hearsay is often paraphrased or summarized - you can't rely on quotations to locate / identify out-of-court statements. Why C is incorrect: Recall that a hearsay statement can be introduced for impeachment purposes even if it can't be introduced for its truth. Here, the statement is admissible - but only for impeachment purposes. Why D is incorrect: Plaintiff is a private actor, and thus his taping of Witness doesn't implicate the Constitution.