Evidence MBE's

Wilbur is a defense witness in a criminal case. After Wilbur testified, defense rested and the plaintiff called Emma, who works with Wilbur in the same company. Emma testifies that she has known Wilbur for six years and worked with him on numerous projects. Emma testifies as follows: Plaintiff's Attorney: What is your opinion of Wilbur's honesty?Emma: I would never trust Wilbur. I think he lies whenever he sees a benefit to it. He is certainly the type of person who would lie on the stand if he saw something in it for him.Plaintiff's Attorney: Can you tell me why you have this opinion?Emma: Sure. Well, there are a lot of reasons. The first time we worked together on a project, his part of the project was late, and so the entire project missed its deadline by a week. I learned a few months later that Wilbur had gone to our boss afterward and told him that the delay was my fault, even though my part of the projec

D. Only in part. Emma should be allowed to make the first general statement about Wilbur's character, but she should not be permitted to describe the episode with the delayed project. Rule 608(a) allows a character witness to give opinion or reputation evidence regarding the truthfulness of a fact witness. However, Rule 608(b) states that a character witness may not give specific act evidence to attack or support a witness's character for truthfulness.

Chrome Motor Company developed a new type of SUV called the Growler. Unfortunately, within two weeks after the Growler was out on the market, three different owners reported problems with the accelerator pedal. In all three cases, the driver reported that the accelerator pedal stuck, causing the car to accelerate uncontrollably, resulting in an accident that caused injury and property damages. All three owners sued Chrome, alleging that the Growler had an unsafe design that caused the accelerator to stick. Chrome settled with the first plaintiff for $50,000 and the second plaintiff for $100,000. However, the third plaintiff rejected all settlement offers and took the case to trial. At trial, the attorney for the third plaintiff sought to admit the fact that Chrome settled the other two cases, as well as the amount of money Chrome paid for the settlement. The attorney argued that these settlements proved that Chrome acknowledged the design was faulty. Chrome objected to this evidence. Should the judge admit or preclude the evidence from the settlements? A. Admit the settlement that was paid to the second plaintiff, but not the first plaintiff. B. Allow evidence of the fact that Chrome s

D. Preclude any evidence from either settlement. Rule 408 precludes any evidence of a settlement in order to prove liability, and there is no other reason that these settlements are relevant. Rule 408 applies to completed settlements as well as settlement offers.

George was loading a truck at work with boxes when the forklift operator accidentally hit him with the forklift, crushing his torso and breaking six ribs. George was rushed to the hospital and prepped for surgery to repair damage to his internal organs. As he was waiting to go into surgery, the Vice-President of the company he worked for came to him and said: "George, this was a terrible thing to happen. I want to assure you that the company will pay for this surgery and any rehabilitation that you need." George is now suing his company for negligent training and supervising of its employees, and he wants to testify as to the Vice-President's statement. Which rule of evidence would be the BEST one for the company to cite when it objects to this evidence? A. Rule 408, which bars evidence of settlement offers or negotiations. B. Rule 802, which bars hearsay evidence. C. Rule 402, which bars irrelevant evidence. D. Rule 409, which bars any offer to pay medical expenses.

D. Rule 409, which bars any offer to pay medical expenses. Rule 409 bars evidence of any offer to pay medical expenses if offered to prove liability, regardless of whether there was a disputed claim at the time of the offer.

In a civil case, a plaintiff must demonstrate that gold is denser than silver. After consulting a textbook on metallurgy, the judge took judicial notice of the fact at the plaintiff's request. What is the effect of the judge's ruling? A. While the ruling is evidence that the jury might consider on the issue, they are not required to accept it as conclusive. B. It shifts the burden of production on the issue to the defendant. C. It shifts the burden of persuasion on the issue to the defendant. D. The fact is conclusively established.

D. The fact is conclusively established. The fact that gold is denser than silver is an appropriate subject for judicial notice because it is a fact capable of accurate and ready determination by resorting to sources that have unquestionable accuracy (i.e., the metallurgy textbook).

A defendant is on trial for manslaughter after he hit a victim in a bar, causing the victim to fall and hit his head on the marble bar top. The defendant claims that he hit the victim in self-defense after the victim lunged at him with a knife. During the prosecution's case, a witness testifies that she heard the victim's friend shout at the defendant, "You just killed a helpless man!" A defense witness is called to testify that he was there and does not remember hearing the victim's friend say anything. Should the defense witness's testimony be admitted? A. No, it is improper impeachment because it does not positively controvert the prosecution witness's testimony, as the defense witness merely says he does not remember. B. No, it is improper impeachment of the prosecution's witness because it relates to a collateral matter. C. No, it is irrelevant to any issue in the case. D. Yes, it is proper i

D. Yes, it is proper impeachment of the prosecution's witness. The defense witness's testimony should be admitted as proper impeachment of the prosecution's witness. Impeachment is the casting of an adverse reflection on the veracity of a witness. A witness may be impeached by either cross-examination or extrinsic evidence, such as by putting other witnesses on the stand who contradict the witness's testimony. Here, the defense is using the testimony of its witness to impeach the prosecution witness's testimony as to what the victim's friend said. This is proper.

Frank is being prosecuted for armed robbery after allegedly holding up Debra in the street at gunpoint and stealing from her. The prosecutor calls Debra to the stand and asks her to tell the jury what was stolen from her during the incident. Debra says: "The guy took my watch and my wallet." The defense attorney has a copy of the police report, filled out by Officer Gendry, the officer who responded to the scene. On the report, Officer Gendry wrote: "I spoke to Debra, the victim, while I was on the scene, and Debra told me that the perpetrator stole her wallet. I asked if the perpetrator took anything else, and Debra said no." On cross-examination, can the defense attorney ask Debra about the statement she made to the police officer in which she allegedly said that only her wallet and nothing else was taken? The defense attorney is offering this evidence to impeach Debra, not for the truth of the matter asser

D. Yes, the defense attorney can ask Debra about the statement she made to the police. Rule 613 allows an attorney to ask a witness about any prior inconsistent statement as long as the attorney has a good faith basis that the witness made the prior inconsistent statement. The description of Debra's statement on the police report gives the defense attorney a good faith basis.

Corrine is suing Easy Cruisers, Inc. for a design defect in a yacht engine that Easy Cruisers built and sold to Corrine. During her case-in-chief, Corrine calls Karl to the stand as an expert witness. Karl is a high-school dropout with no formal training in boat design or mechanics. However, he runs his own marine engine repair shop and has been personally fixing and rebuilding marine engines for over twenty-five years. Over the course of his career, he has repaired over a thousand marine engines for small and medium-sized yachts. He will testify that he worked on Corrine's yacht engine after it broke down and that in his expert opinion, the engine overheated and burned out most of the machinery because the oil line was improperly installed. Easy Cruisers objects to this testimony. Should the judge allow Karl's testimony? A. No. Reject the testimony because an expert is not necessary to give this conclusion, and certifying Karl as an expert will only mislead the jury into giving his testimony too much weight. B. No. Preclude the testimony because the plaintiff cannot call an expert witness before the defendant has called its own expert. Instead, Corrine must wait until the defendant ca

D. Yes. Allow the testimony. Although Karl has not had any formal schooling or training, Rule 702 allows experts to be qualified because of their experience and skill, and Karl has had sufficient experience to be an expert in how marine motors operate. This is exactly the type of evidence for which an expert is required, so there is no concern about misleading a jury. And there is no rule which states that a plaintiff must wait to call an expert until after the defendant has called its own expert; on the contrary, the plaintiff has the burden of proof, and in a case like this, there may be no way of establishing the element of causation without calling an expert during the case-in-chief.

A driver and her passenger were injured when their car collided with a truck owned and driven by a trucker. The driver brought suit against the trucker alleging negligence. During the course of her case-in-chief, the driver failed to call the passenger to the stand to testify. The trucker also failed to call the passenger to testify. If the jury is to be given an instruction concerning the inference to be drawn from the failure to call the passenger, which of the following is proper? A. "There is no adverse inference to be drawn from the driver's failure to call the passenger to testify." B. "You may find, as a result of the driver's failure to produce the passenger, that if the passenger were present, her testimony would have been unfavorable to the driver." C. "You must find, as a result of the driver's failure to produce the passenger, that if the passenger were present, her testimony would have been unfavorable to the driver." D. "You should find, as a result of the driver's failure to produce the passenger, that if the passenger were present, her testimony would have been unfavorable to the driver."

A. "There is no adverse inference to be drawn from the driver's failure to call the passenger to testify." A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. Here, the driver did not prevent the passenger from testifying; the trucker could have called the passenger to the stand to testify. Although an unfavorable inference may also arise when a party fails to produce witnesses within his control which he is naturally expected to produce, that is not the case here. The fact that the passenger was riding in the car with the driver does not demonstrate that the driver has any control over the passenger. Thus, no adverse inference can be drawn from the fact that the driver did not call the passenger to testify.

A plaintiff sued a defendant as a result of an automobile accident. After the plaintiff testified, the defendant called the plaintiff's neighbor to the stand. The neighbor testified that he has lived next to the plaintiff for the past five years and knows of the plaintiff's poor reputation for truth and veracity. On cross-examination, the plaintiff's attorney wants to ask the neighbor if he is the chief claims officer for an insurance company that insures the defendant.How should the trial judge rule on the question? A. Admissible, because it relates to the neighbor's credibility. B. Inadmissible, because it discloses the fact that the defendant is insured. C. Inadmissible, because an impeaching witness may not be impeached. D. Admissible, because the fact that the defendant is insured is relevant to his liability.

A. Admissible, because it relates to the neighbor's credibility. Although evidence of the defendant's insurance coverage is not allowed to prove liability, it may be admitted for other purposes. Here, the fact that the neighbor works for the defendant's insurer tends to impeach his credibility by showing bias. Impeachment may bring into evidence matters that would usually not be allowed, such as insurance coverage, because it goes to the credibility of the witness, rather than the liability of the defendant.

Westin Coal owns and operates dozens of coal mines in the state. One day there was a cave-in on one of their mines, and three miners died. The miners' families are now suing Westin, arguing that the mines were negligently maintained. In their case-in-chief, the plaintiffs called a former Westin employee, who testified that no safety inspection had been conducted on the mine for over two years. During the defendant's case-in-chief, Westin called an employee from Prescott Insurance, a large national insurance company. The Prescott employee will testify that Westin has an insurance policy with Prescott and that as part of that policy, Prescott employees conduct independent safety inspections on all of the Westin mines every three months. The Prescott employee will then authenticate and admit a business record from Prescott's files which confirms that Prescott conducted regular safety inspections up until the time of the cave-in. The plaintiffs object to the testimony of the Prescott employee. This evidence is: A. Admissible. B. Inadmissible as evidence of insurance under Rule 411. C. Inadmissible under the hearsay rule. D. Inadmissible as a subsequent remedial measure under Rule 407.

A. Admissible. Although Rule 411 prohibits evidence that a party was or was not insured, it only prohibits the evidence if it is used to prove that the party acted negligently or otherwise wrongfully. Here, Westin is offering the evidence of insurance as proof that the safety inspections were in fact conducted.

Stan is charged with felony domestic violence after he allegedly struck his girlfriend in the chest with a baseball bat. At trial, the prosecutor will seek to offer evidence that six months earlier, Stan had beaten his former girlfriend with his fists so severely that she went to the hospital for two days. Stan is pleading self-defense, and at trial he will seek to admit evidence that three years earlier, his girlfriend got into a dispute with a store manager while she was shopping and she pushed the manager into a glass table, causing multiple lacerations and requiring him to get over twenty stitches. There is no evidence that Stan knew about the incident with the store manager at the time he struck his girlfriend with the baseball bat. How should the judge rule on these proposed pieces of evidence How should the judge rule on these proposed pieces of evidence? A. Both pieces of evidence are inadmissible regardless

A. Both pieces of evidence are inadmissible regardless of the order in which they are offered. Although Rule 404(a)(2) allows the criminal defendant to go first in offering propensity evidence of the victim, and then allows the prosecutor to respond with evidence of the defendant's propensity, Rule 405 states that when character evidence is offered to prove propensity (as here where Stan is proving that his girlfriend has a propensity to be violent, and therefore is more likely to have been acting violently on this occasion), character evidence can only be proven on direct with reputation or opinion evidence, not with specific instances of conduct.

Raymond was on trial for vehicular manslaughter. The prosecutor argued that Raymond drove through a stop sign and struck a pedestrian, killing her instantly. Raymond acknowledges that he drove through the intersection and struck and killed the pedestrian, but he argues that the stop sign was covered up by an overgrown tree and so no reasonable person would have been able to see the sign. To prove his case, his attorney hires an investigator to go to the intersection six months after the accident and take photographs of the stop sign which shows that it is blocked by tree branches. Raymond is present at the time and watches the investigator take the photos. At trial, Raymond wishes to admit the photographs as evidence. What procedure should he follow? A. Call Raymond to the stand, show him the photos, and have him confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. B. Call Raymond to the stand, show him the photos, and have him confirm that these are the photos taken by the investigator. C. Call the investigator to the stand, show him the photos, and have him confirm that these are in fact the

A. Call Raymond to the stand, show him the photos, and have him confirm that these photos are a fair and accurate representation of how the intersection and the stop sign appeared at the time of the accident. This lays a proper foundation for the photos, since Raymond is providing sworn testimony that this is how the intersection looked at the time the accident occurred. This gives the photographs a very high probative value in the case.

Which of the following pieces of evidence is irrelevant under Rule 401? A. During a political rally protesting police treatment of racial minorities, Donald allegedly broke a window of the police headquarters. Donald is now being prosecuted for criminal damaging. The elements of criminal damaging are: recklessly or knowingly causing damage to state property without permission or authority. Donald is black. In Donald's defense, he wishes to present statistical evidence that the police use excessive force when arresting black suspects at a rate three times more often than when they arrest white suspects. B. Debra is charged with driving a vehicle while under the influence of alcohol after she ran her car off the road and crashed into a tree. At the scene of the accident, she refused to take a Breathalyzer test. However, she was taken to the hospital and blood was drawn from her without her consent while she was being treated for her injuries. The prosecutor wishes to introduce evidence that the blood—which was drawn from her body approximately one hour after the accident—showed a blood-alcohol level of .15, well above the legal limit of .08. C. Stacy allegedly called Joshua on the telep

A. During a political rally protesting police treatment of racial minorities, Donald allegedly broke a window of the police headquarters. Donald is now being prosecuted for criminal damaging. The elements of criminal damaging are: recklessly or knowingly causing damage to state property without permission or authority. Donald is black. In Donald's defense, he wishes to present statistical evidence that the police use excessive force when arresting black suspects at a rate three times more often than when they arrest white suspects. The only relevant issues in the case are whether Donald caused the damage, whether he did so knowingly or recklessly, and whether he had permission. Whether he believed his actions were justified in order to make a political point is irrelevant to determining his guilt.

A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff's car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony. How should the trial court rule on the admissibility of the court record? A. Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached. B. Admit the record as impeachment evidence. C. Admit the record as relevant character evidence because the plaintiff suffered serious personal injurie

A. Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached. The record of the conviction should be excluded because the defendant has given no testimony to be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence.

A plaintiff sued a defendant for fraud. After a verdict for the plaintiff, the defendant talked with a juror about the trial. The juror informed the defendant that, during the trial, (i) he had misunderstood the judge's instructions concerning the standard of proof in a fraud case, (ii) he was feeling ill and needed to get home quickly, (iii) he had relied on testimony that the judge had stricken and ordered the jury to disregard, and (iv) he had learned from a court clerk that the defendant had been accused of fraud in several recent lawsuits. Hoping to receive a new trial, the defendant wants the juror to testify as to these facts in a post-verdict hearing. About which of these facts will the juror most likely be allowed to testify? A. He had learned from a court clerk that the defendant had been accused of fraud in several recent lawsuits. B. He had relied on testimony that the judge had stricken and ordered the jury to disregard. C. He was feeling ill and needed to get home quickly. D. He had misunderstood the judge's instructions concerning the standard of proof in a fraud case.

A. He had learned from a court clerk that the defendant had been accused of fraud in several recent lawsuits. Under the Federal Rules of Evidence, a juror generally may not testify in post-verdict proceedings as to matters or statements occurring during the course of jury deliberations. However, a juror may testify as to whether extraneous prejudicial information or any outside influence was improperly brought to bear on any juror. The fact that a juror received evidence about the defendant's involvement in similar lawsuits from an improper source is considered extraneous prejudicial information.

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

A. 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.

Which of the following is permissible? A. In a jury trial, the judge asks questions of one of the witnesses after the direct and cross-examination. B. In a bench trial, the trial judge interviews one of the witnesses outside of court over the weekend in order to gather more information about the case. C. In a jury trial, a juror visits the scene of the crime over the weekend when the court is not in session. D. In a bench trial, the judge admits hearsay evidence even though it does not meet any exception. The judge explains that she will consider the evidence but give it very little weight.

A. In a jury trial, the judge asks questions of one of the witnesses after the direct and cross-examination. Rule 614(b) allows a judge to ask questions of a witness.

Hydra Energy signed a contract with Daystar Natural Gas, by which Daystar agreed to provide Hydra with 10 billion cubic feet of natural gas per year in exchange for a specified payment. After the first year, Hydra claimed that Daystar had only provided it with 9 billion cubic feet of natural gas. Daystar claimed that it had provided the required 10 billion cubic feet and that Hydra's storage facilities were so poor that it lost 10% of the gas that is stored. In its case in chief, Hydra seeks to admit two court judgments against Daystar—one from two years ago and one from five years ago. In each case, a jury found that Daystar had failed to deliver the agreed upon amount of natural gas to an energy company with which it had signed a contract. Daystar objects to this evidence. The evidence is: A. Inadmissible. B. Admissible as habit or routine practice evidence. C. Admissible, but only if Hydra gives prior notic

A. Inadmissible. This evidence is best characterized as character evidence since the only probative value of the prior contracts is to prove propensity. In a civil case, neither side can admit evidence of prior bad acts in order to prove propensity. Hydra may argue that the prior breaches of contract are habit, but two prior instances of breach of contract are not sufficient to establish a routine practice under Rule 406. Also, failing to deliver the required amount of natural gas is not specific enough to be considered routine practice.

A plaintiff brought an action against a defendant for property damages, alleging that the defendant's car nicked the side of the plaintiff's truck while the defendant was changing lanes on an expressway. At trial, the defendant sought to introduce evidence of her good driving record. Is the evidence admissible? A. No, because it is improper character evidence. B. Yes, because it is proper character evidence. C. Yes, because it is habit evidence. D. No, because it is self-serving.

A. No, because it is improper character evidence. The driving record is inadmissible because it is being offered as character evidence. In a civil case, evidence of character to prove the conduct of a person in the litigated event is generally not admissible. The slight probative value of character is outweighed by the dangers of prejudice and distracting the jury from the main issues. Therefore, circumstantial use of prior behavior patterns for the purpose of drawing the inference that a person has a particular character trait and that, at the time and place in question, she probably acted in conformity with it is not permitted. Evidence of the defendant's good driving record is being offered to show that she is a careful driver and to raise the inference that, when the accident occurred, she was acting in conformity with that trait. This constitutes impermissible use of character evidence and is inadmissible.

The defendant was arrested and charged with aggravated battery. The defendant decided not to testify at trial. Nevertheless, he is seeking to present opinion evidence of his good character for truth and veracity. Should this testimony be admitted? A. No, because it is not evidence of a character trait pertinent to the case. B. Yes, because the credibility of a party is always in issue. C. Yes, because a defendant in a criminal trial may offer evidence of his good character. D. No, because character evidence is not admissible to prove that the defendant likely acted in conformity to character

A. No, because it is not evidence of a character trait pertinent to the case. The testimony should be excluded. The accused in a criminal case may introduce evidence of a pertinent character trait because it may tend to show that he did not commit the crime charged. But here, evidence of the defendant's character for truth is not pertinent to a charge of a violent crime (aggravated battery).

During the trial of a personal injury case, the plaintiff calls a witness to testify that he saw the defendant spill a slippery substance in the roadway. Following the testimony of the witness, the defendant calls the witness's neighbor, who testifies that the witness has a poor reputation for truthfulness in the community. The plaintiff's attorney then cross-examines the neighbor, asking her, in good faith, if she committed the crime of false pretenses last year. Last year, the neighbor had in fact been charged with and convicted of the crime of false pretenses. The defendant's attorney objects to this question. Should the objection be sustained? A. No, because the plaintiff's attorney asked the question in good faith. B. No, because the neighbor was convicted of the crime of false pretenses. C. Yes, because such an inquiry is not proper on cross-examination. D. Yes, because an impeaching witness cannot be impea

A. No, because the plaintiff's attorney asked the question in good faith. The question by the plaintiff's attorney should be allowed because he was acting in good faith. A witness may be impeached by means of being interrogated upon cross-examination, in the discretion of the court, with respect to any act of misconduct that is probative of truthfulness (i.e., an act of deceit or lying). The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about, but it is not required that the witness have been convicted of a crime. Here, the plaintiff's attorney is attempting to cast an adverse reflection on the truthfulness of the neighbor. The commission of the crime of false pretenses involves the making of a false representation and is therefore an act of misconduct that is probative of the actor's truthfulness. Thus, because the plaintiff's attorney inquired as to this matter in good faith, his question is a permissible method of impeachment, and the objection of the defendant's attorney should be overruled.

Norris is suing Stanley for breach of contract. Norris claims that Stanley sent him a letter, which Stanley signed, in which Stanley agreed to sell Norris a vintage comic book for $500. Stanley claims he never wrote any such letter and never accepted Norris' offer. Which of the following is a correct statement regarding the extent to which Norris can testify about the letter? A. Norris cannot testify to the statement that Stanley made in the letter; he must have a photocopy of the letter or the original letter, and have it authenticated by someone who knows Stanley's signature. B. Norris cannot testify to the statement that Stanley made in the letter, and he cannot use a photocopy of the letter or the original letter unless Stanley stipulates to the fact that he wrote the letter. C. Norris can testify to the statement that Stanley made in the letter. D. Norris cannot testify to the statement that Stanley made in the letter, and he cannot use a photocopy of the letter. He must have the original letter, and must have it authenticated by someone who knows Stanley's signature.

A. Norris cannot testify to the statement that Stanley made in the letter; he must have a photocopy of the letter or the original letter, and have it authenticated by someone who knows Stanley's signature. Correct unless Norris shows that the original was lost or destroyed. Rule 1002, the "best evidence rule," states that if a writing is admitted to prove its content, the writing itself must be admitted. Rule 1003 states that a "duplicate" of the writing is admissible to the same extent as the original.

Morris received a flyer in the mail from Able Home Improvement, offering a free estimate for evaluating his home's insulation needs. Morris called Able and asked Able to come out and give them an estimate. Able employees came to Morris' home and spent three hours in his attic inspecting his insulation. When they were done, they provided him with an estimate for new insulation and also a bill for $200 for the estimate. Morris protested, saying that Able's flyer had promised a free estimate. Unfortunately, Morris had thrown the flyer away the day after he called Able to come out, and his garbage had been taken away to the dump. Able demanded the money and ultimately sued Morris for non-payment. At trial, Morris sought to testify about Able's flyer which promised a free estimate. Able objected, arguing that the best evidence rule precluded the testimony. How should the judge rule on the objection? A. Overrule the objection, because the original has been lost. B. Overrule the objection, because the best evidence rule does not apply to commercial documents. C. Sustain the objection, because the best evidence rule applies even if the original is unavailable. D. Sustain the objection, becau

A. Overrule the objection, because the original has been lost. Rule 1004(a) states that the contents of a writing can be proven through other means (such as oral testimony) if the original has been lost, and not by the proponent in bad faith. Even though Morris (the proponent) was the person who lost the original, he did not lose it in bad faith, since he threw it away days before the dispute arose.

A brother and a sister were arrested on the federal charge of tax evasion in connection with the family business. Prior to trial, the prosecutor told the sister that he believed he could get her sentence reduced to probation if she pleaded guilty to a lesser charge and agreed to testify against her brother; the sister reluctantly agreed. During the jury trial, the sister is called by the prosecution. On cross-examination, the defense attorney brings out the fact that the sister was arrested on the same charge. The attorney then asks her whether it is true that after her arrest, the prosecutor told her that if she testifies against her brother her sentence can be reduced to probation. The prosecutor objects. How should the court rule on the objection? A. Overruled, because the question goes to bias or interest. B. Sustained, because it is against public policy to reveal information about plea bargains to a jury.

A. Overruled, because the question goes to bias or interest. The prosecutor's objection should be overruled because the question goes to the witness's bias or interest. Evidence that a witness is biased or has an interest in the outcome of the suit tends to show that the witness has a motive to lie. A witness may always be impeached by evidence of interest or bias, either on cross-examination or, if a proper foundation is laid, by extrinsic evidence. In a criminal case, it is proper for the defense to ask a prosecution witness whether she has been promised immunity from punishment or a reduction of punishment for testifying. This shows a motive for the witness to curry favor with the state. Here, the defense attorney is trying to impeach the sister by showing that because she was offered an attractive sentence, she has a motive to curry favor with the prosecution. This is perfectly proper. Note that there is no need for a foundation because the attorney is eliciting this evidence on cross-examination, rather than attempting to introduce extrinsic evidence of the deal.

Which of the following opinion testimony would most likely require an expert witness in order to be admissible? A. Percy was a witness to a vicious beating during which three police officers injured a suspect by kicking him and hitting him with nightsticks as he lay on the ground. Percy will testify that given the number of kicks and the severity of the blows, the suspect almost certainly suffered multiple broken ribs and permanent damage to his lungs and other internal organs. B. Barry was driving on the interstate highway when he witnessed an accident. He will testify that the defendant's car was driving "about twice as fast as I was" when it passed him on the highway just a few seconds before the accident. C. Wilson was a member of a drug conspiracy involving members of his extended family. Three of the members of his family are now on trial; Wilson has pled guilty and is now testifying for the state. The prosecutors have recorded hours of wiretapped conversations among the remaining defendants, during which one of the defendants frequently refers to a person called "Sasquatch." Wilson will testify that "Sasquatch" is the nickname for his cousin Jay Freeman, one of the defendants i

A. Percy was a witness to a vicious beating during which three police officers injured a suspect by kicking him and hitting him with nightsticks as he lay on the ground. Percy will testify that given the number of kicks and the severity of the blows, the suspect almost certainly suffered multiple broken ribs and permanent damage to his lungs and other internal organs. According to Rule 701, lay witnesses are permitted to testify about any opinion which is based on their own perception, helpful to the jury, and not based on scientific, technical, or other specialized knowledge. In this case, Percy is going beyond his own observations and giving an opinion about the effect of the blows on the suspect's body. There is no way he could arrive at a conclusion about broken ribs and permanent damage to organs without applying scientific or technical knowledge to his observations.

In U.S. v. Rollin, Rollin is being charged with robbery of a federal post office. At the trial, the Government asks the court to take judicial notice of the fact that at Metro City's latitude, the sun remained in the sky at 5:30 pm EST on June 21, 2004, the date of the robbery. The trial judge takes judicial notice of this fact. Therefore, the effect of the judicial notice of the fact is that: A. The Government's burden of production of evidence for the fact judicially noticed is now satisfied. B. The fact judicially noticed is established beyond a reasonable doubt. C. The fact judicially noticed is conclusively established. D. The burden of persuasion has now shifted to the defendant Rollin to prove beyond a reasonable doubt a fact contrary to the Government's contention.

A. The Government's burden of production of evidence for the fact judicially noticed is now satisfied. When a court takes judicial notice, then the party that requested judicial notice has met its burden of production of evidence for the fact judicially noticed.

Theresa is on trial for aggravated assault. She has testified in her defense. She has three prior convictions: one for aggravated assault (a felony) from six years ago, one for fraudulently filing a false police report (a misdemeanor) three years ago, and one for selling narcotics (a felony) one year ago. The prosecutor seeks to admit all three prior convictions as evidence in order to impeach her through proof of character for dishonesty. Which convictions (if any) are admissible? A. The aggravated assault is almost certainly inadmissible; filing a false police report is certainly admissible, and the selling of narcotics will be admissible if the probative value of the evidence in proving the defendant's propensity for dishonesty outweighs its prejudicial effect on the defendant. B. The aggravated assault is almost certainly admissible; filing a false police report is admissible if the probative value of the evi

A. The aggravated assault is almost certainly inadmissible; filing a false police report is certainly admissible, and the selling of narcotics will be admissible if the probative value of the evidence in proving the defendant's propensity for dishonesty outweighs its prejudicial effect on the defendant. Rule 609 governs the admissibility of prior convictions when used to impeach witnesses. Felonies which are not crimes of falsity (such as the aggravated assault and the narcotics sales) are admissible if the probative value of the evidence in proving the defendant's propensity for dishonesty outweighs its unfair prejudice to the defendant. In the case of the aggravated assault, the prior conviction is almost certainly inadmissible, because its similarity to the current crime makes it extremely unfairly prejudicial to the defendant. The filing of a false police report is a crime of falsity, so it is automatically admissible under Rule 609(a)(2).

A defendant is on trial for violating a statute forbidding possession of a concealed weapon within 100 yards of a government building. The prosecution presents evidence that the defendant was arrested on a street corner with a handgun in his pocket. The building housing the local city hall occupies the entire block on the north and east sides of the two streets where the defendant was apprehended. Which of the following statements is most accurate regarding judicial notice of the location of the city hall? A. The judge may take judicial notice of this fact without resort to a map, and should instruct the jury that it may, but need not, accept this fact as evidence of an element of the offense. B. The judge may not take judicial notice of this type of fact in a criminal case without a request by the prosecution. C. The judge may take judicial notice of this fact only upon reference to an official street map of the city. D. If the judge properly takes judicial notice of this fact, a presumption is created that shifts the burden of persuasion to the defendant to disprove this fact.

A. The judge may take judicial notice of this fact without resort to a map, and should instruct the jury that it may, but need not, accept this fact as evidence of an element of the offense. The judge may take judicial notice of this fact because it is a matter of common knowledge in the community, but the jury is not required to accept the fact as conclusive in a criminal case. Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court. [Fed. R. Evid. 201(b)] The facts need not be known everywhere as long as they are known in the community where the court is sitting. The location of the city hall is such a fact. As this choice also states, in a criminal case the jury should be instructed that it may, but is not required to, accept as conclusive any fact that is judicially noticed. [Fed. R. Evid. 201(f)].

The defendant was on trial for the crime of reckless homicide after allegedly running over the victim with his car and killing him. The defendant testified that he was not driving recklessly. Defense counsel wants to call to the stand the defendant's colleague, who regularly shares rides with the defendant to and from work, to testify to his reputation for careful driving and for truthfulness. Should the testimony be admitted? A. The testimony regarding the defendant's reputation as a careful driver should be admitted, but the testimony regarding his truthfulness should be excluded. B. The testimony should be excluded in its entirety. C. The testimony should be admitted in its entirety. D. The testimony regarding the defendant's reputation as a careful driver should be excluded, but the testimony regarding his truthfulness should be admitted.

A. The testimony regarding the defendant's reputation as a careful driver should be admitted, but the testimony regarding his truthfulness should be excluded. The testimony regarding careful driving is admissible; the testimony regarding truthfulness is inadmissible. In a criminal case, a defendant may call a qualified witness to testify to the defendant's good reputation and opinion for the trait involved in the case. Here, the defendant's character for being a reckless driver is directly at issue, and testimony on that issue is admissible. However, the evidence regarding his truthfulness should be excluded because his veracity for truthfulness is not at issue in a reckless homicide case. Furthermore, a party may not bolster or accredit the testimony of a witness unless the relevant trait has been attacked. While truthfulness is a relevant trait to rehabilitate a witness whose credibility has been impeached, there is no indication in these facts that the defendant's credibility was challenged. Thus, the reputation testimony for truthfulness is inadmissible.

At trial, a party wishes to prove the following two facts (i) Drinking alcohol can result in a state of intoxication; (ii) Individuals who are between the ages of eighteen and twenty drink alcoholic beverages at a greater rate than any other age group. What are the permissible ways to get these facts into evidence? A. The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence. B. The trial court should take judicial notice of both facts. C. The trial court should use expert testimony for (i) and (ii). D. There is no way to prove these facts at trial.

A. The trial court should take judicial notice of (i), but it should require the party to prove (ii) using expert evidence. Rule 201 states that a court should take judicial notice of any fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The fact that drinking alcohol can result in a state of intoxication is a fact that is generally known. It can also be readily determined from a source whose accuracy cannot reasonably be questioned, such as a medical treatise. However, the proportion of people in a certain age group that drink alcohol is a matter that may be open to dispute, and there is no unimpeachable source that could provide that information. Therefore, the state would have to prove this fact using an expert witness.

In a personal injury action, plaintiff requests the court to take judicial notice of a 1910 city ordinance prohibiting the riding of bicycles in the park after dark. Defendant, while riding his bicycle, hit plaintiff at 11 p.m. A. This is a legislative fact not covered by the Federal Rules of Evidence. B. This law may be judicially noticed even if it is not commonly known. C. This is an adjudicative fact not noticeable because it is not a commonly known fact. D. This is an adjudicative fact but is not judicially noticeable.

A. This is a legislative fact not covered by the Federal Rules of Evidence. Ascertainment of the governing law involves judicial notice of a legislative fact; only adjudication facts—the what, when, where, how, why, who aspects of the litigation—are encompassed by Rule 201.

A plaintiff sued a defendant for defamation, asserting in her complaint that the defendant had called the plaintiff a thief in front of a number of business associates. The plaintiff calls two witnesses to the stand, both of whom testify that they heard the defendant refer to the plaintiff as a thief in front of the business associates. The plaintiff does not take the stand herself. The defendant pleads truth of the statement as an affirmative defense and calls a witness to the stand. The defense witness is prepared to testify that he was a co-worker of the plaintiff when the plaintiff supplemented her income by tending bar three nights a week. The witness will testify that he saw the plaintiff take a $20 bill from the tavern's cash register and secrete the money in her pocket. The plaintiff's attorney objects. May the defense witness's testimony be allowed? A. Yes, as substantive evidence that the plaintiff is, in

A. Yes, as substantive evidence that the plaintiff is, in fact, a thief. The defense witness's testimony is admissible character evidence because the plaintiff's character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used. Here, character is an issue in the plaintiff's defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness's testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed.

A police officer pulled over Sam's car after seeing it swerve numerous times into the oncoming lane of traffic. The officer ordered Sam out of the car and told him to take a Breathalyzer test. Sam refused. Based on the driving the officer observed and Sam's refusal to take the test, the officer arrested Sam for driving while under the influence of alcohol. A person is guilty of this crime if his ability to drive a car is impaired because of the consumption of alcohol. At trial, the prosecutor wants the officer to testify that Sam refused to take the Breathalyzer test. Is this evidence relevant? A. Yes, because his refusal to take the test makes it more probable that he was in fact intoxicated. B. No, because there is no other evidence that he was intoxicated except for his swerving, and his swerving may be unrelated to intoxication. C. Yes, because his refusal to take the test is sufficient to prove that he was in fact intoxicated. D. No, because he may have had many legitimate reasons for not wanting to take the test.

A. Yes, because his refusal to take the test makes it more probable that he was in fact intoxicated. This is not the correct standard for relevance—the party offering the evidence need not argue that the evidence is sufficient to prove a fact in consequence, only that the evidence makes it more likely that a fact, in consequence, is true.

A plaintiff sued his neighbor over a 10-foot-high stockade fence that the neighbor was building adjacent to the plaintiff's backyard. The local zoning ordinance permitted a fence of this height unless it was a "spite fence," defined as a fence erected solely for the purpose of interfering with neighboring landowners' use and enjoyment of their property. The plaintiff alleged that the neighbor was building the fence to block sunlight to the garden that the plaintiff had planted. The neighbor denied that she was building the fence for that purpose. The plaintiff wishes to introduce evidence that the neighbor had sprayed herbicide towards the garden previously. Should the judge permit the plaintiff's testimony? A. Yes, because it pertains to the neighbor's motivation in building the fence. B. No, because the plaintiff's testimony is evidence of specific conduct, which is not admissible in this case because the neighbo

A. Yes, because it pertains to the neighbor's motivation in building the fence The judge should permit the plaintiff's testimony because evidence of specific acts of misconduct is admissible to show motive. Under Federal Rule 404(b), evidence of other acts may be admissible in a criminal or civil case if they are relevant to some issue other than character, such as motive. Here, whether the neighbor was motivated by an improper purpose in building the fence is the key issue in the lawsuit by the plaintiff. The neighbor's prior misconduct in spraying herbicide toward the plaintiff's garden is circumstantial evidence that her hostility toward the garden motivated her to build the fence.

The beneficiaries of a trust filed suit to remove the trustee and recover damages, alleging that the trustee improvidently invested trust funds. At trial, the trustee calls a financial expert to testify in his defense. To qualify the witness as an expert, the trustee asks the witness about her education, training, and experience in finance. The witness testifies that she has received a B.A. and Ph.D. in economics and business finance. On cross-examination concerning qualifications, the beneficiaries' attorney asks, "Isn't it a fact that you flunked out of college at the end of your freshman year?" to which the witness replies, "No." The beneficiaries' attorney then offers the registrar of the college that the witness attended to introduce a transcript of the college's records to show that the witness studied only one year and was awarded no degrees. The trustee objects. Is the transcript admissible? A. Yes, but the judge should allow the witness to testify further only if he believes the witness to be an expert. B. Yes, but the judge should instruct the jury that they are to disregard the witness's testimony if they conclude that she is not an expert. C. No, because whether the witnes

A. Yes, but the judge should allow the witness to testify further only if he believes the witness to be an expert. The qualification of a witness as an expert is a preliminary fact to be determined by the judge. The existence of preliminary facts (e.g., competency of testimony or evidence privilege) other than those of conditional relevance must be determined by the court. These questions are withheld from the jury out of a fear that, once the jury hears the disputed evidence, the damage has been done, rendering ineffective an instruction to disregard the evidence if the preliminary fact is not found. One of these foundational facts that must first be determined by the judge is the qualification of a witness as an expert. Thus, in this question it is the province of the judge to determine whether the witness is an expert in the field of finance, so as to allow her to testify further. Also, the judge is free to consider any relevant evidence in making the determination; so he should consider the transcript.

The state is prosecuting William for conspiracy to sell drugs. In its case-in-chief, the state offers the testimony of Raymond, one of William's former confederates who is now cooperating with the state. Raymond has a prior conviction for felony aggravated assault, which occurred eleven years ago. Raymond received probation for the crime. Can the defendant's attorney use that prior conviction to impeach Raymond? A. Yes, if the trial judge finds that the probative value of the prior conviction substantially outweighs its prejudicial effect on the state. B. Yes, if the trial judge finds that the probative value of the prior conviction outweighs its prejudicial effect on the state. C. Yes, as long as the prior conviction has some probative value—there is no need to conduct a balancing test. D. Yes, unless the trial judge finds that the probative value of the prior conviction is substantially outweighed by the

A. Yes, if the trial judge finds that the probative value of the prior conviction substantially outweighs its prejudicial effect on the state. Under Rule 609, this is the test to use for admitting prior convictions that occurred over ten years ago, as is the case here.

A businessperson filed a defamation suit against a newspaper for printing a column that referred to him as "a nasty miser" and "worse than Ebenezer Scrooge," and accused him of "never performing a real act of charity in his life." During the presentation of the businessperson's case, he wanted to put an agent of the Internal Revenue Service on the stand. The agent is prepared to testify that the businessperson, on his own initiative, reimbursed the IRS for an erroneous overpayment of a tax refund. Counsel representing the newspaper objects. How is the court likely to rule on the agent's testimony? A. Admissible, because the businessperson's character is at issue in the case. B. Admissible, because the businessperson has a right to defend his good character. C. Inadmissible, because it is not probative of any material issue in the case. D. Inadmissible, because specific instances of conduct are n

B. Admissible, because the businessperson has a right to defend his good character. The agent's testimony is inadmissible because it is not probative of any material issue in the case. Relevant evidence tends to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence. [Fed. R. Evid. 401] While evidence tending to prove the businessperson's charitable nature, which is a material issue in this case, would be relevant, the evidence here tends to prove only the businessperson's honesty, which is not at issue here. Therefore, it is not relevant and should not be admitted.

Robert was driving his pickup truck alone when he swerved to avoid an animal in the road. His truck hit a tree, and he was thrown from the truck and through the windshield. He was pronounced dead on the scene. Robert's wife Linda is now suing the truck manufacturer, claiming that Robert had buckled his seat belt, but that the seat belt was faulty and it unlatched when the truck hit the tree, causing Robert to fly out of the truck. The truck manufacturer claims that the seat belt was not faulty, but that Robert had not put on his seat belt for this trip. Linda will testify that she has ridden with Robert over a hundred times in his pickup truck over the past few years and that he always puts on his seat belt. The defendant truck manufacturer objects to this testimony. Should the court admit or preclude Linda's testimony? A. Preclude Linda's testimony because it is irrelevant. B. Admit Linda's testimony as ha

B. Admit Linda's testimony as habit evidence. Robert's tendency to wear his seatbelt qualifies as habit evidence under Rule 406, because it is a specific and repeated response to a specific situation, and it is semi-automatic behavior. It is relevant because it tends to prove that Robert did in fact wear his seat belt on the date of the accident.

Detective Starr works as a narcotics detective for the Jonesville Police Department. He has been indicted on charges of theft and cocaine possession with intent to distribute. The prosecutor alleges that six months ago Detective Starr arrested a suspect for cocaine possession, and found five kilograms of cocaine in the trunk of the suspect's car, but only turned in four kilograms to the police property room as evidence, keeping one kilo for himself in order to sell. Detective Starr denies the charges, arguing that there were only four kilograms of cocaine in the trunk originally and that he never stole any cocaine. At trial, Starr calls two character witnesses. The first is Detective Reynoso, Starr's partner. Detective Reynoso will testify that he has worked with Starr for five years and that Starr is the bravest police officer he has ever known. The second witness is Sarah, Detective Starr's girlfriend. Sarah

B. Admit Sarah's testimony but not Detective Reynoso's testimony. Rule 404(a)(2) allows a criminal defendant to admit propensity evidence for any "pertinent trait," and Sarah's testimony that Starr is honest and law-abiding tends to prove that he did not commit the crime of stealing the cocaine with the intent to sell it. However, Detective Reynoso's testimony that Detective Starr is a brave a police officer is not pertinent to whether Starr stole the cocaine or possessed it with the intent to sell it.

A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor's alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor's handwriting and recognizes the signature on the letter as being hers. Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter? A. Admit the letter as authentic and instruct the jury accordingly. B. Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic. C. Exclude the letter for lack of foundation because lay opinion testimony regarding handwriting identification is not admissible. D. Exclude the letter unless its authenticity is established by a preponderance of the evidence.

B. Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic. The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic. Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder's testimony that he is familiar with the neighbor's handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide.

Louis is on trial for robbing a convenience store. The prosecutor seeks to call his girlfriend as a witness to testify that Louis was a regular user of heroin, and spent over $50 on heroin every day. She will also testify that Louis owed his heroin dealer over $500. Louis objects to this testimony as inadmissible character evidence. The judge should: A. Admit the testimony about Louis' heroin use and debt only after Louis calls a character witness to testify that he is law-abiding and honest. B. Admit the testimony about Louis' heroin use and his debt to the dealer to prove motive. C. Preclude the testimony about Louis' heroin use and debt. D. Admit the testimony about Louis' heroin use and his debt to prove that he has a propensity to commit crimes.

B. Admit the testimony about Louis' heroin use and his debt to the dealer to prove motive. The evidence has significant probative value in proving that Louis had a motive to commit the crime, and it is admissible for that purpose under Rule 404(b). If Louis requests it, the judge will give a limiting instruction telling the jury not to consider the evidence for character purposes.

Which of the following questions is least likely to be objectionable under Rule 611? A. Prosecutor asks the defendant on cross-examination: "While you were hiding behind the dumpster, isn't it true that you took the gun and threw it in the dumpster and then took off your hat and stuffed it down your shirt?" B. Defense counsel asks an eyewitness: "Isn't it true that you and the defendant have never liked each other?" C. Prosecutor asks a defense witness: "So it sounds like you have lied about everything that matters in this case. Are you the type of person who lies all the time? D. Plaintiff's counsel asks his client on direct examination: "You saw the defendant's car halfway into the intersection when you entered the intersection, is that correct?"

B. Defense counsel asks an eyewitness: "Isn't it true that you and the defendant have never liked each other?" This is a perfectly acceptable impeachment question, asking about bias against the defendant. A leading question is appropriate and permissible on cross-examination.

Teller, an attorney, was new to the practice of law and at his first trial, he had terrible problems deciding when to object and when to keep his mouth shut. Teller tried to remember the basics about direct and cross-examination that he had learned in law school. But at trial the questions came too fast and furious; it was hard for him to keep up. Which question below should have gotten Teller off his chair and to his feet to object that opposing counsel was leading the witness? A. During direct examination of his own client, opposing counsel asked his client: "Isn't it true you were born on August 23, 1980?" B. During direct examination of his own client, opposing counsel asked his client: "Isn't it true that you observed that the defendant never slowed down as he approached the intersection?" C. During direct examination of his own client, opposing counsel asked his client: "You reside at 221 Robin Hood Lane in Pittsburgh, PA, don't you?" D. During cross-examination of Teller's client, opposing counsel asked Teller's client: "You cheated on an exam during college, didn't you?"

B. During direct examination of his own client, opposing counsel asked his client: "Isn't it true that you observed that the defendant never slowed down as he approached the intersection?" Leading questions are allowed on cross-examination, Rule 611(c), Mode and Order of Examining Witnesses and Presenting Evidence; . . . Leading Questions.

During a defendant's trial for murder, the state introduced circumstantial evidence tending to establish her guilt, but could not provide direct evidence that she had committed the murder. No one had seen the killer going into or coming out of the victim's office around 2:30 p.m., the time of the victim's death by strangulation. During her defense case, the defendant took the stand and testified that she could not have committed the charged murder, because on the day of the victim's death she had been on a business trip 3,000 miles away. The prosecution then called a rebuttal witness. The witness will testify that, at 1 p.m. on the day of the charged murder, he had put his hand on the defendant's knee while both sat at a bar across town. The defendant had then coquettishly removed his necktie and attempted to strangle him with it until bystanders pulled her away and she left the bar. The defendant objects t

B. For the state, because the testimony established that the defendant has a character for violence. The judge should rule for the state. This question is not about propensity evidence. Rather, it is about evidence of prior bad acts to help prove something other than a person's propensity to act in a manner consistent with a character trait. Under Federal Rule 404(b), it is permissible to use evidence of a criminal defendant's prior bad acts to establish a motive for committing the crime, to help to identify him as the perpetrator of a crime, or, as here, to show opportunity to commit the crime. The defendant claims that she could not have committed the murder because she was on a business trip the day it occurred. The witness's testimony, however, pertaining to his encounter with the defendant in a crosstown bar on the day of the murder, is clearly relevant to show that the defendant had the opportunity to commit the murder.

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. No, because the testimony is improper character evidence. C. Yes, because character may be proven by reputation evidence.

B. No, because the testimony is improper character evidence. 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.

At the trial of a lawsuit that arose out of a collision between the plaintiff's and the defendant's cars, the plaintiff's attorney calls an automobile mechanic as a witness, who testifies that he has 12 years' experience and was the only witness to the accident. The witness also testifies that he arrived at the scene immediately after the accident, which caused both cars to overturn, and saw the wheels on both cars still spinning. He testifies that the wheels of the defendant's car were spinning faster than the wheels of the plaintiff's car. The plaintiff's attorney asks the witness to testify as to what speed the respective cars were traveling at the time of the accident based upon his observations of the spinning wheels. The defendant's attorney objects. Should the testimony regarding the speed of the cars be admitted? A. No, because there is not another witness to corroborate the witness's presence at the accident scene. B. No, because the witness has not been qualified as an expert in accident reconstruction. C. Yes, as the witness's personal opinion. D. Yes, as a matter based upon personal observation.

B. No, because the witness has not been qualified as an expert in accident reconstruction. The witness's testimony regarding the speed of the cars should not be admitted because he has not been qualified as an expert in accident reconstruction. If the subject matter is such that scientific, technical, or other specialized knowledge is required to render an opinion, expert testimony is admissible and appropriate. In fact, in such an area, opinions by laypersons would not be permitted. To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. The expert must possess reasonable certainty or probability regarding his opinion. Here, the witness is being asked to testify as to the speed of the cars, not based on actually viewing the cars while in motion (in which case lay opinion is often accepted), but on his observation of the spinning wheels after the accident. Determination of the speed of vehicles based upon observation of the spinning wheels of such vehicles after a collision would certainly call for the application of technical or specialized knowledge, thus making the subject matter appropriate for expert testimony. To testify as an expert, the witness must be qualified by virtue of having special knowledge or experience regarding accident reconstruction, which encompasses rendering opinions on the speed of vehicles based on the spinning of their wheels. The witness's experience as an auto mechanic would not suffice to establish him as an expert in accident reconstruction. Since he is not qualified as an expert, his opinion testimony as to the speed of the cars based upon his observation of the spinning wheels will not be admitted.

A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff's witness would testify that the defendant is known by all his friends as "the Menace." Is the proffered testimony admissible? A. No, because the defendant did not introduce evidence of his reputation for carefulness. B. No, it is inadmissible to show that the defendant was negligent on this occasion. C. Yes, because it is relevant. D. Yes, because reputation evidence is a proper method of pro

B. No, it is inadmissible to show that the defendant was negligent on this occasion. The testimony of the plaintiff's witness should not be admitted to show that the defendant was negligent. Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action).

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. None, because a civil action is involved. B. None, because the dealer is not a protected party. C. It will render the conversation inadmissible because a civil action is involved. D. It will render the conversation inadmissible because the purchaser is an interested party.

B. None, because the dealer is not a protected party. 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.

A six-year-old child was riding his bicycle when he observed an automobile accident. The plaintiff, the driver of one of the cars involved, brought suit against the other driver. At trial, the plaintiff called the child to testify about his observations of the accident. If the defendant objects on the ground of competency, how should the trial judge rule? A. Permit the testimony, if the court instructs the jury to consider it with great caution. B. Permit the testimony, if the child recalls the accident and appreciates his obligation to tell the truth. C. Sustain the objection, unless the plaintiff produces evidence to overcome the presumption of incompetence. D. Sustain the objection, because a six-year-old child is conclusively presumed to be incompetent.

B. Permit the testimony, if the child recalls the accident and appreciates his obligation to tell the truth. The standard for determining the competency of a witness is very lenient. 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 (the witness must have observed the matter and must have a present recollection of his observation); and (ii) the witness must declare he will testify truthfully, by oath or affirmation. Here, if the judge finds that the child recalls the accident and appreciates the obligation to tell the truth, the testimony is admissible.

An expert witness, who has an advanced degree in engineering, is testifying at a jury trial to the possible causes for the failure of an enclosed pedestrian bridge in a shopping mall. Which of the following data, if relied on by the expert witness in forming his opinion, is admissible on direct examination as substantive evidence? A. Statements told to him by witnesses to the collapse, as long as such statements are reasonably relied on by experts in his field. B. Statements that he reads from a text on structural engineering that he has testified is authoritative. C. Statements made to him by a former maintenance employee of the shopping mall indicating that the management knew the bridge needed repairs but delayed doing so because the busy holiday season was approaching. D. Testimony regarding the repair of the bridge one week after the collapse, indicating that it is now equipped with special safety features that were not installed prior to the collapse.

B. Statements that he reads from a text on structural engineering that he has testified is authoritative The jury may consider statements from an authoritative text as substantive evidence. Rule 803(18) provides that an expert may base an opinion on facts supplied to him outside the courtroom. One such source is authoritative texts and treatises. Statements from a treatise established as reliable (which may be done by the expert's own testimony) may be introduced on direct examination of the expert and read into the record as substantive evidence under an exception to the hearsay rule. [Fed. R. Evid. 803(18)] Hence, the jury may consider the testimony here as substantive evidence.

Stuart is charged with stabbing a person in an alleyway outside a bar. He is pleading self-defense. During his defense case, his attorney has four character witnesses he wants to call. Which of them is most likely to be allowed to testify? A. Stuart's boss at work will testify that he has known Stuart for fifteen years and Stuart is a model employee who is never late and has an excellent work ethic. B. Stuart's father will testify that he has known Stuart his entire life and that Stuart has always been peaceful and never loses his temper. C. Stuart's best friend will testify that he once saw a person threaten Stuart with a knife, and Stuart never lost his temper, remained calm, and convinced the person to put the knife down. D. Stuart's wife will testify that she knows Stuart very well and in her opinion he is a very honest person.

B. Stuart's father will testify that he has known Stuart his entire life and that Stuart has always been peaceful and never loses his temper. Stuart's peaceful character is a pertinent trait, and Rule 404(a) allows the defendant to elicit evidence that supports a pertinent character trait if given in the form of opinion or reputation evidence.

While waiting for a flight, a passenger noticed that whenever a man with a large valise passed close to her suitcase, the Geiger counter inside, which she used in her research to detect small amounts of radiation, would tick. The passenger informed the airport police, who quickly accosted the man, a medical technician. His suitcase contained some expensive radioactive isotopes used in treating certain forms of cancer. The police were aware that the same type of isotopes had been reported missing from a hospital a few days earlier. The man was charged under a federal statute making it a crime to transport radioactive materials without a license. At the trial, an expert witness testifies as to how the Geiger counter operates. Next, the prosecutor calls the passenger to testify regarding the reaction of the Geiger counter to the man's presence. What must the prosecution show in order for the testimony to be allowed? A. That there was no other radioactive material in the area that could have set off the Geiger counter. B. That the Geiger counter was in sound operating condition at the time of the airport incident. C. That the Geiger counter was in the same condition at the time of the air

B. That the Geiger counter was in sound operating condition at the time of the airport incident. The prosecution must show that the Geiger counter was in good working condition at the time in question in order for evidence of its reaction to be admissible. Only relevant evidence is admissible. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence. [Fed. R. Evid. 401] Here, the passenger's testimony is being offered to prove that the Geiger counter reacted to the substances in the man's suitcase. The issue of the Geiger counter's reaction to the suitcase is material because the government is claiming that the man had radioactive isotopes in his suitcase, to which the Geiger counter would have reacted. The passenger's testimony of the reaction must be sufficiently probative of the proposition that the Geiger counter reacted to the isotopes in the suitcase. To be sufficiently probative, the evidence must show that the reaction of the Geiger counter was authentic. To authenticate such a reaction, all that is necessary under the Federal Rules is proof sufficient to support a jury finding of genuineness. To establish that the reaction of the Geiger counter was authentic, it would be essential to show that it was in sound operating condition at the time in question. As discussed below, this proof is sufficient to support a jury finding that the machine's reaction was genuine.

A plaintiff brings a federal civil rights action against several members of a police department for near-fatal injuries incurred as a result of an alleged beating administered by the officers. The plaintiff plans to call as a witness his cellmate, who will testify that the plaintiff was in fact beaten by the defendants. The plaintiff also wants to introduce the bloodstained shirt that he wore on the night of the beating. The defendants plan to call an expert to testify that the injuries suffered by the plaintiff were inconsistent with injuries likely to be inflicted by the alleged police beating, and a second expert to testify similarly. The defendants also will call as a witness a fellow officer, who will testify that the plaintiff was suspected to have hepatitis, and as a result the defendants would not have beaten him for fear of being infected by any open wounds. Which item of relevant evidence is the court LEAST likely to exclude? A. The fellow officer's testimony, on the ground that it may confuse the issues or mislead the jury. B. The cellmate's testimony, on the ground that calling this witness constitutes an unfair surprise. C. The second expert's testimony, on the grounds th

B. The cellmate's testimony, on the ground that calling this witness constitutes an unfair surprise. Under Federal Rule 403, a trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Although some states list unfair surprise as an additional basis for exclusion, the Federal Rules do not, reasoning that surprise can be prevented by discovery and pretrial conference, or mitigated by granting a continuance. From the foregoing principles, if the cellmate is in fact a surprise witness, this will not suffice as a basis to exclude this otherwise relevant evidence under the Federal Rules, which govern this action. At most, the court should grant a continuance.

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. 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. B. The court may take judicial notice, even if the plaintiff has not requested it. C. 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.

B. The court may take judicial notice, even if the plaintiff has not requested it. A court may take judicial notice of facts not subject to reasonable dispute, whether or not requested.

The plaintiff in a civil case called Oliver to testify. On cross-examination, the defendant's attorney asked Oliver if it was true that on September 15th of the previous year, he filed a fraudulent claim for insurance. Oliver denied that he did so. The defendant's attorney then admitted an affidavit signed by Oliver in which he admitted to the insurance company that his September 15th claim was fraudulent. The defendant's attorney admitted the affidavit to prove not only that Oliver filed the fraudulent claim (and thus had a propensity for dishonesty) but also to prove that Oliver had just lied to the jury when he denied filing it. Assume the plaintiff objected to all of the defendant's questions and actions during this time. At what point (if any) should the judge have sustained the plaintiff's objections and cut off this line of inquiry? A. The judge should have allowed the defendant to ask all the quest

B. The defendant should not have been allowed to admit the affidavit, since it is extrinsic evidence. Rule 608(b) only allows an opposing party to ask questions about specific acts on cross-examination. The opposing party is not allowed to admit extrinsic evidence of those specific acts.

While driving home after an evening spent drinking at a local bar, the plaintiff passed out at the wheel. His car went through a red light at an intersection and was struck by a car driven by the defendant. The plaintiff, under the influence of alcohol, staggered from his car. The defendant, believing that the plaintiff had been injured in the accident, said "It's my fault. I was not paying attention. I'll take care of all your medical bills." Later that night, the plaintiff was treated for minor injuries at a nearby hospital. The plaintiff sued the defendant for damages, alleging that the defendant was driving negligently at the time of the accident. The plaintiff offered the testimony of a witness who was prepared to testify that, after the accident, the defendant stated in a clear, calm voice, "I was not paying attention. I'll take care of all your medical bills." Assuming the proper objection, should the witness's testimony concerning the defendant's statement be admitted? A. No, because the defendant's statement is a settlement offer. B. The defendant's statement "I was not paying attention" should be admitted, but the statement "I'll take care of all your medical bills" should no

B. The defendant's statement "I was not paying attention" should be admitted, but the statement "I'll take care of all your medical bills" should not. The witness can testify to one of the defendant's statements but not the other. A statement by an opposing party (i.e., a statement made by a party and offered against that party) is nonhearsay and will not be excluded by the hearsay rule. However, it will be excluded if there is a specific rule excluding the statement. Federal Rule 408 provides that settlement offers and factual statements made during settlement negotiations are inadmissible if offered to prove or disprove the validity or amount of a disputed claim. Rule 408 only applies, however, when there is a dispute between the parties. A statement made at the scene of an accident would rarely qualify. Federal Rule 409 excludes evidence of the payment or offer to pay medical expenses if offered to help establish liability for an injury. Rule 409, however, does not exclude factual statements made in conjunction with the payment or offer. Such factual statements would be admissible as an opposing party's statement. Hence, the defendant's statement would not qualify as a settlement offer. His statement "I'll take care of your medical bills" would be excluded under Rule 409. His statement "I was not paying attention" would not be excluded by Rule 409 and would be admissible as an opposing party's statement.

At a victory party after a hard-fought election, the campaign director consumed several drinks. A campaign worker who had also been drinking took the director to her hotel room for a nightcap. They later had intercourse. The worker filed a complaint with the police, claiming that the director had intercourse with her against her will, and the director was charged with rape. Which of the following is most likely to be admitted in the director's defense? A. The worker has a reputation in the community as being sexually promiscuous. B. The director and the worker had had consensual sex on two prior occasions. C. Since the incident occurred, the worker has had sexual intercourse with two other campaign workers. D. Two years ago during the candidate's previous campaign, the worker maintained a sexual relationship with the former campaign director.

B. The director and the worker had had consensual sex on two prior occasions Evidence of prior consensual sexual relations between the director and the worker is most likely admissible. Although Federal Rule 412 generally excludes evidence of an alleged victim's sexual behavior, evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent. Thus, if the director raises consent as a defense to the rape charge, evidence of his previous consensual sexual encounters with the worker is admissible.

Michael is on trial for murder. The prosecutor's theory of the case is that Michael stabbed his roommate six times in the chest while his roommate was sleeping. The prosecutor wishes to admit three photographs of the crime scene as it appeared when officers first arrived, showing the victim in the bed, with the stab wounds clearly visible and blood soaking through his sheets and nightclothes. Michael's attorney objects to the photos, arguing that they will unfairly prejudice the jury. Should the judge preclude the photos? A. The judge should preclude the evidence if she determines that it carries any risk of unfair prejudice. B. The judge should preclude the evidence if the risk of unfair prejudice substantially outweighs the probative value of the evidence. C. The judge should preclude the evidence if she determines that it is likely to cause an emotional reaction in the jury. D. The judge should preclude the evidence if there is any other way to prove the fact of death that is less prejudicial.

B. The judge should preclude the evidence if the risk of unfair prejudice substantially outweighs the probative value of the evidence. This is the correct test under Rule 403.

An insured person purchased a life insurance policy on his life, naming his brother as beneficiary. Fifteen years ago, the insured traveled overseas on what was supposed to be a six-month trip, but has not been heard from since. The brother contacted the insurance company, which refused to pay the claim on the basis that there was no evidence that the insured was dead. The brother filed suit against the insurance company to collect the proceeds under the policy. The jurisdiction in which the action has commenced has a statute that states that a person is presumed dead if missing from the jurisdiction for seven years, and if no one in the jurisdiction has heard from the person in those seven years. Assume that no other evidence is admitted at the trial on the issue of the insured's death. Which of the following is the most accurate statement? A. The jury will be permitted to find that the insured is dead. B. The jury must find that the insured is dead. C. The jury will be permitted to find that the insured is alive. D. The judge must rule as a conclusive presumption that the insured is dead.

B. The jury must find that the insured is dead. The jury must find that the insured is dead. Because the basic facts that support the presumption were proven at trial, and no other evidence was introduced, the jury must find in accordance with the presumption, because the other party did not meet its burden of going forward with rebuttal evidence.

The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner's lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened. Whose testimony is necessary to introduce the photograph into evidence? A. The employee's testimony is necessary and the witness's is unnecessary. B. The witness's testimony is necessary and the employee's is unnecessary. C. The picture is inadmissible. D. The testimonies of both the employee and the witness are necessary.

B. The witness's testimony is necessary and the employee's is unnecessary. Only the witness's testimony is necessary to introduce the photograph. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible.

Potts, a building contractor, sued Dennis for failure to pay on a small cost-plus construction contract. At trial, Potts, who personally supervised all of the work, seeks to testify to what he remembers about the amount of pipe used, the number of workers used on the job, and the number of hours spent grading. Dennis objects on the ground that Potts had routinely recorded these facts in notebooks which are in Potts's possession. Is Potts's testimony admissible? A. No, because it violates the best evidence rule. B. Yes, because based on first-hand knowledge. C. No, because a summary of writings cannot be made unless the originals are available for examination. D. Yes as a report of a regularly conducted business activity.

B. Yes, because based on first-hand knowledge. Evidence based on first-hand knowledge is always the preferred method of evidence. Here, the witness was testifying based upon personal knowledge.

Oswald is suing his former employer, Overton Power, in federal court. Oswald claims that after he worked at Overton's nuclear power plant for eight years, he developed cataracts in his eyes as a result of the high radiation levels at the plant. Overton states that there is no evidence that Oswald's cataracts were caused by high levels of radiation. In his case-in-chief, Oswald seeks to call Dr. Conway, an ophthalmologist who examined Oswald's eyes. Dr. Conway will testify that he was able to determine that Oswald's cataracts were caused by radiation after an intensive visual examination. Oswald objects, arguing that there is no way to determine whether cataracts are caused by radiation without a biopsy, in which a small piece of the cataract is sliced off and tested. The trial judge holds a pre-trial hearing, at which both Dr. Conway and Overton's experts testify. After the hearing, the judge is convinced that Dr. Conway's method of diagnosing cataracts is reliable because it has been tested and has low error rates, and has undergone some peer review. However, the judge also determines that Dr. Conway's method is not generally accepted by the scientific community and there are no standar

B. Yes, because the federal courts apply the Daubert standard and this method passes the Daubert standard. All federal courts apply the Daubert standard. Under the Daubert standard, the trial judge balances a number of factors, and if the trial judge believes the evidence is reliable, the evidence is admissible. The fact pattern made it clear that the trial judge applied the Daubert standard and that the judge found the evidence to be reliable. Under Daubert, these factors are not exclusive, nor does the evidence have to pass every single Daubert factor to pass the Daubert test.

In a criminal trial, the prosecutor called a witness to the stand to authenticate the voice in a tape recording as the defendant's. The only other time the witness had heard the defendant's voice was after his arrest. Assuming a proper foundation has been laid, may the witness properly authenticate the defendant's voice? A. Yes, because the prosecutor can qualify the witness as an expert on the defendant's voice. B. Yes, because the witness is now familiar with the defendant's voice. C. No, because the witness did not hear the defendant's voice until after he was arrested.

B. Yes, because the witness is now familiar with the defendant's voice. The witness may properly authenticate the defendant's voice because she is now familiar with his voice. Any person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity. Thus, because the witness is now familiar with the defendant's voice, she may give her opinion as to whether it is his voice on the tape.

Betsy is suing her doctor, arguing that the doctor did not exercise the required level of care when he operated on her knee. Her husband testifies in her case, describing the difficulty that Betsy had moving around in the weeks after the surgery. At one point during his testimony, he testifies that "two months after the doctor performed the operation, Betsy could still not walk up the stairs of our home." The doctor's attorney cross-examines the husband and asks him whether it is true that two months after the operation, he had dinner with a friend and he said: "Betsy is really recovering well after her surgery. She can go up and down the stairs at our house with no problem." Can the doctor's attorney ask her this question? A. No, unless the doctor's attorney discloses the statement to the husband before asking her about it. B. Yes, but Betsy can request a limiting instruction which tells the jury to

B. Yes, but Betsy can request a limiting instruction which tells the jury to only consider the prior statement for impeachment purposes and not for the truth of the matter asserted. Rule 613 allows a party to impeach a witness with a prior inconsistent statement; this statement is inconsistent with her trial testimony. However, the statement is being offered to impeach the husband, not for the truth of the matter asserted, so a limiting instruction is required. This is not a collateral matter—that is, it is relevant to a material fact in the case (the complications that resulted from the surgery). Since it is not collateral, the doctor could call the friend to verify that the husband made the statement; he will not be stuck with the husband's answer.

Alan is killed on February 21st in San Diego. One week later, the police arrested Alan's friend and co-worker, Charlie, for the murder. In his defense at trial, Charlie calls his boss, Georgie, who testifies that she and Charlie were together on a business trip in Mexico from February 20th through February 24th. On cross-examination, the prosecutor asks Georgie if she forged some figures in the company accounts last year before submitting the accounts to government auditors. Is the question permissible? A. No, it is impermissible, since the defendant has not "opened the door" by offering any evidence of Georgie's character. B. Yes, it is permissible. C. No, it is impermissible, since it is beyond the scope of the direct. D. No, it is impermissible, since it refers to a prior bad act that is not relevant to the underlying cause of action.

B. Yes, it is permissible. Here, an attorney is allowed to question the honesty or dishonesty of any witness as an exception to the general prohibition on character evidence. Under Rule 608, A Witness's Character for Truthfulness or Untruthfulness, an attorney may ask a question about a specific instance of conduct related to honesty or dishonesty as a way to test the credibility of the witness.

Alex is on trial for burglary. The house he allegedly broke into had been for sale, and the prosecutor's theory is that a week before the burglary, Alex had shown up at the house as a potential buyer in order to learn the lay of the house and where it was vulnerable to break-ins. The defendant admits he came to look at the house as a potential buyer but claims he was nowhere near the house when it was burgled. Alex has two prior convictions. One is for a felony burglary that occurred six years ago, in which he broke into a house that was for sale after he posed as a buyer and walked through the house three days before the crime. The other conviction is a misdemeanor for filing a false police report two years ago. The prosecutor has certificates of convictions for each of these crimes. Can she admit these certificates of conviction against Alex? A. Yes, both the felony burglary and the filing of the false police re

B. Yes, the felony burglary is admissible (subject to Rule 403) whether or not Alex testifies, but the filing of the false police report is admissible only if Alex testifies. The felony burglary is potentially admissible under Rule 404(b), because it tends to prove identity—that is, because Alex committed this crime in a distinctive way before, it is more likely that he is the one who committed the current crime. The judge will have to determine if the probative value of the evidence to prove identity is substantially outweighed by the unfair prejudice of the jury hearing that the defendant has a prior criminal record for burglary. As for the prior conviction for filing a false police report, it is automatically admissible as a crime of falsity under Rule 609, but only if Alex testifies since its only probative value is to impeach Alex.

As part of a sting operation, the Capital City police department sent out an undercover officer to sell cocaine on the street. Thomas was walking by the undercover officer when the officer called him over and convinced him to buy some cocaine. After Thomas bought the cocaine, he was immediately arrested for possessing a controlled substance. At trial, Thomas is using an entrapment defense. Under the laws of his jurisdiction, this defense requires him to prove that he did not have any predisposition to commit the crime and that the law enforcement officer persuaded him to take possession of the drug. In his defense, he calls his friend Terry. Terry will testify that a year ago he was at Thomas' house for a party, and he saw Thomas notice a number of guests snorting cocaine in the corner. Terry will further testify that Thomas became very angry, walked over to the group, and told them to stop and to never use cocaine

B. Yes, the testimony is admissible. Although it is true that specific act evidence is inadmissible to prove propensity, in this case, the evidence is being used to prove the defendant's character directly; i.e. that he did not have a predisposition to use drugs. Under Rule 405, specific act evidence is admissible if offered to prove character that is an essential element of a claim, charge, or defense.

Pursuant to a valid court order, the FBI installed a wiretap on a telephone in a warehouse which they suspected was being used to store stolen property. The FBI recorded over fifty hours of conversation between the owner of the warehouse and another man who was referred to only as "Slick." During the course of the conversation, the warehouse owner mentioned a number of stolen items and Slick made offers to purchase them. Other evidence led the FBI to believe that "Slick" was actually Sam Gordon, a known criminal who sold stolen goods over the internet. The FBI agents running the wiretap called in Special Agent Donovan, who had used Gordon as an informant numerous times and was familiar with his voice. Donovan confirmed that the voice of Slick on the tape belonged to Sam Gordon. Gordon was ultimately arrested and charged with receiving stolen property. At trial, the prosecutor seeks to play some portions of the tape to the jury. The prosecutor intends on authenticating the tape by calling Special Agent Donovan to testify that the voice of the man called Slick belongs to Sam Gordon. Gordon will testify that the voice on the tape does not belong to him. Should the tape be admitted into evid

B. Yes. Agent Donovan's testimony is sufficient to authenticate the voice as Gordon's. Special Agent Donovan's testimony identifying the voice is sufficient to support a prima facie case that the voice on the tape belongs to Sam Gordon. Rule 901(5) states that a witness can give an opinion about the owner of a voice as long as the witness heard the voice at any time under circumstances that connect it with the alleged speaker. Although there is a dispute about this fact, the tape is authenticated unless no rational juror could conclude that the voice belonged to Gordon.

P has the burden of proving that D received a particular letter. There is a Thayer type presumption that a properly addressed and mailed letter was received. P testifies that he properly addressed and mailed it. D testifies about his routine office procedures designed to insure his prompt receipt of all incoming mail, and that he did not receive the letter. Which of the following is the most appropriate instruction: "Ladies and gentlemen of the jury, I charge you that A. the evidence whether the letter was received is conflicting. You may consider that the law presumes that a letter properly addressed and posted has been received, along with the other evidence in the case in deciding whether P has discharged his burden of proof." B. in order to find for P you must find that D received the letter by a preponderance of the evidence, and you may consider the fact that P testified that he mailed it and the fact that D denied receiving it in arriving at your decision." C. if you find that the letter was properly addressed and mailed, then D must convince you by a preponderance of the evidence that he did not receive it." D. if you find that it is more likely than not that the letter was m

B. in order to find for P you must find that D received the letter by a preponderance of the evidence, and you may consider the fact that P testified that he mailed it and the fact that D denied receiving it in arriving at your decision." With a Thayer presumption, once the party opposing the presumption satisfies a burden of production, here evidence sufficient to support a finding that it is more probably true than not that the letter was not received, the presumption of receipt of the letter disappears. The jury is then instructed without any reference being made at all to a presumption.

George is on trial for assault. The prosecutor argues that George got in a fight with a man outside a bar and beat him severely. George testifies in his own defense, and tells the jury that he was not present at the bar; he was across town at home eating dinner at the time the beating occurred. George then calls a character witness. Which of the following statements by the character witness would most likely be admissible? A. "George is a very generous man; he gives thousands of dollars to charity every year and volunteers his time at the local homeless shelter." B. "I have known George for ten years and in my opinion he is an honest and trustworthy person who never lies." C. "I have known George for ten years and in my opinion he would never be violent against anyone." D. "Last year I was with George when a man came up to him and tried to pick a fight. The man was insulting George, he called George

C. "I have known George for ten years and in my opinion he would never be violent against anyone." Rule 404(a) allows a defendant to call a character witness to testify about a pertinent character trait of the defendant. Whether George has a violent propensity is a pertinent character trait.

Tracy is suing Windham Ladder Co., claiming that their ladder was manufactured with a design defect. She testifies on direct that the first time she used the ladder, it collapsed and she fell to the ground, breaking her ankle. Which question would most likely be permitted during cross-examination? (Assume that the opposing party has a good faith basis for believing that all of the facts being asked about are true). A. "Isn't it true that you have had three children out of wedlock?" B. "Isn't it true that you were fired from your job for being late to work ten times in a month?" C. "Isn't it true that you lied on your mortgage application when you tried to buy a house last year?" D. "Isn't it true that you owe thousands of dollars in credit card debt?"

C. "Isn't it true that you lied on your mortgage application when you tried to buy a house last year?" This is evidence of a prior dishonest action, and it is therefore relevant to Tracy's credibility and is admissible under Rule 608(b). The opposing party is allowed to ask the question, but she is stuck with the answer—that is, she cannot prove the false statement with extrinsic evidence.

Which of the following opinions would most likely be admissible? A. The defendant's wife, who has lived with the defendant for fifteen years but has no training as a psychologist, will testify that in her opinion, the defendant had a mental disability at the time of the crime and so could not distinguish between right and wrong. B. A traffic officer with twenty years experience who personally observed the car accident between the plaintiff and the defendant will give her opinion that the defendant was negligent in the accident. C. A narcotics detective with twelve years experience will testify that based on the amount of drugs recovered from the defendant and the way they were packaged, the defendant had an intent to sell the drugs. D. A homicide detective with ten years experience conducting interrogations will testify that based on the defendant's demeanor during his interrogation, in his opinion the defendant's confession was genuine.

C. A narcotics detective with twelve years experience will testify that based on the amount of drugs recovered from the defendant and the way they were packaged, the defendant had an intent to sell the drugs. This witness is qualified to be an expert, and the testimony he is giving is well within his expertise. This testimony does not violate Rule 704's bar on opinions on an ultimate issue, because he is not basing his opinion on any knowledge about the defendant's mental state but instead based on the objective factors such as the amount and packaging of the drugs.

A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation's files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had "lack of corporate spirit" listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union's lawyer asked that the chart be admitted into evidence. The corporation's attorney objected. How should the court rule on the admiss

C. Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial. The chart is admissible because the original documents are in the corporation's files. The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying. Here, the underlying documents belonged to the adverse party, and thus the corporation had unlimited access to them.

Dana is on trial for child abuse. The prosecution's theory is that on October 5th, Dana got angry at her six-year-old son for having stained the carpet in her bedroom, and so she struck him multiple times, causing significant bruising to his face and body. Which of the following evidence (if any) should be excluded as IRRELEVANT to the prosecutor's case?' A. On October 12th, Dana's son told his teacher at school that a week before his mother had hit him and made him cry. B. One year ago, Dana's son was removed from her by the state for six months because Dana hit him in the face with a coffee mug and broke his jaw. C. All of the above facts are relevant to the case. D. Dana did not send her son to school for five days after October 5th.

C. All of the above facts are relevant to the case. All of the above facts are relevant because they have a tendency to make a material fact (that Dana did indeed strike her son) more probable than it would be without the evidence. Some of this evidence is barred as propensity evidence or by the hearsay rule, but the question asks about relevance, not admissibility.

Damon is on trial for vehicular manslaughter after he allegedly killed a ten-year-old child while driving. The prosecutor has three witnesses. The father of the victim will testify that he saw Damon swerve off the road and up onto the lawn, where he struck the child. The police officer who responded to the scene will testify that Damon was crying and distraught a few minutes after the incident, and said that he only looked away from the road for a second to check his cell phone. A coroner will also testify that he examined the child's body and that the cause of death was massive trauma to the chest, likely caused by a car. Damon objects to the father's testimony as unfairly prejudicial. He notes that the father will no doubt be very emotional when he testifies about his son's death and that this extreme amount of emotion will unfairly influence the jury. Damon is willing to agree to admit that he swerved off the road, up onto the lawn, and struck the child. Damon says that once he has admitted this fact, the father's testimony has little extra probative value and should be precluded. The prosecutor still wants the father to testify. Should the court allow the father to testify? A. Allow

C. Allow the father to testify with no limiting instruction. Although there will be some level of unfair prejudice when the jury sees the father react emotionally on the stand, his testimony is extremely probative because he is an eyewitness to the event. Courts routinely allow victims and others with close relationships to the case testify even though they may display emotion; the unfair prejudice does not substantially outweigh the probative value of this testimony.

Coding, Inc. is suing Icarus Software. Coding argues that the find-and-replace function of Icarus' new word processing program violates the patented find-and-replace function that Coding uses in its own word processing program. Icarus claims that its software does not violate the patent, and Icarus further claims that Coding's patent for the find-and-replace function is invalid because it patented a technique that was already in the public domain. Assume that the three elements to prove patent infringement under the federal patent act are (1) the plaintiff owns a patent; (2) the patent is valid; and (3) the defendant's product violates that patent. The federal patent act states that any party challenging the validity of a patent has the burden of persuasion and must prove the patent's invalidity by clear and convincing evidence. What is the best description of each party's burden of proof in the case? A. As the plaintiff, Coding must prove by a preponderance of the evidence that it has a patent, that the patent is valid, and that Icarus violated that patent. If Coding succeeds in proving these three facts, then Icarus must prove the patent is invalid by clear and convincing evidence. B

C. As the plaintiff, Coding must prove by a preponderance of the evidence that it has a patent and that Icarus violated that patent. If Coding succeeds in proving these two facts, then Icarus must prove the patent is invalid by clear and convincing evidence. The presumption in the federal patent law controls, and therefore Coding has no burden of persuasion on the element of the patent's validity. However, as the plaintiff, Coding still has the burden of persuasion for every other element of its claim.

Bernard was on trial on ten counts of conspiracy to sell narcotics and for arranging the murder of an undercover police officer. The chief investigator in the case, Detective Mums, has been investigating the case for six months and has helped the prosecutor prepare and coordinate the seventeen witnesses necessary to prove their case. The prosecutor tells the court that the detective is essential to her presentation. Detective Mums also plans on testifying in the case herself. Bernard intends to testify in his own defense. He also intends on calling his brother as a character witness. Before the trial begins, the judge issues a ruling under Rule 615 to sequester the witnesses. Who of the following is required to leave the courtroom? A. Bernard. B. Detective Mums. C. Bernard's brother. D. The widow of the murdered undercover police officer, who wishes to watch the entire trial even though she will not be called as a witness in the case.

C. Bernard's brother. Rule 615 requires most witnesses to be excluded from the courtroom, and there is no exception for character witnesses or family members of parties.

A plaintiff prevailed in a jury trial against a defendant for personal injuries resulting from an automobile accident. During jury deliberations, the jury disregarded the instructions given by the trial judge. One juror showed the others a newspaper account of the accident. Another juror expressed his dislike for the defendant. The jury also misunderstood the burden of persuasion. The defendant wants to call a juror to testify as to each of these facts in a post-verdict proceeding. About which of these facts may a juror testify in a post-verdict proceeding? A. During jury deliberations, one juror expressed a personal dislike for the defendant. B. The jury misunderstood the burden of persuasion. C. During jury deliberations, one juror showed the other members of the jury a newspaper account of the accident. D. The jury disregarded the instructions given by the trial judge.

C. During jury deliberations, one juror showed the other members of the jury a newspaper account of the accident. The Federal Rules generally prevent a juror from testifying in post-verdict proceedings as to matters or statements occurring during the course of jury deliberations. However, a juror may testify as to extraneous, prejudicial information that was improperly brought to the jury's attention or some outside influence that was improperly brought to bear upon any juror. Thus, a juror may testify to the other juror's bringing a newspaper account into the jury room.

A woman, the named beneficiary of her boyfriend's life insurance policy, sued the life insurance company for the proceeds of the policy. The insurance policy provides that double benefits should be paid in the case of the insured's accidental death, but no benefits are to be paid in the case of the insured's suicide.The woman has the burden of proving that her boyfriend did not commit suicide. State law provides for a presumption that a death by violent means is not a suicide. The insurance company claims that the boyfriend committed suicide. If accidental death and suicide are the only two possible causes of death, the woman conclusively proves death occurred by violent means, and the insurance company produces no evidence to show that the boyfriend committed suicide, how should the trial judge rule? A. Let the jury decide the question of suicide, instructing it that the burden of persuasion is on the woman. B. Enter judgment as a matter of law for the insurance company, because the woman has not met the burden of going forward on the issue of accidental death. C. Enter judgment as a matter of law for the woman, because absent countervailing evidence, the presumption against suicide

C. Enter judgment as a matter of law for the woman, because absent countervailing evidence, the presumption against suicide requires such a judgment. A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut, in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption. In this case, the basic fact is that the boyfriend died by violent means. The presumed fact is that the boyfriend did not commit suicide. Since the question specifies that the woman conclusively proved that the boyfriend died by violent means, the woman is entitled to the benefit of the presumption that the boyfriend did not commit suicide. Thus, the jury must find that the boyfriend did not commit suicide, unless there is contrary evidence produced by the insurance company. Since the insurance company introduced no evidence to rebut the presumption against death by suicide, and since the question specifies that suicide and accidental death are the only two possibilities, the woman is entitled to a judgment in her favor.

A tourist was struck and killed at a street crossing by an automobile. The accident was witnessed by a bystander and by the tourist's wife. The wife brought an action against the automobile driver for wrongful death, alleging excessive speed, failure to observe traffic signals, and defective brakes. A witness for the driver was called to testify that the driver enjoyed a reputation for being a safe and prudent driver based on his personal knowledge of the driver's driving habits. How should the trial judge rule on the witness's testimony? A. Admissible, because, where there are no unbiased eyewitnesses to an accident, reputation as a safe driver may be used to prove the driver acted in conformity with that reputation at the time in question. B. Admissible, because the witness first testified that he has personal knowledge of the driver's driving habits. C. Inadmissible, because evidence of a reputation as

C. Inadmissible, because evidence of a reputation as a safe and prudent driver cannot be used to prove that the driver acted in conformity with that reputation at the time in question. The judge should rule the witness's testimony inadmissible. This question involves the admissibility of propensity evidence. The driver's witness is prepared to testify that the driver has a reputation for being a safe and prudent driver, which the driver plans to use to prove that, because he has a propensity for driving safely, he was in fact driving safely at the time of the accident. This is a classic case of the impermissible use of propensity evidence. The general rule is that evidence of character traits (here, safety and prudence) is inadmissible in a civil case to prove that a party acted in conformity with those traits on a particular occasion. [Fed. R. Evid. 404(a)] This case fits squarely within that general rule.

A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant's attorney called the clerk's employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him. How should the trial judge rule on the admissibility of this testimony? A. Admissible, because it has bearing on the clerk's truthfulness and veracity. B. Admissible, because it tends to show that the clerk is an unreliable witness. C. Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.

C. Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter. The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant's face, and so the color of the gun is not material to any issue in the case under the facts given.

In a trial, proof that a written notice of a defective condition was sent by the plaintiff and received by the defendant is an essential element of the plaintiff's case. The plaintiff gave the defendant a notice to produce the original document, and the defendant failed to respond. The plaintiff's attorney introduced evidence from which a jury could find that the letter containing the notice was mailed, postage prepaid and addressed to the defendant. The defendant introduced no evidence whatsoever concerning his receipt of the letter. How should the trial judge proceed? A. Instruct the jury that it is up to them to decide if the defendant actually received the letter, and if it finds that the letter was mailed, that there is a presumption present which shifts the burden of persuasion on this issue to the defendant. B. Enter judgment as a matter of law against the plaintiff, because the plaintiff has not sustained the burden of going forward with the evidence on the issue of notice. C. Instruct the jury that if they find that the letter was mailed, they must find that the defendant received it. D. Instruct the jury that they must find that the defendant received the letter.

C. Instruct the jury that if they find that the letter was mailed, they must find that the defendant received it. A jury must find a presumed fact, if it finds a basic fact and no evidence is introduced on the presumed fact. In this case, the plaintiff introduced evidence on the basic fact, and the jury was properly instructed of its function to determine if the basic fact was proven. The instruction, however, is incorrect, because the fact that there is a presumption present has nothing to do with the burden of persuasion, which remains on the plaintiff.

Which of the following statements regarding judicial notice is most accurate? A. Once a court takes judicial notice of a fact in any proceeding, the jury is required to accept that fact as conclusive. B. If a court on its own authority takes judicial notice of a fact, a party is not entitled to a hearing as to the propriety of the action. C. Judicial notice of a fact may be taken for the first time during the appellate stages of litigation. D. A court may take judicial notice of a fact only when requested by one of the parties.

C. Judicial notice of a fact may be taken for the first time during the appellate stages of litigation. Judicial notice may be taken at any stage of the proceedings, including during appellate review.

A witness testified against a defendant in a contract action. The defendant then called the witness's neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness's employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago. Is the employee's testimony admissible? A. Yes, because the hoax resulted in a conviction of the witness. B. Yes, because a hoax involves untruthfulness. C. No, because it is extrinsic evidence of a specific instance of misconduct. D. No, because it is merely cumulative impeachment.

C. No, because it is extrinsic evidence of a specific instance of misconduct. The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it.

In its lead editorial in the Sunday edition, a suburban daily newspaper characterized a real estate developer as a "common thief." The developer promptly filed suit against the newspaper for defamation. During the course of the presentation of the plaintiff's case, he sought to put a witness on the stand who is prepared to testify that the plaintiff once saved the life of a fellow soldier in combat. If the newspaper's lawyer objects, should the court rule that the testimony is admissible? A. No, because specific instances of conduct are not admissible to prove character. B. Yes, because the plaintiff's character has been brought into question by the editorial. C. No, because the witness's testimony is not probative of any material issue. D. Yes, because the plaintiff has a right to introduce evidence of his good character.

C. No, because the witness's testimony is not probative of any material issue. The witness's testimony is inadmissible because it is not probative of a material issue (i.e., whether the plaintiff is a thief). Relevant evidence tends to prove or disprove a material fact in issue. Here, the testimony tends to prove that the plaintiff is brave and selfless, but it is not relevant as to the fact in issue, which is whether he is honest.

A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant. Is the testimony of the chemist admissible? A. Yes, because the chemist qualifies as an expert witness. B. No, because he did not take the original blood sample at the scene of the crime. C. No, because there is insufficient evidence of chain of custody. D. Yes, because there has been proper authentication.

C. No, because there is insufficient evidence of chain of custody. The testimony is inadmissible because it has not been shown what happened to the blood between the time the officer took it and the time the chemist examined it. Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody. In the absence of a substantially unbroken chain of custody, the evidence is inadmissible for lack of proper authentication.

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

C. No, because there is sufficient evidence that the gun belonged to the defendant. 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.

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, as a matter of right, because the witness "opened the door" by his denial on cross-examination. B. Yes, in the judge's discretion, because the witness's credibility is a fact of major consequence to the case. C. No, because whether the witness lied in his application

C. No, because whether the witness lied in his application is a matter that cannot be proved by extrinsic evidence. 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.

Officer Farnsworth, Officer Young, and Officer Deason responded to a 911 call at a bar and found a man named Quincy throwing beer mugs and screaming at the other patrons. One of the beer mugs had hit another man in the head, and the man was bleeding severely. Officer Farnsworth began tending to the injured man, Officer Young approached Quincy, and Officer Deason stayed back to provide cover for Officer Young. Quincy had a broken beer bottle in his hand and was threatening Officer Young with it. Within a few seconds, a struggle ensued, in which Officer Young wrestled Quincy to the ground and began kicking him in the head to subdue him. Quincy was ultimately arrested, and he suffered permanent brain damage as a result of the kicks. Quincy sued the police department, arguing that Officer Young used excessive force in apprehending him. The defendant police department called both Officer Farnsworth and Officer Deason as witnesses. Officer Deason testified that she observed the entire encounter, and in her opinion, Officer Young used necessary force when he kicked Quincy because Quincy was attempting to stand up and stab Officer Young with the beer bottle and the kicks were the only thing keep

C. Officer Deason's testimony was admissible, but Officer Farnsworth's was not. Officer Deason's testimony was rationally based on her perception, was helpful to the jury, and was not based on scientific or expert knowledge. She was using her personal experience as a police officer in order to come to the conclusion that the kicks were necessary, and basing an opinion on personal knowledge does not make the opinion an expert opinion. Thus, her opinion is admissible under Rule 701. However, Officer Farnsworth did not personally observe the kicking, and so his opinion in response to a hypothetical question is an expert opinion and not admissible as a lay opinion.

A woman was struck by a brick with her name scrawled on it that was thrown through her bedroom window. The victim believes that her ex-boyfriend, who is a gang member, threw the brick because she has become active in anti-gang groups, but she did not actually see him throw it. If the ex-boyfriend is arrested and put on trial for battery, which of the following items of the victim's proposed testimony is LEAST likely to be admitted? A. Immediately after the brick went through her window, the victim heard a voice she recognized as her ex-boyfriend's yell, "If you don't start minding your own business, you'll get a lot worse than this next time!" B. The victim had testified against a member of her ex-boyfriend's gang last month in a drug case. C. On another occasion, the victim had seen her ex-boyfriend throw a rock through the window of a rival street gang member. D. The victim recently moved to a new

C. On another occasion, the victim had seen her ex-boyfriend throw a rock through the window of a rival street gang member. Evidence of the defendant's other crimes or misconduct is admissible only if relevant to some issue other than the defendant's character or propensity to commit the crime charged. Such acts would be admissible to show motive, intent, absence of mistake, identity, or a common plan or scheme. Of these, the only one possibly relevant to these facts is identity. Evidence that the accused committed prior criminal acts that are so distinctive as to operate as a "signature" may be introduced to prove that the accused committed the act in question. Merely throwing an object, such as a brick, through a window could not be considered so distinctive as to operate as a signature. Thus, this evidence would not show identity. The only possible reason for offering the evidence is to show the ex-boyfriend's propensity to commit the crime charged, in which case the testimony will be inadmissible.

Sandy is on trial for selling crack cocaine. To prove the crime, the prosecutor will call Officer Grange, an undercover officer who will testify that he approached Sandy and that she gave him a rock of crack cocaine inside of a red balloon. Sandy argues that she was not the one who sold Officer Grange the cocaine—she was merely standing next to the seller, and the police arrested the wrong person. The prosecutor also wants to call Officer Hansen, an undercover officer who purchased crack cocaine from Sandy one year ago. Sandy was arrested for that crime, pled guilty, and served six months in jail. Officer Hansen will testify that when he bought the crack cocaine from Sandy one year ago, she gave him the cocaine inside a red balloon. Is Officer Hansen's testimony admissible? A. No, his testimony is not admissible. B. Only if the judge determines that the probative value of her propensity to sell cocaine outweigh

C. Only if the judge is convinced that using red balloons to package crack cocaine is a distinctive and unusual practice for drug dealers. This evidence is offered in order to prove identity under Rule 404(b)—that is, to prove that since Sandy was the one who sold drugs in this distinctive way one year ago, it is more likely that she was the one who sold drugs in this distinctive way in the current case. The prior act was only one year ago, and so it is close enough in time that it is not remote. This evidence has no probative value for this purpose unless the judge determines that packaging crack cocaine inside a red balloon is distinctive and unusual.

Harold is suing Avery claiming that Avery ran a red light in her car and struck him as he crossed the street in a crosswalk. Avery claims that the light was green when she entered the intersection and that Harold was crossing the street against the light. Harold wants to call Ronald, Avery's co-worker. If allowed to testify, Ronald will say that he has ridden with Avery hundreds of times and that Avery has a "habit of being a reckless driver." Ronald will support this claim by testifying that Avery routinely runs red lights, drives at speeds significantly over the speed limit, and is inattentive to the road. Harold objects to this testimony. Should the judge admit or preclude Ronald's testimony? A. Preclude the evidence as irrelevant. B. Admit the evidence, but then allow Avery to call a witness who will testify about what a careful driver she is. C. Preclude the evidence as improper propensity evidence.

C. Preclude the evidence as improper propensity evidence. Although Ronald will testify using the word "habit," this testimony is not actually habit testimony as defined by Rule 406. Habit is a regular and specific response to a specific type of situation. This testimony is not specific enough to be habit—it is purely propensity evidence and thus inadmissible in a civil case under Rule 404.

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 character cannot be proven by specific instances of conduct. B. Improper, because an impeaching witness cannot be impeached. C. Proper, as an attack on the witness's credibility.

C. Proper, as an attack on the witness's credibility. The Federal Rules permit inquiry on cross-examination of a witness into a specific instance of that witness's conduct that is probative of the witness's character for truthfulness. In this case, a question about the filing of a fraudulent income tax return is probative of the truthfulness of the witness. Therefore, the question is admissible in the court's discretion.

Which of the following facts would a court be most likely to take as judicially noticed? A. The fact that an individual who is carrying various credit cards that each have a different name on them has an intent to commit credit card fraud. B. The fact that a witness had been previously convicted of a crime. C. The fact that Barack Obama was re-elected President of the United States in 2012. D. The fact that drinking alcohol is bad for your health.

C. The fact that Barack Obama was re-elected President of the United States in 2012. A fact should be judicially noticed only if it is (1) beyond dispute and (2) it is generally known OR can be accurately verified by an unimpeachable source. The fact of Obama's reelection in 2012 is both beyond dispute and is generally known (and can also be verified by any number of unimpeachable sources).

A defendant was charged with larceny of a shipment of goods in interstate commerce. The essential elements of the prosecutor's case are that the goods must be valued in excess of $10,000 and that they were in transit in an interstate shipment. The prosecution has alleged that the defendant siphoned gasoline from a tanker truck en route between cities in two states. Upon request from the prosecution, the judge took judicial notice of the fact that the cities are in different states. What is the proper instruction for the judge to give to the jury on this matter? A. The jury must find that the cities are in different states. B. The burden of disproving that the cities are in different states has shifted to the defendant, who must disprove this fact by a preponderance of the evidence. C. The jury may find that the cities are in different states, but it is not required to do so. D. The burden of disproving that the cities are in different states has shifted to the defendant, who must disprove this fact beyond a reasonable doubt.

C. The jury may find that the cities are in different states, but it is not required to do so. Because this is a criminal case, the jury is not required to accept the fact that has been judicially noticed. If this were a civil case, this would be the correct answer choice because a matter judicially noticed in a civil case is conclusively established.

In the Conference Report on enacted Rule 301 is found the following sentence: "If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic fact [exists], it may presume the existence of the presumed fact." Based on your understanding of how presumptions work in civil cases under adopted Rule 301, choose the correct statement. A. The statement should state that the jury must find the presumed fact because the party against whom the presumption runs has failed to meet its burden of persuasion. B. The above-quoted statement is correct. C. The statement above should read "the jury . . . must presume . . . the presumed fact." D. The above-quoted statement should include a statement that the jury must find the presumed fact only if they believe the presumed fact logically follows from the basic fact.

C. The statement above should read "the jury . . . must presume . . . the presumed fact." Rule 301 adopts the Thayer bursting bubble theory of presumptions. Under the Thayer bursting bubble theory if the party opposing the presumption offers no evidence as to the existence of the presumed fact, the jury should be instructed that if they find the basic facts, they must find the presumed fact.

A leading question is one that suggest to the witness the answer desired by the examiner. Rule 611(c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination? A. When the direct examination is conducted during a videotaped deposition of a witness. B. When counsel is attempting to rehabilitate the testimony of the witness on re-direct examination. C. When the witness being examined on direct is an adverse party or a hostile witness. D. When both counsel stipulate that they'll not object to any leading questions during trial.

C. When the witness being examined on direct is an adverse party or a hostile witness. Under Rule 611(c)(2), Mode . . . of Examining Witnesses . . .; Leading Questions, when the witness is hostile or adverse, leading questions as if on cross-examination may be used.

The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, "Isn't it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?" The waiter responded, "Yes, but I wasn't trying to steal anything. I just forgot to charge them." The defense then asked, "Isn't it a fact that last month you threw a rock through the plate glass window at the restaurant?" The waiter replied, "That's not true; I was there but I didn't throw the rock." The defense then offered the testimony of a witness who was prep

C. Yes, as evidence of bias. The witness's testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant's window, because such evidence would help establish the waiter's bias against the restaurant.

An automobile driver struck and killed a pedestrian at a street crossing. The pedestrian's wife witnessed the accident. The wife later brought an action against the driver for the wrongful death of her husband, alleging excessive speed, failure to observe traffic signals, and defective brakes. At trial, the wife was called to testify that her husband was in the middle of the intersection when he was run over by the driver. Is the wife competent as a witness? A. No, because a witness may not testify about transactions or communications with a person since deceased. B. Yes, as long as she is the executor of her husband's estate. C. Yes, as long as she takes an oath or affirmation to testify truthfully. D. No, because she has an interest in the outcome of the lawsuit.

C. Yes, as long as she takes an oath or affirmation to testify truthfully. A witness is competent if she: (i) has personal knowledge of the matter she is to testify about; and (ii) declares that she will testify truthfully, by oath or affirmation. The first requirement is certainly met because the wife witnessed the accident. Thus, she is competent to testify as long as she declares that she will testify truthfully.

In a negligence action, a witness testified for the plaintiff. The defendant later called the witness's neighbor, who testified that the witness has a poor reputation for truthfulness.On cross-examination of the neighbor, the plaintiff's attorney asked, "Isn't it a fact that when you bought your new car last year, you made a false affidavit to escape paying the sales tax?"Is the question proper? A. No, because character cannot be proved by specific instances of conduct. B. No, because one cannot impeach an impeaching witness. C. Yes, because it bears on the neighbor's credibility.

C. Yes, because it bears on the neighbor's credibility. Inquiry on cross-examination of a witness into a specific instance of that witness's conduct that is probative of the witness's character for truthfulness is allowed. Here, filing a false affidavit is probative of the neighbor's truthfulness, and thus the question is proper.

A plaintiff was injured when a portion of a spiral stairway in a shopping mall collapsed. The plaintiff filed suit against both the owners of the mall and the designers of the staircase. At the trial of the case, the plaintiff wishes to call a highly qualified civil engineer to the stand to testify as an expert witness. The expert is prepared to testify that the spiral staircase was improperly designed, and the design defect caused a portion of the staircase to collapse under the plaintiff. The expert's proposed testimony is based in part upon a series of photographs taken by a structural engineer hired by the expert immediately after the expert was engaged by the plaintiff's attorney, and the accompanying report by the structural engineer. It is customary for civil engineers to form professional opinions based on these reports. The photographs are of the collapsed stairway and of an identical stairway located in another part of the mall. Neither the photographs nor the report has been admitted into evidence, but the expert is willing to disclose to the jury the facts on which he relied in forming his opinion. Should the expert's testimony be ruled admissible? A. No, because the expert

C. Yes, because other civil engineers ordinarily reasonably rely on structural engineers' reports in forming professional opinions. Federal Rule 703 does not require an expert to disclose the facts on which he relied in forming his opinion. In fact, the proponent of the expert opinion must not disclose those facts to the jury (because they may be of a type not admissible in evidence) unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence. Should the court sustain the objection? A. No, because the records were authenticated. B. No, because the character trait of a victim may be established by opinion eviden

C. Yes, because the character of a victim can be established only by reputation or opinion evidence. The court should sustain the objection because the records are evidence of specific bad acts. The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the person in question that demonstrates that person's character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bouncer's propensity to use excessive force.

As the result of a genetic disorder, Paul must inject himself with medicine after every meal. If he does not inject himself with the medicine, he becomes very ill. Paul is suing Big Medicine Corporation (BMC), the company that makes the medicine Paul uses. According to Paul, he injected BMC's medicine after a meal, but the medicine did not work, and Paul became very ill. Paul alleges that the medicine did not work because BMC failed to include an important ingredient. BMC denies that there was anything wrong with the medicine, and maintains that Paul must have forgotten to inject his medicine. To rebut BMC's allegations, Paul puts his friend Francie on the stand. Francie testifies that she has had 15 meals with Paul and that she recalls seeing him inject himself with his medicine "at least 14 times." Should the court admit this evidence? A. No, because it is character evidence is generally excluded to show p

C. Yes, because the conduct is sufficiently regular and suggests Paul's habit of using the medication after every meal. This is proper habit evidence under Rule 406, Habit. Habit evidence is admissible as long as there is testimony that a specific activity is done on a regular and/or repeated basis.

The key witness in the prosecution's case against the defendant is the only eyewitness to have seen the commission of the felony for which the defendant is being charged. The witness, a recent immigrant, has a total hearing impairment and is mute. In addition, the system of "signing" for the deaf is different in the witness's country of origin from the method used in the United States. The only person in the county conversant with the witness's signing method is a clerk in the county prosecutor's office. The clerk had assisted the police in their questioning of the witness prior to the defendant's arrest, and also when the witness identified the defendant in a lineup. Should the court allow the witness to testify using the clerk as an interpreter? A. No, unless the clerk discloses to the jury her employment and previous activities in this case. B. Yes, because the clerk is qualified. C. Yes, if the clerk takes an oath to make a true translation. D. No, because as a result of her employment and previous activities, the clerk is inherently biased.

C. Yes, if the clerk takes an oath to make a true translation. The court should allow the witness to testify if the clerk takes an oath to make a true translation. The services of an interpreter may be used where a witness, due to language problems or other reasons, would otherwise have difficulty communicating. Under Federal Rule 604, an interpreter must meet the qualifications required of an expert witness (i.e., by reason of knowledge, skill, experience, training, or education, she is capable of providing a true translation). Also, an interpreter must take an oath or affirmation that she will make a true translation (i.e., that she will communicate exactly what the witness is expressing in his testimony). Here, the witness will have extreme difficulty communicating, due to the fact that he uses a signing method different from that which is used in the United States. Thus, the circumstances allow the use of an interpreter to assist the witness in communicating at the trial. Here, the facts establish that the clerk is the only person qualified to act as an interpreter for the witness. If, as this option states, the clerk takes an oath to communicate what the witness expresses in his testimony, then the requirements of Rule 604 are met.

Barry is on trial for possession of heroin with intent to sell. The prosecutor proves that Barry was caught in possession of sixty small baggies of heroin. The prosecutor asks the judge to take judicial notice of the fact that anyone with sixty bags of heroin intends to sell the heroin because that amount is far more than anyone would personally use. Should the judge take judicial notice of this fact? A. No, because a judge may not take judicial notice of a fact in a criminal case. B. Yes, if the judge has sufficient personal experience with individuals using or buying heroin so that she knows herself that sixty bags must mean that the defendant intended to sell the heroin. C. Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area. D. Yes, if the judge has tried so many heroin cases that she knows herself that sixty bags must mean that the defendant intended to sell the heroin.

C. Yes, if the judge determines that this fact is beyond reasonable dispute and generally known to individuals in that area. Rule 201(b) states that a judge should take judicial notice of a fact if it is not subject to reasonable dispute and (1) is generally known or (2) can be accurately or readily determined from an unimpeachable source.

Sarah's boyfriend George was killed in his own kitchen with a knife early one morning. He had a knife in his hand. When the police responded to the call, they found Sarah in the kitchen crying, and the back door to the house was open. When the police asked Sarah what happened, she said nothing. The police continued their investigation over the next two weeks and came to the conclusion that Sarah's grown son Andrew had killed George. The police arrested Andrew and charged him with murder. At trial, Andrew called his mother Sarah as a witness. She testified that she was the one who killed George and that she acted in self-defense. She testified that George had come home drunk and began arguing with her and then grabbed a knife and swung it at her chest and that she was able to grab her own knife and stab him in the chest. She also testified that she washed the knife she used and put it back in the drawer before the

C. Yes, the question is admissible to impeach Sarah because silence in this context is inconsistent with her testimony of self-defense, since it would be natural for Sarah to have told the police about what happened when asked earlier. If an individual remained silent during a period of time when she would reasonably be expected to make a statement, under Rule 613 that silence can be interpreted as "inconsistent" with her current testimony that she was the one who killed the victim.

In a trial for bank robbery, a teller has identified the defendant as the robber. Defense counsel offers into evidence a still frame from a video taken by the bank security camera the day after the robbery to show that a column obstructed that teller's view of the defendant. Is such evidence admissible? A. No, not admissible into evidence but usable by a witness for explanatory purposes. B. No, if a still frame can be obtained from a video taken at the time of the robbery. C. Yes, upon testimony by a bank employee that the photo accurately portrays the scene of the crime. D. Yes, upon testimony by the camera operator that the still frame was developed from film that was taken from that camera the day after the robbery.

C. Yes, upon testimony by a bank employee that the photo accurately portrays the scene of the crime. The photo should be admitted into evidence upon testimony that it is an accurate representation of the location depicted. To be admissible, real or demonstrative evidence must not only be relevant but must also be authenticated, i.e., identified as being what the proponent claims it to be. For a photograph that is used as demonstrative evidence, authentication is by testimony that the photo is a faithful reproduction of the object or scene depicted. Here, testimony by a bank employee that the still frame from the video accurately portrays the setting where the robbery took place is sufficient for admissibility.

Prosecution of D for being a habitual criminal. Assume that in order to prove its case, the prosecution must demonstrate that D had been convicted of three felonies in the last fifteen years. At trial, the prosecution calls W, who testifies that she is a newspaper reporter whose beat has been the courthouse for twenty years. W then testifies that she has personally observed three trials in which D was found guilty of felonies. The testimony concerning W's observations is: A. inadmissible because W lacks personal knowledge. B. inadmissible because it violates the Original Writing Rule. C. admissible.

C. admissible. A conviction occurs when the jury returns its verdict. A conviction is thus an event that exists independent of the record of conviction made to memorialize the event. Thus Rule 1002, the Original Writing Rule, does not prevent a person from testifying on personal knowledge as to the three prior convictions.

A "conclusive presumption": A. will be declared invalid unless there is a rational connection between the basic (foundation) facts and the presumed facts. B. may be rebutted only by clear and convincing evidence. C. cannot be rebutted even if a party possesses positive proof that it would lead to factual inaccuracy in the particular case. D. shifts the burden of persuasion to the party against whom it operates.

C. cannot be rebutted even if a party possesses positive proof that it would lead to factual inaccuracy in the particular case. A "conclusive presumption" is not truly a presumption because it cannot be rebutted by evidence. A conclusive presumption is best thought of as a substantive rule of law.

Sandy is arrested by the police for robbery. In which of the following situation is Sandy's confession LEAST likely to be admissible if offered by the prosecutor against Sandy? (Assume all Miranda rules have been complied with; i.e., there are no constitutional problems with any of the statements). A. A few hours after the arrest, a police officer tells Sandy that she should "come clean," and if she tells the truth now, the prosecutor "might cut you a deal." Sandy confesses to the robbery. B. A few hours after the arrest, Sandy meets with the prosecutor. The prosecutor says: "You're in a lot of trouble. I may be able to help you out, but I need to know your side of the story." Sandy confesses to the robbery. C. A few hours after the arrest, Sandy meets with the prosecutor. The prosecutor says: "We have your partner in the next room, and he is telling us everything about what happened. He's hanging you out to dry. If I were you, I would start cooperating too—otherwise you are going to be left out in the cold." The prosecutor is lying—the partner has not been apprehended—but there is no way for Sandy to know this. Sandy confesses to the robbery. D. A few hours after the arrest, a polic

D. A few hours after the arrest, a police officer tells Sandy: "I just got off the phone with the prosecutor. She told me that she would be willing to charge you with a misdemeanor if you plead guilty at the arraignment and tell us right now the name of the person who committed this robbery with you." The police officer is lying—he has not spoken to the prosecutor—but there is no way for Sandy to know this. Sandy confesses to the robbery. Rule 410 will probably bar these statements. As long as the defendant reasonably believes she is engaging in a plea bargain, Rule 410 will protect his statements. In this case, although the police officer does not have the authority to make a bargain, the defendant does not know this, and his belief that he is plea bargaining is reasonable.

Louis was pulled over for speeding by Officer Gareth of the Tarrytown Police Department. During this encounter, Officer Gareth allegedly ordered Louis out of the car and then struck him six times with his nightstick when Louis insulted him. Louis is now suing Officer Gareth and the Tarrytown Police Department, alleging that Officer Gareth used excessive force against him and that the Tarrytown police department failed to properly train, supervise, and discipline Officer Gareth. In his case-in-chief, Louis seeks to admit evidence that on three prior occasions in the past year, Officer Gareth had beaten motorists after he pulled them over for speeding. This evidence is: A. Admissible against Officer Gareth to prove he has a propensity for violence, but not against the Tarrytown Police Department. B. Admissible against Officer Gareth to prove he has a propensity for violence and against the Tarrytown Police Department

D. Admissible against the Tarrytown Police Department, but not admissible against Officer Gareth if offered to prove he has a propensity for violence. If the evidence is offered to prove that Officer Gareth has acted violently in the past and is, therefore, more likely to have acted violently on this occasion, it is improper character evidence and is barred by Rule 404. However, it is relevant in the case against the police department as evidence that the department knew (or should have known) that Officer Gareth was violent and therefore should have taken some measures (training, discipline, termination) to prevent him from acting violently again. Thus, Officer Gareth's character is directly at issue in the case against the police department, and the evidence is not barred by Rule 404.

Oliver is an eyewitness to an armed robbery, and at trial, he testifies for the prosecutor. On direct, he testifies that he was about to enter his bank when he saw the defendant running out of the bank carrying a gun. He identifies the defendant in court. On cross-examination, the defense attorney asks Oliver if he ever filed a false insurance claim for his home insurance. This question is: A. Inadmissible, because it is beyond the scope of Oliver's direct testimony. B. Admissible, but only if the defense attorney has a good faith basis for believing that Oliver has filed a false claim at some point and if the defense attorney gave advance notice to the prosecutor that he was going to ask the question. C. Inadmissible, because it is irrelevant to whether the defendant committed the crime. D. Admissible, as long as the defense attorney has a good faith basis for believing that Oliver has filed a false claim at s

D. Admissible, as long as the defense attorney has a good faith basis for believing that Oliver has filed a false claim at some point. Rule 608(b) allows an opposing party to impeach a witness with a specific act of a prior dishonest action as long as the opposing party has a good faith belief that the act occurred. There is no requirement for notice. The question is not beyond the scope of Oliver's direct examination because impeachment is never beyond the scope under Rule 611. And the question is not irrelevant because a witness's credibility is always relevant.

While working on a construction project, a plaintiff was injured when a heavy object struck his knee. Although the plaintiff was fully compensated for his injuries at the time of the incident, he now seeks disability payments from the construction company because he has developed arthritis in the same knee. The construction company claims that the arthritis has nothing to do with the plaintiff's on-the-job injury and refuses to pay him disability money. The plaintiff sues. A doctor takes the stand to testify for the plaintiff. He is qualified as an expert witness and during direct examination states that in his opinion the blow to the plaintiff's knee caused his arthritis. On cross-examination, the construction company's attorney produces a treatise on arthritis and asks the doctor if the treatise is considered to be authoritative. The doctor responds that the treatise is a standard authority in the field, but that h

D. Admissible, both as substantive evidence and for purposes of impeaching the doctor. The statement from the treatise is admissible to impeach and as substantive evidence. Under the Federal Rules, learned treatises can be used either for impeachment or as substantive evidence. One way the credibility of an expert witness may be attacked is by cross-examining him as to his general knowledge of the field in which he is claiming to be an expert. This can be done by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority. Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice. The Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority (see above). The doctor has admitted on cross-examination that the treatise is authoritative in the field. Thus, the attorney may use the statement in the treatise to attack the doctor's general knowledge of the field of arthritis by showing that the doctor's opinion that the blow to the plaintiff's knee caused his arthritis is considered to be ignorant and unfounded in the text of the treatise. As noted above, such an attack on the doctor's general knowledge of the field is a proper means of impeaching his credibility. In addition, pursuant to the Federal Rules, the statement may be read into the record as substantive evidence (i.e., as a means of proving that the plaintiff's arthritis could not have been caused by a single traumatic event, such as the blow to his knee). The statement may be used as substantive evide

Sidney was charged with murdering his colleague Jake. The prosecutor's theory of the case is that Jake and Sidney had been embezzling money from the company for which they both worked. The prosecutor then alleges that Jake had been feeling remorse about the crime and told Sidney he was going to the police to tell them of the crimes. Sidney then allegedly killed Jake. At trial, the prosecutor seeks to admit evidence of the embezzlement that Sidney and Jake had been involved in. Sidney's attorney objects, arguing that Sidney is not charged with the embezzlement crime, so the jury should not hear about it. Should the judge allow or preclude evidence of the embezzlement? A. Allow the evidence to prove that Sidney has the propensity to commit a crime, and so it is more likely he committed the crime of murder. B. Preclude the evidence under Rule 403, since the probative value of the evidence is substantially outweigh

D. Allow the evidence under Rule 404(b), because the evidence is not being offered to prove propensity to commit a crime but instead to prove Sidney's motive for committing the crime. The evidence has a high probative value to prove motive, and a very low level of unfair prejudice because the uncharged conduct of embezzlement is a very different kind of conduct than the homicide with which he is being charged.

Granger Machines manufactures farm equipment and vehicles. John Kerling, a farmer, owned a harvester that had been manufactured by Granger. On January 5th, the harvester malfunctioned while Kerling was using it, and Kerling's arm was cut off. One week later, on January 12th, Granger sent out a recall letter telling all owners of the harvester to take them into the local Granger dealer, to add on a safety shunt that would prevent such accidents in the future. Daniel Sampson was another farmer who owned a Granger harvester. On January 13th, Sampson's hand was cut off by the harvester. Although the recall letter had been sent out at that point, Sampson had not yet received it. On January 15th, Kerling and Sampson each separately sued Granger Machines, alleging that the harvester had a design defect. In their respective trials, Kerling and Sampson each attempted to admit the recall letter sent out by Granger as evidence that the harvester was defective. Is the recall letter admissible for this purpose? A. No, it is inadmissible in both Kerling's case against Granger and in Sampson's case against Granger. B. Yes, it is admissible in both Kerling's case against Granger and in Sampson's case

D. It is admissible in Sampson's case against Granger, but not Kerling's case against Granger. The letter is a subsequent remedial measure with regard to Kerling because it was an action taken by the defendant to make the harvester safer, and it was issued subsequent to the injury to Kerling. Thus, under Rule 407 it is inadmissible in Kerling's case if offered to prove the existence of a design defect. However, the letter was issued before the incident which led to Sampson's injury, so it is not a subsequent remedial measure with regard to Sampson and therefore will be admissible.

Stanley is accused of shooting and killing his wife. Stanley admits that he shot his wife, but claimed that it was an accident—that he had picked up the gun to see whether it was loaded and it went off. The prosecutor wishes to call Greg as one of her witnesses. Greg is one of Stanley's friends from the local bar, and Greg will testify that two weeks before Stanley shot his wife, Stanley offered Greg $1,000 if Greg would break into Stanley's house and kill his wife. Greg refused the offer, but never went to the police with the information until after Stanley's wife was killed. Stanley has not been charged with a crime for his offer to Greg. Can Greg testify about Stanley's offer? A. No, because character evidence is inadmissible. B. Yes, to prove intent and lack of accident. C. No, because it is unfairly prejudicial. D. Yes, to prove identity.

B. Yes, to prove intent and lack of accident. Greg's testimony might have been admissible under Rule 404(b) even if Stanley were not claiming that the shooting was an accident, in order to prove that Stanley intended to kill his wife. Since Stanley is claiming that the shooting was an accident, it increases the probative value of Greg's testimony significantly in order to rebut Stanley's claim.

Prosecution of D for child abuse on X, a three-year-old. The prosecution calls X and after establishing her name, asks her what happened on the occasion that is the subject of the prosecution. X hesitates and answers in a very soft voice that she doesn't remember. The prosecutor then asks, "Weren't you with D that day?" X answers, "I guess so. I'm not sure." The prosecutor then asks, "Do you remember that D touched you a few times?" X answers, "Yes." If D moves to strike X's testimony, the court should: A. deny the motion if it believes that the prosecutor has reasonable grounds to state these facts to X. B. grant the motion because it is improper to lead a witness on direct examination. C. deny the motion if it believes that the prosecutor's questions are necessary to develop X's testimony. D. grant the motion because X has not been shown to be a competent witness.

C. deny the motion if it believes that the prosecutor's questions are necessary to develop X's testimony. deny the motion if it believes that the prosecutor's questions are necessary to develop X's testimony.

Prosecution of D for murder. The prosecution calls W to testify. Before being seated on the witness stand, the bailiff approaches W and says, "Hey! This trial is serious business. Do you affirm on your grandmother's grave that you won't lie up here?" W answers, "You bet. I swear on both my grandmother's and Old Boston's graves." D objects to W's testifying. The court should: A. allow D to testify. B. refuse to allow W to testify because D's constitutional rights would be violated. C. refuse to allow W to testify if the court finds that no reasonable jury could believe W was taking his testimony seriously. D. refuse to allow W to testify because he has not taken a formal oath.

C. refuse to allow W to testify if the court finds that no reasonable jury could believe W was taking his testimony seriously. W appears not to have declared by either oath or affirmation to testify truthfully. An oath must refer to God. An affirmation is a promise to tell the truth. Most importantly, the witness to satisfy Rule 603 must evidence a serious belief in the obligation to tell the truth, which W has not.

Burglary prosecution. A witness testifies that he saw the defendant with the loot the day after the crime. On cross-examination, the witness is asked if he was drunk at the time. This cross-examination: A. is improper because it is not tailored to character for truth and sincerity. B. is improper because it is extrinsic. C. is improper because it is beyond the scope of the direct. D. is proper to impeach.

D. is proper to impeach.