Evidence

Under Illinois law, which statement is true regarding impeachment with evidence of prior convictions? A The court has discretion to exclude any type of conviction under the Rule 403 balancing test. B Only crimes involving dishonesty or false statement may be used to impeach a witness. C A conviction may be introduced regardless of when it occurred (i.e., no 10-year time limit). D Only felonies (not misdemeanors) may be used to impeach a witness.

A. In Illinois, as under the Federal Rule, a witness can be impeached by evidence of a previous conviction if the crime was (i) any felony, or (ii) any crime involving dishonesty or false statement. Illinois also follows the 10-year time limit on convictions. The main difference between Illinois and the Federal Rules is that Illinois applies the Rule 403 balancing test without distinguishing between the accused and other witnesses, and without regard to whether the prior conviction was for a felony or an offense involving dishonesty or false statement. (In contrast, under the Federal Rules, the court has no discretion to exclude convictions for crimes involving dishonesty or false statement; furthermore, for felonies not involving dishonesty or false statement, the court applies a different balancing test when the witness is the accused in a criminal case). C

Which of the following is true about spousal immunity (i.e., the general testimonial privilege) in Illinois? A Spousal immunity is not recognized in Illinois. B Spousal immunity is recognized in criminal cases only, and belongs to the witness-spouse. C Spousal immunity is recognized in criminal cases only, and belongs to the party-spouse. D Spousal immunity is recognized in both criminal and civil cases, and belongs to either spouse.

A. Spousal immunity is not recognized in Illinois. (Note, however, that Illinois does recognize a confidential marital communications privilege.)

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim's car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, "I don't think I'm going to make it. I tried to slow down, but my brakes didn't work. My former partner must have tampered with them to get back at me." With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant. At trial, can the motorist testify as to the statement made by the victim? A No, because the victim did not know that the defendant tampered with the brakes. B No, because the victim is still alive. C Yes, because the victim thought he was about to die. D Yes, because this is a civil case.

A. Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be "unavailable" when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court's subpoena and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim's statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant's death is no longer required; unavailability is sufficient. Thus, if the victim's statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist's testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)

The Illinois hearsay exception for dying declarations applies in: A Homicide cases only. B Civil actions and homicide cases only. C All types of cases. D Civil actions only.

A. The Illinois dying declaration exception applies only in homicide cases. (The federal exception applies in homicide cases and in civil actions.)

A contractor for a large multistory building used an excavation subcontractor to dig the excavation for the foundation, and a structural subcontractor to begin structural work on the foundation. Just after the foundation was completed, an employee of the structural subcontractor was killed when the walls of the excavation collapsed. The employee's survivors brought an appropriate action against all of the involved parties. At trial, the structural subcontractor calls a civil engineer licensed by the state to testify that he examined the geologist's reports of the soil conditions surrounding the construction site, as well as a report by the investigator who examined the site of the collapse, and that it is his (the engineer's) opinion that the collapse was caused by the excavation subcontractor's failure to take into consideration the composition of the soil being excavated. Is the engineer's testimony admissible? response - incorrect A Yes, if civil engineers in his field rely on such materials as reports by geologists and others in reaching conclusions such as his. B Yes, if he was not professionally negligent in his analysis. C No, because his opinion relates to an ultimate issue that must be determined in the case. D No, because his opinion was based on facts not personally within his knowledge.

A. The engineer's testimony is admissible as relevant opinion testimony by an expert witness. The Federal Rules permit witnesses qualified as experts to testify in the form of an opinion if the subject matter is one where scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] Under Federal Rule 703, the expert may base his opinion on facts not known personally but supplied to him outside the courtroom (e.g., reports of other experts). Such facts need not be admissible in evidence as long as the facts are of a kind reasonably relied on by experts in the particular field. Here, the engineer, who was licensed by the state, probably qualifies as an expert on the subject of his testimony and therefore can state his opinion as to the cause of the collapse of the excavation wall. As choice (A) states, he may base his opinion on the geologist's and the investigator's reports if civil engineers in his field rely on this type of data in reaching conclusions such as his. Thus, choice (D) is incorrect. Choice (B) is incorrect because whether this analysis constitutes professional negligence is irrelevant to its admissibility; this fact can be brought out by cross-examination. A prudent analysis will still be inadmissible if it was based on materials that experts in his field did not reasonably rely on. Choice (C) is incorrect; Federal Rule 704(a) provides that otherwise admissible opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.

At the defendant's trial for rape, he calls a witness who testifies that she was on her patio barbecuing some hamburgers at the time of the charged rape and saw the assailant run from the victim's apartment. She further testifies that the person who ran from the victim's apartment was not the defendant. On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained? A "Weren't you convicted of perjury 11 years ago?" B "Weren't you under the influence of heroin at the time you were barbecuing those hamburgers?" C "Haven't you and the defendant known each other since grammar school?" D "Didn't you embezzle funds from your most recent employer?"

A. The objection to the perjury question is most likely to be sustained. Federal Rule 609 permits the prosecution to inquire into prior convictions of crimes requiring proof or admission of dishonesty or false statement unless over 10 years have passed since the date of conviction or date of release from confinement (whichever is later). While the facts do not indicate the latter date (or even whether a confinement occurred), (A) remains the best of the four choices. The conviction in (A) is more than 10 years old, so it probably would be subject to objection as being too remote. (B) relates to the witness's ability to perceive and would be a legitimate question on cross-examination. (C) shows a possible bias on the part of the witness, which is an acceptable method of impeachment. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

The defendant was on trial on a hit and run charge, whereby the prosecution asserted that the defendant's vehicle struck and injured an elderly pedestrian, and then the defendant sped away from the scene of the accident without stopping to assess the pedestrian's injuries or to render assistance. The defendant took the stand and denied the charge. A priest is ready to testify that he has known the defendant for 12 years, and that the defendant is a highly responsible person who would not run away from his obligations by leaving the scene of an accident. If the prosecution objects to the priest's proposed testimony, should the court bar the priest from testifying? A No, because the testimony shows that the defendant is a person of good character. B No, because the testimony is habit evidence tending to show that it was unlikely that the defendant was the perpetrator. C Yes, because one may not use character evidence to bolster one's own testimony. D Yes, because the prosecution has not made an issue of the defendant's character.

A. The priest's testimony as to the defendant's responsible nature is admissible as circumstantial evidence that he was not driving the hit-and-run vehicle. The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case. In this case, whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait. The priest, having known the defendant for 12 years, is qualified to give his personal opinion as to the defendant's character. The court should therefore permit the priest to testify. (B) is incorrect because the priest's testimony is character evidence rather than habit evidence. Both habit evidence and character evidence are admissible to show how a person probably acted on a particular occasion. However, habit evidence describes one's regular response to a specific set of circumstances, while character evidence describes one's disposition in respect to general traits. Here, there is no specific repeated situation that the defendant regularly responded to (such as regularly failing to stop at a certain stop sign). Rather, it is the defendant's general trait of responsibility that is being offered as evidence. (C) is incorrect because the priest's testimony is admissible as relevant character evidence. As a general rule, a party may not bolster the testimony of his witness until the witness has been impeached. Here, even though the priest's testimony bolsters the defendant's unimpeached testimony that he did not drive the hit-and-run vehicle, it is independently admissible as character evidence that supports the defendant's case. The fact that the defendant is testifying in his own defense when the priest is called to support him does not make the priest's testimony inadmissible. (D) is incorrect because it reverses the rule. In a criminal case, the defense does not need to have the prosecution put the defendant's character in issue before the defense can rebut it; the defense can initiate evidence of the defendant's character. On the other hand, the prosecution cannot make an issue of the defendant's character until the defendant has elected to put his character in issue.

The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant's spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant's spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver's seat until the police arrived. Is the testimony admissible? A Yes, for impeachment purposes only. B Yes, to show bias. C No, because a witness who is available to testify can be impeached only through cross-examination. D No, because the witness must be given an opportunity to explain or deny the statement.

A. The testimony is admissible to impeach the testimony of the defendant's spouse. The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony. Here, the friend is prepared to testify that the defendant's spouse stated that she had not been driving the car at the time of the incident, a fact that would be material to the allegations in the lawsuit and inconsistent with the spouse's trial testimony. Thus, the friend's testimony is admissible for impeachment purposes. (B) is incorrect. Extrinsic evidence of bias is not admissible unless a foundation has been laid--the witness must first be questioned about the facts that show bias on cross-examination. If the witness, on cross-examination, admits to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced. Here, nothing suggests that the spouse was cross-examined as to the facts tending to show bias; thus, this is an incorrect ground for admitting the testimony. (C) is incorrect because a witness ordinarily may be impeached by either cross-examination or extrinsic evidence. Here, the prosecution is seeking to impeach the defendant's spouse by extrinsic evidence of her prior inconsistent statement, and the evidence will be admissible for that purpose. (D) is incorrect because the opportunity to explain or deny the statement can be given subsequent to the friend's testimony; it does not need to be given prior to her testimony.

A criminal defendant calls a character witness, who testifies that the victim is known as a dishonest person (assume that honesty is a pertinent trait in the case). In Illinois, the prosecutor: A May introduce character testimony that the victim is honest, but not that the defendant is dishonest. B May not rebut the defendant's evidence of the victim's bad character. C May introduce character testimony that the defendant is dishonest, but not that the victim is honest. D May introduce character testimony that the victim is honest and/or that the defendant is dishonest.

A. When the defendant introduces evidence regarding the victim's bad character, unlike the Federal Rule, the Illinois rule does not permit evidence of the defendant's bad character for the same trait. The prosecution may rebut by introducing evidence of the victim's good character for the trait.

Which of the following statements regarding the basis of expert testimony is false? response - incorrect A An expert may give opinion testimony on direct examination without disclosing the basis of the opinion. B An expert's opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence. C An expert's opinion may be based on his previous examination of a person about whom he is testifying. D An expert's opinion may be based on evidence introduced at the trial and communicated to the expert by counsel.

B, Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. An expert's opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. An expert's opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.

Which of the following is character evidence, rather than habit evidence? A "Ben goes to church every Sunday." B "Ben is always in a hurry." C "Ben always wears his seatbelt." D "Ben goes to the pub every Friday night at 7 p.m."

B. "Ben is always in a hurry" is an example of character evidence because it describes a general character trait of Ben, rather than his regular response to a specific set of circumstances. "Ben always wears his seatbelt," "Ben goes to church every Sunday," and "Ben goes to the pub every Friday night at 7 p.m." are all examples of habit evidence. Habit evidence concerns a person's regular response to a specific set of circumstances. Character evidence describes one's disposition with respect to general traits.

A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime. Under the Federal Rules, which of the following is an impermissible manner of showing the defendant's good character?

B. A defendant may call a qualified witness to testify as to the defendant's good reputation (or that he has heard nothing bad) for the trait involved in the case. Under Federal Rule 405, the witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify as to specific acts of conduct of the defendant to prove the trait in issue.

A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate. Is the foreman's proposed testimony hearsay? A No, because the declarant is testifying as a witness at the hearing. B No, because the statement is not offered for its truth. C Yes, but it should be admitted under the hearsay exception for present sense impressions. D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

B. The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement's effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay) regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no opportunity for cross-examination at the time the statement was made. The key in this case is not that the declarant is testifying, but that the statement is not being offered for its truth. (C) characterizes the testimony as hearsay, which is incorrect because it is not being offered for its truth. Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception for present sense impressions, which are statements made contemporaneously with perceiving some event. The testimony of the foreman would not come within this exception. (D) incorrectly characterizes the testimony as hearsay. In addition, this statement, even if hearsay, would not come within the present state of mind exception. A statement of a declarant's then-existing state of mind is admissible when the declarant's state of mind is directly in issue and material to the controversy, or as a basis for a circumstantial inference that a particular declaration of intent was carried out. The declarant here is the foreman. There is no indication that his state of mind is at all relevant to this litigation, nor is the statement offered indicative of any particular intent on the part of the foreman. Thus, the present state of mind exception is inapplicable.

A character witness testifies regarding the defendant's good character for peacefulness. The prosecution may rebut this evidence by: A Calling the defendant's girlfriend as a rebuttal witness to testify that he beat her three weeks prior to this incident B Asking the witness, "Did you know that the defendant beat his girlfriend three weeks prior to this incident?" C Showing the witness an arrest report indicating that the defendant beat his girlfriend three weeks prior to this incident D Asking the witness, "Have you heard that the defendant embezzled money from his previous employer?"

B. Answer Discussion - Correct The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the character witness knows of, as well as whether he has heard of, specific instances of misconduct by the defendant. Therefore, it is proper for the prosecution to ask the witness about the defendant's prior violent act. However, it would not be proper to ask about the defendant's prior dishonest act (embezzling money) because the witness testified about the defendant's character for violence, not his character for truthfulness. If the witness denies knowledge of specific instances of misconduct by the defendant, the prosecutor may not prove them by extrinsic evidence (e.g., a rebuttal witness or an arrest report); he is limited to inquiry on cross-examination.

Which of the following is a civil claim where character evidence may be admissible because character is "directly in issue?" A Battery claim, to show that defendant is violent and likely liable. B Negligent hiring claim, to show that the person hired by the defendant is unstable. C Breach of contract claim, to show that defendant is untrustworthy and likely to have breached the contract. D Product liability claim, to show that defendant is careless and likely liable.

B. Answer Discussion - Correct When a person's character itself is at issue in the case, character evidence is not only admissible, but indeed is the best method of proving the issue. Character is said to be at issue in a civil case when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense. For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case. Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief). However, these types of situations are rare. In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue. Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.

Character evidence is admissible in a civil case if __________. A the evidence is in the form of reputation or opinion only B character is directly in issue C the defendant "opens the door" by introducing evidence of his good character D it is offered to show a good character trait only

B. Answer Discussion - Correct Where character is directly in issue in a civil case, character evidence is admissible. A defendant in a criminal case may "open the door" by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.

In which of the following situations may the prosecution introduce evidence of the defendant's bad character to establish she probably committed the crime charged? A Where character is directly in issue in the case. B Where the defendant first introduces evidence of her good character. C Where the defendant's bad character shows that she is more likely to have committed the crime of which she is accused. D Where the defendant chooses to testify.

B. If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant's bad character. The general rule is that the prosecution cannot initiate evidence of the defendant's bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant's bad character. Character evidence is admissible in civil cases where character is directly in issue (i.e., defamation, negligent hiring). This rule does not apply to criminal cases. A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

Under Illinois law, the admissibility of scientific expert testimony based on a new or novel methodology is determined by the ____________________ standard, under which ____________________. A Daubert; the methodology must be sufficiently established to have gained general acceptance in the particular scientific field. B Frye; the methodology must be sufficiently established to have gained general acceptance in the particular scientific field. C Daubert; the factors of publication/peer review, low error rate, testable/tested results, and a reasonable level of acceptance among scientists are all considered. D Frye; the factors of publication/peer review, low error rate, testable/tested results, and a reasonable level of acceptance among scientists are all considered.

B. Illinois adheres to the Frye standard, rather than the federal Daubert standard. Thus, when an expert testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.

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 testimonies of both the employee and the witness are necessary. D The picture is inadmissible.

B. 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. (A) incorrectly categorizes the employee's testimony as necessary. Generally, a photographer's testimony is not necessary to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene. (C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.

The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man. Which of the following, if offered by the prosecution, would most likely be admissible? A A neighbor's testimony that the witness has beaten his wife on several occasions. B A police officer's testimony that the defendant has a general reputation in the community as a violent person. C A neighbor's testimony that the defendant has a reputation for being untruthful. D Evidence that the defendant has a conviction for aggravated battery.

B. Testimony of the defendant's reputation as a violent person is admissible to rebut the defendant's character evidence. The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, if the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant, the prosecution may rebut with evidence of the defendant's bad character. One means of rebutting a defendant's character evidence is by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved in the case. Here, the defendant put his character in issue by having his witness testify to the defendant's nonviolent nature, which is relevant to whether he committed the crime charged. The prosecution, assuming that it can show that the police officer has knowledge of the defendant's reputation in the community, can have the officer testify that the defendant had a reputation as a violent person. (A) is incorrect because the witness's credibility cannot be attacked by extrinsic evidence of specific instances of misconduct. While any matter that tends to prove or disprove the credibility of a witness is relevant for purposes of impeachment, extrinsic evidence of the witness's bad acts is not permitted to attack the witness's character for truthfulness. Unless the misconduct was the basis for a criminal conviction, for which a record of the judgment may be offered, bad acts may only be inquired about during cross-examination. Thus, a neighbor's testimony of the witness's specific instances of misconduct would not be admissible. (C) is incorrect. While the defendant has "opened the door" to evidence of his bad character by presenting testimony of his good character, the evidence must pertain to the particular trait involved in the case. Here, the defendant's capacity for violence has been placed in issue by the defendant, but his reputation for truthfulness is not relevant to whether he has committed the crime for which he is charged. (And because the defendant has not placed his credibility in issue by taking the stand as a witness, his reputation for truthfulness cannot be offered for impeachment purposes.) (D) is incorrect because the basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition, regardless of whether the defendant has placed his character in issue. [Fed. R. Evid. 404(b)] While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant's battery conviction in this case appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible.

During the defendant's trial for embezzlement, the defense calls a witness to testify as to the defendant's reputation for honesty and veracity. The prosecution objects. Should the court allow the testimony? A Yes, because the prosecution put the defendant's character for truthfulness in issue by filing charges against him. B Yes, because it is admissible character evidence. C No, because a party cannot bolster the testimony of his witness until he has been impeached. D No, because the evidence is inadmissible hearsay.

B. The court should allow the testimony. A criminal defendant may introduce character testimony about his good reputation for a pertinent trait to show that he is innocent of the charged crime. Here, the defendant is offering the testimony of a witness as to his reputation for honesty and veracity, which is a trait directly pertinent to his embezzlement charge. Therefore, the testimony should be allowed, and the prosecution will have the opportunity to rebut the testimony on cross-examination. (A) is incorrect because only the defendant can put his character in issue, and the filing of criminal charges does not have the effect of putting the defendant's character in issue. (C) is incorrect because there is no impeachment issue here and the defense is not attempting to bolster the testimony of its witness (which is generally done after the credibility of the witness is attacked on cross-examination), but rather to offer an opinion as to the defendant's character. (D) is incorrect because, to the extent that the witness's testimony is hearsay, it falls within the exception to the hearsay rule for reputation evidence of a person's character.

The defendant is on trial for assault with a deadly weapon. The sole prosecution witness is the victim, who testifies as to his version of the events leading up to and including the charged assault. The defense's first witness contradicts the victim's testimony that the defendant engaged in an unprovoked attack. The witness testifies that the victim pulled a knife on the defendant and that the defendant, in defending himself, wrested the knife away and accidentally stabbed the victim. The defense's next and final witness intends to testify that the defendant's reputation in the community for honesty and veracity is very good. Aware of the intended testimony, the prosecutor moves in limine to exclude it. How should the court rule? A For the state, because the defendant may not introduce evidence of his character to prove that he acted in conformity therewith. B For the state, because the testimony as to the defendant's honesty and veracity is irrelevant. C For the defendant, because a criminal defendant may put his character in issue. D For the defendant, because a criminal defendant's reputation for honesty and veracity is always at issue.

B. The court should rule for the state. A criminal defendant, to show his innocence of the charged crime, may call a qualified witness to provide reputation or opinion testimony regarding the defendant's good character for a trait involved in the case (i.e., to prove that he acted in conformity with that good trait during the events at issue). Therefore, (A) is incorrect. Here, however, the defendant is charged with a crime of violence, so his character for honesty and veracity is not pertinent to the case. Furthermore, although any witness may be impeached with reputation or opinion evidence of his bad character for honesty and veracity, the defendant did not testify. For these reasons, the proffered evidence is irrelevant. Thus, (C) is incorrect. A criminal defendant may offer evidence of character for a certain trait only when the the trait is relevant to the charges, and so (D) is a misstatement of law.

A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion, each time telling the operator that he wanted to "end it all." Is the testimony admissible? A Yes, because the statements were made in "contemplation" of death. B Yes, because it tends to show that the husband intended to commit suicide. C No, because it violates the psychiatrist-patient privilege. D No, because no phone calls were made to the clinic by the husband on the day he died.

B. The court should rule that the testimony is admissible. Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. Here, the husband's statements to the operator tend to show that the husband intended to commit suicide, so they are admissible to prove that he did so. (A) is incorrect because a "dying declaration" must concern the cause or circumstances of what the declarant believed to be his "impending" death. Although the husband made threats to end his life, there is no indication he believed his death was impending, and he did not discuss the cause or circumstances of his impending death. (C) is incorrect because the operator is not a psychiatrist, and there is no evidence that the husband assumed her to be one. (D) is wrong because the state of mind need not be as of the time of the incident to be relevant.

A defendant is on trial in federal court for the armed robbery of a casino. The defendant claims that he was out of town at the time of the robbery. The defendant calls an alibi witness to the stand to testify that she was with him on the trip. When asked where she was and who she was with on the date in question, the witness stated that she could not recall. She said she recalls spending a weekend at a bed and breakfast this spring, but she does not recall the date or her traveling companion. The defendant's attorney then showed the witness a letter written by her on stationery from the bed and breakfast, and asks her to look at it and try to answer the question again. The prosecution objects. How should the court proceed? A Overrule the objection, because this is a past recollection recorded. B Overrule the objection, but the witness cannot depend on the terms of the letter when answering. C Sustain the objection, because the letter is hearsay. D Sustain the objection, because the letter has not been properly authenticated.

B. The prosecution's objection should be overruled. If a witness's memory is incomplete, the examiner may seek to refresh her memory by allowing her to refer to a writing or anything else--provided she then testifies from present recollection and does not rely on the writing. (A) is incorrect because the past recollection recorded doctrine applies when a party is seeking to read into evidence the contents of a writing that was made or adopted by the witness. Here, the defendant is not seeking to introduce the writing into evidence; he merely wants the witness to look at it. Furthermore, the requisite foundation to introduce a past recollection recorded has not been laid.Thus, (A) is incorrect. (C) and (D) are incorrect because the letter is not being offered into evidence. Hence, the letter is not hearsay and does not need to be authenticated.

A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm's pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a "proposed witness list" from his case file at the firm. After the name of the doctor is the notation, "the plaintiff wants us to check this guy out before trial." The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff's case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation. Is the proposed witness list and notation admissible? A Yes, as past recollection recorded. B Yes, as a record of a regularly conducted activity. C No, as hearsay not within any recognized exception. D No, as hearsay within hearsay, and one level is not within an exception.

B. The witness list should be admitted as a record of a regularly conducted activity (business record). A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction. The list of proposed witnesses and the notation constitute a statement that the law firm was alerted to the existence of the doctor as a potential expert witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e., that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay problem. Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of the paralegal responsible for updating case files to enter the handwritten notation regarding the doctor at the direction of one of the firm's attorneys. The matters contained in the list and notation would be within the personal knowledge of the attorney, who was under a business duty to report the information accurately to the paralegal, who was under a business duty to properly record the information. Thus, all the requirements for a business record are present, and the list and notation, made as records of the firm's having been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is incorrect because past recollection recorded comes into play when a witness's memory cannot be refreshed by looking at something. At that point, there may be an attempt to introduce a writing made by the witness or under his direction at or near the time of the event. The writing is characterized as past recollection recorded. Here, there is no indication that a witness who has an insufficient memory is testifying, and the list of proposed witnesses and notation are not being offered as a record of anyone's past recollection. Rather, the evidence is offered as a record of the firm's being informed of the doctor as a potential expert witness. Therefore, the evidence will not be admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered evidence does come within a recognized hearsay exception. (D) is incorrect because the facts do not present any problem of "levels" of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., "the doctor says that he will be available to testify on the date of the trial") and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor's availability.

Illinois recognizes all of the following hearsay exceptions, EXCEPT: A Excited utterances. B Present sense impressions. C Former testimony. D Business records.

B. Unlike the Federal Rules of Evidence, the Illinois Rules of Evidence do not contain a hearsay exception for present sense impressions.

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of: A Opinion only B Reputation, opinion, or specific acts C Reputation and opinion only D Specific acts only

B. 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, it is said that character is "directly in issue." Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under the Federal Rules, any of the types of evidence ( reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.

If a defendant in a criminal case presents evidence of his own good character for a particular trait, which of the following is a permissible method of rebutting this evidence? A The prosecution asks the defendant's character witness whether he has heard about a bad act committed by the defendant, and after the witness denies it, the prosecution proves it by extrinsic evidence B The prosecution calls another witness to testify as to the defendant's bad reputation for the same trait C The prosecution calls another witness to testify about a bad act committed by the defendant D The prosecution introduces documentary proof of a bad act committed by the defendant (e.g., a criminal conviction)

B. f the defendant puts her character in issue, the prosecution may rebut the defendant's character evidence by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved. The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, introducing evidence about specific acts by the defendant is not allowed (whether by calling witnesses or introducing documentary proof of the act). If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Which of the following is considered a "nonhearsay" statement in an Illinois civil case? A A prior statement of identification. B A prior consistent statement offered to rebut a charge of recent fabrication based on an improper motive. C An admission by a party-opponent. D A prior inconsistent statement that was made under oath at a prior proceeding.

C. An admission by a party-opponent (opposing party's statement) is considered nonhearsay in any type of case, and is the only correct answer. A prior statement of identification is admissible as nonhearsay in criminal cases only in Illinois. A prior inconsistent statement also is admissible as nonhearsay in criminal cases only, and only if it (i) was made under oath at a prior proceeding; or (ii) narrates, describes, or explains an event or condition of which the declarant had personal knowledge (and meets certain signature, oath, or recording requirements). A prior consistent statement generally is considered hearsay and is not admissible as substantive evidence in Illinois. Note that under the Federal Rules, all of the choices listed are admissible as nonhearsay in all types of cases.

In Illinois, a witness can be impeached based on all of the following, EXCEPT: A Bias. B Prior convictions. C Specific instances of misconduct (not resulting on a conviction) involving deceit or lying. D Reputation or opinion testimony regarding the witness's dishonesty.

C. In Illinois, witnesses cannot be impeached with specific instances of misconduct. (This is contrary to the Federal Rule, which allows a witness to be impeached on cross-examination with prior instances of misconduct that are probative of truthfulness.) All of the other listed impeachment methods are permissible.

The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child's parents seeks to have the defendant's wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, "Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would've hit the kid." The wife was recently divorced from the defendant and eager to testify against him. The prosecution also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window. Assuming a proper objection by the defense attorney, will the wife be permitted to so testify? response - incorrect A Yes, because she and the defendant were divorced during the time between the making of the statement and the trial. B Yes, because the fact that the neighbor heard the statement removes the privileged status of the statement. C No, because the defendant's statement was a confidential marital communication. D No, because the privilege to foreclose such testimony belongs to the party-spouse.

C. The defendant's statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with "between you and me," and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement. (A) is incorrect because the communication was made during the marriage, and the privilege is not abrogated by a later divorce. (B) is incorrect because the fact that the neighbor heard the statement was unknown to the defendant and his wife. If the communication is made in the known presence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged. Nothing in these facts indicates negligence. Thus, the defendant can prevent his wife from testifying to the statement. (D) is incorrect because the privilege for confidential marital communications belongs to both spouses, rather than to just one. The trial here is a civil case, so the spousal immunity is inapplicable; this question involves the privilege for confidential marital communications. Furthermore, even if spousal immunity did apply, the federal privilege belongs to the witness-spouse, not the party-spouse.

A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years' imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident. Upon proper objection, should the court rule that the witness's statement before the grand jury is admissible? A Yes, for impeachment only. B Yes, as substantive evidence only. C Yes, for impeachment and as substantive evidence. D No, because it is hearsay not within any exception.

C. The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness's sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness's credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident. (C) is the only answer that reflects the fact that the grand jury statement may be used both for impeachment and for substantive purposes. (A) reflects the view of prior law, which was that prior inconsistent statements were limited to impeachment regardless of the circumstances under which they were made. As noted above, Federal Rule 801(d)(1)(A) deems such statements made under penalty of perjury at a prior trial or other proceeding to be nonhearsay, and as such, to be admissible as substantive evidence. (B) is incorrect because it precludes use of the witness's grand jury testimony for impeachment purposes. A prior inconsistent statement may always be used to impeach the credibility of a witness. (D) is incorrect for two reasons. First, even if deemed to be hearsay, a prior inconsistent statement would be admissible to impeach the witness. Second, because the prior inconsistent statement of the witness was made under oath at a grand jury proceeding, it is admissible nonhearsay.

In a will contest action, the decedent's children, who were not provided for in his will, claim that the decedent was not of sound mind at the time of executing the will. The plaintiffs' attorney calls as a witness the neighbor of the decedent, who was present when the will was executed but did not attest to the will. The attorney asks the neighbor to describe the decedent's mental state at the time of the will's execution. The neighbor states that the decedent appeared to be senile. The defense objects. How should the court rule? A Sustained, because this is an opinion. B Sustained, because the neighbor has not been qualified as an expert. C Overruled, because this is proper opinion testimony. D Overruled, because this is a present sense impression.

C. The objection should be overruled because the neighbor's testimony is proper opinion testimony. Although opinions by lay witnesses are generally inadmissible, they may be admitted when an event is likely to be perceived as a whole impression rather than as more specific components. Under the Federal Rules, lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] The witness must have had the opportunity to observe the event that forms the basis of her opinion. A witness who has seen a person and is able to describe that person's actions, words, or conduct may express an opinion as to whether that person was lucid or senile. Here, the neighbor had an opportunity to personally observe the decedent and his words and conduct at the time of the will's execution. Her opinion that the decedent appeared senile is helpful to an understanding of her testimony because it is easier and clearer to simply state that the decedent appeared senile than to describe his actions. Also, the neighbor's opinion is helpful to the determination of a fact in issue—i.e., the decedent's mental state at the time of executing his will. Thus, the neighbor's opinion as to the decedent's mental state is proper lay opinion testimony, and the objection by the defense should be overruled. (A) is incorrect because, as has been explained, lay opinion testimony as to whether or not a person who has been observed by the witness was senile is admissible. (B) is incorrect because expert testimony is appropriate and necessary only when the subject matter of testimony is such that scientific, technical, or other specialized knowledge would assist the finder of fact in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] A determination as to whether a person was senile can easily be based on observation of that person by a layperson and does not require any technical or specialized knowledge. Therefore, the neighbor's status as an expert or nonexpert has no bearing on the admissibility of her testimony. (D) is incorrect because it states an exception to the hearsay rule, and there is no hearsay problem here. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. The neighbor is not testifying to an out-of-court statement made by herself or anyone else, but rather is testifying as to what she observed concerning the decedent's mental state.

A driver was driving north on a local road when his car went out of control, crossed the center line, and struck the vehicle of another driver who was driving south on the same road. Immediately after the accident, an off-duty officer came by and photographed the accident scene for the police report. In a suit between the drivers, the plaintiff seeks to introduce the photograph taken by the officer. The officer is present in court but has not been called as a witness. Is the photograph of the scene of the accident admissible? A Yes, because the photograph was taken by a police officer who took the photo for an official report. B Yes, because the officer is available to testify at trial. C No, because a proper foundation has not been laid. D No, because of the best evidence rule.

C. The photograph is not admissible because a proper foundation has not been laid. 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 identifying witness is familiar with the scene or object that is depicted. Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible. (A) is incorrect because a photograph's admissibility does not require that the photographer be a police officer or that the photograph be taken for an official report. The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility of the photograph. (B) is incorrect because the photographer need not be available to testify at trial. To authenticate a photograph, any person familiar with the scene may authenticate the photograph. (D) is incorrect because the best evidence rule (also known as the original document rule) is inapplicable to these facts. The best evidence rule states that in proving the terms of a writing (including a photograph), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent. [Fed. R. Evid. 1002] Here, the admissibility of the original photograph is in issue. A copy of the photograph is not being offered. Thus, no problem arises under the best evidence rule.

In federal courts, spousal immunity __________. response - correct A may be invoked in both civil and criminal cases B is not terminated upon divorce C can be asserted as to matters that took place before the marriage D can be invoked by both the witness-spouse and the party-spouse

C. The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage. Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege. The privilege lasts only during the marriage and terminates upon divorce or annulment. Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.

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 Yes, because reputation evidence is a proper method of proving character. B Yes, because it is relevant. C No, it is inadmissible to show that the defendant was negligent on this occasion. D No, because the defendant did not introduce evidence of his reputation for carefulness.

C. 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). Character is not directly in issue here, and so (A) and (D) are incorrect. The defendant in a criminal, but not a civil, case can introduce evidence of good character, which can then be rebutted. (B) is incorrect because, although such evidence is clearly relevant, courts exclude this evidence because its slight probative value is outweighed by the danger of unfair prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

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 Yes, because the plaintiff has a right to introduce evidence of his good 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 No, because specific instances of conduct are not admissible to prove character.

C. 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) is incorrect because character evidence is admissible in a civil suit only when, as here, proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense. However, even when character is in issue, the evidence must be relevant to the particular character trait in issue; here, it is not relevant to the issue of the plaintiff being a thief. (B) is incorrect for the same reason; to be admissible, the evidence must be relevant. (D) is incorrect because proof of specific instances of a person's conduct is admissible when character is directly in issue. [Fed. R. Evid. 405(b)]

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state. Is the testimony of the witness admissible? A Yes, because the witness testified under oath at another hearing related to the same subject matter. B Yes, because the defendant is a party to both proceedings. C No, because the plaintiffs were not parties to the criminal proceeding. D No, because the witness can be subpoenaed to testify.

C. The witness's testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is "unavailable" for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant's attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of "unavailability" in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish "unavailability." In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

While a driver was driving someone else's car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence. How should the court rule on the objection? A Sustained, because the driver's character is not in issue. B Sustained, because specific evidence of misconduct is not admissible to establish evidence of character. C Overruled as to the case against the owner, but sustained as to the case against the driver. D Overruled, because the evidence goes to the issue of the driver's criminal negligence.

C. The witness's testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character. Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver's character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself. (A) is wrong; as stated, the driver's character is in issue in determining whether the owner was negligent. (B) is wrong because specific instances of conduct may be used to prove character when character is an issue in the case. [Fed. R. Evid. 405(B)] (D) is wrong because this is not a criminal case.

In an Illinois criminal homicide or battery case where the defendant claims self-defense and there is conflicting evidence as to whether the victim was the aggressor, how may the defendant introduce evidence of the victim's violent character? A Reputation testimony only. B Opinion testimony only. C Reputation testimony, opinion testimony, and specific acts evidence. D Reputation testimony and opinion testimony only.

C. Under the Federal Rules and in Illinois, a criminal defendant generally is allowed to introduce evidence of the victim's character through reputation and opinion testimony. However, Illinois also permits proof of specific instances of violent conduct by the victim in a criminal homicide or battery case when the accused claims self-defense and there is conflicting evidence as to whether the victim was the aggressor.

Which of the following correctly states the Illinois rule as to whether a party may impeach her own witness with the witness's prior inconsistent statement? A A party may impeach her own witness with the inconsistent statement at any time. B A party is prohibited from impeaching her own witness with the inconsistent statement. C A party may impeach her own witness with the inconsistent statement only after showing that the witness's testimony has affirmatively damaged the party's case. This is true even if the inconsistent statement is admissible as substantive evidence under the hearsay rule. D A party generally may impeach her own witness with the inconsistent statement only after showing that the witness's testimony has affirmatively damaged the party's case. However, such a showing is not required if the inconsistent statement is admissible as substantive evidence under the hearsay rule.

D. Although Illinois allows a party to attack the credibility of her own witness, the party generally may do so by means of a prior inconsistent statement only upon a showing of affirmative damage (i.e., the witness's trial testimony has damaged the impeaching party's case). However, such a showing is not required if the inconsistent statement is admissible under a hearsay exclusion (e.g., was made under oath and therefore admissible as substantive evidence) or a hearsay exception.

In Illinois, withdrawn guilty pleas and offers to plead guilty, pleas of nolo contendere, and evidence of statements made in negotiating such pleas are: A Excluded in civil and criminal cases. B Excluded in civil cases only. C Admissible in civil and criminal cases. D Excluded in criminal cases only.

D. The Illinois rule excluding evidence of withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas applies only in criminal cases. (Under the corresponding Federal Rule, such statements are excluded in both civil and criminal cases.)

In a claim for damages in a personal injury action, a plaintiff's attorney sought to introduce evidence of the plaintiff's testimony made to her boyfriend several days after her accident that "I must have sprained my neck when it happened because it hurts so much." The plaintiff is also planning to offer medical evidence that her neck was sprained. Should the court admit the testimony? A No, because it is hearsay not within any exception. B No, because the plaintiff is not qualified to give testimony as to her medical condition. C Yes, because the plaintiff is also going to present medical evidence that her neck was sprained. D Yes, to show that the plaintiff had suffered physical pain.

D. The court should admit the plaintiff's testimony. Although it was hearsay, the plaintiff's testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff's testimony is not to establish that she suffered a "sprained" neck, which would require an expert witness, but just to establish that her neck was in pain. (C) is wrong because the plaintiff's statement would be admissible to show her current physical condition even if she had not planned to introduce medical evidence.

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant's fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence. How should the court rule? A Admissible, because the affidavit satisfies the best evidence rule. B Admissible, because the affidavit is a business record. C Admissible, because the affidavit was prepared pursuant to statute. D Inadmissible, because the defendant's rights under the Confrontation Clause are violated.

D. The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible—the lab technician must be brought in to testify as to the findings of the fingerprint test. (A) is incorrect because the fact that the affidavit is an original does not, by itself, make it admissible. Admissibility still violates the defendant's rights under the Confrontation Clause. (B) is incorrect because, even if the affidavit qualifies as a business record, it is inadmissible in this case under the Confrontation Clause. (C) is incorrect because the report, even if prepared pursuant to statute, is still inadmissible because it violates the Confrontation Clause.

A pedestrian sued the driver of a car that hit him, alleging that the driver ran a stop sign. The driver denies this, maintaining that the pedestrian carelessly darted into the street. At trial, the pedestrian calls her husband to testify for her. The husband offers testimony that the pedestrian invariably looks both ways before crossing a street. The driver objects to the admission of this evidence. How should the court rule on the driver's objection? A Sustained, because there is no evidence to corroborate the husband's testimony. B Sustained, because it seeks to prove conduct in conformity with the character evidence. C Overruled, because the pedestrian's character is in issue. D Overruled, because it tends to establish the pedestrian's habit.

D. The driver's objection should be overruled. The husband's testimony is a classic example of evidence regarding habit—it is a regular response (looking both ways) to a regular set of circumstances (crossing a street). The pedestrian's habit is relevant to the issue of whether she was at fault in the accident. (A) is wrong because neither the Federal Rules nor the prevailing common law requires the corroboration of habit evidence. (B) and (C) are wrong because the testimony is evidence of habit, not character. Furthermore, this is not the type of civil case where character is directly in issue (e.g., defamation or negligent hiring cases).

A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff's attorney calls a witness who testifies that, at the time of the incident, the defendant stated, "It was my fault." The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest. Are the grounds for the judge's decision correct? A Yes, because the statement subjected the defendant to tort liability. B Yes, because the defendant is a party to the litigation. C No, because the statement is not against an important interest. D No, because the defendant is available to testify.

D. The ground for the judge's decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable. Also, this choice implies that this exception would be available only if she were subjected to tort liability, not criminal liability. Although some courts so limit the exception, the Federal Rules include statements against penal interest within the parameters of the statement against interest. (B) is incorrect because the defendant need not be a party to the litigation for her statement to qualify as a statement against interest. Thus, her status as a party would not be a basis for deciding that the statement against interest exception applies here. Of course, this choice is also incorrect because her availability to testify precludes application of this exception. (C) is incorrect because the defendant's statement, which effectively acknowledges liability for the plaintiff's injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the possibility of being held financially liable for the plaintiff's damages. Note that the judge correctly overruled the objection by the defendant's attorney, but for the wrong reason. The defendant's statement constitutes a statement by a party-opponent (commonly called an admission), which is an act done or statement made by a party and offered against that party and is nonhearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the declarant need not be unavailable. (Don't be confused by the fact that, although the judge was correct in allowing the testimony as to the defendant's statement, the call of the question pertains to the grounds for the ruling, which were incorrect.)

A defendant was on trial for burglary, and he took the stand in his own defense. On direct examination, the defendant vigorously denied having committed the burglary. Also on direct examination, the defense attorney asked the defendant questions about his employment history in an attempt to portray him to the jury as a "solid citizen" who would not commit a burglary. The defendant stated that his last regular employment was as a bookkeeper for a corporation. On cross-examination, the prosecutor asked the defendant if he had embezzled funds from the corporation. The defendant denied that he had embezzled from the corporation or from anyone else. The prosecutor then wanted to call a police officer to the stand to testify that when she arrested the defendant for embezzlement, the defendant admitted to the officer that he had embezzled money from the corporation. Assuming that the defendant has not yet been tried on the embezzlement charges, may the prosecutor call the officer to the stand? A Yes, but only for purposes of impeachment. B Yes, both for impeachment of the defendant and as substantive evidence. C No, because the defendant has not yet been convicted of embezzlement. D No, because the evidence would be extrinsic

D. The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify. (A) is wrong because extrinsic evidence, such as the officer's testimony, of an instance of misconduct is not admissible. (B) is wrong because when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible to establish criminal disposition. Because nothing in the facts indicates that such evidence is being offered to prove something other than disposition (e.g., motive, identity, common plan or scheme), the officer's testimony is not admissible as substantive evidence. As discussed above, for impeachment, the prosecutor is limited to inquiry on cross-examination regarding the embezzlement. (C) is wrong because, even if the defendant had been convicted of the embezzlement, the officer's testimony would not be the proper way to introduce it. The fact that a witness has been convicted of a crime usually is proved by eliciting an admission on direct or cross-examination or by the record of conviction. A judge is less likely to allow proof of conviction by testimony because it may be too timeconsuming and more prejudicial than other means of proof. Furthermore, this answer choice implies that evidence of a prior act of misconduct may be introduced only if the act resulted in a conviction, and this is not the case.

The plaintiff sued the defendant in a contract dispute. At trial, the plaintiff's sister testifies as a witness on behalf of the plaintiff, stating that the defendant agreed to sell a computer to the plaintiff for $250. To prove that the sister is telling the truth, plaintiff's counsel asks the sister on direct examination about a conversation she had with her mother, in which she told her mother that the defendant agreed to sell a computer to the plaintiff for $250. The defendant objects to the testimony. How should the court rule? A Admissible, because it is a prior consistent statement. B Admissible, because it is not hearsay. C Inadmissible, because leading questions cannot be asked on direct examination. D Inadmissible, because the sister has not been impeached.B.

D. The testimony is inadmissible. A party cannot bolster the testimony of a witness until the witness has been impeached. Here, plaintiff's counsel is seeking to introduce the sister's prior statement, which is consistent with her in-court testimony, to prove she is telling the truth. The testimony is inadmissible for this purpose because the sister has not been impeached. Therefore, (D) is correct. (A) is incorrect. A prior consistent statement is admissible if offered to rebut a charge that a witness is lying because of some improper motive, or to rehabilitate the credibility of a witness who has been impeached on some other non-character ground. Here, the credibility of the sister has not been attacked; therefore, there is no justification for bolstering her credibility. (B) is incorrect. While the statement would not be hearsay if it is not being offered to prove the truth of the matter asserted, it is nevertheless inadmissible because it is improperly offered to bolster the credibility of the witness. (C) is incorrect. There is no indication that plaintiff's counsel asked any leading questions. Furthermore, leading questions are sometimes permitted on direct examination (e.g., when the witness is hostile).

A character witness testifies that the criminal defendant is a peaceful person. In Illinois, may the prosecutor test the character witness's knowledge on cross-examination? A Yes, by asking, "Have you heard that the defendant started a bar fight last month?" B Yes, by asking, "Did you know that the defendant started a bar fight last month?" C Yes, by showing the witness a police report describing the bar fight started by the defendant last month. D No, the prosecutor cannot inquire into specific acts of misconduct on cross-examination of the character witness.

D. Under the Federal Rules, once a character witness has testified for the defendant, the prosecutor may inquire on cross-examination as to whether the character witness knows of, as well as whether he has heard of, specific instances of misconduct by the defendant (but extrinsic evidence of the misconduct, such as a police report, is not allowed). Illinois, however, does not allow inquiry into specific instances of conduct on cross-examination of a character witness.