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Evidence Questions

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1. Janice is charged with theft of a diamond neckless from the Barton Family Jewelry Store. In her defense, Janice claims that she did not steal the neckless. Rather, Janice claims, Mrs. Barton (the store owner) gave her the neckless as a gift. At trial, Mrs. Barton testified that Janice entered her store, asked to see the diamond neckless, and when Mrs. Barton removed the neckless from the display case and placed it on the counter, Janice immediately grabbed the neckless and ran out of the store. Mrs. Barton further testified that she never said anything to Janice aside from "Hello, welcome to Barton Jewelers! How can I help you?" In her defense, Janice testifies that she walked into the Barton Family Jewelry Store, saw the diamond neckless in the display case, and asked Mrs. Barton to remove it from the display case so that she could inspect it more closely. Janice also wants to testify as follows: (1) As Mrs. Barton placed the neckless before her, she (Mrs. Barton) said to Janice, "This neckless sparkles just like your eyes. You should take it home with you right now!" (2) Based on this alleged statement by Mrs. Barton, Janice believed Mrs. Barton was giving her the neckless as a gift. The prosecutor objects to Janice's testimony regarding Mrs. Barton's alleged statement in (1) above. What is the correct ruling? A. Janice's testimony should be excluded as hearsay. B. Janice's testimony should be excluded since Mrs. Barton does not acknowledge making that statement. C. Janice's testimony should be excluded since Mrs. Barton is not unavailable as a witness. D. Janice's testimony is admissible as a legally binding out-of-court statement. E. Janice's testimony is admissible to prove the effect on the listener. F. None of the above.

13. Virginia's arm was crushed when she was caught underneath an automatic garage door that had been installed by Wallace Garage Doors. Virginia sued Wallace in tort, seeking to recover damages for pain and suffering, lost wages, and medical expenses. A settlement conference was held at a storage area, where the garage door was being stored prior to trial. Counsel for both parties brought experts to the settlement conference and the experts inspected the allegedly defective garage door. No settlement was reached. At trial, the garage door is too large to fit through the courtroom door and the judge, exercising discretion under rule 611, denies Virginia's request to have the jury travel to the storage area to inspect the garage door at issue. Virginia calls her expert, who inspected the garage door during the settlement conference, to testify regarding his opinions as to the defectiveness of the garage door. Virginia's expert testimony is... A. Admissible, but only because Wallace's expert also had an opportunity and motive to examine the door B. Admissible, because Virginia had personal knowledge of the door's condition C. Inadmissible, because the door was examined as a part of settlement negotiations D. Inadmissible, because the trial judge abused his discretion in denying the jury the opportunity to personally observe the garage door. E. None of the above

17. Phineas testifies as a Plaintiff's fact witness in a class action securities fraud trial. On crossexamination, Phineas is impeached with evidence of a prior conviction for fraud. Jorge testifies on behalf of the Plaintiff, as a character witness, offering his opinion that Phineas is "completely rehabilitated since his unfortunate conviction - and now he is one of the most honest people I've ever known." On cross-examination, Defense counsel asks Jorge whether he is aware that Phineas has been cheating on his wife for the past six months and lying to her about going on "business trips" when he was actually going on trips with his mistress. Jorge testifies that he is not aware of anything relating to any alleged unfaithfulness/lying by Phineas. What are the correct rulings? A. Defense counsel should not have been allowed to ask Jorge about specific instances of Phineas's dishonesty. B. Now that Jorge has denied any knowledge of Phineas's unfaithfulness/lying, Defense counsel will likely be allowed to prove these facts by other means (e.g., having another witness testify that, in fact, Phineas has been having an affair and lying to his wife). C. The evidence of Phineas's affair/lies to his wife are irrelevant in a securities fraud trial. D. Phineas's lies to his wife regarding going on "business trips" is inadmissible hearsay. E. None of the above.

29. One tragic night, the Macy's store burned down in a fire. The fire investigators determined that the cause of the fire was a toaster oven being left on in the employee break room. Denise, a long-term employee who closed up the store on the night of the fire, was discharged from her job based on allegations that her negligence caused the fire by leaving the toaster oven burning. Denise has sued Macy's to be reinstated in her job. She alleges that she did not leave the toaster oven burning when she closed up the store. Denise wants to testify that it was her routine practice when closing up the store to triple check that all of the appliances in the employee break room were unplugged before leaving for the night. There are no witnesses to Denise's conduct as she closed up the store on the night of the fire. Moreover, there are no witness to corroborate Denise's claim regarding her routine practice. Is Denise's testimony regarding her routine practice admissible? A. No, it's irrelevant B. No, it's hearsay C. No, it's character evidence D. No, because it's not corroborated E. None of the above

6. Dennis is on trial for beating his wife, Victoria. Victoria has refused to testify against Dennis. Victoria's physician is called to testify as to the injuries Victoria sustained. Dennis objects to the physician's testimony. Assuming the court has recognized the physician patient privilege, how should the court rule? A. Objection sustained on grounds of hearsay B. Objection sustained on grounds of physician patient privilege C. Both of the above D. Objection sustained but on the grounds of the sixth amendment confrontation clause E. None of the above

10. James sues Sam's Club, claiming that when he was caught for alleged shoplifting, the Sam's Club security guard threw a large package of toilet paper at James in order to stop him from leaving the store with the stolen merchandise. James alleges that the force of being hit with the toilet paper knocked him to the ground and caused serious injuries to his back. At a criminal trial for battery, the security guard was convicted of assault against James. During the criminal trial, the security guard testified in his own defense that he had used force on James because his supervisor told him that he would lose his job if any more items were shoplifted from the store. The security guard appeals his conviction and while that appeal is pending, the civil trial of James vs. Sam's Club proceeds to trial. At the civil trial, the security guard invokes his Fifth Amendment privilege against self-incrimination and refuses to testify. James seeks to introduce into evidence an authenticated transcript of the security guard's testimony at his criminal trial. What is the best answer? A. The transcript is inadmissible on grounds of hearsay B. The transcript, although hearsay, qualifies as a statement of a party opponent C. The transcript is inadmissible character evidence D. The testimony, although hearsay, falls under the former testimony exception

12. Tina is on trial for "knowing participation in fraud" in connection with her husband's insider trading scheme. In her defense, Tina testified that she did not know that what her husband was doing was illegal and thus she did not "knowingly" participate in the fraudulent scheme. In her defense, Tina calls Dr. Uchland, a psychologist, who has previously performed a full psychological evaluation of Tina in anticipation of testifying at her trial. Dr. Uchland seeks to testify that in his opinion, Tina was too naïve and in love with her husband to have suspected him of wrongdoing and thus, Tina did not have knowledge of his illegal activities during the time she is alleged to have "knowingly" participated in the fraud. Is Dr. Uchland's testimony admissible? A. No, because it expresses an opinion concerning Tina's mental state at the time of the alleged fraud B. Yes, because Dr. Uchland was able to perform a full psychological evaluation of Tina C. Yes, because it is based upon a prior consistent statement by a witness (Tina) who is subject to examination concerning that statement D. No, because Dr. Uchland's evaluation of Tina was performed in anticipation of testifying on her behalf E. None of the above

13. Kevin's hand was badly cut when using his new "Magic Juicing Machine" (MJM). Kevin sued the manufacturer of the MJM in tort, claiming that his left hand was partially paralyzed by the injury. During settlement negotiations, Kevin's counsel asked him to demonstrate his range of movement in his injured hand ("Kevin, can you please show us how much movement you have in your injured hand?"), and Kevin responded by making a fist with his hand. No settlement was reached. At trial, Kevin testifies that he is barely able to move his fingers on his injured hand and cannot close his hand into a fist. On cross-examination, MJM's counsel asks Kevin, "At our settlement negotiations last week, you were able to close your left hand into a fist, isn't that right?" What is the correct answer? A. MJM's counsel's question is objectionable under FRE 408. B. MJM's counsel's question is objectionable on grounds that it is a leading question. C. MJM' counsel's question is permissible to impeach Kevin, because Kevin's own attorney elicited the information at the settlement negotiations. D. MJM's counsel's question is objectionable on grounds of hearsay, since Kevin made a fist at the settlement negotiations in response to a specific question regarding his range of movement. E. None of the above.

18. Defendant, an avowed anarchist who advocates the violent overthrow of government, was charged with attempted murder following the severe beating of a police officer. The prosecutor offers evidence that 14 years earlier Defendant was convicted of stabbing a police officer and subsequently bragged to his friends "I stuck a pig!". The prosecutor also offers evidence that the defendant had sent threatening letters to his local police department upon his release from prison 3 years prior to trial. This evidence should be A. Admitted as relevant evidence of Defendant's intention, plan, or motive B. Excluded, because such evidence can be elicited only during cross-examination C. Excluded, due to its tendency to prove Defendant's propensity toward violence D. Admitted due to its tendency to prove Defendant's propensity toward violence E. None of the above

2. Declan accidentally ran over Penny's pet cat, Buster. Immediately after realizing what he had done, Declan sent Penny flowers, an apology card, and offered to pay for Buster's pet funeral expenses. Penny declined his offer and sued Declan for damages relating to the loss of Buster. Penny seeks to introduce Declan's apology card as evidence against Declan at trial. Declan claims that the apology card is not admissible because it contains statements that were made during compromise negotiations. How will the court decide the issue of whether the apology card counts as a statement made during compromise negotiations? A. The judge will decide as a matter of law B. The judge will decide based on a preponderance of the evidence standard C. The judge has no discretion and must decide that the statements were made during compromise negotiations D. The judge will perform a prima facie screening of the evidence to determine whether a reasonable jury could conclude that the statements were made during compromise negotiations, and then the judge will allow the jury to decide the issue

21. Amy is suspected growing marijuana in the basement of her home. When police execute a search warrant, they find no plants in the basement. An officer asks Amy's roommate, Beth, where Amy keeps her marijuana plants. Beth says nothing but points to the bathroom door. Will the officer be permitted to testify at Amy's trial regarding Beth's conduct? A. No, because the conduct is inadmissible hearsay B. Yes, but only if he first explains the question he asked Beth C. Yes, because the conduct is not hearsay D. Yes, because although the conduct is hearsay, the facts of the hypothetical provide sufficient reason to believe that the statement will fall within a hearsay exception or exemption E. None of the above

24. The government charged Kevin Scutton, Chief Financial Officer of SuperWidgets, Inc., with participating in a company-wide conspiracy to defraud SuperWidget's investors. The prosecutor's evidence included testimony from SuperWidget employees that Scutton had pressured them to fabricate reports that reflected higher-than-accurate profits for SuperWidgets, in order to support the fraudulent conspiracy. In response, Scutton offered testimony from other employees that he had never pressured them to fabricate reports and that he consistently directed them to report accurate profit data in their reports. Should Scutton be permitted to call these other employees to testify? A. Yes, under 404(b)(2) B. No, the testimony is self-serving to Scrutton C. No, the testimony is improper character evidence D. Yes, provided the probative value of the evidence substantially outweighs its prejudicial value

28. Karen, an eyewitness to a stabbing, testifies at a civil wrongful death trial and does not claim lack of memory. Can her previous out-of-court statements be admitted into evidence under FRE 804? A. No, because she is not considered unavailable B. Yes, so long as her previous statement satisfies the reverse FRE 403 balancing test 24 C. Yes, because if she testifies at trial, then her previous out-of-court statement is no longer considered hearsay D. Yes, because she is considered available

8. Same case as above. The attorneys for Sunshine Power conducted an investigation into the power plant melt-down. During the course of their investigation, the attorneys gathered data from computers at the power plant regarding the pressure readings each day in the nuclear reactor cooling systems, recorded information from employee interviews, and commented on the legal theories that might potentially expose Sunshine Power to liability in this case and the attorney's reflections regarding whether the interviewed-employees would make good witnesses at trial. After completing their investigation, but prior to being sued by the injured workers, a tornado struck the power plant, destroying the computerized data files that recorded the pressure readings each day in the nuclear reactor cooling systems. The only sources of that information that remain in existence after the tornado are the attorney's notes. Plaintiffs seek to admit these notes into evidence. The notes are... A. Partially admissible and partially inadmissible B. Inadmissible hearsay C. Inadmissible on grounds of attorney-client privilege 17 D. Inadmissible on grounds of attorney work product

At 5 PM on May 18, 2010, Mary calls John to set up a business appointment. John's wife, Sue, answers the telephone in the kitchen and falsely tells Mary that John is not available because he is in the shower. John is later prosecuted for shoplifting an expensive handbag from Macy's at 5 PM on May 18, 2010. The key evidence against John is a video from Macy's store, where a man who strongly resembles John is seen to be placing their handbag under his shirt and walking out of the store. At trial, John testifies in his own defense, claiming that he was home with his wife at the time of the alleged offence. John's counsel calls Sue as a witness, but she refuses to testify. What is the proper ruling? 24. Same facts as above. Can John call Mary to testify regarding Sue's statement? A. No, Sue's statement is inadmissible hearsay B. No, Sue statement is protected by the marital communication privilege C. Yes, Sue's statement, although hearsay, qualifies as a present of sense impression D. Yes, Sue's statement, although hearsay, qualifies as a statement against interest E. None of the above

A (many people chose C, but that was wrong b/c Sue was not observing John in the shower at the time she made the statement)

4. Errol is on trial for stealing money from Vince's PayPal account in 2016. The prosecution alleges that Errol used Vince's password without his (Vince's) permission, and transferred money from Vince's PayPal account into Errol's bank account. The prosecutor offers evidence that Errol had previously transferred money from Vince's PayPal account into his (Errol's) account in 2015. What is the correct ruling? A. The evidence is likely admissible. B. The evidence is likely inadmissible character evidence, since it suggests Errol has a tendency to steal from Vince. C. The evidence is irrelevant, since it does not prove that Errol stole the money from Vince's account in 2016. D. None of the above

A (...to prove knowledge under 404(b))

8. Hedda sues Diane in tort, alleging that Diane's negligent use of her outdoor fire pit caused a fire to spread into Hedda's home, destroying the home and killing Hedda's 6 month-old daughter, Helga. At trial, Hedda's counsel seeks to introduce 20 photographs: 5 photographs of the burned house, and 15 photographs of Helga's burned body. Which of the following is correct? A. All of the photographs are relevant. B. All of the photographs are admissible. C. Some, but not all, of the photographs are relevant. D. A & B above. E. None of the above

A (A surprising number of people selected another answer and then wrote a clarification explaining that all of the photographs are relevant, but it's likely that not all will be admissible. If that's the rationale, then A is the best answer. Still, I gave credit if the explanation was clear enough.)

7. Juliet is on trial for the murder of Othello. Romeo testifies as an alibi witness, claiming that Juliet was with him in Venice at the time of the murder, eating dinner at a swanky new restaurant, The Three Witches' Cauldron. On cross-examination, Romeo admits that he's had a crush on Juliet for years - but that she's never returned his affections until last month, when she told him that she "couldn't live without him." On redirect, Juliet's counsel asks Romeo about a statement he (Romeo) gave last year to William Shakespeare, a local reporter, in which Romeo stated, "Juliet couldn't have committed that murder. She was having dinner with me in Vienna." What is the correct ruling? A. Romeo's statement to Shakespeare is admissible for the truth of the matter asserted. B. Romeo's testimony regarding Juliet's statement (that she "couldn't live without him") is hearsay. C. Both of the above. D. None of the above

A (as prior consistent statement under 801(d)(1)(B)) C (I gave credit for this answer, too - but A is better, since Juliet's statement is not being offered for the truth of the matter asserted.)

20. Imogen sues her ex-boyfriend, Ian, for the tort of battery, based on an incident in which Ian allegedly pushed Imogen down the stairs at her apartment at 123 Mockingbird Lane, breaking her arm. Imogen's 11 yr. old daughter, Lilly, witnessed the incident and rushed to her mother's aid while Ian fled the scene. Imogen said to Lilly, "Call an ambulance, I can't move my arm - I think it's broken." Lilly called 911 and said, "Help, please send an ambulance to 123 Mockingbird Lane! Ian pushed my mom down the stairs and she said that she thinks her arm is broken!" At trial, Imogen's counsel seeks to introduce the 911 recording. (Since we didn't study authentication in detail, please assume that the parties have stipulated to the authentication of the recording.) The 911 recording is... A. Admissible to prove both that Ian pushed Imogen down the stairs, and that Imogen broke her arm. B. Admissible to prove that Ian pushed Imogen down the stairs, but not that Imogen broke her arm. C. Inadmissible unless Ian has the opportunity to cross-examine both Imogen and Lilly. 10 D. Inadmissible, unless Lilly is unavailable. E. None of the above.

A . (Many people thought statement could only be used to prove Imogen *thought* her arm was broken - not that it was *actually* broken. That's incorrect. Imogen's statement/thought is circumstantial evidence that are was actually broken. People who got confused here are misinterpreting phrase, "evidence X is admissible to prove fact Y" - It simply means that if X is true, that makes it somewhat (even slightly) more likely that Y is true.)

7. Penny's estate sues Macy's, claiming that when she was caught for alleged shoplifting, the Macy's security guard dislocated her shoulder when restraining her. At a criminal trial for battery, the security guard was convicted of assault against Penny. During the criminal trial, the security guard testified in his own defense that he had used force on Penny because his supervisor told him that he would lose his job if any more items were shoplifted from the store. The security guard appeals his conviction and while that appeal is pending, the civil trial of Penny vs. Macy's proceeds to trial. At the civil trial, the security guard invokes his Fifth Amendment privilege against self-incrimination and refuses to testify. Penny seeks to introduce into evidence an authenticated transcript of the security guard's testimony at his criminal trial. What is the proper ruling? A. The transcript is inadmissible on grounds of hearsay B. The transcript, although hearsay, qualifies as a statement of a party opponent C. The transcript is inadmissible character evidence D. The testimony, although hearsay, falls under the former testimony exception E. None of the above

A or E

1. Google, Co. sues Start-Up, Corp. (a technology company that has launched a new internet search engine) for trademark infringement, based on allegations that employees of Start-Up, Corp's sales team have been referring to their search engine functionality as "googling" rather than the generic name, "searching the internet." At trial, Google offers the testimony of Sarah Stephenson, the manager of a venture capital hedge fund that invested in Start-Up, Corp. Stephenson intends to testify that, at the meeting where Start-Up, Corp's creators explained the idea behind their business venture, and in every meeting with Start-Up, Corp. representatives since that time, the employees of Start-Up, Corp. have referred to their internet search engine functionality as "googling." Start-Up Corp objects. What is the proper ruling? A. Objection sustained on grounds of hearsay B. Objection overruled because the out-of-court statement is not being offered to prove the truth of the matter asserted C. Objection sustained on grounds of lack of personal knowledge D. Objection overruled because the testimony does not offer an out-of-court statement

10. Penelope is on trial for the murder of her maid, Rhonda. The prosecution alleges that Penelope threw Rhonda down a flight of stairs after Rhonda failed to clean the floor to Penelope's exacting standards. Penelope's defense is that she tripped over a toy that had been left on the floor and accidentally fell into Rhonda, causing Rhonda to fall down the stairs to her death. During its case-in-chief, the prosecutor calls Samantha, a neighbor of Penelope's, to testify that on three occasions in the year prior to this incident, she had seen Penelope yell at Rhonda, slap her in the face, and on one occasion, burn Rhonda with a lit cigarette. Samantha's testimony is A. Inadmissible, because it is improper character evidence B. Inadmissible, because Witness lacks firsthand knowledge of why Penelope was so upset C. Admissible to show that Rhonda's death was not the result of an accident D. Admissible to show that Penelope is a violent person E. None of the above

14. Fill in the blank: Generally, when the prejudicial effect of a witness's prior conviction is somewhat less than its probative value, and the conviction is more than ten years old, FRE 609(b) ________ the conviction for the purpose of impeaching the witness. A. admits B. excludes C. infers D. rehabilitates E. None of the above.

17. Which of the following are not within the discretion of the trial judge? A. The judge allows Defendant's attorney to ask Defendant questions on cross examination that go well beyond the scope of direct examination by Plaintiff, who has been called as an adverse witness. B. The judge, despite Defendant's request for exclusion of witnesses, allows Plaintiff's eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination. C. The judge refuses to allow Defendant's attorney to cross-examine Defendant by leading questions. D. The judge allows cross-examination about the credibility of a witness even though no question relating to credibility has been asked on direct examination. E. None of the above

18. Willie strangles his wife, Lizzie, but she survives the attack. Willie is charged with Class 2 Aggravated Battery and Attempted Murder. Prior to trial, Lizzie recants her statements incriminating Willie and asks for the charges to be dismissed. The prosecutor subpoenas Lizzie to testify, but when the trial eventually begins, Lizzie refuses to appear. In hopes of convincing 20 the judge to admit Lizzie's incriminating statements under Rule 804(6), the prosecutor seeks, as a preliminary matter, to have the Court declare Lizzie unavailable to testify at trial. The prosecutor files a motion in limine, requesting that Lizzie be declared unavailable and that her prior statements against Willie be admitted under the forfeiture rule. At the hearing, the prosecutor presents evidence that Lizzie was subpoenaed by the court (which is to say, she was placed under a court order to testify), but that she has refused to appear at trial, despite the prosecution's reasonable efforts to secure her attendance and testimony. Which of the following is correct? A. Lizzie is not unavailable under Rule 804 B. Lizzie is unavailable under Rule 804 C. Even if Lizzie appeared at trial, the spousal testimonial privilege would bar her testimony D. Even if Lizzie appeared at trial, the marital communications privilege would bar her testimony

19. Harry is suing Ron for battery, alleging that Ron pushed him down the stairs, cutting Harry's forehead and causing a bad scar. Before trial, Harry deposes Snape, who was present at the time of Harry fall. Snape states in his deposition that he heard Harry and Ron yelling at each other and then heard Ron say, "I'll get you!" just before Harry came down the stairs. At trial, Snape claims that he has no memory of the event. Harry's attorney seeks to introduce the relevant portion of Snape's deposition. The evidence is A. Inadmissible hearsay B. Admissible under 801 as a prior inconsistent statements of a witness C. Admissible under 804 as former testimony D. Only admissible if corroborated E. None of the above

19. Same case as above. Immediately after the judge rules, as a preliminary matter, that Lizzie is unavailable to testify at trial, Lizzie appears in the courtroom and states that she is willing to testify. In her testimony, Lizzie states that her husband, Willie, did not strangle her. In an attempt to explain the red marks and bruising on her neck that appeared in photographs taken shortly after the incident, Lizzie claimed that she had an allergic reaction to shellfish which caused her neck to swell and become red and swollen. Will the prosecutor be permitted to use Lizzie's prior statements (in which she claimed that Willie strangled her) to impeach her trial testimony? A. No, the statements are hearsay and they do not fall under any exception or exemption B. Yes, the statements are admissible to impeach Lizzie C. No, since the prosecution called Lizzie as its own witness, they will not be allowed to impeach her D. None of the above

2. Wanda is called as a witness in a tort suit filed by Susan against Kerry for personal injuries relating to a car accident in which Kerry drove her car into Susan's car. When the plaintiff's attorney asks Wanda whether she was present at the scene of the accident, Wanda refuses to testify, citing her Fifth Amendment privilege against self-incrimination. The judge believes there is no chance that Wanda's answer will incriminate her -- and that there is only a 1% chance that Wanda's answer might lead the authorities to incriminating evidence against her. How should the judge rule? A. Compel Wanda to testify B. Allow Wanda to remain silent on Fifth Amendment grounds C. Allow Wanda to remain silent, but on grounds that the 6th amendment, not the 5th amendment D. Allow Wanda to remain silent because her testimony is irrelevant E. None of the above

21. A privately-owned septic tank explosion in the Town of Ick caused serious damage to property and physical injury to three passersby, each of whom were splattered with solidified chunks of human waste due to the explosion. One passerby, Lenny, claims that he was struck in the eyeball with a particularly large chunk of waste, and that he lost eyesight in that eye due to his injury. The Town of Ick's Department of Public Works investigated the explosion. The investigator examined the septic tank, spoke with the two eyewitnesses to the explosion, and interviewed three employees who worked as septic tank maintenance professionals. The 21 investigator submitted a report to the Department of Public Works that included the following three statements: i. In the investigator's opinion, the septic tank appears to have exploded due to poor maintenance; ii. One of the eye witnesses stated that he saw Lenny shortly after the explosion and Lenny did not appear to be injured; iii. There were approximately five hundred gallons of human waste discharged in the explosion. Lenny sued owner of the septic tank for damages to his eye, claiming that negligent maintenance of the septic tank was the proximate cause of his injuries. Which, if any, of the statements in the report is admissible? A. None B. i and iii only C. ii only D. i, ii, and iii

25. Dominic is charged with sexually assaulting Natalie in 2009. The prosecution seeks to introduce evidence that Dominic committed other sexual assaults subsequent to this incident, in 2010 and 2011. In his defense, Dominic seeks to introduce evidence that Natalie had previously been sexually assaulted in 1997. Which of the follow is correct? A. None of the evidence regarding the other sexual assaults is admissible at Dominic's trial, since the prohibition on "other acts" evidence in 404(b)(1) prohibits this type of evidence B. Evidence that Natalie was previously sexually assaulted is not admissible, but evidence of Dominic's alleged subsequent sexual assaults are admissible if Rule 104 is satisfied C. Evidence that Natalie was previously sexually assaulted is not admissible because it occurred more than 10 years before the incident with which Dominic is charged, and evidence of Dominic's alleged subsequent sexual assaults are not admissible unless he has been convicted of those offenses D. Evidence of Dominic's alleged subsequent sexual assaults are not admissible because they occurred after the alleged offense against Natalie.

3. Same facts as above, but now Declan claims that he wrote the statements in the apology card during a meeting with Penny, which she had called just after she filed her lawsuit against him, in order to discuss resolving their dispute. Declan claims that, during the meeting, Penny told him that she would be willing to drop the lawsuit if he wrote her a sincere apology - and that is why he wrote the apology card. Penny denies Declan's version of events and claims instead that Declan spontaneously provided her with the apology card, long before she ever considered filing 15 a lawsuit against him. How will the court decide the issue of whether the apology card counts as a statement made during compromise negotiations? A. The judge will decide as a matter of law B. The judge will decide based on a preponderance of the evidence standard C. The judge has no discretion and must decide that the statements were made during compromise negotiations D. The judge will perform a prima facie screening of the evidence to determine whether a reasonable jury could conclude that the statements were made during compromise negotiations, and then the judge will allow the jury to decide the issue

5. Mickey and Donald negotiate a contract for the sale of 10,000 widgets. Mickey says to Donald, "I will pay you $1 per widget if you can deliver them by next Thursday." Donald replies, "I accept." Donald fails to deliver the widgets on time and Mickey sues him for breach of contract. At trial, Donald's statement ("I accept") is A. Hearsay B. Not hearsay C. Hearsay, which falls under an exception D. Hearsay, which falls

9. Mark and Jean commit a series of bank robberies. Their "signature" at each crime scene is to kiss passionately just after taking hold of the money, before exiting the banks. Eventually, they come to be known as the "Romantic Bandits". Before the police catch up with them, they get married and begin living law abiding lives. When they are finally identified as the "Romantic Bandits", they are prosecuted for several counts of robbery. At Mark's trial, the prosecution seeks to introduce Jean's testimony as to the conversations she and Mark had at the time they were planning and executing their robberies. What is the correct ruling? A. Jean's testimony is barred under the marital communications privilege B. Jean may refuse to testify under the spousal testimonial privilege C. Mark may prevent Jean from testifying under the spousal testimonial privilege D. None of the above

John, an eyewitness to a car accident, is called to testify on behalf of the plaintiff. Plaintiff counsel asks John, "Did you see how fast the defendant's car was driving?" John responds, "Yes, the defendant was driving at least 60 mph." What is the best answer? A. John's testimony is probably admissible B. John's testimony is probably inadmissible opinion evidence C. John's testimony is inadmissible character evidence D. John's testimony is admissible because it falls within a hearsay exception E. None of the above

5. John sues his former employer, Widgets R Us, Corp. (WRU) for wrongful termination. WRU counterclaims, alleging that it fired John for stealing widgets in December 2016. WRU's counsel calls John's husband, Bob, to testify regarding a conversation John and Bob had in January 2017, in which John allegedly told Bob, "We're gonna be rich! As soon as I can sell off these widgets, we'll have it made!" Which of the following is incorrect? A. Bob can claim the spousal testimonial privilege and refuse to testify. B. The marital communications privilege does not apply to same-sex couples. C. John's statement is "statement of a party opponent" and thus not barred under the general prohibition on hearsay. D. If John and Bob were married at the time John made this statement, and if the statement was made in confidence, then John can stop Bob from testifying regarding this statement. E. None of the above

B [Note: This question was badly drafted, because the bracket language in (A) above was omitted. I gave credit to everyone, since the mistake was in my drafting.]

16. Barney is charged with robbing his friend, Fred, at their local Wawa. Barney claims he was in Indiana at the time of the robbery. Fred dies in an unrelated car accident prior to trial. Fred's wife, Wilma, testifies that, just before leaving the house on the day of the alleged robbery, Fred said, "I'll be back this afternoon - I'm going to meet Barney at Wawa." What is the correct ruling? A. All of Wilma's testimony is inadmissible hearsay. B. Wilma's testimony is admissible to prove Fred's intent to go to Wawa, and as circumstantial evidence that Fred was at the Wawa at the time in question, but it cannot be used (even as circumstantial evidence) to prove that Barney was at Wawa at the time in question. C. Wilma's testimony is admissible to prove Fred's intent to go to Wawa, and as circumstantial evidence that both Fred and Barney were at the Wawa together at the time in question, but it cannot by itself establish that Barney was at Wawa at the time in question. D. Wilma's testimony is irrelevant. E. None of the above

B (A surprising number of people confused Hilmon case and 803(3))

12. Barron Rockorich, a personal injury lawyer, represents a group of Smallville residents, in a toxic tort suit against Big Bad Chemical Dumping, Corp. (BBCD). The suit alleges that BBCD dumped tons of toxic chemicals into a river behind its factory in Smallville, and the toxic chemicals leaked into the Smallville drinking water, causing cancer in many of the residents. While investigating the possibility of bringing suit, Barron Rockorich's law firm hired an expert, Tommy Toxicity, to investigate the factual basis of the potential claims. Tommy Toxicity's report included interviews with the plaintiffs, each of whom admitted to smoking 3-7 packs of cigarettes per week for decades prior to being diagnosed with cancer. Each of the plaintiffs died before BBCD had the opportunity to conduct discovery depositions. Moreover, before obtaining 7 the plaintiff's medical records in discovery, a tornado struck Smallville and destroyed the plaintiff's medical records. BBCD now seeks to obtain copies of Tommy Toxicity's interviews with the (now deceased) plaintiffs, in hopes of establishing that their cancers were due to smoking, not to BBCD's dumping of toxic chemicals. Should Tommy Toxicity's interviews with the (now deceased) plaintiffs be disclosed to BBCD? A. No, because the plaintiffs are now deceased -and so their statements to Tommy Toxicity are irrelevant. B. Yes, because the work product privilege is qualified. C. Yes, although the statements will not be admissible at trial, because they are hearsay. D. No, because the attorney-client privilege does not extend to Tommy Toxicity. E. None of the above.

B (A surprising number of people didn't know what "qualified privilege" means.)

9. Mark, a well-regarded master chef, sues Greg (a competing chef) for defamation (slander), based on allegations that Greg told Linda that Mark was "a horrible cook who has never had an original idea in his life. In fact, he stole my famous lasagna recipe and passed it off as his own!" Linda died before trial. Mark's counsel seeks to introduce the following testimony from Wayne: "Gerry told me that Linda told him that Greg said Mark was a horrible cook who never had an original idea in his life - and that Greg said Mark stole Greg's lasagna recipe and passed it off as his own." Which of the following is correct? A. Greg's statement to Linda is hearsay. B. Greg's statement to Linda is not hearsay. C. Linda's statement to Gerry is admissible hearsay. 6 D. Greg's statement to Linda (as testified to by Wayne) is admissible to prove its legal effect (Greg's defamation/slander of Mark). E. None of the above.

B . (It's not being offered to prove truth of matter asserted. That is, Mark's counsel is not introducing Greg's statement to prove that Mark was in fact a horrible cook who never had an original idea in his life.) D. Greg's statement to Linda (as testified to by Wayne) is admissible to prove its legal effect (Greg's defamation/slander of Mark). (This answer is wrong b/c you need to find exceptions for other layers of hearsay.)

11. Plaintiff's son is scalded to death in a bath while in the care of his English nanny, Jo. As it turns out, Jo has a long history up abusing children in her care. Plaintiff sues Nannies-R-Us, a company which provides background checks and information regarding English nannies seeking to work in the United States and which had arranged for Plaintiff to employ Jo. Plaintiff alleges that Nannies-R-Us failed to perform a background check on Jo. At trial, Plaintiff calls the keeper of the records at Nannies-R-Us, who testified that the company maintains records of background checks in the regular course of business and that although she performed a diligent search of the company's records, she failed to find any records relating to Jo's background check. Defense counsel objects on grounds of hearsay. The proper ruling is A. The testimony is inadmissible hearsay B. The testimony is not hearsay C. The testimony, although hearsay, falls under the absence of an entry from a public record exception D. The testimony is inadmissible because the records themselves must be produced E. None of the above

B or E

27. Anna tells Bonnie, "I stole $100,000 from my employer." Anna testifies at her embezzlement trial and denies having made that statement to Bonnie. Bonnie is called to testify in rebuttal. Anna's counsel objects to Bonnie repeating Anna's statement. What is the proper ruling? A. The statement is inadmissible because it violates Anna's privilege against self-incrimination B. The statement is hearsay, but admissible C. The statement is inadmissible hearsay D. The statement is inadmissible because it is extrinsic impeachment E. None of the above

B or E

12. After they were in a car accident, Norman sued Martha for negligence. At trial, Norman called Shane as a damages witness. Shane's character for truthfulness was not questioned on cross-examination, but after his testimony Martha called Becky to the stand. Becky will testify that she knew Shane well and that he had personally lied to her on two different occasions—once about his age and once about whether he was married. Norman objects to Becky's testimony. Becky's testimony is: A. Inadmissible because Shane's character was not bolstered or attacked on cross-examination, so Martha was not allowed to call a witness to testify about his character. B. Inadmissible because the lies that Becky will testify to have nothing to do with whether or not Shane might lie on the stand. C. Inadmissible because Rule 608 only permits general reputation or opinion evidence, not testimony about specific dishonest acts. D. Admissible.

14. Severus throws Albus off the top of a tall tower. Albus, while lying on the ground, seriously injured and awaiting the ambulance, whispers to Hermoine, "Severus did it... He threw me to my death. Please don't let him get away with it." As if by magic, Albus survives the fall. Severus is charged with aggravated battery. Before trial, Albus is struck by a double decker bus being driven by a negligent bus driver, and he dies from his injuries. At trial, the prosecutor calls Hermoine to testify regarding the statement Albus made to her. What is the correct ruling? A. Albus' statement to Hermoine is admissible as a dying declaration B. Albus' statement to Hermoine is admissible as a present sense impression C. Albus' statement to Hermoine is inadmissible for the truth of the matter asserted D. None of the above

15. Susan sues Delicious Delicatessen (DD) for injuries sustained when she slipped and fell on the ice outside of DD's store. Susan calls James, an employee of DD, to testify that the sidewalk outside DD's store was "slippery" at the time of Susan's accident. What is the correct ruling? A. James' statement is admissible as an out-of-court statement of a party opponent. 8 B. James's statement is not admissible. C. James's testimony is admissible as a lay opinion. D. None of the above.

16. Greg is accused of stealing money from Rachel, his ex-girlfriend. Rachel testifies for the prosecution. In his defense, Greg calls his friend Teri to the stand, who testifies that Rachel told her: "I sure got back at Greg for cheating on me. Once the jury hears the story I made up, they'll send him to prison for a long time." The prosecution objects to Teri's testimony as hearsay. The testimony is: A. Admissible to impeach Rachel, and admissible for the truth of the matter asserted only if the judge determines that the circumstances corroborate the trustworthiness of the statement B. Inadmissible C. Admissible only to impeach Rachel D. Admissible to impeach Rachel and for the truth of the matter asserted

17. Riley slipped and fell at AppleMe's Restaurant, injuring his hip to such an extent that he required surgery and was unable to work for 3 months. Riley claims that employees of AppleMe's left soapy water on the floor near the entryway. Amongst the other pieces of evidence that Riley would like to introduce at trial, he seeks to admit the testimony of Theo. Theo will testify that as he walked into the store 2 minutes before Riley's accident, Theo nearly slipped and fell at the same spot, due to soapy water on the floor. Theo will further testify that just before leaving the restaurant, after his meal, he spoke to the AppleMe's manager and said, "Wow, your entry way sure is slippery! I almost fell when I walked into your restaurant." Which of the following is incorrect? A. The statement is hearsay if it is offered to prove the dangerous condition of the floor B. The statement is not hearsay if it is offered to prove notice of shop owner C. The statement is not admissible under Rule 407 D. The statement is relevant circumstantial evidence

22. Donald Rump is being prosecuted on suspicion of having imported illegal goods from abroad. In his defense, Rump seeks to introduce a certified copy of the relevant customs documents from the Department of Immigration and Customs Enforcement (ICE), which purport to demonstrate that the goods in question were imported legally. The prosecution objects on grounds of hearsay. What is the proper ruling? A. The document cannot be used to prove that the goods were imported legally, because the person who had personal knowledge of the facts underlying the document is not available to testify at trial B. The document can be used to prove that the goods were imported legally because the document is not hearsay C. The document can be used to prove that the goods were imported legally because, although it is hearsay, it falls within the public records exception D. The document cannot be used at trial because it is irrelevant E. None of the above

30. Snack-Ums Corp., a large multinational snack food company sues three competitors, claiming that they violated price-fixing laws by intentionally agreeing to sell products at the same price, so as to undercut the price that Snack-Ums was charging. At trial, Snack-Ums seeks to introduce pricelists distributed by the three competitors. The three pricelists each advertise fifty different products at varying costs; each product, however, carries the same price on all the three lists. The three pricelists are: A. Real evidence that provides direct evidence of an intentional agreement to fix prices. B. Demonstrative evidence that provides direct evidence of an intentional agreement to fix prices. C. Real evidence that provides circumstantial evidence of an intentional agreement to fix prices. D. Demonstrative evidence that provides circumstantial evidence of an intentional agreement to fix prices

23. At 5 PM on May 18, 2010, Mary calls John to set up a business appointment. John's wife, Sue, answers the telephone in the kitchen and falsely tells Mary that John is not available because he is in the shower. John is later prosecuted for shoplifting an expensive handbag from Macy's at 5 PM on May 18, 2010. The key evidence against John is a video from Macy's store, where a man who strongly resembles John is seen to be placing their handbag under his shirt and walking out of the store. At trial, John testifies in his own defense, claiming that he was home with his wife at the time of the alleged offence. John's counsel calls Sue as a witness, but she refuses to testify. What is the proper ruling? A. Sue can be compelled to testify B. Sue cannot be compelled to testify, because she can claim the marital communication privilege C. Sue cannot be compelled to testify, because she can claim spousal testimonial privilege D. Sue cannot be compelled to testify, because her testimony would corroborate John's alibi E. None of the above

23. Bart is on trial for the battery of his sister, Lisa. The prosecution alleges that while the two were loading furniture onto a moving van while helping their parents move into a retirement home, Bart pushed Lisa off the back of the moving van and she broke her arm. Maggie, Bart and Lisa's younger sister, did not witness the event - but she arrived shortly after Lisa was injured and took Lisa to the hospital for treatment. Bart claims in his defense that he stumbled over a table that had been packed into the van and that he accidentally fell into Lisa, causing Lisa to tumble out of the van. During its case-in-chief, the prosecutor calls Maggie to testify that she has witnessed Bart slap, punch and kick Lisa on several occasions throughout the past five years. Maggie's testimony is... A. Admissible to show that Bart is a violent person B. Inadmissible, because it is improper character evidence C. Admissible to show that Lisa's injury was not the result of an accident 22 D. Inadmissible, because Maggie lacks firsthand knowledge of how Lisa was injured on this occasion

26. Following an attempted bombing at a shopping mall (which thankfully failed after the bomb did not detonate), the US Department of Homeland Security (DHS) sent an investigator to identify any terrorist links to the plot. The investigator examined the bomb (which had not yet been moved from the location where it was found), spoke with ten shoppers who witnessed the bomb being placed at the mall by the suspect, and interviewed three security guards at the mall. The investigator submitted a report to DHS that included the following three statements: I. The bomb was located in a garbage can next to the food court, wrapped in a paper bag II. In the investigator's opinion, the bomb appears to have been assembled by someone who lacked expertise in bomb-making III. One of the security guards stated that he saw the suspect leave the paper bag in the garbage can, but he did not get a good look at the suspect One of the mall shoppers, who was injured in the stampede that broke out once the bomb was identified, sued the mall for negligence and wishes to enter the DHS investigator's report into evidence. Which, if any, of the statements in the report is admissible? 26. Following an attempted bombing at a shopping mall (which thankfully failed after the bomb did not detonate), the US Department of Homeland Security (DHS) sent an investigator to identify any terrorist links to the plot. The investigator examined the bomb (which had not yet been moved from the location where it was found), spoke with ten shoppers who witnessed the bomb being placed at the mall by the suspect, and interviewed three security guards at the mall. The investigator submitted a report to DHS that included the following three statements: I. The bomb was located in a garbage can next to the food court, wrapped in a paper bag II. In the investigator's opinion, the bomb appears to have been assembled by someone who lacked expertise in bomb-making III. One of the security guards stated that he saw the suspect leave the paper bag in the garbage can, but he did not get a good look at the suspect One of the mall shoppers, who was injured in the stampede that broke out once the bomb was identified, sued the mall for negligence and wishes to enter the DHS investigator's report into evidence. Which, if any, of the statements in the report is admissible? A. I only B. II only C. I and II only D. I, II, and III E. None of them.

26. Ronald and Isla Stump were happily married for 40 years, until they were not. The marriage ended 2009. During their marriage, Isla traveled frequently back to her homeland, Iceland. Meanwhile, Ronald, a fabulously successful international business entrepreneur, traveled extensively throughout the world without Isla. During their marriage, Isla gave birth to 3 sons: Ronald Stump, I; Ronald Stump II; and Ronald Stump III. Sadly, Ronald Stump was not present for any of the births of his children, since he was so often traveling throughout the world on business. In his will, Ronald Stump left his entire $2 billion estate to his first son, Ronald Stump I. The one condition placed on the inheritance was that this son prove that he (the son, Ronald Stump I) was born in the United States. According to the will, if Ronald Stump I could not prove that he was born in the United States, then the estate would be divided equally between Ronald Stump II and Ronald Stump III. When Ronald Stump died, his two younger sons (Ronald Stump II and Ronald Stump III) challenged their older brother's inheritance rights under 23 the will. The younger brothers claimed that their older brother was born in Iceland, during one of their mother's frequent visits back to her homeland. At trial, Isla testifies that she gave birth to Ronald Stump I in Hawaii in 1980. In order to refute their mother's testimony, the younger brothers call the keeper of the records of the hospital at which Isla claims to have given birth to Ronald Stump I. The keeper of the records at the hospital testifies that the hospital maintains records of births in the regular course of business and that although she performed a diligent search of the hospital's records, she failed to find any records relating to Ronald Stump I's birth. Defense counsel (representing Ronald Stump I) objects on grounds of hearsay. The most appropriate ruling is... A. The testimony is inadmissible because the records themselves must be produced B. The testimony is inadmissible hearsay C. The testimony, although hearsay, falls under the absence of an entry from a public record exception D. The testimony is inadmissible because it fails to prove by a preponderance of the evidence that Ronald Stump I was not born in the United States

27. Celebrity Relocations R Us, Inc. (CRRU), was moving Oprah Windrop from her 110th story apartment in the big city, to her new estate in the rural countryside. Among the many objects being packed up and moved from Windrop's apartment was a grand piano, which was worth an estimated $250,000. In order to move the piano out of the apartment, CRRU arranged for a crane to take the piano out of a large window in Windrop's apartment and lower it to the ground, so that it could then be safely packed in to the moving van. As the piano was being lowered from the skyscraper apartment, Fred and Wilma were driving on the street below. The crane holding the piano malfunctioned and dropped the piano onto Fred and Wilma's car, killing their daughter, Pebbles, who was riding in the backseat. Fred and Wilma sued CRRU in tort. The malfunctioning crane was impounded by court order and stored in a suburban storage facility for inspection by the parties. At a settlement conference held at the storage facility, counsel for both parties brought experts to examine the crane. Despite extensive discussions, no settlement agreement was reached. At trial, Fred and Wilma call their expert, Ruby Gold, who inspected the crane during the settlement conference, to testify regarding her opinions as to the defectiveness of the crane. Ruby Gold's expert testimony is... A. Admissible, but only because CRRU's expert also had an opportunity and motive to examine the door B. Inadmissible, because the crane was examined as a part of settlement negotiations C. Admissible, despite the fact that the crane was examined as a part of settlement negotiations D. Inadmissible, because Ruby Gold's testimony is not being offered for the truth of the matter asserted

29. Which of the following are not within the discretion of the trial judge? A. The judge refuses to allow Defendant's attorney to cross-examine Defendant by leading questions. B. The judge allows Defendant's attorney to ask Defendant questions on cross examination that go well beyond the scope of direct examination by Plaintiff, who has been called as an adverse witness C. The judge, despite having admitted a piece of evidence for one purpose, but not for another, refuses to instruct the jury accordingly D. The judge allows cross-examination about the credibility of a witness even though no question relating to credibility has been asked on direct examination.

4. Jack and Jill pull off the largest Ponzi scheme in history. Before their scheme is unraveled, they take $100 million in cash, get married, and moved to South America. Eventually, they are both captured and extradited back to United States for trial. At Jack's trial, the prosecution seeks to introduce Jill's testimony as to the conversations she and Jack had at the time of the scheme. What is the correct ruling? A. Jill's testimony is inadmissible because it violates her privilege against self-incrimination B. Jill's testimony is barred under the marital communications privilege C. Jill may refuse to testify under the spousal testimonial privilege D. Jack may prevent Jill from testifying under the spousal testimonial privilege E. None of the above

4. Jamie runs to the police station, bleeding, after being punched in the nose by Susan. After an hour long wait to talk with an officer, Jamie is interviewed by Officer Friendly, to whom she reports, "Susan really socked me hard. I feels like my nose is broken." Susan is prosecuted for battery against Jamie. At the time of trial, Jamie refuses to testify, but the prosecution proceeds nonetheless. At Susan's trial, will Jamie's either of Jamie's statements to Officer Friendly be admissible? A. Yes, Jamie's second statement falls under the present sense impression exception B. No, if the statements are deemed "testimonial" as judged from the subjective point-of-view of the declarant (Jamie) C. No, if the statements are deemed "testimonial" as judged from the objectively reasonable point-of-view of both the declarant (Jamie) and Officer Friendly D. None of the above

8. Defendant is on trial for embezzlement from Company. Witness, an employee of Company, discovered the embezzlement after spending two weeks cataloging missing entries in Company's financial records, which should have been entered into the records by Defendant to reflect payments made by his clients to Company. Witness is called to testify at defendant's trial regarding the missing entries. At trial, witness testifies that (1) she is unable to remember exactly what entries were missing from the records, and (2) seeing her notes would help to refresh her recollection. The prosecutor can... A. Have Witness read her notes to the jury B. Have the notes entered into evidence C. Show Witness the list and then take it away and have her testify from her refreshed recollection D. A and C but not B E. None of the above

James punches Larry in the nose. James immediately apologizes and offers to get Larry some ice - but Larry refuses and calls the police. When the police arrive two hours later, Larry calmly tells the officer (1) that James punched him and (2) that his nose still really hurts. At James' trial, Larry is unavailable to testify because he moved to Mexico. The prosecution wishes to admit Larry's statements to the officer. What is the proper ruling? If there is sufficient evidence to find that Larry moved to Mexico because James threatened to kill him if he testified at trial, what is the proper ruling now? A. The first statement is inadmissible, but the second statement is admissible B. The first statement is admissible, but the second statement is inadmissible C. Both statements are admissible D. Neither statement is admissible E. None of the above

18. Homer is charged with a terrorism-related offense allegedly committed on April 15, 2016, in furtherance of his (unsuccessful) plan to blow up the Springfield Nuclear Power Plant. The prosecution calls Homer's wife, Marge, to testify. Marge agrees to testify as follows: "On April 15, 2016, my daughter, Lisa, told me that Homer came home from work in an unusually cranky mood - even for Homer. Lisa told me that my son, Bart, was watching his cartoons with the volume up too loud - and she (Lisa) overheard Homer yelling at Bart, 'Turn off that noise, Bart! I've got to work on my plan to blow up that darned power plant, so I can get out of work and 9 spend all day at Moe's Bar!' Lisa was pretty shaken up by the whole thing." Which of the following is correct? A. Homer can prevent Marge from testifying, under the spousal testimonial privilege. B. Homer can prevent Marge from testifying, under the marital communications privilege. C. Lisa's statement to Marge regarding Homer's statement to Bart is likely admissible. D. Lisa's statement to Marge regarding Homer's statement to Bart is not admissible, because Homer made the statement to Bart, not to Lisa. (However, if Bart were unavailable, then Lisa's statement to Marge regarding Homer's statement to Bart may be admissible.) E. None of the above.

C (As excited utterance - needn't be hysterical - Marge says, "Lisa was pretty shaken up" - likely enough.)

2. Sam agreed to deliver 200 crates of fresh bananas to Farrah. After receiving the banana delivery, Farrah sued Sam for breach of contract, alleging that that the bananas Sam's driver (Tina) delivered were rotten. On cross-examination, Sam's counsel asks Farrah the following questions: (1) "Isn't it true that when Tina delivered the bananas to you, you told her, 'Wow! Sam has really upped his game! These bananas look awesome!'" and (2) "Isn't it true that you also told Tina that you had a younger sister who looked just like her?" Farrah denies making both statements. Sam's counsel now seeks to call Tina to testify as to Farrah's two statements. What is the correct ruling? A. Exclude both statements on hearsay grounds. B. Allow Tina to testify as to both statements. C. Allow Tina to testify as to statement (1) but not statement (2). D. Exclude both statements as irrelevant, since neither proves whether the bananas were rotten. E. None of the above

C (Tina's testimony is extrinsic impeachment of Farrah's trial testimony. Extrinsic evidence is admissible to impeach on non-collateral matters, such as (1) - but not on collateral matters, such as (2).)

10. Rachel is charged with vehicular homicide and driving-while-intoxicated. Barney, the local bartender, testifies that he served Rachel five martinis in the two hours before the collision. Blood alcohol tests conducted within 30 minutes after the collision prove that Rachel was nearly two times over the legal blood alcohol limit. In her defense, Rachel's counsel calls Rachel's 12- year old daughter, Rena, to testify that she (Rena) saw her mother 15 minutes before the collision and her mother "seemed totally fine - not drunk at all." What is the correct ruling? A. Rena's testimony is inadmissible because she is unduly biased in favor of her mother. B. Rena's testimony is irrelevant, since Barney's testimony and the blood alcohol tests clearly establish that Rachel was legally intoxicated at the time of the collision. C. Rena's testimony is inadmissible opinion testimony. D. None of the above

C or D (I meant for D to be the correct answer, but a lot of people flagged up concern re: foundation for 12 yr old being able to give lay opinion re: drunkenness. So, I gave credit for C or D.)

11. Zoe sues Dr. Glass for medical malpractice, claiming that Dr. Glass' negligence in performing unnecessary surgery on her foot caused Zoe to suffer a permanent limp. Dr. Franny testifies on behalf of Zoe as a damages witness, to explain the physical limitations Zoe has suffered since the surgery. On cross-examination, Dr. Glass' counsel asks Dr. Franny, "Isn't it true that you hold a grudge against Dr. Glass because he graduated at the top of your medical school class and was awarded a fellowship that you wanted to get?" Dr. Franny denied having a grudge against Dr. Glass. Counsel for Dr. Glass now seeks to introduce a letter Dr. Franny wrote to her brother, Ben, in which she stated, "I hate that idiot Glass! I can't believe he got the fellowship and I didn't!" What is the proper ruling? A. Counsel for Dr. Glass cannot introduce the letter into evidence for any purpose B. The letter is admissible as an excited utterance C. The letter is admissible as a present sense impression 18 D. Counsel for Dr. Glass can introduce the letter into evidence, albeit not for the truth of the matter asserted

13. Harry sues the estate of Ron, seeking to recover a cloak that Harry had lent to Ron 40 years before, when they attended school together as boys. Ron died in 2011. For the last 10 years of his life, Ron insisted that the cloak always belonged to him -- and that Harry had no legal claim to the cloak. However, on Ron's deathbed, he confessed to Neville that the cloak in fact belonged to Harry. Harry called Neville to testify regarding Ron's statement. What is the proper ruling? A. Ron's statement to Neville is admissible as a dying declaration B. Ron's statement to Neville is admissible as a present sense impression C. Ron's statement to Neville is inadmissible for the truth of the matter asserted D. None of the above

14. If a witness testifies at trial and does not claim lack of memory, can her previous out-of-court statement be admitted into evidence under FRE 804? A. Yes, because if she testifies at trial, then her previous out-of-court statement is no longer considered hearsay B. Yes, so long as her previous statement satisfies the FRE 403 balancing test C. Yes, because she is considered available D. No, because she is not considered unavailable E. None of the above

15. Zuzu is a horticulturalist, who is particularly interested in the details of different kinds of flower petals. In her spare time, she collects flower petals. Indeed, by 2010, she had collected over one hundred thousand varieties of flower petals. One day, State University College (SUC) of Horticulture contacted Zuzu and asked to purchase her collection. While she was not quite certain that she wanted to sell her collection, she began to compile notes regarding the different 19 kinds and varieties of flower petals in her collection. She inspected each petal and recorded its size, color, and other pertinent details. After providing the list to SUC, they offered her $8,000 for her collection. She counter-offered with a demand for $12,000 - and, eventually, she agreed to sell her collection to SUC for $10,000. Soon thereafter, before the sale was completed, a fire at Zuzu's home destroyed her flower petal collection. Zuzu filed a claim under her home owner's insurance - but the claim was denied. Zuzu then sued her insurance company, alleging that they wrongfully failed to make payment on her insurance claim. At trial, Zuzu seeks to admit the list she provided to SUC. Can the list be admitted as an exhibit? A. Yes, it is not hearsay because it is not being offered to prove that the insurance company wrongfully failed to make payment on Zuzu's insurance claim B. Yes, it is hearsay, but it falls within the business records exception C. No, but is can be read to the jury D. None of the above

20. Plaintiff sued Defendant for injuries sustained in an automobile collision. During Plaintiff's rehabilitation at Rehab-R-Us, a physical therapist examined Plaintiff and concluded that plaintiff had torn a ligament in her right shoulder. At the time of the examination, the physical therapist was accompanied by an assistant who was working for Rehab-R-Us while training to become a licensed therapist. Upon hearing the physical therapist state that the plaintiff had torn a ligament in her right shoulder, the assistant recorded a note in Plaintiff's records: "torn ligament - right shoulder." At trial, the records custodian from Rehab-R-Us testifies that Plaintiff's therapy record was made and kept in the ordinary course of business. The entry reporting therapist's diagnosis is A. Inadmissible, because no foundation has been laid for therapist's competence as an expert. B. Inadmissible, because the assistant is not yet licensed. C. Inadmissible, because the therapist's opinion is based upon data that are not in evidence. D. Admissible as a record of regularly conducted business activity. E. None of the above

20. Same as above. Lizzie testifies on cross-examination that the only reason why she called the police to report her husband at the time of the incident was because she was angry with him for stealing her marijuana from her bedroom drawer. Is her statement admissible? A. Yes, because it is not being offered for the truth of the matter asserted. B. Yes, because it falls within the exception in Rule 804(3) C. Yes, because it is a statement of an opposing party, and is thus admissible under 801(d)(1)(A) D. None of the above

22. Jane is on trial for the murder of Eve. The prosecution alleges that Jane shot and killed Eve at the Bell Tavern on October 8, 2011. Jane claims that she was in France on October 8, 2011. The prosecutor calls Anne Marie to the stand, who will testify that she received a text message from Eve on Wednesday, October 5, 2011, which stated, "OMG! Party at Bell Tavern this Sat. 9- 8-11! Jane and I will B there!! Can U go 2?!" Is Eve's text message admissible to prove Jane was at the Bell Tavern on October 8, 2011? A. No, because it does not prove by a preponderance of the evidence that Jane was at the Bell Tavern at that time B. Yes, the statement is admissible as an excited utterance C. Yes, but if the defense requests it, the Court may issue a limiting instruction D. None of the above

5. Colin died from a drug overdose. The insurance company claimed that Colin committed suicide, and refused to pay on his life insurance policy. Colin's wife argued that the overdose was accidental, and sued the insurance company for non-payment. At trial, the insurance company called Dr. Jaffee, a clinical psychiatrist who was a close friend of Colin's. Dr. Jaffee never examined Colin as a patient, but she did have lunch with him two days before he died. The insurance company did not attempt to qualify Dr. Jaffee as an expert. She testified that on the day she saw Colin, he "seemed very depressed; in fact, it appeared to me that he displayed all the symptoms of bipolar affective disorder." Colin's wife objects to this testimony. How should the court rule? A. The entire testimony is admissible, because Dr. Jaffee has the psychiatric expertise to make such a diagnosis B. None of the testimony is admissible, because Dr. Jaffee was not qualified as an expert C. None of the testimony is admissible, because it has very little probative value and a high risk of unfair prejudice D. The statement "He seemed very depressed" is admissible, but the rest of the statement is not

6. A nuclear power plant melt down exposed three workers to unsafe levels of radiation. The power plant was owned by Sunshine Power, a large multi-national power corporation. The workers are suing Sunshine Power, claiming the company was negligent in maintaining the power plant. At trial, Sunshine Power calls Davidson, the foreman of the crew that was 16 working at the plant before the melt down. Davidson testifies that he has been working as a foreman for five years, and part of his duties as a foreman include personally conducting a safety check on the nuclear reactor cooling systems each morning before the crew change. The safety check is a twelve-step process, including inspection of all of the pressure readings. Davidson will further testify that he has performed this check on every nuclear power reactor he has worked on each and every morning since he became a foreman, so he is sure he did it the morning of the accident, although he admits he has no specific recollection of that particular morning. The plaintiffs object to this testimony. The judge should: A. Preclude the testimony, since Davidson has no specific recollection of the morning in question. B. Preclude the testimony, since Davidson is an employee of the company and therefore has an incentive to lie (bias). C. Preclude the testimony under Rule 403. D. Admit the testimony.

7. Same case as above. At trial, the workers who are suing Sunshine Power call Dr. Masterson, an epidemiologist (one who studies the cause of diseases and illness, especially their distribution and patterns of health-events, health-characteristics and their causes or influences in well-defined populations) as an expert witness to testify that the workers' exposure to radiation during the melt down will hasten their deaths by a range of 10 to 25 years. Assuming that he is a qualified epidemiologist, should Dr. Masterson be permitted to testify as stated above? A. Yes, since he is a qualified epidemiologist, he is entitled to give his expert opinion B Yes, but only if the principles and methods he relied upon in reaching his opinion are accepted by the community of epidemiology experts C. Yes, but only if the principles and methods he relied upon in reaching his opinion have been published in peer review journals D. None of the above

Amy is charged with beating her husband, Clyde. Their 8 yr old son, Ben, is called as an eyewitness to testify against Amy. What is the correct ruling? A. Ben's testimony should be barred under the tender years doctrine. B. Ben's testimony should be barred under the parent-child privilege. C. Ben's testimony should be barred under the intra family violence exception. D. At the judge's discretion, Ben can be compelled to testify against Amy E. None of the above

15. James punches Larry in the nose. James immediately apologizes and offers to get Larry some ice - but Larry refuses and calls the police. When the police arrive two hours later, Larry calmly tells the officer (1) that James punched him and (2) that his nose still really hurts. At James' trial, Larry is unavailable to testify because he moved to Mexico. The prosecution wishes to admit Larry's statements to the officer. What is the proper ruling? A. Neither statement is hearsay, so both are admissible B. Both statements are hearsay and neither falls within any exception C. One statement is admissible because it falls within a hearsay exception, but the other doesn't, and so it isn't D. Neither statement is admissible E. None of the above

D Many people missed the confrontation clause issue here.

19. Brianna was injured in a propane gas tank explosion on February 9, 2004. In March 2005, Brianna retained Leonard to represent her in a lawsuit against the owner and distributor of the propane gas tank. Leonard files suit on Brianna's behalf on March 8, 2006. Brianna's suit is subsequently dismissed on grounds that the two-year statute of limitations had expired on February 9, 2006. Brianna sues her attorney, Leonard, for legal malpractice, alleging that Leonard failed to file her tort suit in a timely manner. (That is, Brianna alleges that Leonard failed to file her lawsuit prior to the expiration of the statute of limitations, on February 9, 2006.) In his defense, Leonard seeks to testify that, in his confidential discussions with Brianna, she told him that the explosion took place on March 9, 2004, which would have meant that the statute of limitations would not have expired under March 9, 2006 - and thus, his filing on March 8, 2006 would have been timely. What is the correct ruling? A. Brianna's statements to Leonard are irrelevant, since he had an independent duty to identify the date of the actual explosion. B. Brianna's statements to Leonard are inadmissible hearsay. C. Leonard should not be allowed to testify regarding his confidential communications with Brianna, since the Attorney-Client privilege is held by the client, not the attorney. D. Leonard should be allowed to testify regarding his confidential communications with Brianna. E. None of the above.

D (If you're being sued for legal malpractice, you can rely on confidential communications to defend yourself.)

6. Zeke is on trial for murdering Walt on January 5, 2016. Zeke claims he killed Walt in selfdefense. Zeke's counsel calls Betty to testify as follows: "I ran into Walt on January 4, 2016, and he told me that he was going to kill Zeke the next time he saw him. Immediately after talking with Walt, I called Zeke to warn him. I told Zeke, 'Dude, watch your back. Walt said he's gonna 5 kill you next time he sees you!'" What is the correct ruling? A. Betty's testimony is double hearsay and both layers are inadmissible. B. Betty's testimony is double hearsay, but one layer is inadmissible (Walt's statement to Betty). C. Betty's testimony is double hearsay, but one layer is inadmissible (Betty's statement to Zeke). D. Betty's testimony is not hearsay (that is, neither statement is hearsay). E. None of the above.

D I also gave credit for (E) b/c so many people assumed Walt's statement was hearsay, but fell under 803(3))

28. Kleenex Corp sues Tissue Corp for trademark infringement, based on allegations that Tissue Corp's sales team have been referring to their product as "kleenex" rather than the generic name, "tissue." At trial, Kleenex offers the testimony of Customer, who purchased tissues from Tissue Corp. Customer intends to testify that the sales person who sold him Tissue Corp products referred to them as "Kleenex." Tissue Corp objects. What is the proper ruling? A. Objection sustained on grounds of hearsay B. Objection sustained on grounds of lack of personal knowledge C. Objection overruled because the testimony does not offer an out-of-court statement D. Objection overruled because the out-of-court statement is not being offered to prove the truth of the matter asserted E. None of the above

D The declarant of out-of-court statement is an unnamed sales person who said something along the lines of, "These are Kleenex!" That statement is not being offered to prove its truth - so it's not hearsay.

30. Victor is mortally wounded by David and runs into the town center to summon the police. When the police arrive between 10 and 20 minutes later, each one asks Victor who wounded him, to which Victor responds, "David did it." Victor subsequently dies from his injuries. At David's trial, will Victor's statements to the police officers be admissible? A. No, admission of the statements will definitely violate the confrontation clause B. Yes, if the statements are deemed "non-testimonial" as judged from the subjective point-ofview of the declarant (David) C. Yes, if the statements are deemed "non-testimonial" as judged from the subjective point-ofview of the police officers D. Yes, if the statements are deemed "non-testimonial" as judged from the objectively reasonable point-of-view of both the declarant (David) and the police officers E. Yes, there is no confrontation clause issue.

D This hypo tracks the facts of Michigan v. Bryant. D states the holding of that case. I gave credit to those who argued that E was correct if we assume two things: (1) that the answer, "Yes, there is no confrontation clause issue" means "Yes, the confrontation clause does not preclude the admission of this evidence" and (2) while the Court has yet to rule (post-Crawford) on the issue of whether dying declarations are grandfathered in under the received common law and so are not excluded by the Confrontation Clause, all signs are that the Court would rule that way if the issue were preserved (as it was not in Bryant).

25. Craig is an avid collector of vinyl records and owns a collection of more than 10,000 records, estimated to be worth at least $125,000. When he obtained insurance for the records, he took detailed notes regarding each one - including the group, the title of the album, the year of release, and the condition of the album. Craig gave that list to his partner, Mike, who used it to complete the insurance application. Following a burglary in which most of the records were stolen, Craig makes a claim under his insurance - but the claim is denied. Craig sues his insurance company for payment on the claim. At trial, Craig seeks to admit the list he provided to Mike. Can the list be admitted as an exhibit? A. Yes, it is hearsay, but it falls within the business records exception B. Yes, it is hearsay, but it falls within the recorded recollection exception C. Yes, it is not hearsay D. No, but is can be read to the jury E. None of the above

D or E I assumed those who chose E did so because they presumed there was insufficient foundation for the recorded recollection exception unless and until Craig testified to a lack of memory. Some people chose A, but that was wrong (even if collecting vinyl records counts as a business - which is doubtful) because this list was not made in the "regular course"

Marty sues estate of Nelson, seeking to recover a diamond ring that Marty had lent to Nelson 20 years before Nelson's death in 2008. For the last 10 years of his life, Nelson insisted that the ring always belonged to him -- and that Marty had no legal claim to the ring. However, on Nelson's deathbed, he confessed to Ollie that the ring in fact belonged to Marty. Marty called Ollie to testify regarding Nelson's statement. What is the proper ruling? A. Nelson statement to Ollie is admissible as a dying declaration B. Nelson statement to Ollie is admissible as a present sense impression C. Nelson statement to Ollie is inadmissible for the truth of the matter asserted D. Nelson statement to Ollie is inadmissible because it is irrelevant E. None of the above

E Nelson's statement is admissible as either a statement against interest or admission of party opponent

3. Franceska, a forensic scientist and medical examiner (coroner), who has been qualified as an expert witness in a murder prosecution, plans to testify regarding her opinion as to the cause of death of the victim. (Franceska will testify that the cause of death was a bullet-shot to the victim's head, caused by a bullet from the defendant's gun.) What is the best answer under the FRE? A. Franceska's testimony is admissible, but only if the scientific principles underlying her opinions are sufficiently established to have gained general acceptance in the field to which they belong. B. Franceska's testimony is inadmissible on grounds of hearsay. C. Franceska's testimony is admissible, but only if there are no eye-witnesses to the shooting. D. Franceska's testimony is admissible, but only if the bases of her opinions are otherwise admissible. E. None of the above

E (Tina's testimony is extrinsic impeachment of Farrah's trial testimony. Extrinsic evidence is admissible to impeach on non-collateral matters, such as (1) - but not on collateral matters, such as (2).)

11. Harry sues "Bungee Jumping R Us" (BJRU) in tort for injuries sustained when they gave him a bungee cord that broke during his jump, plunging him 100 ft. into a river below, breaking his neck and paralyzing him from the neck down. Harry alleges that the cord was too weak to sustain his weight, and that the employees at BJRU never bothered to ask him what he weighed before allowing him to jump. Elmer, the BJRU employee who selected Harry's bungee cord, testified that he did not recall whether he asked Harry how much he weighed before selecting Harry's cord. However, Elmer testifies that he has worked as a bungee cord selector at BJRU for five years, six days a week, eight hours per day, and that he has assisted several thousand customers in selecting the proper cords for their weight. Elmer further testifies that he always asks BJRU clients how much they weigh just before selecting the proper cords. What is the proper ruling? A. Elmer's testimony is inadmissible because he is biased to testify on behalf of his employer. B. Elmer's testimony is hearsay because it is based on events that occurred out-of-court. C. Elmer's testimony is admissible as habit evidence, but this testimony alone cannot be sufficient to establish that Elmer actually asked Harry's weight before selecting a bungee cord. D. Elmer's testimony is admissible as habit evidence, but only if he has business records to support his claim that he "always asks BJRU clients how much they weigh just before selecting the proper cords." E. None of the above.

E C is wrong bc habit evidence alone CAN establish that conduct on specific occasion.)

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