Evidence

A woman is on trial for a burglary that took place at about six in the evening on November 1. A surveillance video from a local gas station shows that the woman visited the gas station at seven in the evening on November 1. The woman alleges as an alibi that she was actually at the gas station at six in the evening. She argues that the gas station failed to change the time display on its camera to reflect the end of Daylight Savings Time on the morning of November 1.The judge, on his own initiative and after first giving the prosecutor the opportunity to object, took judicial notice of the fact that Daylight Savings Time did end in the year in question on November 1. The judge instructed the jury that it may or may not accept any judicially noticed fact as conclusive. Were the judge's actions with regard to judicial notice of this fact proper? A. Yes, because the court may take judicial notice on its own initiative. B. Yes, because the court gave the prosecution an opportunity to be heard on the propriety of taking judicial notice before doing so. C. No, because the fact is not one that is generally known within the territorial jurisdiction of the trial court. D. No, because the court should have instructed the jury that it is required to accept the noticed fact as conclusive.

Answer choice A is correct. A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court's own initiative. Answer choice B is incorrect. When a party makes a timely request, the judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact. Answer choice C is incorrect. Although judicial notice may be taken of an adjudicative fact that is not subject to reasonable dispute because it is generally known within the territorial jurisdiction of the trial court, judicial notice may also be taken of an adjudicative fact that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Here, the date on which Daylight Savings Time ends is such a fact. Answer choice D is incorrect because this is a criminal case, and in a criminal case, the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive, as the judge properly did here.

A man is on trial for the misdemeanor crime of public lewd conduct for streaking through a women's gym in the early evening of May 5. This crime is not a sexual offense. At trial, a trainer at the gym identified the man as the streaker, but the man testified he was nowhere near the gym on the day in question. In rebuttal, the prosecution seeks to call the manager of another local women's gym to testify that on the afternoon of May 4, the man had streaked through her gym. The defense has objected to the manager's testimony. Should the manager's testimony be admitted? A. Yes, to identify the man as the person who streaked through the gym on May 5. B. Yes, to demonstrate the man's propensity for streaking through women's gyms. C. No, because a prior bad act is not admissible to show the man possessed a character trait in accord with which he acted on May 5. D. No, because character may generally be proven only by reputation or opinion evidence, not specific acts.

Answer choice A is correct. A defendant's past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of motive, intent, absence of mistake, identity, or common plan or scheme (the "MIMIC" rule). In this case, the man denied that he was the individual who was streaking through the gym on May 5, so the testimony of the manager that he was the individual who did a similar act the day before is relevant to the issue of the identity of the May 5 streaker. Answer choice B is incorrect because evidence of a defendant's bad character is inadmissible to prove his propensity to commit crimes. Although there is an exception for use of propensity evidence if the crime is sexual assault and child molestation, the crime with which the man was charged, public lewd conduct, is not a sexual offense, and consequently this exception is not applicable. Answer choice C is incorrect. Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as identity evidence. Answer choice D is incorrect because specific acts may be introduced in limited circumstances, including as evidence of the defendant's identity within the scope of the MIMIC rule.

A defendant was charged with possession of prescription drugs without a prescription. At trial, the defendant testified that he received the drugs from a friend and believed they were an acceptable over-the-counter medication. The prosecutor intends to ask the defendant about his previous three misdemeanor convictions in the last five years for possession of the same type of prescription drugs without a prescription. Should the court allow the prosecutor to ask about the defendant's previous convictions? A. Yes, to show that the defendant knew the prescription drugs were not an over-the-counter medication. B. Yes, to impeach the defendant. C. No, because the convictions were misdemeanors. D. No, because the convictions are inadmissible character evidence.

Answer choice A is correct. Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In this case, the prosecution may admit evidence of the previous misdemeanor convictions to show absence of mistake by demonstrating that, as a result of his prior convictions for possession of the same prescription drugs, the defendant knew the prescription drugs were not an over-the-counter medication. Answer choice B is incorrect because the previous convictions would not be admissible as impeachment evidence. Even though these convictions occurred within the last 10 years, they are misdemeanors that do not involve dishonesty or false statement. Answer choice C is incorrect. Although these misdemeanor convictions are not proper impeachment evidence, they are admissible as proper evidence to demonstrate motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Answer choice D is incorrect. Although the convictions would be inadmissible if used to show the defendant's criminal propensity in order to prove that he committed the crime for which he was charged, they may be admitted to show that the defendant had knowledge that the prescription drugs were not an over-the-counter medication based on his prior convictions.

A defendant was charged with illegal possession of a firearm. At trial, a witness testified that the defendant had shot at him with the firearm and he had returned the defendant's fire. The defendant called a police officer to the stand in order to impeach the witness by testifying that the witness had told her that he, not the defendant, had fired first. Instead, the police officer testified that she did not remember what the witness had told her. The defendant sought to introduce a properly authenticated sworn statement made by the police officer at a prior hearing that the witness told her he had fired first. Can the court refuse to admit this statement into evidence? A. Yes, because it involves a collateral matter. B. Yes, because it is offered for the truth of the matter asserted. C. No, because it is a prior inconsistent statement. D. No, because it is admissible as the former testimony of the police officer.

Answer choice A is correct. Although the Federal Rules do not explicitly prohibit impeachment on collateral issues, a court may refuse to admit evidence related to a collateral issue under the Rule 403 balancing test. Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness's testimony. Here, the defendant, by calling the police officer as a witness, sought to introduce evidence to impeach the witness on a collateral matter because whether the witness or the defendant fired first, although relevant if the defendant had been charged with assault, is not relevant to the crime with which the defendant was charged—illegal possession of a firearm. Consequently, the court could refuse to admit extrinsic evidence that would only serve to impeach the original witness because the continued examination of this matter could serve to confuse an issue the jury was to decide—whether the defendant illegally possessed a firearm. Answer choice B is incorrect. The sworn statement was not introduced as evidence that the witness had fired first, but merely to impeach the witness's statement that the defendant had fired first. Moreover, even assuming the sworn statement was introduced for the truth of the matter asserted, the court could refuse to admit it into evidence because it relates to a collateral matter. Answer choice C is incorrect. Because the police officer testified that she did not remember what the witness had told her, her prior statement, although made under oath, does not contradict her current testimony. More importantly, even assuming the sworn statement was admissible as a prior inconsistent statement, the court could refuse to admit it into evidence because it relates to a collateral matter. Answer choice D is incorrect. The sworn statement could be admissible under the hearsay exception for former testimony because the police officer was unavailable as a witness due to her inability to remember what the witness had told her. However, the sworn statement was not introduced as evidence that the witness had fired first, but merely to impeach the witness's statement that the defendant had fired first. Moreover, even assuming the sworn statement was admissible under the former testimony hearsay exception, the court could still refuse to admit it into evidence because it relates to a collateral matter.

A plaintiff filed suit against a defendant supermarket for injuries he sustained when he slipped on a piece of lettuce in the supermarket's produce aisle. A supermarket employee who witnessed the plaintiff's fall prepared a written summary of the events that had occurred in order to alert the supermarket's management. At trial, the supermarket's lawyer called the employee as a witness and, after her testimony, asked her to read her summary to the jury. The plaintiff objected to the testimony. May the court admit the testimony at this time over the plaintiff's objection? A. Yes, if the employee is unable to remember the actual events. B. Yes, because the employee is on the witness stand and can be cross-examined. C. No, because it is hearsay not within any exception. D. No, because such testimony may only be offered into evidence by an adverse party.

Answer choice A is correct. FRE 803(5) creates an exception to the hearsay rule for a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. Here, the summary was made immediately after the slip-and-fall, while the witness's memory of the events was fresh. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Here, the written summary is being read into evidence only. Answer choice B is incorrect. The hearsay rule generally applies to any out-of-court statement, even if the declarant is available to be cross-examined on the witness stand. To be admissible, a statement that is hearsay must come within one of the exceptions to the hearsay rule. In this case, the summary meets the past recollection recorded exception. Answer choice C is incorrect because the summary, if the employee is unable to remember the events, meets the requirements of the past recollection recorded exception to the hearsay rule. Answer choice D is incorrect because, as a past recollection recorded, the summary may be read into evidence. The rule only requires the offering by an adverse party if the summary itself is being offered as an exhibit.

An alien who had previously been deported was charged with unlawful reentry into the United States. At the trial, the prosecution called a border patrol agent to testify. After the prosecution had laid a proper foundation, the agent testified that he had diligently searched the relevant governmental computer database and did not find that the alien had applied for permission to reapply for admission to the United States. The prosecution did not offer any documentary evidence to support the agent's testimony. The defendant moved to strike the agent's testimony. Should the court grant the defendant's motion? A. No, because testimony as to the absence of a public record is admissible. B. No, because a statement made by a governmental agent is exempt from hearsay rules. C. Yes, because the agent's testimony violates the best evidence rule since the agent failed to provide documentary evidence. D. Yes, because the agent's testimony is inadmissible hearsay.

Answer choice A is correct. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Although a public record would fall under this definition, the agent's statement regarding his search for the application would not. The agent has made an assertion in court and can be cross-examined about his efforts to locate the alien's application. Consequently, the testimony is not hearsay. Answer choice B is incorrect because there is no blanket exception to the hearsay rule for a statement made by an agent in general or a governmental agent in particular. Although a statement made by an agent may be admissible as a statement of an opposing party, the agent's statement is not being introduced against the government. Answer choice C is incorrect. While the best evidence rule does apply to the introduction of a public record to prove the contents of the record, it does not apply to testimony about an unsuccessful effort to locate a public record, since no record is being introduced into evidence. Answer choice D is incorrect because the statement is not an out-of-court assertion, and thus is not hearsay.

An employee at a shipping company was injured when a box that was being moved with a forklift accidentally fell on his foot. The employee was immediately sent home and did not return to work for a week. During that time, the coworker who was operating the forklift called and told the employee that the forklift was supposed to have gone in for repair prior to the accident, and that this oversight was probably why the box fell on his foot. The employee immediately filed suit against the shipping company for negligently failing to repair the forklift. In anticipation of the litigation, the employee also filled out an accident report detailing what happened on the day he was injured. Accident reports were made and kept as part of the regularly conducted activity of the shipping company. May the trial judge consider the employee's accident report in ruling on the admissibility of the coworker's statement? A. Yes, because the trial judge may consider the accident report when deciding preliminary questions of the admissibility of other evidence. B. Yes, because the accident report is an admissible business record. C. No, because the accident report is hearsay, and does not fall within any exception to the hearsay rule. D. No, because the accident report was prepared in anticipation of litigation and lacks trustworthiness.

Answer choice A is correct. The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness. The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence. Deciding whether the coworker's statement is admissible is a preliminary question of law for the judge (as opposed to a question of fact for the jury), and the judge may consider hearsay in the course of making that decision. Answer choice B is incorrect because, regardless of whether the accident report is admissible as a business record, no hearsay exception is needed to permit the trial judge to consider the report when deciding preliminary questions of admissibility. Answer choice C is incorrect because the judge is permitted to consider otherwise inadmissible evidence, including hearsay, when deciding a preliminary question. Answer choice D is incorrect because the fact that the accident report was prepared in anticipation of litigation does not prevent the judge from considering it when determining the admissibility of the coworker's statement.

The director of a company that produced organic products was being sued by the minority shareholders of the company for allegedly breaching his duty of care and unwisely investing corporate funds into an organic clothing venture. During the trial, the lawyer for the minority shareholders introduced evidence that the director had been accused of battery three years ago, although he was never charged or arrested for the crime. The director's lawyer made no objection. The director's lawyer then attempted to introduce evidence that the individual who accused the director of battery later retracted his accusation. The lawyer for the minority shareholders objected to the introduction of this evidence on the grounds of relevance. The court overruled the objection and allowed the testimony. Did the court err by overruling this objection? A. No, because the admission of additional evidence refuting the battery accusation was necessary to remove any unfair prejudice. B. No, because the court can always allow additional evidence to rebut previously admitted inadmissible evidence. C. Yes, because the evidence of the retraction of the battery accusation was not relevant to the lawsuit. D. Yes, because the director's attorney did not object to the initial evidence regarding the battery accusation.

Answer choice A is correct. When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such evidence can be admitted at the court's discretion when necessary to remove unfair prejudice. Here, evidence that the director was accused of battery was not relevant to the lawsuit against him regarding an unwise investment in organic clothing, and was thus inadmissible. To remove unfair prejudice, the admission of the subsequent evidence refuting the battery accusation was necessary. Answer choice B is incorrect because it is overbroad, as the additional evidence is only permitted as a curative admission when necessary to remove unfair prejudice. Answer choice C is incorrect because when a court admits inadmissible evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Answer choice D is incorrect. A court has discretion to admit additional evidence to rebut previously admitted inadmissible evidence even if the party admitting the additional evidence failed to object to the previously admitted evidence. The failure to object is one a factor to be considered in determining whether the party was unfairly prejudiced, but it is not determinative.

A plaintiff manufacturer brought an action for breach of contract against a defendant retailer for the amount due under a contract for a shipment of widgets. The contract, which was admitted into evidence, indicated that the plaintiff was entitled to payment of the contract price once the widgets were delivered to a commercial carrier. The plaintiff called a witness who has worked in the plaintiff's shipping warehouse for many years. The witness testified that the shipment of widgets ordered by the defendant was delivered to the commercial carrier with instructions to deliver the widgets to the defendant's shipping address. The receipt for this delivery to the commercial carrier was entered into evidence. When the defendant's attorney asked the witness how he knew the defendant's shipping address, the witness stated, "We keep all of our customers' addresses in our shipping records, but I know that one by heart because they have been a regular customer for years. They order a lot of widgets, and they always call to make sure I used the right address." The defendant's attorney then asked that the witness's testimony about the defendant's shipping address be stricken from the record on the grounds that the shipping records had never been shown to the defense or offered as evidence. Should the court grant the defendant's objection to the witness's testimony? A. No, because the witness can testify about the plaintiff's regularly conducted business with the defendant. B. No, because the witness had personal knowledge of the shipping address used to send the shipment of widgets. C. Yes, because the defense has not been given the opportunity to examine the plaintiff's shipping records. D. Yes, because the plaintiff must offer its original shipping records to establish the defendant's shipping address.

Answer choice B is correct. A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness's own testimony as well as through other means. The best evidence rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying. The contents of a document are at issue when the document is used as proof of the happening of an event, the document has a legal effect, or the witness is testifying based on facts learned from the writing as opposed to based on personal knowledge. Here, the witness has personal knowledge of the defendant's address based on years of sending them shipments of widgets. Therefore, the witness can testify as to the defendant's shipping address without relying on the shipping records. Answer choice A is incorrect because a non-expert witness must have personal knowledge of a matter in order to testify about that matter. The fact that the information is used in regularly conducted business is not sufficient to allow a witness to testify on the matter. Answer choice C is incorrect because on these facts, the defense is not required to have an opportunity to examine these shipping records before trial. Answer choice D is incorrect because the contents of the shipping records are not at issue. Therefore, the witness can testify based on personal knowledge, and the best evidence rule does not apply.

A defendant, his cousin, and a friend planned to rob a convenience store. The friend watched the defendant and his cousin put on ski masks and enter the convenience store. Moments later, the friend heard a gunshot, and the defendant fled. The cousin stumbled out of the convenience store, pointed at his bleeding foot, and told the accomplice, "He shot me! The moron dropped his gun and shot me, I'm going to kill that idiot!" The cousin ran after the defendant, and the friend called the police. The police found the cousin dead from a bullet wound to the chest and charged the defendant with murder. At trial, the defendant wants to introduce the cousin's statement to the friend as evidence that the cousin was the initial aggressor. The prosecution objects. What is the defendant's best argument for finding that the statement is admissible? A. The declarant is unavailable as a witness. B. The statement indicates the cousin's present intent. C. The statement was a dying declaration. D. The statement was made by a co-conspirator.

Answer choice B is correct. A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Here, the defendant is trying to offer the statement to show that his cousin intended to attack him to help establish his defense. Because a statement of the declarant's then-existing state of mind falls within a hearsay exception, this is the defendant's best argument. Answer choice A is incorrect because a declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial. Because of the possibility that the defendant killed his cousin in order to silence him at trial, this is not the defendant's strongest argument. Answer choice C is incorrect because it would be very difficult to argue that the cousin believed his death was imminent from a gunshot wound to his foot at the time he made the statement. This is evidenced by the fact that he ran after the defendant and made no statement indicating that he believed his death was imminent. Answer choice D is incorrect because, although a statement made by a co-conspirator during and in furtherance of a conspiracy is admissible as an opposing party's statement against other co-conspirators, the cousin's outburst was not made in furtherance of the already failed robbery.

A girlfriend testified on behalf of her boyfriend when he was prosecuted for first-degree murder of his ex-wife. When questioned by the defense, the girlfriend testified that the ex-wife had provoked her boyfriend by telling him she had cheated on him throughout their marriage. In a momentary heat of passion, the boyfriend strangled the ex-wife. On cross-examination, the prosecution asked if the girlfriend had ever underreported her annual income on her tax forms. When the girlfriend denied doing so, the prosecution sought to introduce evidence of the girlfriend's annual income and tax forms from the previous three years, all of which showed that the girlfriend underreported her earnings for tax purposes. Is this evidence admissible? A. No, because a specific instance of conduct is not admissible to attack or support the girlfriend's character for truthfulness. B. No, because the fact that the girlfriend may have underreported her annual income on her tax forms cannot be proven through extrinsic evidence. C. Yes, because the fact that the girlfriend may have underreported her annual income on her tax forms is probative of her untruthfulness. D. Yes, because the probative value of the evidence is not substantially outweighed by the unfair prejudice that it may cause.

Answer choice B is correct. Although specific instances of conduct are generally not admissible to attack or support the witness's character for truthfulness, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of the witness (or another witness about whose character the witness being cross-examined has testified). When the witness denies a specific instance of conduct on cross-examination, extrinsic evidence is not admissible to prove that instance in order to attack or support the witness's character for truthfulness. In this case, the prosecution was permitted to question the girlfriend on cross-examination about underreporting her annual income on her tax forms, but the extrinsic evidence it attempted to submit to prove the underreporting is not admissible. Answer choice A, although a true statement of law, is not applicable when the witness is questioned on cross-examination about a specific instance of conduct. Answer choice C is incorrect because the girlfriend's underreporting of her income, although probative of her truthfulness, cannot be proven by extrinsic evidence. Answer choice D is incorrect. The central issue here is that the prosecution is attempting to impeach the girlfriend by using a specific instance of conduct to attack her character for truthfulness. The fact that she lied on her tax forms has probative value that is not outweighed by any unfair prejudice. However, extrinsic evidence is not admissible to prove a specific instance of conduct on cross-examination for the purpose of impeaching a witness's character for truthfulness, so the evidence is not admissible.

A plaintiff who had been injured in a car accident with a truck brought an action against the truck driver for negligent driving and against the employer of the truck driver for negligent hiring. Prior to trial, the employer filed a summary judgment motion seeking a ruling that it was entitled to judgment as a matter of law. The plaintiff submitted an affidavit by an investigator that the truck driver had told the investigator that he had informed his employer of his past history of accidents when applying for the job. Should the court consider the statement in this affidavit in ruling on the employer's summary judgment motion? A. Yes, because it is an opposing party's statement. B. Yes, because it is not hearsay. C. No, because the affidavit constitutes double hearsay. D. No, because the affidavit contains hearsay.

Answer choice B is correct. Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. Here, the affidavit filed by the plaintiff in response to the employer's summary judgment motion contains a statement made by the truck driver to his employer about the truck driver's past history of accidents. This statement is not being introduced against the employer for its truth—that the truck driver had a past history of accidents—but instead to show that the employer had notice of those accidents and therefore was negligent in hiring the truck driver. Answer choice A is incorrect. The statement made by the truck driver to the investigator is a statement of a party opponent as a vicarious admission. However, because the statement is not being offered for its truth at this time, it does not meet the definition of hearsay. Answer choice C is incorrect. If the employer had offered the affidavit at trial, the affidavit would constitute double hearsay. It would be an out-of-court statement by the investigator about another out-of-court statement made by the truck driver to the investigator. However, because the affidavit was submitted by the plaintiff in response to the employer's summary judgment motion, the affidavit represents what the investigator would testify to at trial. Consequently, the only out-of-court statement for purposes of the summary judgment motion is the statement made by the truck driver to the investigator, and that statement can be considered by the court because it is not hearsay as it is not being offered for the truth of the matter asserted. Answer choice D is incorrect because the statement made by the truck driver to the investigator is not hearsay because it is not being asserted for its truth but instead to show that the employer had notice of the truck driver's past accidents.

A plaintiff sued a defendant for libel after the defendant published an article on his website calling the plaintiff an adulterer. At trial, the defendant's attorney called the plaintiff's wife who testified that on two separate occasions, the wife had found the plaintiff in a hotel with a prostitute. The plaintiff objected to the wife's testimony. Should the court sustain the plaintiff's objection? A. No, because character may be proven by specific instances of conduct in civil cases. B. No, because the plaintiff's infidelity is directly at issue in the trial. C. Yes, because the wife's testimony is improper character evidence. D. Yes, because the wife's testimony is barred by spousal privilege.

Answer choice B is correct. In a civil case, evidence of a person's character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Character is most commonly an essential element in defamation cases (character of the plaintiff). When character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person's conduct as well as either by testimony about the person's reputation or by testimony in the form of an opinion. Here, because this action is for defamation, the plaintiff's character is an essential element of the claim and therefore, specific instances of the plaintiff's infidelity are admissible. Answer choice A is incorrect because it overstates the law. In civil cases, specific instances of conduct may be used to prove character only when character is an essential element of a claim or defense. Answer choice C is incorrect because specific instances of the plaintiff's infidelity are proper character evidence in this case. Answer choice D is incorrect. "Spousal privilege" comprises two distinct privileges: spousal immunity and confidential marital communications. Neither applies here; spousal immunity does not apply in civil cases, and the wife's testimony does not involve a confidential communication made in reliance on the sanctity of marriage.

A defendant that had been previously convicted of stealing diamonds from a jewelry store was arrested and prosecuted for another diamond heist. The defendant claims that during the time of the diamond heist, he was incarcerated for a separate crime in a different state. A county clerk was called to testify that despite a thorough search of all public records, she was unable to verify the defendant's claim that he was incarcerated at the time of the diamond heist. Assuming that the defense received proper notice of the prosecution's intent to present this testimony, is the clerk's testimony admissible? A. Yes, because the clerk's testimony is admissible as a summary of voluminous writings. B. Yes, because the clerk's testimony indicates a lack of a public record. C. No, because the clerk's testimony is superseded by the need to produce the public records themselves. D. No, because the clerk's testimony is hearsay that is not subject to a hearsay exception.

Answer choice B is correct. Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind. In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing. Thus, assuming that the defense received proper notice, the clerk's testimony is admissible. Answer choice A is incorrect because the admissibility of a summary of voluminous records applies when a person is seeking to admit the contents of those documents. Here, the clerk is not testifying to the contents of the records, but to the absence of such records. Answer choice C is incorrect because there is no need to admit the public records themselves to establish the lack of a particular public record. Answer choice D is incorrect because testimony suggesting the absence of a public record is admissible under the public records hearsay exception.

The owner of a restaurant sued a real estate developer from whom the owner had purchased land. The owner alleged that the developer had lied to the owner during the contract negotiations for the purchase of the land. According to the owner, the developer had told the owner that he was in the final negotiations to develop the surrounding area for a large retail complex. The developer denied that he had made these statements. At trial, the owner sought to introduce an affidavit from the attorney who had negotiated the land sale contract on his behalf. In the affidavit, the attorney swore that the developer did make the assertion at issue to the owner in the attorney's presence. The attorney had moved to a foreign country and refused to appear to testify. The owner did not submit the land sale contract negotiated by the attorney into evidence. The developer objected to the introduction of the affidavit. Is the affidavit admissible? A. No because the best evidence rule requires that the owner submit the original contract. B. No, because the affidavit is hearsay not within any exception. C. Yes, because the attorney is unavailable to testify. D. Yes, because an affidavit meets the former testimony exception to the hearsay rule.

Answer choice B is correct. The affidavit is an out-of-court statement offered for the truth of the matter asserted, or hearsay. Because it does not fall within any hearsay exception, it is inadmissible. Answer choice A is incorrect because the best evidence rule does not apply in these circumstances. The best evidence rule requires that a party produce the original document when the contents of a writing are at issue. In this case, the contract itself is not at issue, and thus need not be produced. Answer choice C is incorrect because the affidavit does not fit within any of the hearsay exceptions that apply when a declarant is unavailable. Answer choice D is incorrect because the affidavit does not meet the former testimony hearsay exception. The former testimony of an unavailable witness given under oath in a hearing or deposition is admissible if the party against whom it is being offered had a similar motive and opportunity to develop the testimony. An affidavit does not qualify as former testimony because it is not given during a hearing or deposition and there is no opportunity for the other party to cross-examine the individual providing the affidavit.

An artist entered into a written agreement to sell a patron a partially finished painting once it was complete. The patron later learned that the artist planned to sell the painting to a third party who offered to pay the artist more than the contract price. The patron filed suit to compel the artist to sell the painting to her in accord with the terms of their agreement, while the artist denied that the painting the artist planned to sell to the third party was the subject of the agreement with the patron. At trial, the patron did not introduce the written agreement or explain its absence. Rather, the patron sought to testify that, when she signed the agreement, the artist had pointed to the painting in question and stated that it was the patron's painting. The artist's attorney objected to the testimony that the artist identified the painting as belonging to the patron. How should the court rule? A. Sustain the objection, because the artist's statement was hearsay. B. Sustain the objection, because the patron failed to produce the written agreement or explain its absence. C. Overrule the objection, because the statement is not hearsay. D. Overrule the objection, because the statement was relevant.

Answer choice B is correct. Under the best evidence rule, the original document or a reliable duplicate must be used to prove the contents of a writing unless its absence is satisfactorily explained. Here, the plaintiff intends to introduce the statement to prove that the written agreement refers to a specific painting without introducing the written agreement itself. Consequently, the patron may not introduce that statement to establish that the painting in question was the painting that was the subject of the agreement. Answer choice A is incorrect because, although the artist's statement was being introduced for its truth, it is non-hearsay as a statement of a party to the action. Answer choice C is incorrect because, although the artist's oral statement was non-hearsay, the best evidence rule prevents its admission into evidence. Answer choice D is incorrect because, while the statement meets the test for relevancy, in that it is both probative and material, it is inadmissible on other grounds. Editor's Note: Remember that the Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Your practice questions test concepts, including the Best Evidence Rule, in a variety of ways, in the event you see a question like it on the bar exam. You may see situations in which the Best Evidence Rule is the correct answer during your practice sessions, or on the bar exam.

A defendant was on trial for the attempted murder of his employer. The prosecutor called the defendant's wife to the witness stand and asked her to recall anything the defendant said prior to leaving their home on the morning that the attempted murder took place. The wife testified that while they were in bed, the defendant stated, "I've had enough of the way my employer treats me. Something has to be done." The defendant objected to his wife's testimony. The defendant and his wife had legally separated after the defendant was arrested. Is the wife's testimony admissible? A. No, because the defendant can prohibit his wife from testifying against him at all. B. No, because the wife's testimony concerns a confidential communication. C. Yes, because the defendant and his wife were legally separated. D. Yes, because the wife may choose to testify against the defendant.

Answer choice B is correct. Under the confidential marital communications privilege, a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege is held by both spouses and applies in both civil and criminal cases. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage. In this case, the wife testified about a statement the defendant made while the wife and defendant were in bed, during their marriage. Thus, the defendant's statement likely falls under the confidential marital communications privilege and is therefore inadmissible. Answer choice A is incorrect. In a criminal case, the witness-spouse holds the spousal immunity privilege and may choose to testify, but cannot be compelled to do so. Here, the wife can choose to testify; the defendant cannot prevent her from taking the stand against him. However, the wife is prohibited from testifying as to confidential marital communications. Answer choice C is incorrect. The confidential marital communications privilege continues to apply even after the termination of the marriage to communications made during the marriage. Furthermore, a legal separation does not terminate a marriage; there must be an annulment or divorce. Answer choice D is incorrect. Although the wife may choose to testify against the defendant, she may not testify as to any confidential marital communications.

An accountant and a banker were charged with conspiracy to commit embezzlement and were tried separately. At the accountant's trial, the banker testified that the accountant had embezzled funds without the banker's knowledge or assistance. While the banker was still subject to be recalled as a witness, the accountant called the banker's secretary to testify that the banker said, "I gave him what he needs to take the money, and no one will notice for months. As soon as he wires me my share, we're off to the Caribbean!" Is the testimony by the secretary admissible? A. No, because it is hearsay not within any exception. B. No, because the statement is not corroborated. C. Yes, because it is a prior inconsistent statement. D. Yes, because it is a statement by a co-conspirator.

Answer choice C is correct. A witness's prior statement that is inconsistent with a material part of the witness's testimony may be used to impeach the witness. Extrinsic evidence (i.e., evidence other than the witness's own testimony) of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it. The witness's opportunity to explain or deny the statement need not take place before the statement is admitted into evidence. In this case, because the prosecution can cross-examine the secretary, and because the banker can be recalled and given an opportunity to explain the statement, the secretary's testimony is admissible as proper impeachment evidence. Answer choice A is incorrect because the statement is being admitted to impeach the banker, not to prove the truth of the matter asserted. An inconsistent statement that was not made under penalty of perjury may be admissible to impeach a witness, even though it is not admissible as substantive evidence. Answer choice B is incorrect because there is no rule requiring further corroboration of the secretary's statement. Answer choice D is incorrect. A statement by a co-conspirator must be made during and in furtherance of the conspiracy to be admissible as an opposing party's statement against other co-conspirators. Here, the banker's statement was not made in furtherance of the conspiracy.

While driving through her neighborhood, a woman was involved in a car accident with her neighbor. The neighbor alleged that the woman failed to stop at a stop sign. The neighbor brought an action for negligence against the woman. At trial, the woman intends to call a witness to the stand to testify that the woman stops at the stop sign all the time. The witness is the woman's coworker and frequently carpools with the woman to work, driving on a route with the same stop sign. However, the witness was not present for the accident with the neighbor. Should the court admit the witness's testimony? A. No, because the witness did not observe the accident. B. No, because the testimony is improper character evidence. C. Yes, because it can be used to prove the woman stopped at the stop sign on the day of the accident. D. Yes, because the woman's character for careful driving is an essential element of her defense.

Answer choice C is correct. Evidence of a person's habit or an organization's routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances that is semi-automatic in nature, and may be admitted without corroboration and without an eyewitness. Habit evidence must be specific. In this case, the woman intends to call a witness to testify that the woman has stops at this particular stop sign all the time. The witness's testimony that the woman stops at this stop sign on their commutes to work is likely to be considered habit evidence, and can be offered to prove the woman stopped at the stop sign on the day of the accident. Answer choice A is incorrect because a witness testifying as to a person's habit need not have observed the incident or event at issue. Habit evidence may be admitted without corroboration and without an eyewitness. Answer choice B is incorrect because the witness's testimony is specific enough to constitute habit evidence, and is not merely character evidence. Accordingly, it can be used to prove that the woman stopped at the stop sign on the day of the accident. Answer choice D is incorrect because the woman's character is not an essential element in her defense that she stopped at the stop sign. The woman's character is not at issue in this negligence action.

A man was prosecuted for the false imprisonment of a woman after he allegedly pretended to have a broken arm, asked the woman to help him carry a box into the back of his van, and then pushed her into the van and locked it. At trial, the prosecution attempted to introduce evidence during a female witness's direct examination that five years ago, the man had impersonated a policeman, entered the witness's home, and made serious threats of harm if the witness did not stay in the home and answer his questions. Is this evidence admissible? A. Yes, because it shows that the man has the propensity to falsely imprison women. B. Yes, because it is relevant evidence that shows the man's preparation and planning. C. No, because it is improper character evidence. D. No, because it can only be introduced during cross-examination.

Answer choice C is correct. Evidence of a specific act is not admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion. Here, the man's conduct is being admitted to prove that the man acted in accordance with his criminal propensity to falsely imprison women. Therefore, the evidence is inadmissible. Answer choice A is incorrect because character evidence cannot be admitted to show a defendant's criminal propensity in order to prove that he committed the crime for which he is charged. Answer choice B is incorrect. Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Here, the circumstances of the man's prior bad act are so unrelated to the current charge of false imprisonment that they do not tend to prove preparation or common plan. The only common denominator in both bad acts is that the man falsely imprisoned women. Answer choice D is incorrect. When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying. However, even on cross-examination, specific acts cannot be admitted to prove that, because the defendant had a propensity to commit crimes, the defendant committed the charged crime. Therefore, this evidence would also have been inadmissible during cross-examination.

A restaurant management group brought an action for negligence against a chef of one of its restaurants, claiming that his actions resulted in the burning down of the restaurant where he worked. At trial, it was established that the chef had been experimenting with high-flame cooking techniques after the restaurant was closed. The restaurant management group claimed that the chef started the fire by attempting to use the high-flame techniques while inebriated. The chef, however, contended that the restaurant burned down due to faulty wiring. An investigation of the fire was inconclusive as to its cause. When the owner of the building where the restaurant was located was called to the witness stand, he testified that the fire was likely caused by faulty wiring, as there had been some minor wiring issues in the past. On cross-examination, the restaurant management group attempted to enter into evidence a fire insurance policy on the restaurant in the building owner's name that would pay out $750,000 for fires stemming from malfunctioning restaurant equipment, faulty wiring, or other related issues; it would not pay out for fires caused by the negligent conduct of restaurant employees. Is evidence of the fire insurance policy admissible? A. No, because admission of the fire insurance policy would be against public policy. B. No, because the fire insurance policy is not relevant as it was not in the chef's or restaurant management group's name. C. Yes, because it shows that the building owner's testimony may be biased as to the cause of the fire. D. Yes, because there is no public policy exclusion related to liability insurance in negligence cases.

Answer choice C is correct. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness's bias or prejudice. In this case, the fire insurance policy is admissible because it shows that the building owner may be biased with regards to his opinion as to the cause of the fire. Answer choice A is incorrect because although evidence of liability insurance is inadmissible to show negligence or wrongdoing, the fire insurance policy is being admitted for another purpose—to show the building owner's bias. Answer choice B is incorrect because the restaurant management group is trying to prove the building owner's bias. Thus, the fact that the policy is in the building owner's name is relevant and only strengthens its argument. Answer choice D is incorrect because evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully, regardless of whether it is admitted in a criminal or a civil case.

A defendant is on trial for burglary. The jurisdiction has a statute that a charge of burglary may be elevated to aggravated burglary if the crime is committed with a firearm. During the trial, the prosecutor plans to put an eyewitness on the stand. The eyewitness is the burglary victim's neighbor, and she will testify that she saw the defendant climb out of the victim's window on the night of the burglary and saw that he was carrying a gun. At the time of the trial, the eyewitness can no longer recall whether the defendant was holding anything. However, she wrote a detailed description of the incident and the weapon in her diary right after she called the police on the night in question. When the eyewitness is on the stand, the prosecutor asks her to read the diary entry to herself to see if it refreshes her memory. When the witness admits that it does not, the prosecutor seeks to have the witness read the diary entry to the jury and to introduce the diary entry as an exhibit. The defendant objects to both. How should the court rule? A. The court should sustain the defendant's objections on both counts. B. The court should sustain the defendant's objection as to the witness's reading the diary entry, but should overrule the defendant's objection as to its entry as an exhibit. C. The court should overrule the defendant's objection as to the witness's reading it to the jury, but should sustain the defendant's objection as to the diary's entry as an exhibit. D. The court should overrule the defendant's objections on both counts.

Answer choice C is correct. If a witness is unable to testify about a matter for which a record exists, the substance of the record may be admitted into evidence if (i) the record contains a matter about which the witness once had knowledge, (ii) the record was prepared or adopted by the witness when the matter was fresh in her memory, (iii) the record accurately reflects the witness's knowledge, and (iv) the witness states that she has insufficient recollection of the event to testify fully and accurately, even after consulting the record while on the stand. In this case, the diary entry regarding the description of the weapon satisfies all of these elements. However, even if all of these elements are satisfied, although the record may be read to the jury, it may not be introduced as an exhibit unless it is offered by the opposing party. Because only answer choice C reflects that the diary entry may be read to the jury but may not be introduced as an exhibit, answer choices A, B, and D are incorrect.

An animal rights activist is on trial for the burglary of a pharmaceuticals lab. The prosecution's theory of the case is that the activist broke into the lab using a maintenance access tunnel connecting the lab to a neighboring building. The tunnel was difficult to locate and was not depicted on any blueprints of the building. The prosecution hopes to call the architect of the lab to testify that the activist visited his office on a number of occasions to interview him for a story, and that the activist had ample time to inspect a three-dimensional model of the planned lab that clearly depicted the access tunnel. The model has since been recycled as part of the architect's regular business practices and cannot be retrieved to be entered as evidence. The defense had no advance notice of the architect's testimony, and objects to the architect's description of the model. Can the architect properly testify as to the appearance of the model? A. No, because the prosecution did not establish that no photograph or other reproduction of the model exists. B. No, because the prosecution did not give advance notice of its intent to introduce this oral testimony. C. Yes, because the best evidence rule does not apply. D. Yes, because the model was not destroyed in bad faith.

Answer choice C is correct. The best evidence rule (also known as the original document rule) requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A "writing" is defined as "letters, words, numbers, or their equivalent set down in any form." A "recording" and "photograph" are similarly broadly defined. However, even under a broad interpretation of these terms, real physical evidence, such as a three-dimensional model, is not subject to the best evidence rule, even though the prosecution in this case contends that the defendant's knowledge of the existence of the tunnel was based on the model. Answer choice A is incorrect. The best evidence rule does not require a party to present the most persuasive evidence, nor does it require the presentation of documentary evidence instead of a witness's testimony simply because a document is available. Therefore, the prosecution does not need to establish that no adequate substitute evidence exists before admitting this oral testimony. Answer choice B is incorrect because there is no requirement for advance notice in this situation, even if the best evidence rule were applicable. Answer choice D is incorrect. Although the intentional destruction of evidence raises a presumption that such evidence would have been unfavorable to the party responsible for destroying it, otherwise inadmissible evidence is not admissible just because it was not destroyed in bad faith. Bad-faith destruction of the evidence would only prevent the architect from testifying about the model if the best evidence rule applied. However, as explained with regard to answer choice C, the best evidence rule is not applicable here.

A defendant is alleged to be the getaway driver in a bank robbery. The prosecution has introduced evidence that a bystander made the following excited utterance as the bank robbers fled the scene: "They jumped into that black car and drove away like maniacs!" The defendant wants to call a valet from the hotel across from the bank to testify that when the bystander and the valet discussed the event the next day, the bystander told the valet that the bank robbers got into a gray car. The bystander died of natural causes shortly after speaking to the valet. Should the bystander's statement to the valet be admitted? A. No, because it was not made under penalty of perjury. B. No, because the bystander is unavailable to testify. C. Yes, but only to impeach the bystander. D. Yes, to impeach the bystander and as substantive evidence that the getaway car was gray.

Answer choice C is correct. When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked by any evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny any inconsistent statement or conduct, whether such statement or conduct occurred before or after the hearsay statement. Answer choice A is incorrect because the statement may be admitted to impeach the bystander even though it was not a prior inconsistent statement made under penalty of perjury. Therefore, even though it is hearsay and cannot be admitted to prove the truth of the matter asserted, it is proper impeachment evidence. Answer choice B is incorrect because there is no requirement that a hearsay declarant be available to testify to be impeached. Also, the requirement that the declarant be provided with an opportunity to explain or deny a prior inconsistent statement does not apply when the statement impeaches a hearsay declarant, as is the case here. Answer choice D is incorrect. The statement cannot be admitted to prove that the car was gray because it is hearsay and there is no hearsay exception that would permit its use as substantive evidence. The bystander's statement to the valet may only be admitted to impeach the bystander's excited utterance.

A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building. The prosecution called a female witness who lived in the defendant's last apartment building to testify that she also received a number of identical threatening phone calls while the defendant lived in her building. The defense objected to the testimony on the grounds of relevance. The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant. Is the witness's testimony admissible? A. No, because calls by an unidentified caller are not relevant to the case. B. No, because the witness's statement cannot be admitted prior to the production of evidence establishing that the defendant made the calls to the witness. C. Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant. D. Yes, on the condition that the court finds by a preponderance of the evidence that the caller was the defendant.

Answer choice C is correct. When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof is introduced later. In making its determination that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence. Here, the court can admit the testimony on the condition that evidence identifying the caller as the defendant is introduced later. Answer choice A is incorrect because the relevance of this evidence is conditioned upon whether the prosecution can later establish that the defendant made the calls. However, this conditional relevance does not make the testimony irrelevant. Answer choice B is incorrect because the court may admit the testimony on the condition that the proof is introduced later. The proof of the statement does not need to be produced prior to the admission of the testimony into evidence. Answer choice D is incorrect because the court is not required to find that the conditional fact exists by a preponderance of the evidence.

A teller is on trial for the crime of obstructing justice during a Securities and Exchange Commission (SEC) investigation. The teller is accused of intentionally hiding key financial documents after the investigation was announced. The government calls the bank's attorney to testify that when the SEC announced its investigation, the teller asked him how to comply with the regulations, what financial documents needed to be released, and what the potential consequences would be for failing to provide the required documents. The bank's attorney, unaware of the teller's plans to conceal these documents, said that he would look into it and let the teller know the next day. The teller objects, claiming the attorney-client privilege. Should the court admit the bank attorney's testimony? A. No, because the attorney did not know that the teller had an illegal purpose. B. No, because the teller is not in a position to control the bank's corporate decisions. C. Yes, because the attorney did not give the teller legal advice. D. Yes, because the teller knew or should have known that he intended to commit a crime or fraud.

Answer choice D is correct. A confidential communication between a client and an attorney for the purpose of obtaining or providing legal assistance for the client is privileged. However, the attorney-client privilege does not protect communications made to enable or aid in the commission of what the client knew or should have known was a crime or fraud. Answer choice A is incorrect because the attorney's knowledge of the client's criminal purpose is not necessary to make the communication admissible. It is the client's awareness of the criminal nature of his actions that defeats the privilege. Answer choice B is incorrect because the attorney-client privilege extends to communications with a corporate lawyer by a non-control-group employee about matters within the employee's corporate duties made for the purpose of securing legal advice for the corporation. Answer choice C is incorrect because the attorney does not need to give advice or agree to the representation for the privilege to exist.

A plaintiff sued a company for damages incurred when the company's delivery truck drove through the plaintiff's storefront. The plaintiff wants to testify that the driver, a permanent employee of the company, told the plaintiff, "I kept telling my boss these brakes were on their last miles, but they were not fixed. They failed as I turned that corner." The company owns the truck. Is the plaintiff's testimony regarding the truck driver's statements likely admissible? A. No, because the testimony is hearsay not within any exception. B. No, because there is no proof that the truck driver was authorized to speak for the company. C. Yes, the testimony is admissible under a hearsay exception. D. Yes, the testimony is admissible as non-hearsay.

Answer choice D is correct. A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. A statement made by a party's agent or employee constitutes an opposing party's statement if it was made concerning a matter within the scope of and during the course of the relationship (i.e., a vicarious admission). Here, the truck driver's statement is a vicarious admission because it is a statement (i) made by an agent or employee of the company during the course of the employment relationship and (ii) it concerned a matter within the scope of the truck driver's employment. Therefore, the truck driver's statement is admissible as non-hearsay. Answer choices A and C are incorrect because a vicarious admission is not hearsay if it is offered by an opposing party. Answer choice B is incorrect because there is no requirement that the truck driver be authorized to speak on behalf of the company as long as the truck driver was an agent or employee of the company, speaking about a matter within the scope of his employment during the course of the employment relationship.

In a civil trial for aggravated battery, the defendant testified that he was aiming at a squirrel and did not see the plaintiff when he fired his gun. The plaintiff did not cross-examine the defendant regarding this issue. The plaintiff then called a witness who testified that a few days after the alleged aggravated battery, the defendant said to the witness, "As soon as I saw the plaintiff, I fired my gun right at him." The defendant objected to the witness's testimony. Is the witness's testimony admissible? A. No, because the defendant was not first given an opportunity to explain or deny the statement. B. No, because it is hearsay that does not fall within an exception. C. Yes, but only to impeach the defendant. D. Yes, both as evidence that the defendant committed battery and to impeach the defendant.

Answer choice D is correct. A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. In this case, the defendant's statement to the witness was offered by the plaintiff. Thus, the statement is an opposing party's statement and not hearsay. It may be used both as substantive evidence to prove the defendant committed battery and to impeach the defendant. Answer choice A is incorrect. Extrinsic evidence (i.e., evidence other than the witness's own testimony) of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it. The witness's opportunity to explain or deny the statement need not take place before the statement is admitted into evidence. The opportunity to explain or deny a prior inconsistent statement does not apply when the statement qualifies as an opposing party's statement. Here, the defendant's statement to the witness is an opposing party's statement. Therefore, the defendant need not be given the opportunity to explain or deny the statement. Answer choice B is incorrect because the defendant's statement is an opposing party's statement and therefore not hearsay. Answer choice C is incorrect because the witness's testimony may also be used as substantive evidence because it is an opposing party's statement.

A man and a woman were each charged with first degree murder and conspiracy to commit murder. The woman and her attorney entered into plea discussions with the prosecution. The woman told the prosecutor that the man had come up with the idea to murder the victim and had fired the shot that killed the victim. She agreed to plead guilty to a lesser charge in exchange for her testimony against the man. The woman attended a hearing on the record with her counsel and pleaded guilty. The woman later moved to withdraw her guilty plea and proceed to trial. Because the judge had neglected to notify the woman of her right to a jury trial at the plea hearing, he granted her motion and the woman proceeded to trial. The prosecution intends to introduce the woman's statements during the plea negotiations, as well as the fact that she previously entered a guilty plea. Which of the following is admissible against the woman at trial? A. Both the guilty plea and the statements during the plea negotiations. B. The guilty plea only. C. The statements during the plea negotiations only. D. Neither the guilty plea nor the statements during the plea negotiations.

Answer choice D is correct. A statement made during a negotiation between a prosecutor and a defendant regarding a plea that does not result in a plea is not admissible. A withdrawn guilty plea is likewise inadmissible. Answer choices A, B, and C are incorrect because neither statements made during plea negotiations nor withdrawn guilty pleas are admissible under Rule 410.

A landowner sued a defendant for trespass and destruction of property. The defendant called a witness to testify that at the time of the alleged trespass, the defendant was with the witness miles away from the landowner's property. On cross-examination, the landowner asked the witness if he was the defendant's best friend. Is this question proper? A. No, because it is not relevant to the issue of whether the defendant trespassed on and destroyed the landowner's property. B. No, because it exceeds the scope of the defendant's direct examination of the witness. C. Yes, because character evidence is admissible in a civil action. D. Yes, because it impeaches the witness's testimony.

Answer choice D is correct. A witness's bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground. The witness's friendship with the defendant constitutes a bias that could influence his testimony and hence is an appropriate subject for impeachment. Answer choice A is incorrect because, while the witness's friendship with the defendant is not directly relevant to the subject matter of this lawsuit, the trespass on and destruction of the landowner's property by the defendant, this evidence is proper impeachment evidence that calls into question the witness's alibi testimony. Answer choice B is incorrect because cross-examination of a witness can include impeachment of the witness's testimony. Answer choice C is incorrect because, in general, character evidence, which is generalized information about a person's behavior (e.g., peacefulness), is not admissible in a civil case to prove that a person acted in conformity with that character trait. Moreover, the evidence of the witness's friendship with the defendant is not character evidence with regard to either the defendant or the witness.

A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. In the investigating officer's report, the only witness is quoted saying, "I saw the whole thing. The car had the green light." At trial, the witness testified that he clearly remembered that the car's traffic light had been red, and that the car ran the light. The defendant did not cross-examine the witness and the witness was dismissed and left the jurisdiction. After the plaintiff had presented his case, the defendant moved to introduce the witness's statement from the investigating officer's report solely to impeach the witness's testimony. The plaintiff objected. How should the court rule? A. Overrule the objection, and admit the statement as substantive evidence that the car driver did not run the red light. B. Overrule the objection, and admit the statement as impeachment evidence only. C. Sustain the objection, because the statement is inadmissible hearsay. D. Sustain the objection, because extrinsic evidence may not be used to impeach a witness under the circumstances.

Answer choice D is correct. A witness's prior statement that is inconsistent with a material part of the witness's testimony may be used to impeach the witness. However, extrinsic evidence of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. In this case, because the witness was not given an opportunity to explain or deny the statement, the evidence should be excluded. Answer choice A is incorrect because, although the statement is relevant evidence on the substantive issue of whether the car driver did run the red light, the defendant has sought to use the statement only for impeachment purposes (i.e., to call into question the veracity of the witness's testimony at trial). Answer choice B is incorrect because extrinsic evidence is not admissible for impeachment purposes unless the witness is given the opportunity to explain or deny it. Answer choice C is incorrect because, while the statement would be inadmissible hearsay if it were introduced for its truth, the statement is being introduced for impeachment purposes only.

A defendant was charged with murder for allegedly striking his wife repeatedly in the head with a blunt object. While testifying, the defendant claimed that an intruder had murdered his wife in the middle of the night. The defendant then called a witness to the stand who testified that, in his opinion, the defendant was a truthful person. The prosecutor objected to the witness's testimony. Should the witness's testimony be admitted? A. Yes, because the defendant may present evidence of his good character. B. Yes, because the testimony is relevant to the defendant's argument. C. No, because truthfulness may only be supported by reputation testimony. D. No, because truthfulness is not a pertinent character trait in a murder prosecution.

Answer choice D is correct. In a criminal case, a defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. The defendant's character evidence must be pertinent to the crime charged. In this case, the defendant was charged with murder. Character evidence supporting the defendant's character for truthfulness is not pertinent to the charge of murder. Peacefulness, on the other hand, would be a pertinent character trait. In addition, the credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness's character for truthfulness has been attacked. Here, the prosecutor had not yet called the defendant's character for truthfulness into question. Therefore, the defendant is not permitted to introduce evidence of his truthful character. Answer choice A is incorrect. Although the defendant is permitted to present evidence of his good character in a criminal case, the defendant's character evidence must be pertinent to the crime charged. Answer choice B is incorrect. The witness's testimony is only relevant to the defendant's character and does not support his argument that an intruder murdered his wife. Answer choice C is incorrect because a witness's character for truthfulness may be supported by reputation or opinion evidence.

In a medical malpractice case, a patient sued her surgeon for allegedly causing organ damage during a routine surgery. In a previous case, the patient sued her medical insurance company for not covering some of the medical expenses associated with the complications from the organ damage. During that trial, the patient testified that she overheard a nurse assisting the surgeon tell another assisting nurse during the surgery that it appeared the patient's kidney had been pierced. Before the patient could testify about this statement in the medical malpractice trial, she died from complications stemming from the surgery. Is the patient's testimony from the previous trial admissible in the medical malpractice trial? A. Yes, because the patient is not available and the testimony was given as a witness at trial. B. Yes, because the patient is not available and the surgeon caused the patient's unavailability. C. No, because the testimony was given during a previous trial, not the current proceeding. D. No, because the defense did not have an opportunity to question the patient in the previous trial.

Answer choice D is correct. Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party's predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. Here, the patient died before she had a chance to testify at the malpractice trial and was thus unavailable. However, the defense in the medical malpractice trial did not have the opportunity to examine the patient during the previous trial. Additionally, the insurance company is not the surgeon's predecessor in interest. Therefore, the statement does not fall within the former testimony exception to hearsay and is inadmissible. Answer choice A is incorrect. Although the patient is not available and gave testimony as a witness during the previous trial, there is an additional requirement that the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. Answer choice B is incorrect. A statement offered against a party that wrongfully caused the declarant's unavailability is not excluded as hearsay. Under this exception, the wrongful party forfeits the right to object to the admission of the declarant's statement as hearsay. The wrongdoing, which need not be criminal, must be done with the intent of preventing the witness from testifying. Here, the surgeon's alleged wrongdoing was not done with the intent of preventing the patient from testifying at the malpractice trial. Accordingly, this exception does not apply. Answer choice C is incorrect. The former testimony exception applies whether the testimony was given during the current proceeding or during a different one, as long as the witness is now unavailable.

A defendant was charged with theft of merchandise from a store. On the witness stand, the defendant admitted taking the merchandise on the day in question, but contended that she lacked the intent to do so. A rebuttal witness testified that she was standing outside the store after purchasing something, and she saw the defendant outside the store furtively removing the merchandise from her coat. When asked about her recollection of the date, the witness testified that she knew that it was the day in question because that date was on her receipt. The defendant objected, asserting that the witness must produce the receipt. How is the court likely to rule on this objection? A. Sustain the objection, because the witness's knowledge of the date is based on the receipt. B. Sustain the objection, because the receipt is the most reliable evidence of the date. C. Overrule the objection, because the date is irrelevant. D. Overrule the objection, because the date is a collateral issue.

Answer choice D is correct. The original document rule applies because the witness's knowledge of the date comes from the receipt. The court is likely to find, however, that this issue is not closely related to a controlling issue since the defendant has admitted to taking the merchandise on the date in question. Answer choice A is incorrect because, although the original document rule applies, this rule is not applied to a writing if the content of the writing deals with a collateral issue. Answer choice B is incorrect because there is no rule of evidence that generally requires the production of the most reliable evidence. While the original document rule stems at least in part from this concern, it is not controlling under this circumstance. Answer choice C is incorrect because testimony regarding the date is not irrelevant since it establishes that the witness's testimony regarding the defendant's behavior concerns the day in question, and not another day. However, the witness's receipt itself is not central to whether the defendant had the necessary intent to commit theft.

A husband was on trial for the murder of his wife. The wife's death was attributable to a fall which the prosecution alleged was purposefully caused by her husband. Shortly after the wife's death, the husband told a friend that there was a video recording in which he had stated that his wife's death "was no accident." The video recording was found during a proper search of the husband's office, and is now in police custody. The prosecution, worried that the video recording makes the husband look sympathetic, intends to instead call the friend to testify as to the husband's statement. The defense has objected to admission of the friend's testimony. Should the court permit the friend to testify as to the husband's statement to him? A. Yes, because the statement is a statement of a party opponent. B. Yes, because the husband's statement to his friend is not subject to the original document rule. C. No, because the testimony is hearsay. D. No, because the video recording must be produced.

Answer choice D is correct. The original document rule requires the production of a recording when its contents are at issue. Here, the husband's statement to his friend is not a direct inculpatory statement, but instead is an admission of making such a statement in a recording. Consequently, the contents of the recording are at issue and the recording itself must be produced since it is available. Although there is an exception to the original document rule for an adverse party's admission as to the contents of a recording, this exception applies only when the admission was made in a deposition, testimony, or written statement. Answer choice A is incorrect because, although the statement would be exempt from the hearsay rule as an admission of a party opponent, the testimony runs afoul of the original document rule. Answer choice B is incorrect because the husband's statement to his friend concerns a recording. The statement is thus subject to the original document rule because the contents of the recording (i.e., the husband's statement that his wife's death was no accident) are at issue. The original document rule requires production of the recording or a satisfactory explanation as to why it cannot be produced. Answer choice C is incorrect because the husband's statement to his friend, as well as his statement in the video, are statements of a party opponent and thus not hearsay. However, despite clearing the hearsay hurdle, the testimony runs afoul of the original document rule. Editor's Note: Remember that the Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Your practice questions test concepts, including the Best Evidence Rule, in a variety of ways, in the event you see a question like it on the bar exam. You may see situations in which the Best Evidence Rule is the correct answer during your practice sessions, or on the bar exam.