Evidence Law Questions - Relevance & Exclusion

Jason is on trial for murder. He admits causing the victim's death, but claims it was entirely accidental and unintentional. (A) He calls a character witness, Jolene, to testify in his defense. Which of the following may Jolene say on the stand? (1) "I have known Jason for years, and he is one of the calmest, most peaceful people I know." (2) "Jason is also a loving and caring father." (3) "In high school and in our church, everyone says that Jason is a teddy bear." (4) "One time we were out at a restaurant, and some idiot was giving us a hard time, and actually challenged Jason to a fight. Jason calmly asked him to leave."

1. In as opinion evidence - 404(a)(2)(a) - This is permissible 2. Not admissible - Characteristics of being a good father has nothing to do with violent behavior 3. This is reputation evidence and would therefore be in. 4. This is a specific act so it is therefore inadmissible.

Larry is accused of murder. A. Which of following may the prosecution do in its case-in-chief? 1. Call a witness who says that Larry is a generally violent person. 2. Call a witness who says that Larry and the victim got into a fight two weeks before the killing. 3. Admit a copy of Larry's prior conviction for felony assault in an unrelated case.

1. No - Defendant has not opened the door yet 2. Speaks to motive, yes. This is not a character purpose. Larry is upset about the fight therefore he sought revenge, therefore he had motive, therefore he probably did it. 404(b) 3. No - Evidence of a past crime. They are admitting a past crime to show he is violent.

Jason is on trial for murder. He admits causing the victim's death, but claims it was entirely accidental and unintentional. (B) Assume that Jason has called Jolene as a character witness. Which of the following may the prosecution do in response? (1) Call a witness, Mendoza, who will testify that he has known Jason for several years because they worked at the same company, and in his opinion, Jason is a "hothead." (2) Ask Mendoza to describe an incident where Jason got in a fight with a co-worker at the office and the police had to be called. (3) Ask Jolene on cross whether she has heard about the incident where Jason got in a fight with a co-worker and the police had to be called. (4) Call a witness, Miriam, who will testify that she has known the victim since they were little children, and the victim was a very peaceable person.

1. This is an opinion so this would be admitted and it is rebuttal because the door has been opened by the defendant. 2. This would be a specific act and it is not on cross-examination so it would not be admitted 3. This would be allowed because the door has been opened, and you can bring in specific acts on cross-examination. This looks like Michelson 4. The defendant hasn't opened the door on the victim yet, so therefore it would not be allowed.

Larry is accused in a criminal case of assaulting Darryl. Darryl testifies for the state. Larry argues self-defense but does not testify in his own defense. He calls an eyewitness, Jane, who will testifies that Darryl started the fight. Which of the following may the prosecution do in response? 1. Call a witness who says that Jane is generally a dishonest person. 2. Call a witness who says that Larry is generally a dishonest person. 3. Call a witness who says that Jane is generally a violent person. 4. Call a witness who says that Larry is generally a violent person. 5. Call a witness who says that Darryl is generally an honest person. 6. Ask Jane: "Isn't it true that you once shot a man?" 7. Ask Jane: "Isn't it true that you once lied on a loan application?" 8. Ask Jane: "Isn't it true that you were once sued by Darryl?" 9. Ask Jane: "Isn't it true that Larry once shot a man?"

1. Yes - 608(a) Impeachment witness 2. No - Has not taken the stand, has not opened the door 3. No - Not a criminal defendant or victim, just a witness. Also has nothing to do with truthfulness so cannot impeach for honesty 4. No - Defense has not opened the door to his character under 404(a)(2)(a). 5. No - 404(a)(2)(b) is not in play here. Not the right character trait and the door has not been opened. Just saying someone is lying is not character impeachment, so 404(a)(3) is not open. Other forms of impeachment do not open the door to character rehab, only character attacks (608, 609) allow for character rehab. 6. Maybe - 403 test - Not under 608(b), maybe 609 depending on more facts 7. Yes - 608(b) 8. Yes - Bias is a form of impeachment, but not character impeachment. This is not character impeachment. 404 is not involved. It would not be excluded under 403. 9. No - This is a Michelson question, and she is not a character witness. She is a factual witness. Barred by 404.

Greg sues Ted after a car accident. Greg claims Ted ran a red light and struck Greg's car. Consider whether each of the following pieces of evidence is relevant under Rule 401. Explain how. 1. Jane testifies: "I was there, and I saw Ted run the red light." 2. Jack testifies: "I was at Billy's with Ted an hour earlier, and we had a few beers." 3. Greg introduces a document showing Ted's driving record, which includes a half-dozen speeding tickets and other violations in the last few years. 4. After Jack testifies in #2 above, Fritz testifies: "Jack told me he hates Ted because a couple years ago, he got a C- in Ted's evidence class."

1. Yes, direct evidence 2. Yes, shows that Ted may be impaired and therefore more likely to run the red light. i. Don't need another witness to testify to the fact that impaired people are more likely to run a red light, jurors can use common sense 3. Yes, poor driving record makes it more likely that Ted ran a red light i. Might be inadmissible under another rule of exclusion, but it is relevant 4. Yes, impeachment evidence.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 10. Because the actual surveillance camera did not capture the entire course of events, prosecutors also staged a re-enactment video, wherein several witnesses re-enacted what happened. The re-enactment video is offered by the prosecution to prove what happened at the scene.

10. Hearsay. Declarants: Witnesses. Audience: Video viewers. Assertion: This is what happened and we're going to show you by reenacting it. Nonverbal communication.

Larry is accused of murder. C. Larry takes the stand in his own defense. He says that the victim attacked him, and he only shot in self-defense. Which of the following may the prosecution do? 10. Admit a copy of Larry's prior conviction for felony assault in an unrelated case. 11. Call a witness who says that Larry is a generally violent person. 12. Call a witness who says that Larry is a generally dishonest person. 13. Call a witness who says that the victim was a generally peaceful person.

10. Yes/ Maybe - 609(a)(1) - If it passes modified 403 test. character evidence that he is a generally violent person. Definitely in MN 11. No - 404(2)(C) - Self-defense is not a character opening so he hasn't opened the door under 404(a)(2)(A) 12. Yes - 404(a)(3) & 608(a) impeachment. Because the defendant became a witness when he took the stand. 13. Yes - 404(a)(2)(C) - Homicide self-defense brings in victim character defense.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 11. The investigating officer testifies: "When I arrived at the scene, I interviewed several people. Fred explained that the defendant had taken his phone after tricking him." The testimony is offered to prove the events of the alleged robbery.

11. Hearsay. Fred is A, he told the officer B what happened, the Officer B is testifying to the truth of the matter asserted on how the phone was stolen based on second hand information from Fred. The officer is relaying an out of court statement to prove the phone was stolen.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 12. The officer testifies: "I also interviewed one of the bystanders. He said that he heard Fred yell, then ran over to help, and the two of them chased down the defendant." The testimony is offered to prove the events of the alleged robbery."

12. Hearsay. Bystander A tells Officer B, who testifies to the out of court statement from A to prove the defendant stole the phone.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 13. The officer testifies: "I also interviewed the defendant in the squad car. He initially told me that he didn't have a phone at all. But when we discovered the phone in his pocket, he changed his story and said that the phone was his." The testimony is offered to impeach the defendant's trial testimony about what happened.

13. Not hearsay. The officer A is making his own statement about what happened to impeach the defendant's statement, not the truth of the matter asserted.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 14. The officer testifies: "I took the phone as evidence. I took it to the evidence lab, and ordered a fingerprint test done. I got the lab results back the next week, and the lab tests showed that both Fred's prints and the defendant's prints were found on the phone." The testimony is offered to show that both sets of prints were found on the phone.

14. Hearsay, the lab tech is the declarant and they are asserting that both sets of finger prints (condition/event) are on the phone. Testifying officer does not have first hand knowledge that there was a match, he only has second hand knowledge about it.

Larry is accused of murder. D. Assume that Larry took the stand, and the prosecution impeached him with evidence of his prior perjury conviction. Which of the following may the defense to? 14. Call a witness who says that Larry is a generally honest person. 15. Call a witness who says that Larry is a generally peaceful person.

14. Yes - Rebut/ Rehab. Can only do this because his character for his honesty has been attacked. 607 & 608 15. Yes - 404(a)(2)(A) - Can always open his own door. He can do this whenever he wants. But witness can be crossed with Michelson questions.

Larry is accused of murder. E. Assume that Larry does not take the stand. Larry calls a character witness, Jo-Jo, who testifies that Larry is a generally peaceful person. Which of the following may the prosecution do? 16. Ask Jo-Jo: "Don't you know about Larry's prior conviction for felony assault?" 17. Admit a copy of Larry's prior conviction for felony assault in an unrelated case. 18. Call a witness who says both that Larry is generally violent and Jo-Jo is generally dishonest. 19. Ask Jo-Jo: "Weren't you convicted of perjury five years ago?" 20. Call a witness who says that the victim was a generally peaceful person.

16. Yes - Michelson question. 405(a) Solely for the purpose of impeaching Jo-Jo's knowledge 17. No - Michelson. 18. Yes - Jo-Jo because it goes to the witness' truthfulness 404(a)(3) & 608(a). Larry - he opened the door with Jo-Jo, so 404(a)(2)(A) 19. Yes - 609(a)(2) Mandatorily admissible. 20. Yes - Assuming Larry said the victim was the first aggressor 404(a)(2)(C). If not, it's out.

Larry is accused of murder. B. Millie testifies as a witness for the prosecution. She says that she saw Larry shoot the victim. Which of the following may defense do? 4. Call a witness who says that Millie is a generally violent person. 5. Call a witness who says that Larry and Millie's brother once had a violent altercation. 6. Ask Millie: "Isn't it true that you were yourself recently charged with felony assault, but you got a deal and pleaded guilty to a misdemeanor?" 7. Admit a copy of the Millie's plea agreement. 8. Ask Millie: "Isn't it true that you lied about your income on your mortgage application?" 9. Admit a copy of Millie's mortgage application.

4. No - Millie's character as a violent person is not relevant. Not 608(a) because it has nothing to do with her honesty, it's the wrong trait. Why not 404(a)(2)(B) - She's not the victim 5. Yes - It shows Millie's potential for bias 6. Yes - This is not character impeachment. The argument is made that it shows her bias for the prosecution because she got a deal. 7. Yes - Because this has nothing to do with character evidence exceptions. It has nothing to do with her general character for dishonesty 8. Yes - 608(b) - but they have to live with her answer 9. No - 608(b) excludes extrinsic evidence

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 7. A police officer testifies: "When I arrived at the scene, I asked defendant his name, and he responded 'Adrian Peterson.'" (That is not the defendant's real name.) The testimony is offered by the prosecution to prove consciousness of guilt

7. Declarant: Defendant. Audience: Police Out of court statement: Adrian Peterson. TOMA: That defendant lied and inferred consciousness of guilt.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 8. The police officer testifies: "I patted down the suspect and found his wallet. He had a Minnesota driver's license." The testimony is offered by the prosecution to prove that the defendant resides in Minnesota

8. There is no statement. Not hearsay. Declarant: DMV? Audience: Anyone checking a license. Assertion: Person has a driver's license

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 9. Prior to trial, investigators discovered that the school had surveillance cameras. One of the cameras caught part of the scene. The surveillance video is offered by the prosecution to prove what happened at the scene.

9. Not hearsay. Out of court statement:

Matthew had just purchased a new 2003 Alpha Romeo Spider convertible from Santa Monica Import Motors. As Matthew was carefully driving it home, within the posted speed limit, Amy, aged 11, suddenly darted into the street in front of his car. Although Matthew immediately applied his brakes and swerved to avoid Amy, the car hit her, fracturing her legs. As Amy was laying in the street awaiting an ambulance, Matthew rushed over to her and said: "I'm terribly sorry. This is the first time I ever drove this car. I don't know what happened, but it must have been my fault. Send me all your hospital bills. I'll pay for everything." When Amy was later released from the hospital, her parents contacted Matthew who refused to pay anything. Matthew told Amy's mother..."since your daughter ran into the street, it was her fault. I have witnesses who saw what she did. If I weren't such a nice guy, i'd sue you for the damage to my Alpha." If Amy's parents, on her behalf, sue Matthew in tort, which of the following is the most accurate statement regarding Matthew's post-accident statements?

A) Matthew's statement regarding his operation of the Alpha as well as his statement concerning payment of the hospital bills are both admissible on the issue of negligence. B) Matthew's statement regarding payment of the hospital bills is admissible, but his statement concerning his operation of the Alpha is not admissible. C) Matthew's statement regarding his operation of the Alpha is admissible on the issue of negligence, but his statement concerning payment of the hospital bills is not admissible in accordance with public policy considerations. D) Neither Matthew's statement regarding his operation of the Alpha nor his statement concerning payment of the hospital bills is admissible on the issue of negligence

Jack and Jim are in a bar fight. Jack is charged with criminal assault. Jim testifies against him at trial. Jack claims self-defense. Jack calls a character witness to testify: (i) that Jim is violent, (ii) that Jim is dishonest. Which is admissible?

A. (i) only B. (ii) only C. both (i) and (ii) D. neither (i) nor (ii)

Dolly is on trial for felony assault against Jolene. Dolly claims that she only acted in self-defense. She takes the stand in her own defense, and she testifies that Jolene violently attacked her. After her testimony, her defense lawyer also admits documentary evidence of a toxicology report showing that Jolene had cocaine in her system on the night of the incident. (A) In its rebuttal case, the prosecutor seeks to call a character witness, who will offer opinion testimony that (1) Dolly is a generally violent person, and (2) Jolene is a generally peaceful person. Is the character witness's testimony admissible? (B) How would the answer be different if Dolly were on trial for murdering Jolene?

A. 1. Not admissible under 404(a)(2)(b) because the defendant did not open the door. A violent attack is not a character trait. Therefore, the door has not been opened. 2. No, the door has not been opened. B. Here, B from above would be allowed because of 404(a)(2)(c) because of a self-defense claim in a homicide case. Impeachment has many forms. Most kinds of impeachment are non-character. In 404(a)(3) it is a special kind of impeachment because it is purely character-based impeachment. 608(a)/ (b), 609. It is focused on showing the witness' dishonesty as a character trait.

Which of the following rules makes evidence admissible without any possibility of a Rule 403 fallback exclusion?

A. 404(a)(1) B. 413 C. 609(a)(2) D. 801(d)(2)(A)

Which of the following hearsay exceptions does NOT require the declarant to have personal knowledge?

A. 801(d)(1)(A) B. 803(3) C. 801(d)(2)(A) D. 807

In the prosecution of the defendant for bank robbery, it is established that as the robber came out the bank, he was seen entering a car by a group of people, including a witness and his friend. The witness is prepared to testify that as the car drove off, someone yelled, "Get that number," whereupon the friend screamed "I've got it. The number is 07771!" The witness's testimony is:

A. Admissible only if the friend fails or refuses to testify to such facts, because the friend's testimony would be the best evidence thereof. B. Admissible hearsay C. Inadmissible hearsay D. Inadmissible, because their is no proper foundation or I.D. of the hearsay declarant.

A P sued a D for damages suffered when a load of bricks fell off the D's truck directly in front of P while she was driving on the highway. The P charged that the D was negligent in supplying his truck with a defective load chain clamp, which helped tie the load to the bed of the truck, and in failing to secure the load properly on the truck. The P calls a witness who testifies that he was formerly employed as a truck driver and is an acquaintance of the D. The witness further testifies that immediately before the accident he had coffee with the D, and mentioned to the D that the tie chains holding the bricks looked loose. Assuming proper objection by the D's attorney, such testimony is:

A. Admissible under an exception to the hearsay rule B. Admissible nonhearsay C. Inadmissible hearsay D. Inadmissible opinion evidence

Debussy knew he was being foolish, but he just could not stop himself. Sheila was beautiful, and she was so lonely with her husband in prison. Sheila had told Debussy that her husband, Othello, was extremely jealous. She said that Othello was in prison because he had shot her last lover when he learned of the affair. About four months after he started seeing Sheila, Debussy received a telephone call from her. She seemed distraught, and cried, "Othello escaped from prison this evening, and he knows about us!" As expected, Othello called on Debussy that evening. Debussy shot Othello and was prosecuted for his murder. Debussy claims self-defense. At trial, he attempts to testify to Sheila's statement that Othello was in prison because he had shot her last lover when he learned of the affair. If the statement is instead offered to prove the effect it had upon Debussy, Sheila's statement is:

A. Admissible under the present sense impression exception to the hearsay rule B. Admissible as non-hearsay C. Inadmissible as hearsay not within any exception D. Inadmissible because it is self-serving.

Della and Dick Delpit had worked hard, but it was worth it. They now had their own tractor-trailer rig. In fact, Dick was hoping that in the next couple months Della could stay home with the kids. For the time being though, Della took her turn driving on their cross-country route. It was about 2 A.M. and Dick was driving. Della was back in the sleeper. Suddenly there was a collision. Della heard Dick say, "Oh honey, I have really messed things up this time! I just rear-ended that car. I hope no one is hurt." As Della climbed down from the cab, a man rushed up and asked, "What happened?" Not realizing he was the owner of the car, Della replied, "I am afraid my husband hit that car." The owner brought suit against the Delpits. At trial, the owner testifies to Della's statement. Dick and Della's attorney objects. The evidence is:

A. Admissible, as an admission by a party opponent B. Admissible, to impeach Della if her attorney's opening statement indicates she will deny this. C. Inadmissible, because Della was not aware of the identity of the car owner when she spoke. D. Inadmissible, because Della lacked foundational knowledge when she spoke.

Dirk was charged with the assault of a college student in her dorm. The prosecution offers testimony that four months earlier the victim had been a witness against him when he was tried but acquitted of assaulting the victim's roommate in an alley. The evidence is:

A. Admissible, to show there was a common scheme or plan B. Admissible, for the purpose of impeaching Dirk's testimony C. Admissible, to show motive for the assault D. Inadmissible

Debussy knew he was being foolish, but he just could not stop himself. Sheila was beautiful, and she was so lonely with her husband in prison. Sheila had told Debussy that her husband, Othello, was extremely jealous. She said that Othello was in prison because he had shot her last lover when he learned of the affair. About four months after he started seeing Sheila, Debussy received a telephone call from her. She seemed distraught, and cried, "Othello escaped from prison this evening, and he knows about us!" As expected, Othello called on Debussy that evening. Debussy shot Othello and was prosecuted for his murder. Debussy claims self-defense. At trial, he attempts to testify to Sheila's statement that Othello was in prison because he had shot her last lover when he learned of the affair. If the statement is offered to prove that Othello was in prison because he had shot Sheila's lover when he learned of the affair, the statement is:

A. Admissible, under the state of mind exception. B. Admissible, as non-hearsay C. Inadmissible, as hearsay not within any exception. D. Inadmissible, because it is self-serving.

At a trial in which a pedestrian is suing a driver, a hospital record was admitted into evidence that included the following statement: "The pedestrian's leg was run over by a car driven by a driver who blew through a red light while the pedestrian was crossing in a crosswalk." The driver's attorney now wishes to admit the other portion of the hospital record, which says, "The pedestrian stepped off the curb without first looking both ways for traffic." How should the court rule?

A. Admit the statement on fairness grounds because the P has the other portion of the record. B. Admit the statement as a past recollection recorded. C. Exclude it because it is hearsay not within any exception D. Exclude it because it is self-serving.

At his 1991 criminal trial, Delbert took the stand in his own defense. The prosecution then sought to admit evidence of Delbert's 1974 conviction for felony theft, for which he served no sentence. If offered to show Delbert's bad character for truthfulness, the evidence of the conviction should be:

A. Admitted if the probative value substantially outweighs the prejudicial effect B. admitted if the probative value outweighs the prejudicial effect C. admitted unless the prejudicial effect substantially outweighs the probative value D. excluded because Delbert did not serve at least one year in prison.

Santini was a councilperson in a small town. A local radio talk show host aired a show in which she stated that Santini was a crooked politician. Santini was the subject of a recall effort which was ultimately successful, and he sued the radio station for defamation. The radio station defended on the grounds of truth. Santini took the stand and testified that he was not a dishonest politician. The station called Hawk, who testified that a year prior to the radio show in question, Santini took a bribe in connection with a city redevelopment project at the municipal airport. Santini's lawyer objects. The testimony should be:

A. Admitted, as relevant evidence of Santini's character as a crooked politician. B. Excluded, because it is inadmissible character evidence C. Admitted, as relevant evidence of character for truthfulness. D. Excluded, because the prosecutor may not introduce evidence of character unless the defendant puts his character in issue.

Fred drives a parcel delivery truck. During the holiday season while he was driving a long route, he stopped off during his dinner hour and imbibed an excess of holiday cheer. While still intoxicated he left to resume his route. Unfortunately, Peter, who was out driving his new moped, turned right in front of Fred. He was unable to stop the delivery truck in time to avoid the collision, which left Peter seriously injured. Peter's parents brought an action against the parcel service to recover for his injuries. Which of the following is LEAST likely to be ruled admissible?

A. Evidence the Fred pleaded guilty to felony drunk driving in this accident B. Evidence that the parcel service carries liability insurance on the truck if it argues that Fred was an independent contractor. C. Evidence that Fred has the reputation of being a poor driver if the parcel service and Fred argue that Fred was not negligent. D. Evidence that the parcel service repaired the brakes on the truck if the parcel service denies ownership of the truck.

Bodhi and Roach are charged with bank robbery. The bank was robbed by men wearing masks of former presidents. During the robbery, one of the men stood guard at the door with a shotgun, while the other went to the register and took cash. They then drove away in an old Oldsmobile sedan. A. The Oldsmobile sedan was reported stolen earlier that day. A witness will testify that he saw Roach steal it. Roach objects to the witness's testimony, citing 404(b). What ruling? B. Two years ago, Bodhi and Roach were convicted of robbing a bank in another town. During that robbery, they also wore masks of former presidents, and one of them stood guard at the door with a shotgun while the other took cash. The prosecution seeks to admit evidence of the prior robbery, and the defense objects. What ruling?

A. Green path: preparation, identity, links the defendant to the crime scene. This is in. Probative value is very high. B. Similar to Trenkler case. Trenkler relies on signature crimes doctrine (Modus Operandi) which requires specific traits unique that are idiosyncratic way. This is a close call.

Dawes owned a deep sea fishing line in a small west cost town. For a fee, groups of fisherman were taken to choice spots where they spent about eight hours fishing. For a small additional fee, the catch would even be cleaned. Dawes was pleased with the business. Dawes employed ten employees to conduct the excursions, while he spent a nominal amount of time completing the administrative work. One afternoon Dawes received a telephone call from the Coast Guard. He was told that one of his boats, the Merry Mariner, had run into a yacht that afternoon. Although no one was hurt, the Merry Mariner had sunk. Dawes was furious. He turned to his secretary and said, "The Merry Mariner ran into a yacht this afternoon. There go our insurance rates. I bet it was Dudley's fault. I knew I shouldn't have kept him on with that drinking problem!" The Coast Guard later established that the yacht had run into the Merry Mariner. However, the yacht's owner brought suit against Dawes anyway. At trial, Dawes secretary is called to testify to Dawes' statements. Her testimony is:

A. Inadmissible, because Dawes had no first hand knowledge of the accident B. Inadmissible, because it constitutes opinion. C. Admissible, to impeach Dawes' expected testimony. D. Admissible, as an admission.

Milo was charged with murder as a result of a fight that erupted with Victor while the two were watching a roller derby match. The defense called Winton, who testified that he saw the fight and that according to what he saw, Victor was the aggressor. Winton also testified that he had worked with Milo for several years and in his opinion Milo was a peaceful man. The prosecution then called Victor Jr. to the stand, who proposed to testify that his father was a peaceful, non-violent person The defense objects, and Junior's testimony should be:

A. Inadmissible, because Milo has not specifically questioned Victor's character. B. Inadmissible, because Victor's character may not be established by the testimony of his son. C. Admissible, to rebut Winton's testimony that Milo was a peaceful man. D. Admissible, to rebut Milo's claim of self-defense

The Rev. U. Will Repent was the featured speaker at a Hollywood charity fund raiser. Rev. Repent was known for his forceful, flamboyant manner and his ability to raise extraordinary sums to carry on his various projects. During Rev. presentation, Dufus, the master of ceremonies, imbibed freely. At the conclusion of the speech, Dufus said, "Thank you Rev. for the most oving message. Now you can get back to your favorite project - the conversion of your own Comtese Du Barry. For your own sake, I hope that conversion takes a long time!" Rev. brought a defamation suit against Dufus. Assume the judge overruled the objection and directed Dufus to answer the question. Dufus denies that he was convicted of perjury. Rev's attorney then offers into evidence a certified copy of Dufus' conviction to establish that he was found guilty of perjury in 1986. The evidence is:

A. Inadmissible, because character evidence cannot be admitted in civil actions. B. Inadmissible, because such extrinsic evidence cannot be used to prove specific instances of conduct C. Admissible, because Dufus placed his character in issue when he took the stand. D. Admissible, because this kind of extrinsic evidence may be offered to impeach Dufus' veracity.

A well known financial columnist was charged with securities fraud. He was alleged to have written an article describing a bright future for a company, thereby increasing demand for the stock while he was in fact trying to sell off his holdings before the company folded. At trial, the prosecution seeks to introduce evidence that three times previously he had printed false information concerning stock of companies in which he had holdings, while he was trying to unload the stock. The evidence is:

A. Inadmissible, because what he did in the past is not relevant to the crime he is presently charged with. B. Inadmissible, if he claims the articles are privileged under the journalist's privilege. C. Admissible, to show his intent to defraud. D. Admissible, to show his character trait for dishonesty

In 1975, two FBI agents were killed in South Dakota. Leonard Peltier was charged with the murder. The two agents were following three men in a van. When the van stopped, the agents stopped also, and ordered the men out of the van. Someone opened fire, and a barrage of gun fire flew back and forth. Both agents were struck and killed. Peltier claimed that the agents didn't identify themselves as police officers, that they shot first, and that he only fired in self-defense. Which of the following is admissible under Rule 404? (A) At trial, the government seeks to prove that in 1972, Peltier was charged with attempted murder of a police officer in Wisconsin. After he was charged, Peltier fled Wisconsin, and a bench warrant was issued for his arrest after he failed to appear for his trial. Is the evidence admissible under Rule 404? (B) The government also offers evidence that in 1976, Peltier was arrested in Oregon. The arresting officers discovered a handgun that belonged to one of the slain agents. The officers also discovered over a dozen other firearms, grenades, and several pieces of paper containing coded messages referring to "pigs" and "dynamite."

A. Is showing a character pattern that would make it more likely for Peltier to commit this crime. Although he has a motive to fire at a police officer first because he is on the run for an attempted murder charge. This is the green path here. 403 argument to this would be that the jury would use the red path of him being a repeat cop killer. This evidence would be admitted with a jury instruction and redact out the police officer part. B. Has nothing to do with his pattern of behavior or character, only that what was found makes it more likely that Peltier killed the officers because of his disdain for police. However, the other firearms, grenades and notes have nothing to do with the specific crime, so they are likely out.

The issue at trial is whether the sun was shining in a particular city on a particular day at 11 A.M. A witness testified that he was lying beside his wife on the beach in that city at 11 A.M. that day and she said to him "Now that the sun is out, I'll be able to get my great tan!" Is this statement admissible?

A. No, as hearsay not within any exception B. No, because the witness does not have firsthand knowledge C. Yes, but only if the witness's wife is unavailable. D. Yes, whether or not the witness's wife is unavailable.

A P sued a D and his employer for personal injuries. The P claimed that she was struck on the head by a wrench dropped by the D from a high scaffold, on which the D was working in the course of a construction project. To prove that it was the D who dropped the wrench, the P offers the wrench itself as evidence: The wrench bears the name "Craftsman" on the handle, and other evidence shows that the wrenches used by the defendant on the job are "Craftsman" brand wrenches. Is the wrench admissible?

A. No, because but for the word "Craftsman" the wrench would be irrelevant, and the word "Craftsman" is inadmissible hearsay. B. No, because the wrench is irrelevant as it fails to show that it is more likely than not that the defendant was the person who dropped it. C. Yes, because the wrench is relevant direct evidence that it was the D who dropped the wrench and is not hearsay. D. Yes, because the wrench is relevant circumstantial evidence that it was the D who dropped the wrench and is not hearsay.

The P is suing the D for serious, life-threatening injuries she suffered when the D's car collided with the P's car at a busy intersection. At trial, the P testified that the light was green when she entered the intersection. She was not cross-examined. She also testified that she lost consciousness after the collision but awoke to find a witness comforting her as she lay on the ground. The P calls the witness to testify that, when she awoke, she said "Help, I'm dying! Why did the D enter the intersection when the light was green for me?" Is the witness's testimony concerning the P's statement admissible?

A. No, because it is hearsay not within any exception B. No, because a party is not permitted to introduce her own out-of-court statement that is consistent with her testimony on the witness stand. C. Yes, as an excited utterance D. Yes, as a statement under belief of impending death.

In a wrongful death action after a car accident involving a drunk driver, the family of the decedent sued the driver's employer for allowing its employee to drink too much at a company party. When the company's attorney asked the driver-employee on the stand how many drinks she had, she testified that she had four drinks. The company's attorney now wants to question her about her deposition testimony, in which she said that she had two drinks. Is this permissible?

A. No, because it is hearsay not within any exception B. No, because the company cannot impeach its own business. C. Yes, but only if it is being offered to help the driver refresh her memory D. Yes, because it can be offered as substantive evidence, even if it results in impeaching the driver's testimony at trial.

A P sued a chimney sweeping company fro personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the P lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the P, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the P not to use the fireplace for 24 hours to allow certain chemicals to evaporate. Is the foreman's proposed testimony hearsay?

A. No, because the declarant is testifying as a witness at the hearing B. No, because the statement is not offered for its truth C. Yes, but it should be admitted as part of the res gestae. D. Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

A D is on trial for a murder that occurred during a robbery at the Victim's house. A witness helped the police artist compose an accurate depiction of the D. The witness was unavailable at the time of trial and the prosecutor offers the sketch into evidence. Is the sketch admissible?

A. No, under the best evidence rule B. No, as hearsay not within any exception C. Yes, as a record by a public employee. D. Yes, as prior I.D.

Wally was weeding his tulips when he saw a man run out of his neighbor's house carrying a TV. The man jumped in a car and sped away. Wally immediately called the police. Later, at the police station, Wally I.D.'d Dennis from "mug shots" as the man who ran out of the house. Wally gave the police a signed statement and testified before the grand jury regarding the I.D. of Dennis. Dennis was indicted. At trial, the prosecutor called Wally to I.D. Dennis as the man he saw run out of the house. Wally stared at Dennis, then responded "No. I don't recognize him." The prosecutor then asked Wally, "Didn't you I.D. Dennis at the police station and also testify to his I.D. before the grand jury?" Dennis' attorney objected. The question is:

A. Not proper since a party cannot impeach his own witness. B. Not proper since the prior statements and I.D. constitute admissible hearsay. C. Proper because a party may impeach his own witness. D. Proper because Wally's earlier statements and I.D. are more reliable.

The Rev. U. Will Repent was the featured speaker at a Hollywood charity fund raiser. Rev. Repent was known for his forceful, flamboyant manner and his ability to raise extraordinary sums to carry on his various projects. During Rev. presentation, Dufus, the master of ceremonies, imbibed freely. At the conclusion of the speech, Dufus said, "Thank you Rev. for the most oving message. Now you can get back to your favorite project - the conversion of your own Comtese Du Barry. For your own sake, I hope that conversion takes a long time!" Rev. brought a defamation suit against Dufus. Dufus later testifies in his own defense. On Cross, Rev's attorney asks "Isn't it true that you were convicted of perjury in 1986?" Dufus' attorney objects. The court should:

A. Overrule the objection, because counsel may inquire into matter bearing upon the credibility of the witness during Cross. B. Overrule the objection, because the commission of a prior crime can be used to establish motive. C. Sustain the objection, because of the highly prejudicial nature of the evidence D. Sustain the objection, because the question exceeds the scope of direct examination.

Jack is on trial for domestic abuse. His wife Therese testified at grand jury proceedings that he had beaten her. After they reconciled, however, she refused to testify at trial. The prosecution decided to proceed without her cooperation. If the prosecution wants to admit her grand jury testimony, its best argument for admissibility would be based on:

A. Rule 801(d)(1)(A), prior inconsistent statements B. Rule 803(3), statements of then-existing physical, emotional, or mental conditions. C. Rule 804(b)(1) former testimony D. Rule 807, residual exception

A 54 year old employee filed an age discrimination lawsuit against a corporation, alleging that its personnel director had improperly terminated his employment. In defense, the corp presents a written report summarizing a meeting between the personnel director and the employee that was prepared directly after the meeting and placed in the employee's personnel file, and that contains several damaging admissions by the employee. Which of the following is NOT among the foundational facts the corp will have to establish if it wants to have the report admitted under the past recollection recorded exception to the hearsay rule?

A. That the report was written while the meeting was fresh in the memory of the personnel director B. The the report accurately records what was said by the employee C. That the report was written by the personnel director or adopted by her D. That the personnel director is not available and cannot be called as a witness at trial

In Crawford, Justice Scalia criticized the Roberts test. Which of the following was NOT part of his critique:

A. The Roberts test was too subjective B. The Roberts test was mistakenly treated the Confrontation Clause as a substantive right rather than a procedural right. C. The Roberts test had been undermined by subsequent Supreme Court cases. D. The Roberts test was inconsistent with the original meaning of the Confrontational Clause, and did not combat the historical evils at which the clause was directed.

Walter and Jesse are charged with a conspiracy to manufacture and sell methamphetamine. Undercover agents caught Jesse dealing meth on the street. The meth he had was an unusually pure "blue meth," which can only be synthesized through a highly technical and difficult chemical manufacturing process involving phenylacetone. The government alleges that Walter and Jesse worked together. Walter claims he does not know Jesse. Jesse claims he did not know the chemical he possessed was meth. Which of the following pieces of evidence is admissible under Rule 404? (A) The government offers evidence that, one month before Jesse was caught, a barrel of phenylacetone was stolen from a warehouse. A surveillance video shows two men taking the barrel to their car. They are not identifiable, but look roughly like Walter and Jesse. No charges were filed against Walter and Jesse for the theft. (B) The government offers evidence that Walter was previously convicted of a crime for manufacturing the same type of unusually pure "blue meth." (C) The government offers evidence that Jesse was previously convicted of possessing meth. (D) The government offers evidence that Jesse was previously convicted of selling marijuana.

A. This has nothing to do with character, but it could help in identifying the criminal. Could also show preparation for mfg meth. Common plan or common scheme would also work. Also shows that they know each other, which Walt claims they do not. BUT, they are unidentifiable, so it is not clear. Huddleston standard - must be reasonable for the jury to find that it was Walt and Jesse in the video, so it depends on how clear the video is. Still has to pass the 403 argument that the probative value is low because it's not clearly them and the prejudice is high because it shows them committing another crime that they were not charged with. Would be inadmissible under MN 404(b)(3) B. Possibly "calling card" but mostly about previous crime - Signature crime but it also shows knowhow and incredible skills to produce this type of meth that very few people have. Therefore it is more likely that he did it. C. Propensity - Red path - But previously having possessed meth he should know what meth is. Defense to this is that the blue meth is so special that he didn't know D. Propensity - Red path - potential argument to get it admitted is that he possesses drug dealing knowhow and has the market.

A passenger injured in a car accident is suing the owner of a bar for allegedly allowing the driver to become intoxicated. The passenger wants to show that, after the accident, the bar owner visited him in the hospital and offered to pay all of the passenger's medical expenses, stating, "That's the least I can do after letting your driver leave the bar so drunk last night." Is the statement that the driver was drunk when he left the bar on the night of the accident admissible?

A. Yes, as an admission by the bar owner that the driver was drunk when he left the bar. B. Yes, as a factual admission made in connection with an offer of compromise. C. No, as hearsay not within any exception. D. No, as a statement made in connection with an offer to pay medical expenses.

The son of a famous author who has not been seen in two years brings an action against an insurance company to compel payment of the proceeds of the author's insurance policy, for which the son is the sole beneficiary. The son introduced evidence that, on the day the author disappeared, a plane left from the city where she lived and was lost while traveling over the ocean. The manifest of the airline was introduced showing that a passenger with a name similar to hers was aboard the airliner. The son wants to testify that his mother told him that she was going to be on that plane and, to preserve her privacy, was going to travel under the name that matches the name in the manifest. Is the son's testimony admissible?

A. Yes, because it is a relevant indication of state of mind. B. Yes, provided that there is corroborative evidence in addition to the son's mere statement C. No, because it is hearsay not within any exception D. No, because it is not relevant.

A pedestrian is suing a driver after being run over by the driver. At trial, a copy of a hospital record is offered into evidence. The record indicates that hospital personnel took the pedestrian's statement 30 minutes after the accident, and includes the following statement: "The pedestrian's leg was run over by a car." The driver's counsel objects to the admission of the pedestrian's statement in the hospital record. Should the court admit the pedestrian's statement in the record?

A. Yes, even though hearsay within hearsay, because there is an applicable exception to each level of hearsay. B. Yes, as an admission by a party C. No, as hearsay not within any exception D. No, because of the physician-patient privilege

Brian was walking along Ventura Boulevard when a car came careening around the corner, speeding. The car, which was driven by Dominic, struck Brian and severely injured him. Brian sues Dominic. Which of the following pieces of evidence will be admissible at trial? (A) Brian calls a witness who will testify that, 10 minutes before the accident, he saw Dominic driving very quickly and dangerously a few miles away. (B) Brian presents evidence that in the last 5 years, Dominic has received two tickets for reckless driving.

A. just shows that he was doing a specific act on the night in question. This is allowable B. This is a character trait and he is acting in accordance with it. This is not allowed.

Elmo is sued for negligence. The P seeks to introduce Zeek's statements under 801(d)(2)(D), but Elmo objects that Zeek was not his employee at the time he made the statements. The judge should admit the evidence if she finds:

A. that a reasonable jury could find by a preponderance that Zeek was Elmo's employee B. by a preponderance that Zeek was Elmo's employee C. that a reasonable jury could find that the evidence has any tendency to establish that Zeek was Elmo's employee D. that the evidence has any tendency to establish that Zeek was Elmo's employee.

Bob is charged in MN state court with assault. The prosecution seeks to admit his prior assaults under the common plan doctrine. The prosecution will have to show:

A. that the prior assaults shared idiosyncratic and highly distinctive features B. that the prior assaults shared a marked similarity C. that the prior assaults were mutually dependent parts of a single, overarching criminal scheme D. that the prior assaults involved sex crimes pursuant to MN rule 413.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 1. Fred testifies: "The defendant walked up to me and asked me to use my phone." The testimony is offered by the prosecution to explain the sequence of events leading up to the theft.

Not hearsay. Not offered for TOMA because there is no assertion. Out of court statement: Can I use your phone?

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 6. A bystander testifies: "I looked across the street and I saw two guys run up and grab the defendant. The defendant said "Hey, what are you doing?" and then yelled 'Ow!'" The testimony is offered by the defense to prove consciousness of innocence

Not hearsay. Out of court statement: Ow! this is not a statement with truth value. It's not reporting something.

Duhl sues Edwards, alleging breach of contract. Edwards denies the existence of any contract. Duhl offers evidence that, after he made an offer to Edwards, he received an email back from Edwards that said: "I accept!" The email is offered to prove that Edwards accepted the contract. Is it hearsay?

Not hearsay. The words I Accept! are the legal words for agreeing to a contract. This does not go to the truth of the matter asserted because it isn't an assertion, it's an agreement. When Edwards says I accept, he's not reporting on some other statement or condition and relaying it. The words themselves are part of the event, they are what matters. They aren't describing something else that happened, they are the something. They aren't describing something, they are doing something. Just like saying "I do" when getting married rather than "True" or "False".

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 2. Fred testifies: "When I pulled out my phone, the defendant said 'Give me that phone or you'll regret it.'" The testimony is offered by the prosecution to prove that the defendant threatened Fred.

Out of court statement: Give me your phone of you'll regret it. Not hearsay because the words themselves are a crime. This is not reporting something in second-hand. Making threatening statements that are a crime, when someone testifies to those words, they are testifying to the crime.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 5. The defendant testifies: "When Fred pulled out his phone, he said 'I'm getting an iPhone 7 tomorrow, so you can have this one.'" The testimony is offered by the defense to prove that the defendant believed the phone was his to take, and he did not commit a crime.

Out of court statement: I'm getting an iPhone tomorrow... Not hearsay because it's not offered to prove that Fred was actually getting an iPhone. It's offered to show that Fred gave him the phone.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 3. A bystander testifies: "I walked up and asked Fred who took his phone, and he pointed at the defendant." The testimony is offered by the prosecution to prove that the defendant took Fred's phone.

Out of court statement: Pointing at the defendant under 801(a) non-verbal conduct. Declarant: Fred. Audience: Bystander. Fred is communicating to his audience that the defendant took his phone. Hearsay.

Fred was walking to his car outside school when a man approached him. The man asked to use Fred's phone, but when Fred took his phone out of his pocket, the man took it and ran off. Fred and several bystanders chased down the man. The man is now on trial for robbery and theft. Which of the following pieces of evidence constitutes hearsay? 4. Another bystander testifies: "I looked across the street. I saw Fred and another person chasing the defendant." The testimony is offered by the prosecution to prove that the defendant took Fred's phone.

There is no out of court statement. Running the person down is not communicative. There is no nonverbal conduct. This is just running to get the phone back.

Jessica smashes into Lance's car. She jumps out and says: (i) "I'm so sorry!" and: (ii) "I promise to pay for your hospital bills!" Lance later sues Jessica. Under Rule 409, which of her statements is admissible against here? THIS IS THE COMPOUND QUESTION FORMAT FOR FINAL

a) (i) only b) (ii) only c) both (i) and (ii) d) neither (i) nor (ii)

Plaintiff offers Exhibit A against defendant. Defendant maintains that Exhibit A should be excluded under Rule 403. Which of the following is the WORST argument for defendant to make?

a) The jury will give too much weight to Exhibit A b) Exhibit A will undermine defendant's planned defense c) Exhibit A will cause the jury to decide the case on improper grounds d) Exhibit A is highly inflammatory

Fantasia sues Jazz after a car accident. Jazz calls her insurance claims adjuster, Terri, who testifies about the inspections he conducted on both cars. Fantasia seeks to admit evidence that Teri is Jazz's insurance claims adjuster. Fantasia's evidence is: THIS QUESTION WILL BE ON FINAL

a) admissible for the purpose of showing fault b) admissible for the purpose of showing bias c) admissible for the purpose of showing negligence d) none of the above

Samuelson took his two children, Sonya and Stu, to the Curtis School Fair. At the fair there were many rides and amusements for the youngsters. One of the highlights of the fair was a petting zoo where children could feed baby goats, piglets and calves. The owner of the petting zoo was Jethro. Children entering the petting zoo could purchase a small package of carrots for $1 to feed the animals. Both Sonya and Stu bought the carrots and were walking around the zoo area feeding the animals. Sonya approached a baby goat who began nibbling on a carrot she was holding. As the baby goat was eating the carrot, it suddenly bit Sonya's hand, causing an injury. Jethro, who witnessed the incident, immediately ran to Sonya and said, "I'm terribly sorry, i'll pay you $100." Thereafter, Samuelson, on behalf of his daughter, sues Jethro to recover damages. During the trial, Samuelson attempts to introduce Jethro's statement into evidence. Upon objection by Jethro's attorney, the statement should be ruled:

a) admissible, as a present sense impression b) admissible, as a declaration against interest c) admissible, as an admission d) inadmissible, as a settlement offer

Which of the following propositions is NOT supported by Old Chief?

a) if a party concedes a point, then evidence offered to prove that point is no longer relevant. b) if a party concedes a point, then evidence offered to prove that point is less probative than it otherwise would have been c) one way that evidence can be relevant is by giving the jury a complete and colorful story about what happened d) one way that evidence can be relevant is by helping the jury to see the normal underpinnings of criminal guilt

Late one evening Macy was driving home from his job as a security guard at the Falco Jewelry Co. As Macy approached a railroad crossing on Washington Street, he noticed that the barriers to the crossing were open. Macy cautiously looked both ways for any train. Assuming that no train was coming, he proceeded across the railroad tracks. Suddenly, an oncoming train struck Macy's car, completely demolishing it. Macy was dead on arrival at the hospital. Unknown to Macy, the railroad crossing guard, in a drunken stupor, had fallen asleep at the barrier controls. He failed to see or hear the signals from the oncoming train that struck and killed Macy. The railroad company was well aware of the crossing guard's alcoholism, but continued to employ him. However, two weeks after the accident occurred, the railroad company fired the crossing guard. The executor of Macy's estate institutes a wrongful death action against the railroad company. During the trial, the attorney for Macy's estate offered into prove the fact that the defendant railroad company dismissed the crossing guard shortly after the accident. Upon objection by the railroad company's attorney, the court should:

a) overrule the objection, as the employee's dismissal was an admission that the railroad company was aware of the crossing guard's chronic alcoholism b) overrule the objection, as an adaptive admission by conduct c) sustain the objection, since the probative value of the evidence would be outweighed by its prejudicial effect d) sustain the objection, as evidence of subsequent remedial repairs is inadmissible.

Evidentiary rulings, especially under Rule 403, are generally left to the discretion of the trial court because:

a) rule 403 and other provisions express a broad preference for admissibility b) the trial judge sees all of the evidence first-hand and views witness testimony c) appellate courts are instructed to focus on larger issues, especially those implicating constitutional concerns d) all of the above