Evidence Practice Questions

Plaintiff sued prison officials and guards for injuries he sustained when guards allegedly used unreasonable and excessive force against him. The defendants did not designate any expert witnesses during discovery, as required by the Federal Rules of Civil Procedure. At trial defendants called the deputy superintendent of security at the prison as a lay witness to testify about the interpretation of policy and procedures relating to security in the state's Department of Corrections. Plaintiff objected to testimony on that issue from the deputy superintendent. The court should: A. Exclude the testimony because the defendants failed to comply with discovery requirements concerning expert testimony. B. Exclude the testimony because the witness's opinions are not relationally based on his perceptions. C. Admit the testimony as proper lay opinion testimony.

A. Exclude the testimony because the defendants failed to comply with discovery requirements concerning expert testimony. The testimony should be excluded because defendants failed to comply with the discovery rules with respect to expert testimony.

Rachel, a law student, walks across the street to travel from her apartment to campus. One afternoon, while in the crosswalk, Rachel is struck by Kurt's car. Kurt owns vehicle liability insurance. Rachel cannot offer Kurt's ownership of vehicle liability insurance to prove: A. Negligence B. Witness bias C. Prior inconsistent statement D. Agency E. Ownership or control

A. Negligence Explanation: Ownership of liability insurance is inadmissible when offered to prove either negligence or wrongdoing. See FED. R. EVID. 411. However, ownership of liability insurance may be admissible when offered to prove witness bias, agency, ownership, or control. See id. While compromise offers are inadmissible to show a prior inconsistent statement, the same cannot be said for ownership of liability insurance. See, e.g., FED. R. EVID. 408, 11. Thus, A is the correct answer.

In an employment discrimination case, the female plaintiff has sued the company that employed her for sexual harassment committed by a male co-worker. Plaintiff plans to testify that she told the supervisor of her division that the male co-worker repeatedly touched her inappropriately, made offensive sexual remarks and constantly interfered with her ability to do her work. Is her testimony hearsay? A. No, it is offered to prove that the supervisor had notice of her allegations. B. No, if offered to prove that the male co-worker sexually harassed her. C. No, and it may be offered to prove both that the supervisor had notice and that the male co-worker harassed her. D. Yes, and it is inadmissible regardless of the purpose for which it is offered

A. No, it is offered to prove that the supervisor had notice of her allegations. If plaintiff offered this evidence merely to show that the supervisor had notice of her claims, it would not be for the purpose of proving the truth of the assertions and therefore not hearsay. The court could give a limiting instruction that this evidence can only be used to prove notice to the supervisor and not to prove that the male co-worker committed the harassment

The witness is a 14 year-old boy who saw a drive-by shooting in which one of his neighbors was killed. The witness got a good look as the car slowed down, the shooter leaned out of his window, gun in hand, and fired three shots into the unarmed neighbor from a distance of about ten feet. He told the police what he saw and is willing to describe the incident in court. At trial, the witness begins by testifying that there was a shooting incident while he was walking home from school and the police came. The prosecution asks him what he said to the police officer about the shooting. How should the court rule on the defendant's objection to that question? A. Sustain the objection, hearsay. B. Overrule the objection - he is not expected to make assertions. C. Overrule the objection - the prosecution is not offering his testimony to prove the truth of any assertions he made to the police officer. D. Overrule - not hearsay because the witness is on the stand and can be cross-examined.

A. Sustain the objection, hearsay. To get the witness's story admitted, the prosecutor should simply as him what happened, rather than asking what he told the police officer

A witness testifies at a drive-by shooting murder trial that she saw the defendant at the wheel of the car and saw him shoot the victim with a handgun through the open window. The prosecutor does not ask her how many people were in the car. Before beginning cross-examination, the defense lawyer offers to introduce the witness's grand jury testimony that there were three people in the car. The defense theory is that one of the others was actually the shooter. The prosecutor's objection should be: A. Sustained, hearsay. B. Overruled, the statement is admissible under Rule 801(d)(1)(A). C. Overruled, but the court should give a limiting instruction that the statement may only be used to show the existence of an inconsistent story under Rule 613.

A. Sustained, hearsay. The previous statement is not inconsistent with her trial testimony; it merely includes additional details that do not contradict what she said on direct examination. Because there is no inconsistency, the statement does not fall within Rule 801(d)(1)(A). Because the defense lawyer is offering the previous statement for the truth of its assertion, the statement is hearsay.

The defendant is on trial for the crime of rape. He and the alleged victim had been in a sexual relationship for four years and then broke up. A year later they ran into each other at a conference and went tot eh alleged victim's hotel room to talk. She claims the defendant raped her. He admits that they had intercourse, but says it was consensual. The defendant has given notice that he intends to offer evidence that the alleged victim has had consensual sexual relations with a dozen different men in the past year. After a hearing, how should the court rule? A. The court should exclude the evidence. B. The court should admit the evidence because it is necessary to protect the constitutional rights of the defendant. C. The court should admit the evidence because the defendant and the alleged victim have previously been sexually intimate. D. The court should admit the evidence if its probative value on the issue of consent substantially outweighs the danger of harm to the victim.

A. The court should exclude the evidence.

In civil trials, character testimony in the form of opinion or reputation may be admissible only if offered for the purpose of witness impeachment. Is this statement true or false? A. True B. False

A. True Explanation: Character evidence in the form of opinion or reputation is admissible for the purpose of witness impeachment in both civil and criminal trials. See FED. R. EVID. 404(a)(3), 405(a). While such character evidence may be admissible in criminal trials for certain other purposes as well, witness impeachment is the only purpose for which it may be admissible in civil trials. See id. Thus, the statement is true.

Under the Federal Rules of Evidence, the fact that a defendant owned liability insurance can never be admissible to prove that he or she acted wrongfully. Is this statement true or false? A. True B. False

A. True Explanation: Evidence that a person owned liability insurance is not admissible to prove whether the person acted wrongfully. FED. R. EVID. 411. While evidence of liability insurance ownership may be used for another purpose, such as proving witness bias or proving agency, ownership, or control, these exceptions do not allow liability insurance to be used to prove wrongdoing. See id. Thus, this statement is true.

In time for the holiday gift-giving season, Infinity Toys releases the Easy-Cake Oven, a functioning toy oven that allows children to bake cupcakes. Over the next month, several hundred thousand units of the Easy-Cake Oven are sold in the United States. However, by February, Infinity Toys has received numerous reports of children burning their hands and fingers in the Easy-Cake Oven. As a result, Infinity Toys redesigns the Easy-Cake Oven to bake at a lower maximum temperature. Sarah, who is nine years old, suffered second-degree burns on her hand when playing with the original version of the Easy-Cake Oven. Sarah sues Infinity Toys, claiming that the Easy-Cake Oven had a design defect when she purchased it. At trial, Infinity Toys argues that the Easy-Cake Oven did not have a design defect and that it was not feasible to design the Easy-Cake Oven to be any safer. If Sarah offers the new Easy-Cake Oven design as evidence, how is the court likely to rule regarding its admissibility? A. Admissible, because the new design proves that Infinity Toys had control over the design of the Easy-Cake Oven. B. Admissible, because the new design proves that it was feasible to design the Easy-Cake Oven to be safer. C. Inadmissible, because evidence of subsequent remedial measures may not be used to prove that a product had a design defect. D. A and B E. None of the above

B. Admissible, because the new design proves that it was feasible to design the Easy-Cake Oven to be safer. Explanation: Evidence of subsequent remedial measures that would have made an earlier injury or harm less likely to occur are not admissible to prove a defect in product design. See FED. R. EVID. 407. However, the court may admit such evidence to prove ownership, control, or the feasibility of precautionary measures, if disputed. See id. Here, A is not correct, because Infinity Toys is not disputing that it had control over the product. C is not correct, because while it is true that evidence of subsequent remedial measures may not be used to prove a design defect, the evidence may still be admissible for another purpose. In this case, the evidence of the change in product design may be used to prove that it was feasible to design the oven to be safer, because the issue of feasibility is disputed. Thus, B is the correct answer.

The committee of the legislature charged with family law matters is considering how to protect children born to parents who are married and living together from claims that another man is actually their biological father. The committee is of the view that any litigation of the question of biological fatherhood for such children is so painfully intrusive and destabilizing of family relations that it causes irreparable harm to the children. Assume that the state in question has adopted Rule 301 and that the committee has asked you, its counsel, to draft an appropriate statute. Which of the following will provide the sort of statute that the committee is looking for? A. A Rule 301 presumption that if a child is born to a woman who is married at the time of the child's birth, her husband is presumed to be the father of the child. B. An irrebuttable presumption that the husband of a woman

B. An irrebuttable presumption that the husband of a woman ANALYSIS. First, we are not discussing the wisdom of what the legislature is trying to do. You may agree or disagree with its goals. The issue here is what sort of presumption will be most effective in achieving those goals. The question the committee has put to its counsel is how to most securely limit the ability to litigate of a man claiming to be the father of a child born to a woman while she is married to another man. Suppose the plaintiff seeking to prove his paternity has had sufficient access to a child to obtain DNA evidence that creates a very high probability that he is the child's father. If the legislature had adopted the Rule 301 presumption described in A, how could he use that evidence? For the presumption in A the basic fact is that the child was born to the mother while she was married to her husband. The presumed fact is that the husband is the child's father, and the burden of production is on the plaintiff to introduce evidence to contest the presumed fact. The DNA evidence would do so, and under Rule 301 the plaintiff would be allowed to introduce such evidence. With that, the presumption would disappear from the case as a legal matter, and the finder of fact would have to determine paternity from all the evidence in the case. The presumption in A would provide very little protection from litigation of the paternity issue. On the other hand, the irrebuttable presumption in B would prohibit the plaintiff from introducing any evidence that he is the biological father of the child. Setting issues of the constitutionality of the statute aside, the suit would be dismissed soon after it was filed.4 Choice B is the answer that better achieves the goal of the legislature.

In a prosecution of the defendant for murder, the prosecution called defendant's former cellmate from the county jail as a witness. The cellmate testified that the defendant was placed in his cell after he was arrested, and that defendant admitted to him that he committed the murder. In the defense case, defendant's lawyer called a character witness who testified that he has lived in the same neighborhood with the cellmate for 20 years and has discussed his reputation for truthfulness with others numerous times. Which of the following would be permitted by the rules? A. Defense lawyer asks the witness whether he believes the cellmate's testimony about what the defendant said to him. B. Defense lawyer asks the character witness what the cellmate's reputation for truthfulness is in the neighborhood, and the character witness says, "People say you can't believe a word he says." C. Defense lawyer asks the character witness to give examples of lies that people say the cellmate has told. D. The character witness testifies, "My neighbor downstairs says that in her opinion the cellmate is the worst liar she has ever known."

B. Defense lawyer asks the character witness what the cellmate's reputation for truthfulness is in the neighborhood, and the character witness says, "People say you can't believe a word he says." This question properly asks for the cellmate's reputation in the community with respect to his character for truthfulness.

Plaintiff sued defendant in tort for injuries suffered in an automobile collision. Plaintiff called an eyewitness who testified on direct examination that the defendant ran a red light and crashed into the side of plaintiff's car. Plaintiff testified that plaintiff had the green light when he entered the intersection, and defendant testified that defendant had the green light. Which of the following items of evidence would definitely be inadmissible under Rule 609? A. Evidence that the plaintiff was convicted of perjury twelve years before trial. B. Evidence that the plaintiff's witness was adjudicated as a juvenile delinquent 9 years before trial, based on murdering his brother. C. Evidence that the plaintiff's witness was convicted of armed robbery and sentenced to pay a fine of $500 three years before trial. D. Evidence that the defendant was convicted of larceny under $100, a misdemeanor, where the bill of particulars indicated the offense was committed by lying about the number of bottles of water in his shopping card when checking out at Costco.

B. Evidence that the plaintiff's witness was adjudicated as a juvenile delinquent 9 years before trial, based on murdering his brother. Juvenile adjudications cannot be used to impeach witnesses in civil cases.

Irrelevant evidence is always inadmissible, unless it is made admissible by a source of federal law, such as the U.S. Constitution or federal legislation. Is this statement true or false? A. True B. False

B. False Explanation: Irrelevant evidence is always inadmissible and cannot be made admissible by federal law. See FED. R. EVID. 402. Rather, the opposite of this statement is true: Relevant evidence is always admissible, unless it is made inadmissible by a source of federal law, such as the U.S. Constitution or federal legislation. See id. Thus, this statement is false.

Jury instructions can always cure the admissibility problem that arises when the probative value of evidence is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury. Is this statement true or false? A. True B. False

B. False Explanation: Jury instructions restrict evidence to its proper scope and can be used to limit the use of evidence that would otherwise be inadmissible. See FED. R. EVID. 105. Evidence is inadmissible if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues or misleading the jury, causing undue delay or wasting time, or needlessly presenting cumulative evidence. See FED. R. EVID. 403. By using jury instructions, evidence that has been substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury can nonetheless be made admissible. See FED. R. EVID. 105 advisory committee's note. However, this is only possible when the risk is "less serious." See id. Thus, the statement is false, because jury instructions cannot always cure the admissibility problem that arises when the probative value of evidence is substantially outweighed by one of the relevant considerations.

Elizabeth and Jane, two sisters who live in New York City, attend a fancy gala at the Museum of Modern Art. While at the gala, Elizabeth tries to keep an eye on Jane, who is a former art thief. However, Elizabeth's eye is soon caught by a handsome gentleman, William, who offers to buy her a drink. While Elizabeth is distracted, Jane disappears into the depths of the museum and returns fifteen minutes later, insisting that she merely had to visit the restroom. The next day, Elizabeth turns on the local news, only to discover that a valuable painting was stolen from the Museum of Modern Art the previous night. Elizabeth confronts Jane and accuses her of stealing the painting. Offended, Jane insists that she had nothing to do with the whole affair, but if she did, she would never admit to it anyway. Without any evidence to support her accusation, Elizabeth drops the issue and tries to forget about the stolen painting. Eventually, however, Jane is arrested while trying to sell the stolen painting to an undercover FBI agent. Even worse, William, the handsome gentleman from the gala, is arrested as her accomplice! Seething with anger, Elizabeth agrees to testify against Jane at her trial. The prosecution's first witness is a waiter who testifies that he saw a woman removing the stolen painting from an off-limits exhibit. Shocked, he dropped his tray of champagne glasses. The woman ducked and then fled. The prosecutor calls Elizabeth as the second and final witness. Elizabeth makes the following four statements: I. "Jane is a dishonest person; she regularly lies to me and even lied to me about stealing the painting." II. "Jane always steals a painting whenever she's in a museum; she can't help herself." III. "Jane always ducks when she hears glass breaking; it's an instinct she learned from living with our alcoholic mother." IV. "I bet William was Jane's handsome accomplice; we have the same taste in men, and William, who was there that night, is handsome." Assuming that Jane is not testifying at trial, which of the above statements may the prosecutor use as evidence to prove that Jane was the woman who stole the painting from the Museum of Modern Art? A. I only B. III only C. I and III D. II, III, and IV E. None of these statements may be used.

B. III only Explanation: Statements I, II, and IV may not be used as evidence. In a criminal, non-homicide case, character testimony in the form of opinion can only be offered by the prosecutor after the defendant has already offered character testimony, or to impeach another witness. See FED. R. EVID. 404(a). Statement I offers character evidence that Jane is dishonest. However, because the prosecutor is offering this statement to prove that Jane stole the painting, this statement cannot be admitted. (Remember also that Jane is not testifying, so Elizabeth's statement cannot be used to impeach any testimony given by Jane.) As a result, A and C are incorrect. Statements II and III attempt to offer habit evidence that Jane "always" does something. However, statement II is not appropriate habit evidence. Habit evidence must demonstrate a person's regular, semi-automatic response to a repeated, specific situation. See FED. R. EVID. 406 advisory committee's note. While statement II may suggest a semi-automatic response, the situation of "whenever [Jane] is in a museum" is too general and non-repetitive to constitute a habit. Next, statement IV merely proves a preference rather than a semi-automatic response to a specific situation. Statement III is the only habit evidence that is appropriate. Always instinctively ducking at the sound of glass breaking would be considered a semi-automatic response to a very specific situation. Elizabeth, as Jane's sister, would be qualified to testify as to Jane's habit. Thus, B is correct.

The plaintiff in Connecticut ordered merchandise from a manufacturer in California. The plaintiff received the merchandise in damaged condition. The goods passed through the hands of two common carriers before delivery to the plaintiff. Plaintiff sued the manufacturer and both carriers. The manufacturer introduced evidence that the merchandise was in good condition when it placed it in the hands of the first carrier, and the plaintiff testified that when she received the merchandise it was damaged. There is a common law presumption that when merchandise in good condition was placed in the hands of connecting carriers and delivered to the recipient in damaged condition, the last carrier caused the damage. Assume that all relevant jurisdictions have adopted Rule 301 and that it governs the case. Which of the following statements is true? A. The judge should instruct the jury that it must presume that the last carrier damaged the goods. B. If the last carrier introduces evidence that the merchandise was damaged when it received it from the first carrier, the judge is not allowed to instruct the jury that it may presume that the damage was caused by the last carrier. C. If the last carrier introduces no evidence that the merchandise was damaged when it received the goods from the first carrier, the judge should instruct the jury that it may presume the damage was caused by the last carrier. D. The presumption shifts the burden of persuasion to the last carrier to prove that it did not damage the merchandise.

B. If the last carrier introduces evidence that the merchandise was damaged when it received it from the first carrier, the judge is not allowed to instruct the jury that it may presume that the damage was caused by the last carrier. ANALYSIS. Let's begin with D. Rule 301 states explicitly that presumptions only affect the burden of production, not the burden of persuasion. In this case the plaintiff has the burden of persuasion and must persuade the jury by a preponderance of the evidence that a particular defendant damaged the goods in order to find that defendant liable. Thus D is incorrect. Choice A would give the presumption legal effect regardless of whether or not the last carrier defendant offers any evidence rebutting the fact that it caused the damage to the merchandise. That would create an irrebuttable presumption that the last carrier is always liable for damage to merchandise. The common law presumption here, however, is rebuttable and thus A is incorrect. The statement in C is missing a very important step. Even though the opponent offers no evidence to contradict the presumed fact, the jury may presume the existence of the presumed fact only where it has found that the basic fact existed. Merely introducing evidence of the basic facts is not enough to give rise to the presumption—the jury must be convinced by a preponderance of the evidence that the basic facts existed. In this problem in order to presume that the last carrier caused the damage, the jury must find that the merchandise was in good condition when the manufacturer delivered it to the first carrier and damaged when the plaintiff received it. If the last carrier introduces no evidence that the goods were damaged when it received them, the judge would instruct the jury: "If you find, by a preponderance of the evidence, that the merchandise was in good condition when the manufacturer delivered it to the first carrier and was damaged when delivered to the plaintiff, you may presume that the damage was caused by the last carrier." Thus C is incorrect. Choice B is a correct statement of the law. If the last carrier offers evidence that the goods were damaged when it received them it has met its burden of production by contradicting the presumed fact (that it caused the damage). Under those circumstances the presumption loses its effect and the judge is not permitted to instruct the jury that it may presume the last carrier caused the damage.

Jim, a freshman college student, lives in a dorm room that faces the East Quad, a grassy lawn at the edge of campus. Jim has a photographic memory and is extremely self-disciplined. Every morning, Jim wakes up at 7:00 a.m., gets out of bed, and goes to the window to take a mental "snapshot" of the world outside before he begins studying. One day, Mike, a junior at the same college, is arrested for arson. The prosecutor already has evidence that Mike thought it would be fun to burn a pile of old furniture from his fraternity house while he was drunk around 7:00 a.m., on the East Quad. Due to a prolonged drought, the fire quickly spread to the dry grass and caused damage to nearby buildings. However, the prosecutor needs evidence that Mike was actually on the East Quad around 7:00 a.m. Which of the following facts must be true in order for Jim's habit of waking up around 7:00 a.m., getting out of bed, and going to the window to be admissible evidence? A. Jim recognizes Mike. B. Jim's window has a clear view of the lawn. C. Jim's roommate testifies that Jim always wakes up at 7:00 a.m. D. Jim's roommate saw Jim look out the window around 7:00 a.m. that morning. E. A, B, and D

B. Jim's window has a clear view of the lawn. Explanation: Evidence of a person's habit may be admitted to prove that, on a particular occasion, the person acted in accordance with the habit. See FED. R. EVID. 406. Furthermore, the habit does not have to be corroborated or seen by an eyewitness. See id. C and D do not have to be true, because Jim's habit could be admissible even if Jim's roommate did not corroborate Jim's habit or observe Jim looking out the window around 7:00 a.m. that morning. A need not be true, because Jim may have seen someone else on the East Quad, or no one at all, which would still be relevant even though it would mean that he did not recognize Mike. B, however, must be true, because Jim's testimony is irrelevant if he could not have seen who was on the lawn at 7:00 a.m. Thus, B is the correct answer.

The defendant is on trial for the murder of the victim. The defendant had been having an affair with the victim. The defendant's theory of the case is that the victim's wife killed him. To prove that the wife was home at the time of the murder, defendant offers the testimony of a neighbor that the victim never shoveled snow due to a back injury, and that his wife invariably did all the show shoveling. The neighbor would testify that it snowed heavily on the night that victim was killed and that she observed that the walk in front of the victim's home was freshly shoveled at least twice during the evening hours, although she did not see who did it. Is the neighbor testifying about an assertion? A. Yes, shoveling the sidewalk was an assertion that the victim's wife was home. B. No.

B. No.

The defendant is on trial for a robbery that took place in Boston on New Year's Eve in 2012. His defense is that he was not in Boston at that time, but was home in New York at a party. He has alibi witnesses who will testify they were with him at the party in N.Y. The prosecution has a witness who would testify that she was discussing ice sculptures with the defendant in January 2013 and he said to her, "You should have seen the amazing ice sculptures I saw at the First Night celebration in Boston on New Year's Eve a couple of weeks ago." The defense objection to this testimony should be: A. Sustained, hearsay B. Overruled

B. Overruled The prosecution is offering a statement by the defendant and therefore it is exempt from the hearsay rule.

Plaintiff sues defendant for damages in tort, alleging that defendant ran a red light and ran her over as she was crossing the street in the crosswalk. At trial defendant calls a witness who testifies that defendant had the green light when he entered the intersection. On cross-examination, plaintiff offers to introduce the witness's deposition, in which he testified under oath that defendant had the red light. The court's ruling should be: A. Sustained, hearsay. B. Overruled, the statement is admissible under Rule 801(d)(A)(1). C. Overruled, but the court should give a limiting instruction that the statement may only be used to show the existence of an inconsistent story under Rule 613.

B. Overruled, the statement is admissible under Rule 801(d)(A)(1). Not hearsay because the witness was under oath at a formal proceeding when he made a prior statement inconsistent with his trial testimony, he has testified at the trial, and he is subject to cross-examination concerning the deposition testimony.

Roger Rat robbed a bank with another man. When they were arrested, Rat made a deal with the prosecutor to become a cooperating witness and testify against his accomplice. At the accomplice's trial, Rat testified that he was only the getaway driver, and the accomplice entered the bank and shot the bank guard. On cross-examination, accomplice's defense counsel brought out that the prosecution had promised to drop the charges against Rat, put him in the witness protection program, and set him up with a new identity and employment. The defense lawyer suggested that Rat had made up the story against her client in order to please the government and get a good deal for himself. The prosecutor then called Ratss brother to testify that before he knew he was suspected of involvement in the robbery, Rat had confessed his participation in the robbery to him, supplying the same details about this participation and that of the accomplice he had testified to in court. The defendant's objection should be: A. Sustained hearsay. B. Overruled, the statement is admissible under Rule 802(d)(1)(B). C. Overruled, but the court should give a limiting instruction that the statement may only be used to bolster the credibility of the witness

B. Overruled, the statement is admissible under Rule 802(d)(1)(B). This rule allows the testimony to be admitted after there has been a suggestion of fabrication and it is admissible not only to bolster Rat's trial testimony, but also to prove the truth of Rat's statement to his brother.

Harriet, a law student who has grown weary of her studies, applies for enrollment at the Salem College of Witchcraft, which is described on its website as "a majestic school at 123 Rosewood Lane, where American witches of all ages can learn magic." Within a week, Harriet receives a letter of acceptance. Best of all, tuition is only $5,000 per year! Harriet immediately sends in her first year's tuition to the specified address and drops out of law school. A week before classes begin, Harriet packs her bags and heads for the Salem College of Witchcraft. However, when Harriet arrives at the address, she discovers only a small, dilapidated house. Inside the house is Rhonda, who looks nothing like a witch and, furthermore, admits that the Salem College of Witchcraft does not exist. Rhonda adds that Harriet is a "complete and total idiot" to have fallen for the scam. Enraged, Harriet grabs the nearest item, a small pewter cauldron, and smashes it against Rhonda's head, killing her. Harriet is arrested and charged with murder. At trial, assuming there are no other issues with admissibility other than what is argued, which of the following items of evidence should the prosecutor argue is not admissible? A. Harriet's letter of acceptance, showing that tuition is only $5,000 per year, because the amount that Harriet paid to Rhonda is not material regarding the main issue of whether Harriet murdered Rhonda and, therefore, is not relevant. B. Rhonda's bank statement, showing deposits of checks sent by Harriet and several other aspiring witches, as well as payments to a grocery store, movie theater, bars, and sex shops, because the risk that it causes unfair prejudice substantially outweighs any probative value. C. A close-up photograph of Rhonda's gaping head wound, when the jury has already seen several similar but less provocative photographs of the wound, because the risk that it will be unfairly prejudicial substantially outweighs any probative value that can be gained from the photograph. D. Rhonda's statements on the website, as well as to Harriet, because they portray Rhonda negatively and suggest that Rhonda provoked Harriet into killing her, which will confuse the jury about the main issues in the case. E. All of the above.

B. Rhonda's bank statement, showing deposits of checks sent by Harriet and several other aspiring witches, as well as payments to a grocery store, movie theater, bars, and sex shops, because the risk that it causes unfair prejudice substantially outweighs any probative value. Explanation: An item of evidence must tend to prove or disprove a fact of consequence in order to be relevant. See FED. R. EVID. 401. However, a wide range of facts are considered "of consequence" and even background material will be considered relevant. See FED. R. EVID. 401 advisory committee's note. Thus, answer choice A is incorrect, because Harriet's letter of acceptance and the amount that she paid to Rhonda is relevant background information that tends to prove Harriet's motive for murdering Rhonda. Remember that relevant evidence may also be inadmissible when its probative value is in danger of being substantially outweighed by unfair prejudice, confusing the issues or misleading the jury, causing undue delay or wasting time, or needlessly presenting cumulative evidence. FED. R. EVID. 403. While C would be a good argument for why the photograph should be inadmissible, it would likely be made by Harriet's lawyer rather than the prosecutor, who would want the jury to see close-up photographs of Rhonda's injuries. D is incorrect because Rhonda's statements on the website and to Harriet would not confuse or distract the jury from the main issues in the case. If the main issue is whether Harriet murdered Rhonda, then Rhonda's statement on the website is directly relevant because it tends to prove that Harriet went to the address in Salem where Rhonda lived. Moreover, Rhonda's statement to Harriet is directly relevant because it tends to prove that Harriet killed Rhonda because she was angry and upset. That leaves B as the correct answer. Rhonda's bank statement may cause unfair prejudice that outweighs its probative value; the purchases from bars and sex shops may offend and unfairly prejudice some members of the jury against her. Even though Harriet's lawyer will likely respond to the argument by merely offering the evidence in an alternate form or requesting a jury instruction to avoid admissibility problems, the prosecutor can and should make this argument.

Defendant is on trial for embezzlement. In his defense, he offers evidence from his minister that he has kept the books for the church for the past ten years and there has never been a penny missing. The prosecution's objection to this evidence should be: A. Sustained, relevance. B. Sustained, improper form of character evidence. C. Sustained, religion may not be taken into account in assessing credibility. D. Overruled, the defendant is allowed to present evidence of his good character.

B. Sustained, improper form of character evidence. ANALYSIS. First, A is incorrect because the evidence is relevant, as we discussed in the last question. C correctly states a proposition of evidence law, namely, that religious beliefs may not be used to attack or support a witness's credibility. That does not mean, however, that a minister may never testify, and thus C would be an incorrect basis for sustaining the objection to this testimony. Choice D also states a correct proposition: that the defendant is permitted to offer character evidence. He must do so in the proper form, however. Here the minister is testifying to specific conduct of the defendant—honestly maintaining the church's books for ten years—which violates Rule 405(a). This example is similar to the embezzlement example given earlier in the text, but with a very important difference. In the earlier example, the witness testified to his opinion that the defendant was honest, not to specific conduct. Choice B is the correct answer. To be admissible, character evidence must satisfy both Rules 404 and 405.

In a trial in Boston, plaintiff seeks to prove that the Arno River flows through Florence, Italy. The trial judge may: A. Take judicial notice of the fact because it is generally known in the jurisdiction of the trial court. B. Take judicial notice of the fact if the fact can readily be ascertained by resort to a source the accuracy of which cannot reasonably be questioned. C. Take judicial notice of the fact if the judge has been to Florence and seen the Arno River. D. Not take judicial notice of the fact.

B. Take judicial notice of the fact if the fact can readily be ascertained by resort to a source the accuracy of which cannot reasonably be questioned. ANALYSIS. Let's begin with choice C. It is not appropriate for a judge to take judicial notice of a fact merely because the judge personally knows the fact to be true. The question is not what the judge knows, but what is generally known and indisputable. Thus C is incorrect. Choice A is incorrect because it is not generally known in Boston that the Arno River flows through Florence, Italy. It is, however, indisputable that the Arno River flows through Florence, and this can be ascertained by looking at any reliable world atlas. Thus B is the correct answer and D is incorrect.

The defendant is on trial for murder, charged with killing his wife. The prosecution contents that the defendant hit her over the head with a hammer near a large pond, about a mile from their home outside Boston. The defendant told the police that we went to loo, for his wife who had gone out for a walk. He said that he found her draped over a log, bleeding profusely from her head. At trial the potential witnesses include the pathologist who performed the autopsy, a psychiatrist who examined the defendant at the request of the defense counsel, a police detective, and an oncologist who had been treating the wife for cancer. Which of the following is inadmissible? A. Testimony from the pathologist based on his observations, training, and experience, that the cause of death was blunt trauma to the head. B. Testimony from the psychiatrist that the defendant loved his wife. C. Testimony from the detective based on his training at the FBI fingerprint school and his 20 years of experience that he lifted latent fingerprints from the handle of the hammer, but they did not match those of the defendant. D. Testimony from the oncologist based on her observations of the deceased, medical records, and X-rays, that, despite the wound to the head, it was cancer that was the cause of death.

B. Testimony from the psychiatrist that the defendant loved his wife. The psychiatrist cannot tell us, as an expert, whether the defendant truly loved his wife. Nor could the psychiatrist testify that the defendant would be telling the truth if defendant stated he loved his wife.

The defendant is on trial on a charge of importing cocaine. The prosecution has subpoenaed the defendant's former wife as a witness. They divorced two months before trial. While they were married, the wife overheard her husband talking on the telephone with his source in Colombia, placing an order for a delivery of cocaine. Alone in the room with her husband, she asked him whether he was dealing in drugs. He admitted that he was. On another occasion she saw him hand a small valise containing bundles of hundred dollar bills to a man who came to their home late at night. Which of the following statements is not true? A. The husband may object to his wife testifying about his admission that he was dealing drugs because it was a privileged conversation. B. The husband may successfully object to his wife testifying about his conversation with the source in Colombia, because it was a privileged conversation that took place in the marital home. C. The judge should overrule the husband's objection on privilege grounds to the wife's observation of the cash. D. If the case had come to a trial three months previously the wife could have refused to be a witness against her husband.

B. The husband may successfully object to his wife testifying about his conversation with the source in Colombia, because it was a privileged conversation that took place in the marital home.

An item of evidence may be inadmissible if its probative value is substantially outweighed by a danger of ________. Which of the following is not an appropriate ending to this statement? A. Unfair prejudice B. Violating public policy C. Confusing the jury D. Wasting time E. Misleading the jury

B. Violating public policy Explanation: An item of evidence may be inadmissible if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the jury, misleading the jury, causing undue delay, wasting time, or being needlessly cumulative. See FED. R. EVID. 403. While policy-based exclusions may be inadmissible for violating public policy, they are not covered by the balancing test set forth in Rule 403. See, e.g., FED. R. EVID. 407-11. Thus, A, C, D, and E would all be appropriate endings to this statement, while B, the correct answer, would not.

Under which of the following circumstances may evidence of specific instances of conduct be admitted to prove character? A. Any time character evidence is admissible under the Federal Rules of Evidence. B. When a person's character or character trait is an essential element of a charge, claim, or defense. C. Evidence of specific instances of conduct is generally admissible to show that, on a particular occasion, a person acted in conformity with any character or character trait. D. Evidence of specific instances of conduct is never admissible to prove character; such instances may only be inquired about on cross examination of the character witness.

B. When a person's character or character trait is an essential element of a charge, claim, or defense. Explanation: Federal Rule of Evidence (FRE) 405(b) provides that, when "a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may... be proved by relevant specific instances of the person's conduct." Thus, answer B is correct, because it states this proposition. Answer A is wrong. Evidence of specific instances of conduct to show character is not admissible, just because character evidence is admissible. Generally, unless the requirements of FRE 405(b) are met, proof of character is limited to reputation or opinion evidence, except that the court may permit inquiry about specific instances of conduct on cross examination of the character witness. See Fed. R. Ev. 405. Inquiring about specific instances of conduct on cross examination is not the same as presenting evidence of specific instances of conduct. Answer C is wrong. Character evidence is generally not admissible, in any form, in order to show that, on a particular occasion, a person acted in conformity with any kind of character or character trait. Fed. R. Ev. 404(a)(1). Answer D is wrong, because it incorrectly states that evidence of specific instances of conduct is never admissible to prove character, when FRE 405(b) expressly permits such evidence in certain limited circumstances. Thus, answer A is the winning pick. NOTE: Special rules govern the admission of evidence to support or attack the character for truthfulness of a witness in the case. These are found at FRE 608 and 610.

Plaintiff was injured while riding in the defendant's car when the defendant lost control of the vehicle and was unable to stop before he ran into a tree. Defendant claims that the plaintiff assumed the risk of riding in the car, because plaintiff was with him an hour before the accident when he picked up his car up at the garage and the mechanic said to the defendant, "Those brakes are nearly shot." If the defendant testifies to what the mechanic said, is there an out of court assertion? A. No, because the statement was made to the defendant, not the plaintiff. B. Yes

B. Yes

Defendant in on trial for possession of marijuana with intent to sell. He admits that he was the owner of the marijuana that the police found in his dormitory room, but claims it was for his personal use. The prosecutor called a witness to testify that the defendant told him the day before his arrest that if he had any marijuana to sell, he would hang a necktie on the handle of the door to his room. A neighbor in the dorm is prepared to testify that the night before the arrest he saw the defendant hang a necktie on the door handle. Was there an assertion? A. No, the defendant did not make any statement. B. Yes.

B. Yes.

Charlie, a 1L student at Woodstock Law, spends most of his evenings studying in the law library. One cold November night, Charlie texts his fiancée as he exits the law library, to tell her that he is on his way home. As Charlie sends the text message, however, he slips and falls on the stairs outside, which are covered with ice. Charlie sues Woodstock Law for neglecting to keep the stairs around campus free of ice. At trial, he offers the testimony of Lucy, a 3L student who has also slipped and fallen on the icy stairs. Citing Rule 403 of the Federal Rules of Evidence, the judge refuses to admit Lucy's testimony. Which of the following, if true, best explains the judge's reasoning in refusing to admit Lucy's testimony? A. Lucy's slip-and-fall accident occurred two years ago in February, so her testimony will not be relevant. B. Lucy is the great-granddaughter of Albert Einstein, so her testimony will be seen as more probative than it actually is. C. A dozen other law students have already testified regarding their slip-and-fall accidents on the icy stairs around campus, so Lucy's testimony will waste time and be needlessly cumulative. D. Lucy espouses unconventional and unpopular political views which, if known, could confuse the jury. E. B and C

C. A dozen other law students have already testified regarding their slip-and-fall accidents on the icy stairs around campus, so Lucy's testimony will waste time and be needlessly cumulative. Explanation: Rule 403 of the Federal Rules of Evidence states that a judge may refuse to admit relevant evidence when its probative value is in danger of being substantially outweighed by unfair prejudice, confusing the issues or misleading the jury, causing undue delay or wasting time, or needlessly presenting cumulative evidence. FED. R. EVID. 403. Answer A is wrong because, even though the date that Lucy's accident occurred may cast doubt on the relevance of her testimony, any inadmissibility for this reason would be based on Rule 401, which sets forth the test for relevance, rather than Rule 403. See FED. R. EVID. 401, 403. B and D are also wrong, because they do not address the actual considerations of Rule 403. If Lucy is related to Albert Einstein, as in B, this fact could easily be omitted from her testimony and, furthermore, would be unlikely to affect the jury's view of the probativeness of her non-scientific testimony. If Lucy, on the other hand, espouses unconventional and unpopular political views, this fact could indeed cause some jurors to be prejudiced against her, to the point where they unfairly base their ultimate findings on matters that are inconsequential. However, this would be considered "unfair prejudice" rather than, as stated in answer D, "confusing the jury." This leaves C, the correct answer. Presenting similar testimony from numerous witnesses is likely to be seen as wasting time and needlessly cumulative, enough to substantially outweigh the probative value from adding Lucy's testimony.

Plaintiff sued defendant for injuries sustained in a collision between their cars at an intersection. Plaintiff alleged that the defendant was speeding and entered the intersection by running the red light. Defendant claimed that he had the green light and was driving at a normal rate of speed, and that it was the plaintiff who ran a red light. At the trial the plaintiff called a witness who testified he was standing on the sidewalk at the intersection, that he saw both cars approach the intersection, and that he could see the traffic signal from his location. When plaintiff's counsel asked the witness what happened next, the witness stated, "The defendant's car came barreling into the intersection against the red light really fast. The guy must have been drunk." The defendant moved to strike the testimony. The court should: A. Overrule the objection because the witness gave proper lay opinion testimony. B. Sustain the objection and exclude the witness's statements. C. Admit the first sentence of the testimony, but strike the statement, "They guy must have been drunk."

C. Admit the first sentence of the testimony, but strike the statement, "They guy must have been drunk."

A wife has sued her husband for divorce, alleging intolerable cruelty resulting from the husband's extramarital affairs. Adultery is a criminal defense in the jurisdiction in which they reside. Which of the following statements is inadmissible in the divorce trial? A. The husband bragged to his good friend, a Lutheran minister, that he had made love with an attractive waitress at their golf club. B. The husband admitted to his wife a year before she filed for divorce that he had an affair with the waitress from the golf club. C. During one of of their sessions, the husband told a psychiatrist he was consulting for depression that he no longer got any pleasure out of his marriage, but he was excited about an affair he was having with someone at his golf club. D. At the husband's deposition in the divorce case, the wife's lawyer asked him whether he had ever had sexual relations with anyone other than his wife while married and the husband refused to answer, asserting his Fifth Amendment privilege against self-incrimination.

C. During one of of their sessions, the husband told a psychiatrist he was consulting for depression that he no longer got any pleasure out of his marriage, but he was excited about an affair he was having with someone at his golf club. It was a confidential communication made for the purpose of receiving counseling for a mental or emotional condition

Wendy and Peter live on North Star Avenue, a quiet street in a suburban neighborhood. One morning, Wendy is late for work and backs out of her driveway while applying her makeup, without checking for other cars. Peter, also late for work, happens to be driving past Wendy's house at the same moment. Peter hits Wendy's car, causing severe injuries to Wendy. "It's all my fault," says Peter to Wendy, as they wait for the ambulance to arrive. Later, Peter visits Wendy in her hospital room. During the visit, Peter says, "I promise I'll pay for your medical expenses. I don't know what I was thinking. Sometimes I have a few glasses of scotch after I wake up, but I must have overdone it that morning. I'm so sorry." Wendy sues Peter for compensatory damages. Before proceeding to trial, Wendy and Peter, as well as their lawyers, hold a settlement conference to try to resolve their differences and avoid litigation. Peter offers Wendy a settlement in the amount of $35,000. However, Wendy's medical and hospital expenses were $55,000. Neither party is willing to budge, and they proceed to trial. At trial, Wendy's lawyer argues that Wendy should receive compensatory damages in the sum of at least $60,000, factoring in medical and hospital expenses, as well as lost income and emotional distress. Peter's lawyer argues that Peter should not have to pay any compensatory damages to Wendy, because the accident was entirely Wendy's fault, as Wendy backed out too quickly and too suddenly in front of Peter in time for him to avoid hitting her car. Wendy's lawyer seeks to offer the following statements made by Peter during the hospital visit, as well as the failed settlement conference: I. The admission to fault after the accident. II. The promise to pay for Wendy's medical expenses. III. The admission to drinking a few glasses of scotch. IV. The settlement offer of $35,000. Which of Peter's statements are inadmissible due to public policy concerns? A. I only B. II and III C. II and IV D. II, III, and IV E. All of these statements are inadmissible due to public policy concerns.

C. II and IV Explanation: Relevant evidence is excluded based on public policy concerns when it falls into one of five categories: subsequent remedial measures, offers to compromise, offers to pay medical expenses, pleas, and liability insurance. See FED. R. EVID. 407-11. The admission to fault after the accident, statement I, does not fall into any of these categories, so it will not be inadmissible due to public policy concerns. Statement II, however, is inadmissible. An offer or promise to pay for medical expenses resulting from an injury is not admissible to prove liability for that injury. FED. R. EVID. 409. Thus, the promise to pay for Wendy's medical expenses is not admissible. However, statements that are not part of the act of offering or promising to pay are admissible. See FED. R. EVID. 409 advisory committee's note. Statement III, Peter's admission to drinking scotch, was not part of the actual offer and will not be excluded from admissibility due to public policy concerns. Finally, an offer to settle for a certain amount is inadmissible to prove or disprove the amount of a disputed claim. See FED. R. EVID. 408(a). It does not matter whether the offer has been withdrawn. See id. Thus, statement IV is inadmissible because the amount of the claim is being disputed. Because statements II and IV are the only statements that are inadmissible due to public policy concerns, C is the correct answer.

During discovery, a party obtains documentary evidence that an adverse witness fabricated items on his resume when he applied for his current job, falsely claiming to have a degree from a prestigious school. Which of the following methods of impeachment is not permissible? A. Asking the witness on cross-examination whether he listed the school in question on his resume and whether he actually attended that school. B. If the witness denies any falsity and claims he did attend the school, asking detailed follow-up questions about the school in question, such as what dorm he was in, who his advisor was, etc., to try to expose the falsehood. C. If the witness denies any falsity and claims he did attend the school, calling the Registrar from the school to testify that the witness never attended.

C. If the witness denies any falsity and claims he did attend the school, calling the Registrar from the school to testify that the witness never attended. The rule prohibits proving that conduct occurred through extrinsic evidence, and therefore one may not call the Registrar to testify. Nor could one introduce records from the school, or any other exhibits.

Under the Federal Rules of Evidence, which of the following statements is true? A. In a civil trial, a defendant may offer opinion testimony proving his or her pertinent character or trait at any time. B. In a civil trial, probative value of evidence may be substantially outweighed by unfair prejudice without either being inadmissible or requiring jury instructions. C. In a criminal trial, evidence of conduct during settlement negotiations is admissible to prove an attempt to obstruct a criminal investigation. D. In a criminal trial, specific instances of conduct may not be used during cross-examination of a character witness. E. None of the above

C. In a criminal trial, evidence of conduct during settlement negotiations is admissible to prove an attempt to obstruct a criminal investigation. Explanation: Remember that in a criminal trial, a defendant may offer opinion testimony as evidence of his or her own pertinent character or trait at any time. See FED. R. EVID. 404(a)(2)(A). However, in a civil trial, opinion testimony may only be offered for the purpose of witness impeachment. See FED. R. EVID. 404(a)(3). Thus, A is not true. B is not true because the probative value of evidence may not be substantially outweighed in any case without either being inadmissible or requiring jury instructions, regardless of whether it is a criminal or civil trial. See FED. R. EVID. 403. D is also not true, because specific instances of conduct may be used to cross-examine character witnesses in both criminal and civil cases. See FED. R. EVID. 405(a). Thus, C, the correct answer, is true. Evidence of conduct during settlement negotiations is admissible to prove obstruction of a criminal prosecution. See FED. R. EVID. 408(b).

Food Mart, a 24-hour grocery store, cleans its floors at 6:00 a.m. every morning. On November 1st, Bobby walks to Food Mart at 6:12 a.m. to buy eggs and milk. Still bleary-eyed from sleep, Bobby fails to notice that the floor in the dairy aisle is wet from being cleaned. He slips and falls on the floor, injuring his head and back. Bobby sues Food Mart for neglecting to use signs warning customers that the floor was slippery. To support his claim, Bobby offers evidence that, as of November 15, Food Mart has begun using yellow signs to warn customers of wet floors after any cleaning. Bobby's evidence will likely be found: A. Admissible. B. Admissible, but only if Food Mart's control of its floors is disputed. C. Inadmissible, because Food Mart's attempts to make its store safer should not be discouraged. D. Inadmissible, because Food Mart's actions were taken after Bobby's accident and are thus irrelevant. E. Inadmissible, because Food Mart's ownership of its floors is not disputed.

C. Inadmissible, because Food Mart's attempts to make its store safer should not be discouraged. Explanation: Subsequent remedial measures are inadmissible to prove negligence or a need for warning signs. See FED. R. EVID. 407. While subsequent remedial measures are admissible to prove control or ownership if disputed, neither is at issue here. See id. For these reasons, A, B, and E are incorrect. D is incorrect. Food Mart's actions are relevant because they could tend to prove that Food Mart was negligent in failing to use warning signs in the first place, or that there was a need for warning signs. Public policy concerns dictate that subsequent remedial measures should be inadmissible in order to promote the taking of safety precautions. See FED. R. EVID. 407 advisory committee's note. Thus, C is the correct answer.

After a shooting in a bar, the police interview an eyewitness at the police station. They take a sworn statement from him, which is videotaped and taken down by a stenographer. The witness states that he saw defendant shoot the victim. At trial the prosecutor calls the witness and he testifies that he saw the defendant in the bar, but a stranger that he had never seen before or since was the shooter. The prosecutor then offers the videotaped sworn statement in evidence and defense counsel objects. The objection should be: A. Sustained, hearsay. B. Overruled, the statement is admissible under Rule 801(d)(A)(1). C. Overruled, but the court should give a limiting instruction that the statement may only be used to show the existence of an inconsistent story under Rule 613.

C. Overruled, but the court should give a limiting instruction that the statement may only be used to show the existence of an inconsistent story under Rule 613. It does not come within Rule 801(A)(d)(1) because courts would not consider an interview in the police station to be the sort of formal proceeding contemplated by the rule, even though the witness was sworn and a stenographer was present. The prosecutor could offer the statement merely to impeach the witness under Rule 613.

Plaintiff's decedent suffered fatal injuries when his car went off the road and over a cliff at a curve in a hilly roadway, on a sunny afternoon in July. His estate is suing the highway department for negligence in the design of the road, arguing that it was unreasonably dangerous. Plaintiff's attorney wants to offer evidence at trial that five other drivers died at the same curve when their cars went off the road and over the cliff on snowy days during the previous December and January, in order to prove that the location was unreasonably dangerous. Is the evidence of the other accidents relevant? A. Yes, the fact that a lot of people have been killed in the same spot makes it more likely that the road is unsafe than if only one person had died there. B. No, because what happened on other occasions can never prove what happened on a particular occasion. C. No, because the conditions under which the other accidents occurred were not substantially similar to the conditions under which this accident occurred.

C. No, because the conditions under which the other accidents occurred were not substantially similar to the conditions under which this accident occurred. ANALYSIS. Plaintiff wants to offer evidence of other accidents to prove that the road was unreasonably dangerous. Whether the road was unreasonably dangerous is a fact of consequence in determining the liability of the defendant in this tort suit. The logical question is whether the existence of other accidents makes it more likely that an unsafe road caused this accident than if we knew of no other accidents. We must begin by recognizing that many factors may cause a motor vehicle accident, including, for example, speed, driver inattention, automobile equipment failure, actions by other drivers, and weather conditions, in addition to whether the road was safely designed. In order to determine with confidence whether unsafe road design caused the other accidents, we have to know something about the circumstances under which they occurred. If those accidents were caused by other factors, they may not tell us anything about whether the road itself was safely designed. For that reason, A is incorrect—the mere existence of the other accidents is not sufficient to prove that the road was unsafe. Choice B says that evidence of other accidents can never be relevant, but that is not the case. Sometimes the existence of other accidents does tell us something about the nature of the place where a particular accident occurred. The correct answer is C. Evidence of other accidents is relevant to prove a dangerous condition caused the present accident if, and only if, those accidents occurred under substantially similar conditions to the present accident. If there are multiple accidents in the same place under substantially similar conditions, it is more probable that a danger inherent in the place itself was a contributing cause of the accidents than if there was only one accident.

The defendant is charged with soliciting an act of prostitution. The prosecutor calls a police officer who testifies that while working undercover he drove into a neighborhood where prostitutes were suspected of working. He slowed down and a provocatively clad woman, the defendant, approached his car. He rolled down the window and said, "Hey there." The officer would testify that she said, "I'll have sex with you for $200." If the officer's testimony about what she said hearsay? A. Yes, the defendant's statements are offered for the truth of an assertion. B. No, there was no assertion. C. No, there was a verbal act.

C. No, there was a verbal act. The mere uttering of the words, "I'll have sex with you for $200," is a crime, whether or not the assertion is true. The prosecution has charged the defendant with soliciting prostitution, not committing an act of prostitution. Inviting the witness to have sex for money is a completed crime, therefore, this is a verbal act and not hearsay.

Plaintiff is a twelve-year-old girl who sustained permanent brain injuries when struck by an automobile when she was crossing the street. The brain injuries have seriously impaired her ability to walk and to talk. In the suit against the driver of the car, plaintiff's counsel proposes to call the girl to the stand. She would be able to walk from her seat to the witness stand only very awkwardly, with great difficulty, and slowly. She would be able to answer only very simple questions concerning her name, age, and the special school she attends, and would speak with great hesitation and in an unnatural voice that is difficult to understand. She has no memory of the accident itself. Defendant objects on the ground that the unfair prejudice her appearance would cause substantially outweighs the probative value of her testimony. How should the court rule? A. Exclude the plaintiff as a witness because her disabilities are likely to cause the jurors to return a verdict based on sympathy for her, rather than the facts of the case, and the probative value of her evidence is low because everything she could say could be proved through other witnesses or exhibits. B. Overrule the defense objection because the plaintiff's appearance would not cause any unfair prejudice. C. Overrule the defense objection because any unfair prejudice caused by the plaintiff's appearance would not substantially outweigh its probative value.

C. Overrule the defense objection because any unfair prejudice caused by the plaintiff's appearance would not substantially outweigh its probative value. ANALYSIS. We need to begin by determining the probative value of plaintiff's appearance and testimony and whether there is any risk of unfair prejudice. Plaintiff's testimony can provide no evidence regarding the liability issues in the case, but her appearance as a witness is very significant with respect to the extent of her damages. Plaintiff could call expert witnesses and introduce medical reports to describe her condition, but they would not provide a complete substitute for seeing firsthand the difficulties that plaintiff has in walking and speaking. Observing the plaintiff is crucially important in assessing the extent of her injuries, and the probative value of this evidence is high. There is some risk of unfair prejudice, and therefore B is incorrect. Arguably the jurors might be so emotionally affected by the plaintiff's plight that they would want to provide for her, even if there was little evidence of negligence on the part of the defendant driver. The risk that the jury may effectively lower the bar on the burden of proof is one of the common risks of evidence that has a significant emotional impact. The question is whether the risk substantially outweighs the probative value of the evidence. Trial judges have great discretion when it comes to balancing the risk of unfair prejudice against probative value under Rule 403. There are many cases where it is possible to imagine one judge ruling one way and another judge the opposite way on the same set of facts. But in this example, the vast majority of judges would find C to be the correct answer. In personal injury cases involving serious injuries there is always a risk that jurors may be motivated by sympathy toward the injured plaintiff. In this case there really is no substitute for allowing jurors to see firsthand the extent of plaintiff's disability. Any risk of prejudice should be addressed by the routine instruction that judges give that the jury verdict should not be based on sympathy, but should be firmly grounded on the facts of the case.

The defendant is on trial for murder. An eyewitness told the investigating detective that she saw the defendant shoot the victim. At trial, however, the witness testifies it was too dark at the time of the event and she has no idea who shot the victim. The prosecution calls the detective and asks him to state what the witness told him. The defendant objects. The court should: A. Sustain the objection and exclude the testimony because the prosecution is impeaching its own witness. B. Overrule the objection and allow the detective to testify. C. Overrule the objection and allow the testimony subject to a limiting instruction that it is admissible only for the purpose of impeaching the witness and not for the purpose of proving that the defendant shot the victim. Assume the court allows the detective to testify and the government calls him as a witness. He testifies that the witness told him she had a good view of the shooting and was certain that it was the defendant who shot the victim. The judge gives an appropriate limiting instruction. The government rests without offering any other evidence. The defendant moves for a directed verdict of not guilty. How should the court rule? A. Deny the motion for a directed verdict. B.. Grant the motion for a directed verdict.

C. Overrule the objection and allow the testimony subject to a limiting instruction that it is admissible only for the purpose of impeaching the witness and not for the purpose of proving that the defendant shot the victim. The court must give a limiting instruction because the prior statement was not made under oath in a formal proceeding and is admissible only for purposes of impeachment, not to prove the truth of the prior statement. B.. Grant the motion for a directed verdict. The court must grant the motion for directed verdict because the prosecution never introduced any evidence that the defendant shot the victim

Plaintiff's decedent was killed in an automobile accident when his car was struck by a truck that defendant was driving. Defendant was also injured and his blood was drawn at the emergency room shortly after the accident. Analysis of the blood demonstrated a blood alcohol level of 0.24%, which is three times the level at which a driver is presumptively considered to be intoxicated in the state where the accident occurred. At the wrongful death trial, plaintiff offers evidence of the defendant's blood alcohol level as measured in the hospital. Defendant objects on the ground that the risk of unfair prejudice exceeds the probative value of the evidence. How should the court rule? A. Sustain the defense objection because many people have such strong feelings about drunk driving that the jury is likely to rule against the defendant regardless of what the other evidence shows about who caused the accident. B. Overrule the objection because there is no risk of unfair prejudice. C. Overrule the objection because the risk of unfair prejudice does not substantially outweigh the probative value of the evidence.

C. Overrule the objection because the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. ANALYSIS. The evidence of severe intoxication on the part of the truck driver is likely to be highly probative in determining who caused the accident. It would not be correct, however, to say there is no risk of unfair prejudice posed by this evidence. The jurors could feel so strongly about drunk driving that they might return a verdict against the defendant to punish him, even though they were not convinced by a preponderance of the evidence that his intoxication caused the accident. Nonetheless, unless it could be shown that there was no possibility that the defendant's intoxication caused the accident, a judge would be very unlikely to find that the risk of unfair prejudice outweighed the probative value of the evidence. Choice C is the correct answer.

The defendant is charged with lewd and lascivious behavior. The prosecution claims that he exhibited his private parts to a young girls as she walked along a path through a park in the afternoon. The girl has testified that the defendant came out from behind a tree carrying what appeared to be a pornographic magazine, that he dropped his pants and undershorts, and said to her, "have you ever seen anything like this before?" She screamed and ran away. She has identified the defendant as the perpetrator in the courtroom. The prosecution has disclosed to the defendant that three other girls of approximately the same age were accosted on three different days on the same path, at about the same time of day, by an individual carrying what appeared to be a pornographic magazine who dropped his pants and undershorts and asked them, "Have you even seen anything like this before?" Those three girls were shown a photo spread that contained the defendant's picture, but they did not identify him as the perpetrator. The defendant proposes to call the three girls as witnesses to testify that he is not the man who accosted them. How should the court rule on the prosecution's objection? A. Sustained, the evidence is not relevant. B. Sustained, the evidence is not permitted under the character rules. C. Overruled.

C. Overruled.

Plaintiff sues the defendant Highway Department because his car slid off the road at a curve and went over a cliff, causing him serious injuries. Plaintiff sues the defendant for negligent design of the roadway and the failure to have a guardrail. Plaintiff offers evidence that six other cars had slid at that curve under substantially similar circumstances and gone over the cliff within the previous six months. The defendant's objection should be: A. Sustained, the evidence is not relevant. B. Sustained, it violates the bar against character evidence. C. Overruled.

C. Overruled. ANALYSIS. This question requires you to understand the difference between evidence of similar events and character evidence. We talked about evidence of similar events in the relevance section above. Here the defendant is offering evidence about the dangerous nature of a location, not the character of any person. The rules concerning character evidence are not at issue here, and therefore B is incorrect. As we said in the relevance section, evidence of similar events is relevant in a tort case if other accidents occurred under substantially similar circumstances. The question specifies that they did, and so C is the correct answer and A is incorrect because this evidence is relevant.

Defendant's car collided with two pedestrians in the street, causing each of them physical injuries. Plaintiff 1 settled his claim against the defendant before trial for $100,000. Plaintiff 2 offered to accept a settlement of $40,000, but the defendant refused to offer any more than $10,000. At the settlement conference, plaintiff 2 admitted that he was crossing the street outside the crosswalk, but produced a video of the accident from a surveillance camera that showed that defendant's car entered the intersection against a red light. At the trial of plaintiff 2 against the defendant, which of the following evidence is admissible? A. Plaintiff 2 offers to prove that defendant settled with plaintiff 1 in order to prove that defendant was driving negligently at the time of the accident. B. Defendant offers evidence that plaintiff 2 was willing to accept a settlement of $40,000 in order to prove that the claim was not worth any more than that. C. Plaintiff 2 offers to introduce the videotape he showed at the settlement conference in order to prove that defendant negligently entered the intersection against a red light. D. Defendant offers to prove that plaintiff 2 admitted at the settlement conference that he was outside the crosswalk.

C. Plaintiff 2 offers to introduce the videotape he showed at the settlement conference in order to prove that defendant negligently entered the intersection against a red light. ANALYSIS. Plaintiff 2 cannot offer to prove that defendant settled with plaintiff 1. The language of Rule 408 covers evidence of a compromise settlement between the defendant and another party, and plaintiff is offering it for the impermissible purpose of establishing the validity of a claim. The defendant cannot offer plaintiff 2's offer to accept a settlement of $40,000, because Rule 408 covers that as well and the defendant is offering the evidence to put a ceiling on the amount of plaintiff 2's damages. Defendant also cannot introduce plaintiff 2's admission made at the settlement conference that he was outside the crosswalk. Rule 408 covers not only settlements and offers, but also all statements made by the parties during negotiations. This serves the purpose of encouraging the parties to talk candidly about the strengths and weaknesses of their positions during settlement. Here defendant wants to offer plaintiff 2's statement to undermine the validity of plaintiff 2's claim, an impermissible purpose under the rule. Choices A, B, and D are incorrect answers. What about the video of defendant's car running the red light? Is it inadmissible because it was used at the settlement conference? No, because the video is evidence that existed independent of settlement proceedings. Rule 408 would prohibit the parties from introducing any statements that either party made about the video at the settlement conference, but the fact that the video was used at the conference does not render the video itself inadmissible in evidence. Parties frequently use pre-existing documents, photographs, and other exhibits in settlement conferences. What they say about them during negotiations is inadmissible in evidence, but Rule 408 does not bar the pre-existing materials themselves from evidence at trial. Choice C is the correct answer.

The defendant is charged with stabbing his girlfriend to death outside a bar late at night. Which of the following potential witnesses will not be allowed to testify? A. A 4 y/o girl who was walking hoe with her mother at the time of the incident and who will say she recognizes the defendant as the attacker. B. A man who left the bar falling down drunk who will say that the victim was unarmed. C. The victim's mother who was not present but who will say that if someone harmed her daughter it must have been the defendant. D. The defendant's mother who will say that the defendant was home at the time watching television with her.

C. The victim's mother who was not present but who will say that if someone harmed her daughter it must have been the defendant. The victim's mother, who was not present, has no personal knowledge of the event and will not be allowed to testify that the defendant stabbed her daughter

The defendant is on trial for assault and battery against his girlfriend. The two of them live together. When a police officer arrived at their home on the night in question, the girlfriend told the officer that the defendant had hit and choked her, torn her dress, threw her on the ground and kicked her repeatedly. At the trial, however, she testified that she had fallen down the stairs and the defendant had not struck her. The prosecutor calls the officer as a witness to testify to the victim's earlier statements and argues they are admissible under the excited utterance exception to the hearsay rule. The defendant objects. The prosecutor then offers to give the judge a copy of the police report, which includes statements by neighbors who witnessed the officer's interview of the victim in front of her home on the night in question. The neighbors said that she was crying, shaking, and bleeding while talking with the officer. The prosecutor also offers to show the court photos he says were taken by one of the neighbors, showing the victim talking to the officer with tears on her face and blood on her torn dress. The defendant objects to the court reviewing the police report and the photos. The court should: A. Admit the evidence of the victim's statements to the officer, and advise the jury it may take the statements into account only if the jury finds the victim was under the stress of a startling event when she made them, based on the jury's review of the police report and the photos. B. Decline to review the police report and the photos, because the report is hearsay and the photos have not been properly authenticated. C. Review the police report and the photos without showing them to the jury, and admit the victim's statement to the officer if the judge is convinced by a preponderance of the evidence that the victim was under the stress of a startling event when she spoke to the officer. D. Review the police report and the photos and show them to the jury, and admit the victim's statement to the officer if the judge is convinced by a preponderance of the evidence that the victim was under the stress of a startling event when she spoke to the officer.

C. Review the police report and the photos without showing them to the jury, and admit the victim's statement to the officer if the judge is convinced by a preponderance of the evidence that the victim was under the stress of a startling event when she spoke to the officer. ANALYSIS. The victim's statement is admissible under an exception to the hearsay rule if she made it while under the stress of a startling event. Under Rule 104(a) the judge determines questions of the admissibility of evidence and determines any preliminary factual questions that have to be resolved to decide the issue of admissibility. This problem should be decided under Rule 104(a) because it involves the admissibility of evidence, not the conditional relevance of evidence. There is no need to establish any given facts for the victim's statement to be relevant. Thus A is incorrect, because it describes the procedure for determining issues of conditional relevance. Choice B is incorrect because the judge is not bound by the rules of evidence with respect to what she may consider to determine the preliminary facts with respect to admissibility. That means that the judge may consider the hearsay police report and the photos that have not been authenticated5 to determine whether the victim was under the stress of a startling event when she spoke to the officer. The judge should not, however, allow the jury to see or hear any inadmissible evidence. Thus the correct answer is C and D is incorrect.

Defendant is on trial for the rape of a child under the age of 14. The prosecutor called an 8 y/o girl who testifies that she, the defendant, the alleged victim, and several other people had spent the night at a vacation house on the evening of the alleged offense. The prosecutor then asked what the witness observed when the victim cane to their bedroom late at night. The witness would say that she "had an instinct that something had happened" to the victim, and that the defendant "had done something sexual with the victim." The defendant's objection to this testimony should be: A. Sustained, the 8 y/o girl is not competent to testify. B. Sustained, the witness cannot testify about something that happened to someone else. C. Sustained, the witness has no personal knowledge. D. Overruled

C. Sustained, the witness has no personal knowledge. The witness lacked personal knowledge regarding those matters and was merely speculating about what might have happened

The defendant is on trial for assault and battery against his wife. Testimony established that the wife left their home after the alleged assault and when to her daughter's house, but then returned home after only three days. The defendant would argue that returning home was inconsistent with her claim that her husband had assaulted her. The prosecutor called the daughter as a witness and asked her why her mother returned home so quickly. The daughter would testify that her mother was concerned that her husband and son were abusing drugs and alcohol and that there were firearms in the house. The defendant's objection to this testimony should be: A. Sustained, the evidence is not relevant. B. Sustained, marital privilege. C. Sustained, the witness lacks personal knowledge. D. Overruled, the witness probably has observed and knows what is going on in her parents' home.

C. Sustained, the witness lacks personal knowledge. She did not testify that her mother told her that was why she was going home, therefore, one person cannot testify about what is in another person's mind.

Defendant is charged with murder. The cause of death was a gaping wound that the pathologist testified was caused by a machete. The prosecutor has a witness who would testify that the defendant threatened the witness with a machete a month before the murder took place. The prosecution's best argument for the admissibility of this evidence is: A. The evidence is not capable of a propensity inference. B. The evidence demonstrates that the defendant had a motive to kill the victim. C. The evidence proves that the defendant had the means to kill the victim. D. The evidence proves that the defendant did not kill the victim by accident.

C. The evidence proves that the defendant had the means to kill the victim. ANALYSIS. Choice A is not correct. The evidence is capable of a propensity inference, namely, that the defendant is violent because he threatened the witness with a machete. Unlike the example above in the text, here the evidence does not tell us anything about the defendant's motive to kill the victim, because his previous threat was against the witness, not the victim. Thus B is incorrect. The fact that the defendant previously threatened someone else with the machete does not tell us anything about whether the unrelated killing of the victim was an accident. Thus D is not correct. The evidence does show, however, that the defendant had a machete, and therefore had the means, or the opportunity, to commit this crime. For that purpose the evidence would be admissible and thus C is the correct answer.

Defendant is charged with the murder of a victim who was stabbed to death. The pathologist has testified that the wounds were inflicted with a serrated knife. The police searched the defendant's home and found the following items: a paring knife, a chef's knife, and a receipt dated the day before the murder for the purchase of a serrated bread knife. No serrated knives were found in the home. Which of these items are relevant? A. All of them, because they demonstrate the defendant's interest in knives and a knife was used to stab the victim. B. None of them, because there is no evidence that either the knives found in the home or the bread knife that was purchased were actually used to commit the murder. C. The receipt for the bread knife.

C. The receipt for the bread knife. ANALYSIS. The prosecution offers these items to prove that the defendant was the killer, which is of consequence in determining whether he is guilty of murder. Evidence that a defendant had an instrument that could have been used to kill the victim makes it more likely that he was the killer than it would be in the absence of such evidence. Possession of common items such as kitchen knives of a type other than the type used on the victim, however, does not make it more likely that the defendant was the killer, thus A is incorrect. Choice B is incorrect because the evidence does not have to definitively prove that the knife was used in the murder in order to make the evidence regarding the serrated knife relevant. The fact that the defendant purchased a serrated knife shortly before a murder committed with a serrated knife, and no longer has the serrated knife in his home, does make it more likely that he was the killer than if we had no such evidence. This is true even though there is no other evidence linking the knife the defendant purchased to the murder. Thus C is the correct answer.

The prosecutor has subpoenaed a witness to testify in a murder trial. The subpoena directed the witness to bring with him any correspondence he had with anyone concerning the death of the victim. Which of the following statements is true? A. If the witness claims that any correspondence is protected by the attorney-client privilege, the judge will read the correspondence in question to determine whether the privilege applies. B. The witness will not have to produce correspondence that witness had with the defendant and which the witness discussed with his own lawyer, whom he consulted to determine if there was any risk that he could be arrested in connection with the victim's death. C. The witness will not have to produce correspondence that he had with his own lawyer, whom he consulted to determine if there was any risk that he could be arrested in connection with the victims' death. D. The witness will not have the attorney-client privilege for conversations he had with his own lawyer if the conversations were overheard on an electronic surveillance device the police had secretly installed in the lawyer's office.

C. The witness will not have to produce correspondence that he had with his own lawyer, whom he consulted to determine if there was any risk that he could be arrested in connection with the victims' death.

A murder victim was hacked to death with a machete. Defendant is on trial for murder. The prosecution calls a witness who would testify that she heard the defendant's mother say that her son owns a machete. Is the witness's testimony hearsay? A. No, because she is not testifying to any assertion. B. No, because the prosecution is trying to prove that defendant killed the victim, not that he owned a machete, so the testimony is not offered to prove the truth of any assertions. C. Yes, the prosecution is offering the evidence to prove the truth of the mother's assertion.

C. Yes, the prosecution is offering the evidence to prove the truth of the mother's assertion. Here the purpose is to show that the defendant owned a machete and thus had the means to commit the crime so the evidence is offered to prove the truth of the mother's assertion and therefore is hearsay.

Plaintiff was injured while spreading sand on a cranberry bog in the winter when his hand was caught on a rotating rod that was used to break up the sand in a hopper pulled by a tractor. He sued the company that designed the hopper and the rod, claiming the design was unreasonably dangerous without a guard to prevent workers from getting their hands too near the rotating rod. The lead designer claimed at the trial that he had chosen the "safest" available design. Plaintiff offered to introduce evidence that following his injury, the designer had changed the design of the hopper to add a guard over the rod, and that this design had been available at the time of the original design of the machine on which he was injured. Is the evidence admissible? A. No, because it is evidence of a remedial measure taken subsequent to the injury to the plaintiff. B. No, because the evidence of what the company may have done after the plaintiff's accident is not relevant to whether it was negligent in causing the injury to the plaintiff. C. Yes, to impeach the testimony of the designer. D. Yes, to prove that it was feasible to build the machine with a guard.

C. Yes, to impeach the testimony of the designer. ANALYSIS. Evidence that a machine was redesigned after an injury to include a guard is precisely the sort of evidence contemplated by Rule 407. The evidence is relevant on the question of whether the original design was reasonably safe, and therefore B is not correct. The evidence should be excluded if offered to prove that the original design was not reasonably safe, and in that event, A would be the correct answer. The evidence is admissible if offered for another purpose, however. May it be offered here, as D suggests, in order to prove that installing a guard was feasible? Not in this case, because the defendant has not contested feasibility. If the defendant had argued, for example, that adding a guard would make the machine too expensive to produce, or that adding a guard would interfere with the proper functioning of the machine, then plaintiff could introduce the fact that the defendant had redesigned the machine with a guard to prove that it was possible to do so. Evidence of subsequent remedial measures is admissible to prove feasibility, or to prove that the defendant owned or controlled the person, place, or thing that caused the injury, only when the defendant contests those issues. Here it did not, and D is incorrect. The correct answer in this case is C. The designer has testified that he originally chose the "safest" available design. Yet after the accident he switched to a different design that had been available previously, one with a guard. That change is inconsistent with and impeaches his testimony that the original design was the safest one.

In a drug case against a single defendant, the government seeks to prove that he was the supplier of cocaine to a group of men who sold it on the street. It offers as an exhibit a page from the address book of one of the men containing defendant's address and cell number. How should the court rule on defendant's objection? A. Exclude the evidence because it is hearsay. B. Exclude the evidence because it is not relevant. C. Admit the exhibit because it does not contain any assertions. D. Admit the exhibit because it is not hearsay.

D. Admit the exhibit because it is not hearsay. The government is not trying to prove where the defendant lives or what his number is, but merely that there was an entry in the defendant's address book for defendant.

Plaintiff 1 and Plaintiff 2 sued the defendant for personal injuries sustained in an automobile accident. The plaintiffs alleged that the defendant ran a red light and collided with the vehicle in which they were riding. The defendant claimed that he had the green light at the intersection and that it was the car in which plaintiffs were riding that ran a red light. Two months after the accident, Plaintiff 1 gave a recorded statement to an investigator in which he described his injuries and admitted that there was a possibility that the plaintiffs' car had the red light. The defendant offers the portion of the statement containing Plaintiff 1's admission in evidence. Plaintiff 1 and Plaintiff 2 object. The court should: A. Admit the statement against both plaintiffs under the Rule of Completeness. B. Admit the statement against both plaintiffs under the excited utterance exception to the hearsay rule. C. Admit the statement against both plaintiffs if the jury finds that the recorded statement was authentic and Plaintiff 1 was not under duress when he gave the statement. D. Admit the statement against Plaintiff 1, sustain Plaintiff 2's objection to the statement, and give the jury a limiting instruction.

D. Admit the statement against Plaintiff 1, sustain Plaintiff 2's objection to the statement, and give the jury a limiting instruction. ANALYSIS. An exception to the hearsay rule for statements made while one is under the stress of a startling event. An automobile accident may qualify as a startling event, but here the statement was made two months later. Thus Plaintiff 1's statement is not admissible under the excited utterance exception and B is incorrect. It is the trial judge's function to determine the admissibility of evidence, including whether a recording is authentic and, when pertinent, whether the person who made the statement was under duress. Thus C is incorrect. The Rule of Completeness permits a party to request that additional portions of a recorded statement be admitted when the opposing party has offered only a portion of the statement and there is a risk the jury will be misled by taking something out of context. It does not allow a statement to be introduced against additional parties when it is only admissible against one party. Thus A is incorrect. In this problem the defendant may introduce the statement against Plaintiff 1 under the exemption from the hearsay rule for statements by a party opponent. Plaintiff 2 did not make the statement, however, and therefore the statement is not admissible against Plaintiff 2. Given that, the judge should admit the statement with a limiting instruction that the jury may only consider it with respect to Plaintiff 1. Thus D is the correct answer.

Jack, while driving, crashes into Bobby's parked car. Bobby sues Jack. Before proceeding to trial, Jack and Bobby meet with their lawyers in a settlement conference. Jack offers to pay Bobby an amount of $20,000 to settle the claim quietly, provided that Bobby revokes his statement to police. Bobby refuses the offer and tells Jack that Bobby has a buddy who will tell police whatever Bobby asks. At trial, Bobby tells the court the Jack improperly attempted to delay the settlement at trial. At trial, Jack's offer to settle may be admissible to prove which of the following? A. Witness bias or prejudice B. Absence of undue delay C. Obstruction of a criminal investigation D. All of the above E. None of the above; offers to settle a claim are never admissible.

D. All of the above Explanation: Evidence of a settlement negotiation is admissible to prove a witness's bias or prejudice, absence of undue delay, or an effort to obstruct a criminal investigation or prosecution. See FED. R. EVID. 408(b). Here, Jack could use evidence of the negotiations to show that Bobby's buddy is a biased witness who is only doing Bobby a favor, and thus answer A is correct. Answer B is also correct, because Jack could also use the negotiations to prove that he negotiated settlement and did not cause undue delay. Answer C is correct too, because Bobby can use the offer to show that Jack tried to obstruct a criminal investigation or prosecution into the accident. Thus, D, all of the above, is the correct answer.

A witness testifies that he witnessed the defendant commit an assault and battery in a department store in New Orleans on August 29, 2005 (the date of Hurricane Katrina). The cross-examiner asks what the weather was like on that day, and the witness replies, "Sunny and mild all day." The cross-examiner may impeach the witness by: A. Introducing a certified report of the National Weather Service documenting the hurricane conditions on August 29, 2005. B. Calling a witness who was presented in New Orleans on that day. C. Introducing an authenticated videotape of the hurricane conditions. D. All of the above. E. None of the above.

D. All of the above. The witness's incorrect answer suggests he ws not present at the incident he claimed to have witnessed.

Husband and wife are getting divorced and wife seeks sole custody of the children on the ground that the husband physically abused her and the children and thus is an unfit parent. Which of the following types of evidence would the wife's lawyer be able to introduce to prove her case? A. The opinion of a neighbor who knew the family well that the husband was violent and abusive. B. The testimony of a neighbor who had discussed the husband with many other people in the neighborhood that the husband had a reputation for being violent and abusive. C. The testimony of a neighbor who saw the husband strike the children on several specific occasions. D. All of the above. E. None of the above.

D. All of the above. ANALYSIS. The correct answer is D, all of the above. This child custody case falls within the small group of cases in which character is an element of the claim. In such cases, it is permissible to prove character through opinion evidence, reputation evidence, and evidence of specific acts.

Defendant is charged with grand larceny in connection with the theft of a diamond tennis bracelets ordered by a hacker who penetrated a jewelry store's computer and had the bracelets delivered to a post office box without paying for them. The defendant was previously charged with stealing diamond necklaces from another jewelry store by hacking into its computer in the same manner and having the necklaces delivered to a post office box without paying for them. In the first trial there was evidence from a computer expert who testified that the instructions to ship the necklaces came from the defendant's computer, and the necklaces were later recovered in the defendant's apartment. Nonetheless, the defendant was found not guilty in the first case. May the prosecution off that evidence from the first trial in the defendant's trial on the theft of the tennis bracelets? A. No, it is improper character evidence. B. No, because the defendant was found not guilty of the first crime. C. No, because the evidence is not relevant. D. Arguably yes, because it proves that the defendant ad the requisite knowledge to hack into the jewelry store's computer.

D. Arguably yes, because it proves that the defendant ad the requisite knowledge to hack into the jewelry store's computer. In order to enter this kind of evidence, only preponderance of the evidence is required and not beyond a reasonable doubt as in the previous criminal trial on the same set of facts.

Jack has been dating Emily for several years. One night, Jack walks past an expensive French bistro and glances through the window, only to see Emily having a romantic dinner with Daniel, her neighbor. Jack storms into the restaurant and confronts the couple. Daniel suggests that he and Jack settle the matter outside in the back alley. A violent fistfight ensues, and Jack's body is later discovered in the dumpster behind the restaurant. Daniel is arrested and charged with murder. At trial, Emily testifies that, in her opinion, Jack was a peaceful person. Under what circumstances may Emily's testimony be admissible as evidence? A. The prosecutor is offering Emily's testimony to prove that Daniel killed Jack. B. Daniel has testified in his own defense that he did not murder Jack and, furthermore, that Jack punched him first. C. Charlotte, Daniel's sister, has testified for the defense that Daniel is a peaceful person who could not have killed Jack. D. B and C E. All of the above

D. B and C Explanation: Character testimony in the form of an opinion may be offered by the defendant to show the character of the defendant or the victim, or by the prosecutor to rebut the defendant's character testimony or to show that the defendant had the same trait as the victim. See FED. R. EVID. 404(a)(2)(A)-(b). Here, A would render Emily's testimony inadmissible because the prosecutor could not offer character testimony that Jack was peaceful in order to prove that the Daniel killed Jack. On the other hand, C would not render Emily's testimony inadmissible because it is evidence offered by Daniel, the defendant, to show his peacefulness. This means that the prosecutor can show that Jack, the victim, was also peaceful. B also does not render Emily's testimony inadmissible. In homicide cases, the prosecutor may offer evidence of the victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. FED. R. EVID. 404(a)(2)(C). Because this is a homicide case and Daniel has argued that Jack was the first aggressor, the prosecutor may offer character testimony as to Jack's peacefulness to rebut that argument. Thus, because both B and C would allow Emily's testimony to be admissible, D is correct.

Plaintiff's husband, a professional basketball player, died suddenly from heart problems while playing basketball with friends. Before his death, the decedent had been receiving treatment from a doctor for a previous episode when he had collapsed during a basketball game. Plaintiff sued the doctor for malpractice. The doctor claimed historical cocaine use had contributed to the patient's death, but that the patient had denied such use for the first ten weeks of medical treatment, admitting it only shortly before his death. Plaintiff denied that her husband had ever used cocaine and denied he had ever told the doctor he had done so. At trial the defendant doctor offered to introduce in evidence life insurance policies that the player's team had purchased on his behalf, which contained provisions that the policies would be canceled in the event of illicit drug use. The plaintiff objected to the insurance policies. The court should: A. Exclude the policies because they have no relevance to the malpractice issues. B. Exclude the policies under rule 411. C. Admit the policies with a limiting instruction that they can only be considered on the issue of the credibility of the plaintiff and her husband with respect to cocaine use. D. Conduct a balancing test under Rule 403 to determine whether the probative value of the evidence on credibility issues is substantially outweighed by the risk of unfair prejudice.

D. Conduct a balancing test under Rule 403 to determine whether the probative value of the evidence on credibility issues is substantially outweighed by the risk of unfair prejudice. ANALYSIS. This problem presents the judge with a difficult decision. Rule 411 excludes evidence of insurance only when offered to prove that a person acted negligently or otherwise wrongfully. If the evidence is offered for any other relevant purpose, Rule 411 does not bar it. The first inquiry in solving this problem should be to ask for what purpose this evidence might be relevant. The cancellation provision in the life insurance policies could have provided the player with a motive to deny cocaine use to the doctor, and a motive for the plaintiff to continue to deny it after her husband's death. The policies are relevant with respect to credibility, thus A is incorrect. Because the evidence is relevant on an issue other than proof of whether the defendant acted negligently, Rule 411 would not bar the evidence and thus B is incorrect. Before admitting the policies, however, the court must determine whether the risk of unfair prejudice substantially outweighs their probative value. The correct answer is D. It would not be proper to admit the evidence without conducting a 403 analysis, and so C is incorrect. The risk of unfair prejudice includes the risk that a jury might conclude that the plaintiff is attempting to secure an unjust double recovery for her husband's death, by collecting both insurance and a damages award from the doctor. On the other hand, the policies have considerable probative value in demonstrating a financial incentive to lie about cocaine use. We needn't attempt to resolve this difficult issue for our purposes here, but it is important that you appreciate the significance of the Rule 403 issue.

The defendant is on trial for murder and has pleaded not guilty by reason of insanity. The defense calls two psychiatrists to testify that at the time of the incident the defendant was suffering from a crack cocaine-induced psychosis, with hallucinations and delusions. Psychiatrist #1 would testify that she could tell that the defendant's behavior was driven by cocaine-induced hallucinations simply by looking into his eyes. She has filed an affidavit stating that she has had great success with this method in the past and that it never fails. Psychiatrist #2 interviewed the defendant, gave him a battery of standard psychological tests, read his diary, and interviewed his family and friends. Based on all the information she gathered she reached her conclusions. Which of the following statements is not true? A. The prosecutions' objection to testimony for Psychiatrist #1 should be sustained. B. The prosecution's objection to testimony from Psychiatrist #2 should be overruled. C. On cross-examination by the prosecution Psychiatrist #2 can be required to relate what she read in the defendant's diary, what the defendant said to her, and what his family and friends told her. D. Defense counsel must establish the factual basis for the conclusions reached by Psychiatrist #2 before asking her to state her diagnosis of the defendant.

D. Defense counsel must establish the factual basis for the conclusions reached by Psychiatrist #2 before asking her to state her diagnosis of the defendant. Under Rule 705 the defense counsel does not have to bring out the basis for the expert's opinion before asking her to state her conclusions

The defendant is on trial for the murder of a bank teller. The prosecution alleges that he shot and killed the teller during a bank robbery. The prosecution called a security guard from the bank, who testified that he was present during the robbery and saw the defendant shoot the teller. Defense counsel has a copy of the grand jury testimony of the security guard, where he testified that he was too frightened to look at the robbers and could not identify the person who shot the teller. The defense lawyer's investigator has found a witness, Mr. Smith, who says the has has known the security guard very well for years and in this witness's opinion, the security guard is a liar. The investigator has also interviewed another teller from the bank, who says that he got a very good look at all of the robbers and the defendant was not one of them. Defense counsel also has a copy of the security guard's employment application. In response to a question that asked him to list all of his previous employment, he failed to disclose a job from which he had been fired two years before he applied to work at the bank. Which of the following is not a permissible method for defense counsel to use to impeach the security guard: A. Calling the other teller to contradict the security guard's testimony. B. Introducing the grand jury testimony as an exhibit. C. Calling Mr. Smith to testify that in his opinion the security guard has poor character of truthfulness. D. Introducing the security guard's employment application as an exhibit.

D. Introducing the security guard's employment application as an exhibit. It is okay to ask about lying on his employment application, but it is not permissible to introduce extrinsic evidence of prior acts by the witness to show that he has poor character for truthfulness.

Defendant is charged with murder, by stabbing the victim with a Bowie knife. The prosecution offers to call a witness in its case in chief to testify that the defendant has a reputation in his neighborhood as a violent person. Defendant's objection should be: A. Overruled, the evidence is relevant because it makes it more likely than it would be in the absence of the evidence that the defendant committed the murder. B. Overruled, the evidence is in the proper form under Rule 405(a). C. Overruled, such evidence is admissible in a homicide case. D. Sustained, improper character evidence.

D. Sustained, improper character evidence. ANALYSIS. The prosecution offers evidence that the defendant is violent in order to prove that he may have killed the victim. This is evidence of character to prove how a person probably acted on a given occasion. Such evidence is often logically relevant, but we exclude it because jurors might give it too much weight. Choice A is incorrect. The reputation evidence in this instance is in the proper form, but the form alone will not make it admissible, so B is incorrect. Choice C is incorrect because the only special rule for homicide cases is one that allows peaceful character evidence with respect to the victim when the defendant pleads self-defense. Choice D is the correct answer because the prosecution is offering character evidence before the defendant has done anything to make character evidence admissible.

The defendant is on trial for conspiracy to import marijuana and arson on the high seas. The prosecution has alleged that the defendant set fire to the shrimp boat on which he was transporting marijuana when he saw the Coast Guard vessel approaching. The boat was in flames and the defendant was nearby in a rowboat when the Coast Guard reached the shrimper. The prosecution has called an arson investigatory form Miami who was trained at the FBI academy in arson investigation. He has investigated fires of suspicious origin, including on boats in the harbor, for 20 years. The prosecution intends to ask the investigator about his conclusion that the fire was stared intentionally, which he based on burn patterns that demonstrated that it was a fire with two points of origin. While questioning the witness about his qualifications, defense counsel established that the witness had never before investigated a fire on the high seas and could not opine about whether the motion of a ship at sea could simulate the appearance of a two-origin fire. The defendant objects to any further testimony from this witness. The court should: A. Sustain the defendant's objection because the issue of how the fire started is an issue of fact and not an appropriate subject for expert testimony. B. Sustain the defendant's objection because the witness is not qualified to testify about whether this fire on the high seas was arson. C. Overrule the defendant's objection and allow the witness to testify as a lay witness. D. Overrule the defendant's objection and allow the witness to testify as an expert.

D. Overrule the defendant's objection and allow the witness to testify as an expert. Judges will usually qualify experts whose general education, training, and experience will permit them to provide assistance to the jury on scientific and technical matters

The victim identified the defendant in a lineup at the police station as the man who assaulted her and snatched her purse. The prosecutor calls the victim as a witness at the trial, and asks her, "When you viewed the eight subjects as the lineup, what did you do or say?" Defendant objects on hearsay grounds. The prosecutor tells the judge that she expect the victim to answer, "I pointed to the defendant as my attacker." What is the correct ruling for the court to make on the defense objection? A. Sustained, hearsay. B. Sustained, the testimony is not inconsistent with anything the witness said at the trial. C. Overruled, admissible under Rule 801(d)(1)(B) as a prior inconsistent statement. D. Overruled, admissible under Rule 801(d)(1)(C) as a statement of identification.

D. Overruled, admissible under Rule 801(d)(1)(C) as a statement of identification. To be admissible as a prior identification the statement does not have to be inconsistent with any trial testimony.

The defendant is on trial for the murder of her husband. The prosecutor calls a neighbor who would testify that two weeks before the husband's death, the defendant told him that her husband had said that he wanted a divorce and she was furious about it. The prosecutor offers the neighbor's testimony at trial. How should the court rule on the defendant's objection? A. Sustained, the husband's statement is offered for its truth and there is no hearsay exception for it. B. Sustained, the defendant's statement is offered for its truth and there is no hearsay exception for it. C. Overruled, there are two hearsay statements and there is an exception for each one. D. Overruled, statement by a party opponent.

D. Overruled, statement by a party opponent. The defendant's statement contains an assertion and the prosecutor is offering it to prove the truth of the assertion, that her husband told her he wanted a divorce and she got furious. But the prosecution is offering a statement by the defendant, the opposing party. The statement is exempt fro the hearsay rule and is admissible.

Defendant is on trial for murder. He is accused of setting fire to the victim's house while she was sleeping, which he denies. Defendant offers court records to prove that the victim's landlord has been convicted of three counts of arson on other buildings he owned, as well as fraud in obtaining the insurance proceeds from the buildings. The landlord made an insurance claim on this building as well. The prosecution's objection to this evidence should be: A. Sustained, only the prosecution can offer evidence of other crimes under Rule 404(b). B. Sustained, this is improper character evidence regarding the landlord. C. Overruled, the evidence shown that the landlord had the knowledge of how to burn a building. D. Overruled, the evidence shows a common scheme or plan of arson.

D. Overruled, the evidence shows a common scheme or plan of arson.

Suppose there is a question during a trial about whether Mr. Jones was in the Big Ten Bar and Grill at 5:30 PM on Friday, September 25, three years before the year in which the trial takes place. The party who wants to prove that Jones was present offers evidence from the bartender that he cannot specifically recall that date, but for years it was Mr. Jones's invariable practice on Fridays to stop by the bar for a couple of beers after he left work at 5:00 PM before catching the bus to his home. The opponent's objection to this evidence should be: A. Sustained, because the bartender has no memory of this specific date. B. Sustained, because what Me. Jones did on other days is not relevant to what he did on this particular day. C. Sustained, because drinking is an inappropriate subject matter for habit evidence. D. Overruled, this is proper habit evidence.

D. Overruled, this is proper habit evidence.

The witness is a bank teller who was forced to empty her cash drawer into a bag by an armed robber. At the police station she identified the defendant as the robber by his photograph in a series of eight photos the investigating officer showed her. The witness died before trial. The prosecutor calls the investigating officer to testify that the witness had picked the defendant's photo out of those shown to her by the police as that of the robber. Defense counsel's objection should be: A. Sustained, hearsay. B. Sustained, the prior identification was not made under oath. C. Sustained, the defendant's lawyer had no opportunity to cross-examine the witness at the time of the original identification. D. Overruled.

D. Overruled. Rule 801(d)(1) does not require that a prior identification be made under oath or at a formal proceeding to be admissible, or that there was an opportunity to cross-examine the witness att he time of the original identification.

Plaintiff sues the defendant corporation under respondeat superior, alleging that a driver for the company ran a red light, causing an accident in which plaintiff sustained serious injuries. The defendant company offers evidence that the driver has been with the company for 20 years and has an accident-free driving record. The plaintiff's objection should be: A. Overruled, the defendant in a civil case is permitted to offer good character evidence to show that its driver is not the sort of person who would have run a red light. B. Overruled, the driver is not a defendant in the case and the rule against character evidence applies only to parties. C. Overruled, but the plaintiff can rebut with evidence that the driver was careless on other occasions, even though his driving may not have caused accidents. D. Sustained.

D. Sustained. ANALYSIS. There is no rule allowing a defendant in a civil case to use good character evidence similar to the rule permitting such evidence by criminal defendants. Choice A is incorrect. With respect to B, let's look again at the language of Rule 404(a), which states, "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." The proscription is not limited to evidence concerning the parties, but renders character evidence inadmissible with respect to any person. Choice B is incorrect. Choice C is incorrect for the reasons A and B are incorrect. Moreover, C demonstrates one of the reasons for the character evidence bar. If the defendant could introduce evidence of the driver's good record, and the plaintiff could rebut with evidence of previous instances of careless driving in the past, the trial would be about this driver's entire life on the road. This would prolong the trial, and distract the jury from the real issue of what happened in this accident. Choice D is the correct answer—the evidence is inadmissible.

In a wrongful death case following an automobile accident, the plaintiff's lawyer called the investigating detective to testify about the accident scene. When the lawyer asked the detective whether there was any broken glass or other debris in the roadway and, if so, where any such debris was located, the detective could not recall. The prosecutor then handed the detective his report and asked, "What does your report say about glass and debris?" (The report described the location of glass and debris in considerable detail.) The defendant's objection to the last question should be: A. Overruled. Refreshing recollection. B. Overruled. Prior recollection recorded. C. Sustained. Leading. D. Sustained.

D. Sustained. The witness has a failure of recollection. The rules provide two methods for dealing with this, but he plaintiff's lawyer has not properly used either of them. He has not asked the detective to look at his report to see if it refreshes his recollection. He has simply asked him to tell the jury what the report says. He did not establish that the report was written when the matter was fresh in the witness's memory, nor did he establish that the report was accurate when made.

The defendant is on trial for negligent homicide. The state alleges that the defendant drove the wrong way on Tremont Street, a well-travelled one-way street in downtown Boston, and struck a messenger who was pedaling the proper direction on his bicycle. Before trial the prosecutor asks the court to take judicial notice that Tremont is a one-way street from East to West. The defendant objects. The court should: A. Decline to take judicial notice because the prosecutor's request was pre-trial, rather than during the trial. B. Decline to take judicial notice because the state should be required to prove the fact through witnesses, given its crucial importance in the case. C. Take judicial notice that Tremont Street is one-way from East to West, and advise the jury that it is bound by the court's ruling. D. Take judicial notice that Tremont Street is one-way from East to West, and advise the jury that it may accept the court's ruling as conclusive, but that it is not required to do so.

D. Take judicial notice that Tremont Street is one-way from East to West, and advise the jury that it may accept the court's ruling as conclusive, but that it is not required to do so. ANALYSIS. The court may take judicial notice of facts at any point in the proceedings. If the court takes judicial notice of a fact on a pretrial motion, it will inform the jury at some appropriate point during the trial of its ruling. Thus A is incorrect. There is nothing in Rule 201 that limits judicial notice to facts of minor importance, and there is no impediment to taking judicial notice of a fact that bears directly on the guilt of the defendant. It is well known in the City of Boston that Tremont Street is a one-way street that runs East to West, and the fact is an appropriate one for judicial notice. Thus B is incorrect. In a criminal case the judge may not require the jury to find as conclusive a fact that the court has judicially noticed. The defendant is entitled to have the jury find the facts, even where the judge has concluded that a fact cannot reasonably be disputed. Thus C is incorrect and the correct answer is D.

The defendant is charged with the rape of an adult woman. He denies any contact with the woman and argues that it is a case of mistaken identification. Which of the following items of evidence may the prosecutor introduce at trial? A. Testimony by a close friend of the defendant that in his opinion that defendant is a sexual predator. B. Testimony by someone from the defendant's neighbor that he is familiar with the dfendant's reputation in the neighborhood, and he has a reputation for groping women at parties. C. Testimony by a woman who worked for the defendant that he refused to promote her because she would not have intercourse with him. D. Testimony by a woman who says that the defendant took her out on a date and forced her to have sexual relations with him against her will. E. All of the above. F. None of the above.

D. Testimony by a woman who says that the defendant took her out on a date and forced her to have sexual relations with him against her will.

The defendant, Mr. Driscoll, lives in Minneapolis. The plaintiff, a 10 year-old boy, delivers the afternoon paper. Plaintiff claims that the fell and brok his leg when he slipped on ice on the front walk of the defendant's home while delivering his paper. Defendant denies there was any ice on his sidewalk and says that Plaintiff fell while running during a snowball fight with his friends. At the trial, plaintiff calls defendant's neighbor to testify that from her living room she heard someone outside yell on the afternoon of the plaintiff's injury, Hey, Mr. Driscoll. You better get that ice off your front walk." The neighbor could not see defendant's front walk herself from inside her house. Is the testimony hearsay? A. Yes. B. No, because the declarant's words are not a "statement." C. No, because plaintiff is not offering the testimony to prove the truth of an assertion. D. The correct answer depends upon the purpose for which plaintiff is offering the evidence

D. The correct answer depends upon the purpose for which plaintiff is offering the evidence The judge needs to be told for which purpose the plaintiff is offering the evidence before she can rule on whether it is hearsay.

Defendant is charged with bank robber. He was arrested after paint, identified as coming form the exploding packet in the money taken from the bank, was found on his clothing. The bank was robbed by someone wearing a President Obama mask, who gave the teller a note saying, "I have a gun, I want the money in the drawer, and I don't want change." There were three previous robberies in which the perpetrator wore an Obama mask, said he had a gun, and said, "I don't want change." The mask slipped during those robberies and the tellers saw the robber's face, but no one was arrested for them. Those tellers have now identified this defendant as the one who robbed their banks. Which of the following statements is correct? A. The evidence is not capable of propensity inference. B. The tellers' testimony would be improper character evidence. C. The evidence is not relevant. D. The evidence is arguable admissible on the issue of identity.

D. The evidence is arguable admissible on the issue of identity.

In a freakish coincidence, the deceased was accidentally shot by a hunter at the same moment a contract killer drilled him. The gangster claims that his shot was not fatal, and that the victim was killed by the hunter's bullet. At the trial of the gangster, the prosecution offers in evidence colored photographs of the victim's internal organs taken during the autopsy. The pathologist would use the photos to trace the path of both bullets through the victim's body in order to support her conclusion that the fatal wound was inflicted by the gangster's bullet. The defendant objects to the photos on the ground that the risk of unfair prejudice outweighs probative value. How should the court rule? A. Sustain the objection because the jurors will be so inflamed by emotion when subjected to the gory autopsy photos that they could not dispassionately weigh the evidence in the case. B. Overrule the objection because there is no risk of unfair prejudice. C. Overrule the objection because the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. D. There isn't enough information to answer the question.

D. There isn't enough information to answer the question. ANALYSIS. There is no doubt that autopsy photographs in color, showing the human body in an altered state, have the potential to be inflammatory and to unfairly influence a jury's verdict. There is a risk of unfair prejudice, thus B is incorrect. At the same time, such photographs are often necessary to illustrate or explain the cause or manner of death. Trial judges frequently admit autopsy photographs where the proponent can show a legitimate need for them, and appellate courts almost never reverse such rulings. In this case, the judge would have to determine how necessary the photos are to explaining and supporting the pathologist's conclusions. If the hunter's bullet only passed through the victim's leg, and the gangster's shot went through his heart, the photos may not be very important. However, if both shots were through the torso, it may be difficult to follow or credit the pathologist's testimony without the pictures. Whether A or C is the correct answer will depend upon such factors. The question does not supply that information, and so the correct answer is D. If the judge admits the photos, she should give a limiting instruction cautioning the jurors not to be swayed by any emotion they might engender.

A murder victim was hacked to death with a machete. The defendant is on trial for the murder. Which, if any, of the following pieces of evidence contains an assertion that defendant owns a machete? A. A witness will testify that defendant's mother said, "My son has a machete." B. A police officer will testify that she went to the defendant's home and asked his mother, "Does your son have a machete?" The officer will testify that without saying a word, the mother went to another room in the house and came back and handed the officer a machete. C. The defendant's neighbor will testify that the defendant's mother came to her house and asked, "Did you borrow my son's machete? I can't find it anywhere." D. None of the above. E. All of the above.

E. All of the above. The defendant's mother is the declarant in A, B, and C and all of the statements contain an assertion that her son owns a machete.

Defendant is charged with murder. The perpetrator slit the victim's throat and the pathologist has testified that in her expert opinion, based on the nature of the wound and other factors, the perpetrator was probably right-handed. The prosecutor offers to call a witness who knows the defendant well and who would testify that defendant is right-handed. Is the evidence relevant? A. No, because the majority of people are right-handed and thus the evidence cannot prove that the defendant was the killer. B. No, because the killer might have wielded the knife with his right hand, even if he was left-handed. C. No, because it doesn't matter what hand the killer used - slitting someone's throat is still murder. D. Yes.

D. Yes. ANALYSIS. Imagine that you are a member of the jury in this case. After you hear the pathologist's testimony, the first thing that will cross your mind is probably the question of whether the defendant is right-handed. Why? Because if he is, that puts him in the universe of people who are more likely to have been the killer. Conversely, if he is left-handed, it is less likely that he is the person who killed the victim. That is all the evidence has to show in order to make it more likely that the defendant was the killer than it would be in the absence of evidence about which is his master hand. Because the question of who killed the victim is of consequence in determining whether the defendant is guilty of murder, this evidence is relevant. Of course it is true, as answer A suggests, that millions of people are right-handed. And it is also true, as B indicates, that the killer may not have used his master hand to attack the victim. But those arguments demonstrate that this evidence alone will not be enough to justify a conviction. Of course the fact that the defendant is right-handed alone does not prove his guilt beyond a reasonable doubt. It does not have to, however, in order to be relevant. Answer C suggests that we can somehow leap to the final question of guilt or innocence without establishing facts that add up to our conclusion. That is not how cases are built. They are built like walls out of individual bricks, as Professor McCormick suggested, and we determine whether an item of evidence is relevant by asking whether it constitutes a brick that might eventually form part of a wall. The correct answer here is D, because knowing whether the defendant is right-handed makes it more likely that he is the killer than if we didn't know that, and if there is enough other evidence of guilt, it may help build a successful case against him.

After his arrest, federal law enforcement officers came to the defendant's jail cell and talked with him. They told him they could help him and would speak to the prosecutor on his behalf, if he would admit to his participation in the crime and identify the others who were involved. The defendant signed a waiver of his Miranda rights, and confessed to the officers. The prosecutor refused to give the defendant any special consideration and when the case went to trial, the prosecutor offered the defendant's statements to the officers in evidence. Is the evidence admissible? A. No, because Rule 410 bars evidence of plea-bargaining. B. No, because the officers said they would talk with the prosecutor. C. No, because the defendant's constitutional rights were violated. D. Yes.

D. Yes. ANALYSIS. It is true that the purpose of Rule 410 is to encourage plea-bargaining. The terms of the rule, however, apply only to "a statement made during plea discussions with an attorney for the prosecuting authority." The prosecutor must be present for the rule to apply, or at a minimum, the prosecutor must explicitly authorize someone else to negotiate on his or her behalf. The rule does not cover discussions with law enforcement officers acting on their own, and thus A is incorrect. The officers here merely promised the defendant they would speak to the prosecutor, which they did, but that did not make their conversation with the defendant a discussion with the prosecutor. Choice B is incorrect. A person in custody has the right not to speak with officers, and must be advised of that right in the Miranda warnings. The defendant may waive his right to remain silent, however, and since there is a signed waiver here, there is no violation of constitutional rights and C is incorrect. The correct answer is D and the statements to the officers are admissible.

The pathologist's evidence in a murder case has shown that the victim was killed in a manner that was likely to get the victim's blood onto the body and/or clothing of the killer. The crime lab has tested the jacket that defendant was wearing when he was arrested shortly after the killing and has found traces of blood on it. The lab is not able to say, however, whether the blood is that of the victim, or even whether the blood is human blood. Is evidence from a scientist at the lab that there was blood on the defendant's jacket relevant? A. No, because there is no evidence as to how this blood got onto the jacket. B. No, because unless the blood can be shown to be that of the victim, it does not prove anything. C. No, because unless the blood is human blood, it does not prove anything. D. Yes.

D. Yes. ANALYSIS. The prosecution offers the blood evidence to prove that the defendant was the killer. Whether the defendant was the killer may not fully answer the question of whether he is guilty of murder, but it is clearly "of consequence." The logical question is whether the evidence of blood on defendant's jacket has any tendency to make it more probable that he was the killer than it would be without that evidence. That we do not know how this blood got onto the defendant's jacket, whether it is the victim's blood, or whether it is even human blood, are all good arguments why this evidence, standing alone, would not be sufficient to conclude beyond a reasonable doubt that the defendant was the killer. That, however, is the standard for determining guilt, not the standard for determining relevance. Does the presence of blood make it more likely that defendant was the killer than it would be if he had no blood on his clothing? It may be helpful in answering this question to imagine you are an investigator of this crime. Does the fact that the defendant has some kind of blood on his jacket make you want to investigate him further, to find out if there is other evidence that points toward his guilt? Of course it does. The blood on the jacket, at a minimum, puts him in the universe of people that, according to the pathologist, are more likely to have killed the victim than people with no blood on their clothing. The correct answer is D, the evidence is relevant.

Lisa, a single woman living on her own in a large city, carries mace pepper spray in her purse. One evening, Lisa returns to her apartment to find an intruder, Danny, waiting for her with a baseball bat. Danny threatens to kill Lisa. However, Lisa quickly grabs the mace and sprays it into Danny's eyes before barricading herself in her bedroom and calling the police. Danny is arrested for breaking and entering, as well as assault and attempted murder. At trial, Danny testifies that he lives on Lisa's floor and saw an intruder breaking into Lisa's apartment. Danny grabbed his baseball bat and went into Lisa's apartment to check on things. He chased the intruder away and remained so that he could tell Lisa what had happened. He claims that Lisa misheard what he said and attacked him without provocation. Which of the following items of evidence is likely to be found admissible? A. Testimony from Lisa's neighbor that Lisa is paranoid and prone to violence, offered by the defense. B. Testimony from Danny's brother that Danny is a liar, offered by the prosecutor. C. A, but only if the prosecution has already introduced evidence of Lisa's peacefulness. D. B, but only if the defense has already introduced evidence of Danny's trustworthiness. E. A and B

E. A and B Explanation: In a criminal trial, opinion testimony as to a person's character or trait may be offered by the defendant to show his own pertinent trait or the victim's pertinent trait. See FED. R. EVID. 404(a)(2). The prosecutor may offer opinion testimony to impeach a witness - or attack a witness's credibility - at any time. See FED. R. EVID. (a)(3). A is likely to be admissible, because the defense is offering opinion testimony of Lisa's pertinent trait, violence. B is also likely to be admissible, because testimony regarding Danny's untrustworthiness may be used to impeach Danny's testimony by attacking his credibility. The stipulations of C and D are not necessary in order for A and B to be admissible. Thus, E is the correct answer.

In a libel action, a witness testifies that before the alleged defamation was published, the plaintiff enjoyed a good reputation. Which of the following types of evidence might the adverse party use to impeach the witness? A. Asking the witness on cross-examination, "Isn't it true that your business makes $200,000 worth of sales to the plaintiff each year?" B. If the witness denies the business relationship, introducing into evidence documentary proof of the sales contracts for $200,000 between the witness and the plaintiff. C. Asking the witness on cross-examination, "Isn't it true that you are an atheist?" D. All of the above. E. A and B, but not C.

E. A and B, but not C. The witness is showing bias.

In federal courts, the admissibility of evidence is typically based on rules set forth in the Federal Rules of Evidence. Which of the following are additional sources of law that may affect the admissibility of evidence in federal courts? A. The U.S. Constitution B. Rules prescribed by the Supreme Court C. Federal statutes D. A and C E. A, B, and C

E. A, B, and C Explanation: In federal courts, relevant evidence is admissible unless made inadmissible by a source of federal law, including the U.S. Constitution, a federal statute, the Federal Rules of Evidence, and other rules prescribed by the Supreme Court. See FED. R. EVID. 402. Thus, A, B, and C, each a source of federal law listed in Rule 402, may affect the admissibility of evidence in federal courts.

Bruce, a rich man who fancies himself a vigilante, is arrested at the scene of a bank robbery in Gothic City. "There's been a mistake," Bruce protests to the police officers, "I'm on your side. The real bank robber escaped into the sewers!" Unfortunately, the bank robber had anticipated Bruce's arrival and wore an exact replica of Bruce's costume as a disguise. The security camera footage of the event shows a masked, caped man threatening bank employees and customers with a sawed-off shotgun. Bruce is charged with armed robbery of the bank. At trial, Bruce's butler, Alfred, is called by the defense to testify to Bruce's character for peacefulness. Because of Alfred's testimony, relevant evidence of which of the following may also be admissible, if offered by the prosecutor in an appropriate form? A. Alfred's untrustworthiness B. Bruce's violence C. Bruce's fight with Jacob Joker D. Robin's restraining order against Bruce for assault E. A, B, and C

E. A, B, and C Explanation: Once a defendant has introduced testimony of his own pertinent trait, the prosecutor may rebut the defendant's evidence and impeach or cross-examine the defendant's character witness. See FED. R. EVID. 404(a)(2), 405(a). Here, Bruce has offered testimony to prove his peacefulness. This means that the prosecutor may offer testimony to prove Bruce's violence, B, in order to rebut his argument that he is peaceful. Furthermore, the prosecutor may offer specific instances of conduct to cross-examine Alfred regarding his testimony that Bruce is peaceful, so Bruce's fight with Jacob Joker, C, may be admissible for this purpose. However, prior crimes or misconduct may not be admissible to prove a person's character or trait. See FED. R. EVID. 404(b). D, then, is not admissible, because the prosecutor would be attempting to use Bruce's prior crime or misconduct to prove that Bruce is not peaceful. Finally, the prosecutor may offer testimony to impeach Alfred by showing that he is not a credible witness, so evidence of his untrustworthiness, A, would be admissible. Thus, E is the correct answer.

Rick van Winkle has worked as a lawyer since his late 20s. Now, at the ripe old age of 60, Rick finds himself needing a change of pace. Rick earns fitness certifications so that he can work as a personal fitness trainer and applies for an opening at Fitness R' Us. Rick performs well in the interview, but fails to receive a follow-up call regarding whether he has been hired. When Rick calls to ask about the job, he is informed by Steve, the hiring manager, that he is qualified but "too old" to work at Fitness R' Us. If Rick sues Fitness R' Us for violating federal employment law by discriminating against him for reasons of age, which of the following items of evidence could be considered relevant? A. A birth certificate showing that Rick was born 60 years ago. B. A list of the certifications that are required to work as a personal fitness trainer. C. Testimony that Steve is in charge of hiring new employees. D. Testimony that the applicant who was hired, though only 24 years old, had worked as a personal fitness trainer for several years already. E. All of the above

E. All of the above Explanation: Evidence is relevant if it tends to prove or disprove a material fact, defined as a fact of consequence, which can include anything from an essential issue to a witness's credibility. See FED. R. EVID. 401. The birth certificate, A, would be relevant because it proves Rick's age, which is relevant to the claim of discrimination for reasons of age. B also is relevant, because it would prove whether Rick is qualified to be a personal fitness trainer, as is D, which tends to prove that Rick was not hired based on his age but rather his lack of experience. (Note that even if this evidence may ultimately not be admissible, it would still be considered relevant.) Finally, C is relevant, because the court would need to know whether Steve, who made the "too old" comment, was in charge of deciding whether to hire Rick. Thus, E is the correct answer.

Ulvis, a company that breeds and sells domesticated foxes as pets, owns a large amount of land. Rather than keeping the foxes in cages, Ulvis has fenced in the land with barbed wire to allow the foxes to roam freely. Fred, an aspiring photographer, regularly climbs over the fence to take pictures of the foxes. However, the bright flash from his camera bulb gradually blinds and traumatizes some of the baby foxes. Ulvis sets up webcams around the land, catches Fred, and sues him for trespass. At trial, Fred argues that he did not know that he was on Ulvis's land because he had wandered in through a large breach in the fence that made it appear to be abandoned property. Assuming that Ulvis must prove that Fred intended to trespass in order to prevail, Ulvis should offer evidence of which of the following? A. Fred has been arrested for trespassing on Ulvis's land before, and Ulvis only agreed to drop the charges because Fred agreed, as a result of compromise negotiations, to never again return to the fenced-in area of Ulvis's land. B. Ulvis sends a maintenance worker to walk the perimeter of the fence, every day at 10 a.m., to check for holes in the fence so that foxes do not escape, and the maintenance worker has not reported any breaches recently. C. Tamara, a passing hiker, saw Fred spray-painting the word "NOT" at the top of a sign on Ulvis's fence that reads "Property of Ulvis Company." D. Ben, the owner of a home improvement store, caught Fred shoplifting a ladder, after which Fred admitted that he wanted the ladder to climb over a fence to take photographs of foxes. E. All of the above

E. All of the above Explanation: Evidence of crimes or misconduct, even if unreported, may be admissible in certain situations, such as to prove intent, preparation or plan, knowledge, and absence of mistake or accident. See FED. R. EVID. 404(b)(2). Although D is evidence of a wrongdoing, it is admissible to prove that Fred was intending, as well as preparing or planning, to climb over Ulvis's fence. Similarly, C is evidence of a wrongdoing - vandalism - that was not reported. However, it may be admissible to prove that Fred knew that the fenced-in area was owned by Ulvis and that he could not have been mistaken about the fact that it was Ulvis's land. Furthermore, while evidence of compromise offers and negotiations are often inadmissible, evidence of a final, agreed-upon compromise is not. See, e.g., FED. R. EVID. 408. A is admissible because it proves that Fred knew that the fenced-in area of Ulvis's land was off-limits; it is also not a compromise offer or negotiation but rather a final compromise. Finally, a company's routine practice is admissible to show that, on a particular occasion, the company acted in accordance with the routine practice. See FED. R. EVID. 406. B would be considered a routine practice, because Ulvis consistently sends the maintenance worker to check the fence at the same time every day, and it would tend to prove that Fred did not walk onto Ulvis's land through a breach in the fence. B is admissible as well. Thus, E, all of the above, is the correct answer.

Debbie and Frank have been dating for two months. One night, Debbie reveals that she has a malignant brain tumor and only one month left to live. Frank immediately drops to one knee and asks Debbie to marry him. Debbie tearfully agrees and adds that her brain tumor could kill her at any time, so they have to get married as quickly as possible. The next day, Frank and Debbie head to the local courthouse and obtain their marriage license. A week later, Frank is discovered dead, electrocuted to death by a radio that was deliberately placed in his bathtub by someone else. Debbie, who does not have a brain tumor, is arrested for first-degree murder. At trial, the prosecutor argues that Debbie is a "black widow killer" who marries rich, lonely men and murders them for their money. The prosecutor seeks to offer Debbie's prior conviction, seventeen years ago, for murdering her first ex-husband by electrocuting him in the bathtub with a radio. Debbie's prior conviction may be admissible to prove which of the following? A. Motive B. Absence of mistake C. Preparation D. Identity E. B and D

E. B and D Explanation: Evidence of prior crimes, while inadmissible to prove character, may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See Fed. R. Evid. 404(b)(2). Here, Debbie's prior conviction for murdering someone else would not prove motive for Frank's murder, so A is wrong. Similarly, Debbie's prior conviction would not prove that she was preparing for Frank's murder, especially because it occurred seventeen years ago, which is not reasonably close in time to Frank's murder. Debbie's prior conviction can, however, prove that Debbie was not mistaken about the effects of placing a radio in the bathtub, so B is not incorrect. Debbie's prior conviction can also prove that she is likely the person who placed the radio in the bathtub, because it matches her "modus operandi" from seventeen years ago. Thus, because D is also not incorrect, E is the correct answer.

Paul, who wants to ask his girlfriend to marry him, attempts to steal a diamond engagement ring from a jewelry store. However, he accidentally sets off a silent alarm during the heist and is arrested. At trial, the prosecutor seeks to introduce Paul's prior convictions for shoplifting from another jewelry store, five years ago. The prosecutor's evidence may be admissible to prove: A. Motive B. Intent C. Opportunity D. Plan E. None of the above

E. None of the above Explanation: Evidence of past crimes and wrongs are admissible for non-character purposes, which can include motive, intent, opportunity, or plan. See FED. R. EVID. 404(b)(2). However, Paul's prior convictions from five years ago would not prove his motive, intent, opportunity, or plan to commit the current alleged crime. Thus, E, none of the above, is the correct answer.

Amy works for Planet Animal, a store that sells pet supplies and provides pet-related services, including an overnight pet hotel. One morning, Amy shows up for work and discovers that the cages in the overnight pet hotel are empty. Security camera footage shows that a former employee, Philip, disarmed the security system and entered the store after closing hours the previous evening. Philip released the pets from their cages and herded them out the back exit. Unfortunately, Planet Animal's back exit faces a large and busy highway. Most of the pets were hit and killed by cars before Amy arrived, and only one pet has been found alive since then. If the pet owners jointly file a lawsuit against Planet Animal for neglecting to properly secure the animals in the overnight pet hotel, which of the following would not be considered relevant evidence? A. A manifesto written by Philip, stating that he feels a deep connection to animals and does not believe that they should be kept in cages. B. Amy's testimony that the store owner failed to change the security codes after firing Philip, because the security codes remained the same before and after Philip was fired. C. Gory, close-up photographs of the pets that were hit by cars after being released by Philip. D. The store manager's testimony that he had failed to change the security codes after firing Philip, despite receiving several threatening letters from the former employee. E. None of the above

E. None of the above Explanation: Remember that an item of evidence must be probative and material in order to be relevant. See FED. R. EVID. 401. The store manager's testimony, D, is the most relevant. The store manager's testimony is probative in that it tends to prove that Planet Animal failed to change its security codes when it should have, and it is material in that the failure to change the security codes is of consequence in determining whether Planet Animal was negligent. While Amy's testimony, B, might not be admissible because it may fail Rule 403's balancing test for being needlessly cumulative, it is still relevant for the same reason that D is. Similarly, C's goriness might fail Rule 403's balancing test because it may cause unfair prejudice, as the gory photographs would likely affect a jury's emotions enough to influence their decision on an improper, emotional basis. See id. However, the photographs would still be considered relevant evidence, even if they are ultimately found inadmissible. Even Philip's manifesto, A, is relevant, because it tends to prove Philip's motive for releasing the animals and helps to explain the events that occurred. Remember that even undisputed background information is typically considered relevant. See FED. R. EVID. 401 advisory committee's note. Thus, because all of these items of evidence are relevant, E is the correct answer.

Kevin works as an accountant for Scarn's Paper Company. One day, an auditor reviews the financial records kept by Kevin and discovers major discrepancies in the numbers. It turns out that Kevin has been secretly taking money from the company's bank accounts and fudging the numbers accordingly. Kevin is arrested and charged with money laundering. In a pretrial proceeding, Kevin pleads guilty. To explain his decision to plead guilty, Kevin admits that he "just wanted some money to go to the Bahamas" and "never intended to take so much money." However, Kevin later withdraws his guilty plea. Assuming that no other evidence related to the pretrial proceeding been admitted, which of the following may the prosecutor offer at trial? A. Kevin's guilty plea, as long as the prosecutor stipulates that the guilty plea was later withdrawn. B. Kevin's statement that he wanted to use the money to go to the Bahamas, as long as the prosecutor uses this evidence to prove Kevin's motive for laundering the money. C. Kevin's statement that he never intended to take "so much money," as long as the amount of money that he took is at issue. D. B and C E. None of the above

E. None of the above Explanation: Remember that evidence of a guilty plea that was later withdrawn, including statements made during a proceeding regarding the plea, is not admissible against the defendant who made the plea. See FED. R. EVID. 410(a)(1), (3). The only exceptions to this rule are for statements that ought to be considered together in the interests of fairness, or at a criminal perjury proceeding. Thus, A is wrong, because the prosecutor's stipulation would not affect the admissibility of the withdrawn guilty plea. B, C, and D are also wrong, because Kevin's related statements at the pretrial proceeding are inadmissible as well. That leaves E, none of the above, as the correct answer.

Lauren, an exhausted law student, falls asleep while driving home one night. She loses control of her car and crashes through Nate's first-floor living room wall, destroying his leather couch and high-definition television. "I'm so embarrassed," Lauren says, as she exits her car. "I promise to pay for a new couch and TV." However, Lauren later refuses to pay as promised. Nate sues Lauren. At trial, Nate seeks to offer Lauren's promise as evidence. If the judge rules that Nate's evidence is inadmissible, the reasoning will most likely be that Lauren's promise is a(n): A. Subsequent remedial measure B. Offer to pay expenses C. Furnishing of valuable consideration in an attempt to compromise D. Irrelevant fact E. None of the above

E. None of the above Explanation: The categories of public policy exclusions are subsequent remedial measures, compromise offers, offers to pay medical expenses, pleas, and liability insurance ownership. See FED. R. EVID. 407-11. An offer to pay for expenses is not a subsequent remedial measure, so A is incorrect. B, an offer to pay non-medical expenses, is not a public policy exclusion. While C is a public exclusion, Lauren's promise was not made during an offer to settle or compromise. D is incorrect, because Lauren's promise could be arguably relevant to the case. While Lauren's promise may be ultimately found inadmissible, it will not be for any of the options listed here, so E is the correct answer.

Ian and Jenny, both college students, attend the same frat party. Later, Ian is arrested and charged for sexually assaulting Jenny. At trial, which of the following would not be prohibited by the rape shield statute, if offered by the defense as evidence? A. Testimony that Jenny was kissing Ian at the party, to prove that she consented to the sexual encounter and would not have felt assaulted. B. Testimony that Jenny is known around campus for being sexually promiscuous, to prove that it is unlikely that Jenny would have felt assaulted during a sexual encounter with Ian. C. Testimony that Jenny had several "friends with benefits" that she had sexual encounters with regularly, to prove that she was likely sexually assaulted by one of them, rather than Ian. D. A and B E. None of the above

E. None of the above Explanation: The rape shield statute prohibits evidence proving victim's sexual behavior or predisposition, with very limited exceptions. See FED. R. EVID. 412(a)-(b). In a criminal case, the defense may offer evidence of specific instances of a victim's sexual conduct regarding someone else, in order to prove that the defendant was not the source of physical evidence, or evidence of specific instances of a victim's sexual behavior with the defendant, in order to prove consent. See FED. R. EVID. 412(b)(1)(A)-(B). A is incorrect, because it would only prove that Jenny was likely to have consented to kissing Ian on another occasion, rather than proving consent to any other sexual behavior. B is incorrect, because it is evidence of Jenny's reputation rather than any specific instance of her sexual behavior. C is incorrect, because although it is evidence of specific instances of sexual behavior with other people, the defense can only offer such evidence to prove an alternate source of physical evidence, which is not the case here. Finally, D is also incorrect, because A and B were both incorrect. Thus, E, none of the above, is the correct answer.

At trial the cross-examiner asks a witness to an automobile collision at an intersection how many cars were parked on the east side of the street where the accident occurred. She answers "three." The cross-examiner has photographs taken immediately after the accident that show four parked cars. The cross-examiner may impeach the witness by: A. Introducing the photographs into evidence. B. Calling a different witness to testify there were four cars. C. Introducing a police report from an officer who responded immediately to the scene that states there were four cars. D. All of the above. E. None of the above.

E. None of the above. How many cars were parked on the side of the street is not significant with respect to any of the claims or defenses in the case, and is a collateral matter.

Vince is charged with, among other things, the attempted rape of his next-door neighbor, Sarah. Sarah claims that Vince broke into her home one night, tackled her to the ground, and tried to rape her forcibly. Sarah further claims that Vince retreated after she struck him in his groin. Vince pleads not guilty to attempted rape and prepares his defense. Under the applicable criminal law, Vince cannot be convicted of attempted rape if Sarah manifested consent to his actions at the relevant time. In an effort to prove that Sarah in fact consented, Vince wants to call Sarah's ex-husband as a witness. If permitted to testify, the ex-husband would state that Sarah often asked him to engage in role playing as a form of sexual foreplay. Sarah's favorite role playing fantasy involved the ex-husband tackling her, as Vince did, and pretending to rape her. The prosecutor strenuously objects to the admission of the ex-husband's testimony. The jurisdiction follows the Federal Rules of Evidence (FRE), including FRE 412, the so-called "rape shield statute." Which of the following is the prosecutor's best argument for excluding the ex-husband's testimony? A. The ex-husband's testimony would be irrelevant. B. The probative value of the testimony would be substantially outweighed by the danger of unfair prejudice. C. Sarah's ex-husband is not a credible witness. D. The probative value of the testimony would be substantially outweighed by the danger of needless presentation of cumulative evidence. E. The rape shield statute prohibits the admission of the testimony in this case.

E. The rape shield statute prohibits the admission of the testimony in this case. Explanation: Choice E is correct. In a case involving alleged sexual misconduct, Federal Rule of Evidence (FRE) 412 generally excludes evidence of other sexual behavior by the alleged victim, as well as evidence of the alleged victim's sexual predisposition. One exception to the general rule is that evidence of specific instances of the victim's sexual behavior with respect to the defendant is admissible, if offered by the defendant to show consent, or if offered by the prosecutor. Here, Vince (the defendant) is seeking to offer the ex-husband's testimony in support of the notion that Sarah consented to Vince's actions. However, the behavior about which the ex-husband would testify does not involve Vince at all. Thus, the prosecutor appears to have a strong argument that the testimony is inadmissible under the rape shield statute, making choice E the best answer. Choice A is wrong, because the ex-husband's testimony seems at least somewhat relevant. Under the FRE, "relevant evidence" means evidence that tends to prove or disprove a fact that is material to the outcome of the action. Fed. R. Ev. 401. Here, Vince will be acquitted if he can show that that Sarah consented to his actions. The husband's testimony would tend to show that Sarah is aroused by rough sexual foreplay similar in nature to what Vince allegedly did on the night in question, which in turn supports Vince's contention that Sarah consented to his actions. Thus, lack of relevance is not as good an argument for excluding the testimony as is the rape shield statute. Choice B seems like a good answer, but it is not as good as choice E. FRE 403 gives the court discretion to exclude even relevant evidence, if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Rough sexual foreplay is generally deemed to be unorthodox behavior. Thus, evidence of Sarah's fondness for it may tend to prejudice the fact finder unfairly against her. However, FRE 403 makes the exclusion of evidence on this basis subject to the court's discretion, while exclusion under FRE 412, if its requirements are met, is mandatory. Thus, choice E presents a stronger argument than choice B. Choice C is wrong, because the mere fact that a witness lacks credibility is not a sufficient basis to exclude the witness' testimony, so long as the witness is otherwise competent to testify and has personal knowledge of the events about which he will testify. See Fed. R. Ev. 601. Choice D is wrong. It is true that FRE 403 gives the court discretion to exclude even relevant evidence if its probative value is substantially outweighed by the danger of needless presentation of cumulative evidence. However, nothing in the facts supports the notion that the ex-husband's testimony would be cumulative, since we do not know what other evidence Vince might be offering in his defense. Thus, for these reasons, choice E is the best answer.

Ruby, the owner of Granny's Diner, hears about a website called "Granny's Diner Sucks." Ruby visits the website and discovers a single line of bright red text: "Ruby is a cheat and a liar! Don't go to Granny's Diner!" Ruby discovers that Wolfe, her ex-boyfriend, is responsible for the website. Ruby sues Wolfe for defamation. In order to succeed in her claim, Ruby must prove that Wolfe's statement, "Ruby is a cheat and a liar," is false. Question 1/2 Ruby calls two witnesses: (1) James, her current boyfriend, and (2) Clark, the owner of a small produce market that delivers fresh vegetables to Granny's Diner every morning. Which of the following is most likely to be deemed inadmissible at trial, assuming that Wolfe does not testify? A. Testimony from Ruby that Wolfe is a dishonest person. B. Testimony from James that Ruby is an honest person. C. Testimony from Clark that Ruby is known among local store owners as an upstanding and honest person. D. Testimony from Clark that Ruby once called him after a delivery to let him know that she was sending him an additional payment, to cover an extra box of tomatoes accidentally delivered with her usual order. Question 2/2 Assume the same facts as the previous question, except that Wolfe's website also claims that Ruby's meatloaf consists of the remains of dead mice and squirrels that Ruby gathers from the woods every morning. Assuming that Wolfe offers all of the following evidence simultaneously, and offers nothing else on this point, which item of evidence is the least likely to be found admissible? A. Photographs of beheaded mice and squirrels found on cutting boards in Ruby's kitchen, because the danger that it causes unfair prejudice substantially outweighs its probative value. B. Testimony from James that Ruby grows herbs in a small garden on the roof of Granny's Diner, because it is irrelevant. C. Financial records from Granny's Diner, showing that Ruby does not make any payments to any meat companies, because it is needlessly cumulative. D. Testimony from Wolfe that he once saw Ruby chopping the heads off mice and squirrels, because it is a specific instance of conduct. E. None of the above are likely to be found inadmissible.

Question 1/2 A. Testimony from Ruby that Wolfe is a dishonest person. Explanation: In this civil case for defamation, Ruby needs to prove that the statements on Wolfe's website are false--i.e. that, on a particular occasion, Wolfe acted dishonestly by posting a false statement on his website. In civil cases, character evidence is generally inadmissible to prove that, on a particular occasion, someone acted in conformity with the character or a particular character trait. See FRE 404(a), (b). For this reason, Ruby cannot introduce evidence of Wolfe's dishonest character (here, her own testimony) to show that Wolfe posted anything dishonest on his website. It is true that opinion or reputation evidence of the dishonest character of a witness is admissible for purposes of impeachment. See FRE 608(a). However, our facts ask us to assume that Wolfe is not testifying at trial. Accordingly, Ruby's testimony that Wolfe is a dishonest person is inadmissible here, making answer A the right choice. Answers B, C, and D are all incorrect. Despite the general prohibition on character evidence in civil cases, when character is an essential element of a party's claim or defense, the relevant character or trait may be proven in one of four ways: (1) testimony about the person's reputation; (2) testimony in the form of an opinion about the person's character; and (3)(A) cross-examination (with the court's leave) about, or (B) extrinsic evidence of, (C) specific instances of conduct indicating that the person has (or lacks) the relevant character or trait. See FRE 405 (with Advisory Committee Notes). Here, in order for Ruby's defamation claim to succeed, she must prove that Wolfe's statement about her dishonest character is false. Thus, Ruby's character is an essential element of her claim. Accordingly, opinion evidence, reputation evidence, and extrinsic evidence of specific acts are all admissible to prove her character for honesty or dishonesty. For these reasons, James's testimony that Ruby is an honest person is admissible, as is Clark's testimony about (1) Ruby's reputation for honesty among local store owners and (2) a specific instance of Ruby acting honestly (by paying for the extra box of tomatoes). Therefore, choices B, C, and D are all wrong. Question 2/2 B. Testimony from James that Ruby grows herbs in a small garden on the roof of Granny's Diner, because it is irrelevant. Explanation: Remember that a balancing test must be applied to determine whether the probative value of evidence is substantially outweighed by considerations such as unfair prejudice and being needlessly cumulative. See FED. R. EVID. 403. If so, then the evidence may not be admissible, unless an appropriate jury instruction is given. See FED. R. EVID. 105, 403. A is not likely to be found inadmissible because, even though the photographs of beheaded mice and squirrels may cause emotional reactions among jurors, its probative value is very high. Furthermore, the judge could limit the number of photographs and issue jury instructions to minimize the danger of unfair prejudice. C is also likely to be admissible, because the financial records would be highly probative and would not be needlessly cumulative, given that no other evidence regarding the financial records has been offered. Specific instances of conduct are usually inadmissible to prove character, but they may be admissible for other purposes. See FED. R. EVID. 405. D is likely to be admissible because Wolfe's testimony is relevant, does not attempt to prove character, and does not fail the balancing test of Rule 403. Thus, B is the correct answer. Evidence is relevant when it tends to prove a fact of consequence, and irrelevant evidence is never admissible. See FED. R. EVID. 401-02. Because James's testimony that Ruby grows herbs does not tend to prove any fact of consequence relevant to the arguments at hand, his testimony will most likely be found irrelevant and is the least likely to be found admissible.

Question 1/2 Galacticorp manufactures humanoid robots that can perform a wide range of tasks. Galacticorp's main product is the RoboSoldier, purchased exclusively by the Department of Defense. One year, Galacticorp, wanting to expand its business, creates a new product: the RoboMaid, designed to function as an automated maid for the average household. The RoboMaids quickly become popular. However, unbeknownst to the public, each Galacticorp robot uses the exact same design and is merely programmed at the manufacturing plants to be either a RoboSoldier or a RoboMaid. When a Galacticorp robot hears the phrase "private ryan," it switches to "soldier" mode; when it hears the phrase "amelia bedelia," it switches to "maid" mode. A few months later, John's RoboMaid turns into a RoboSoldier when John calls his friend Chris to ask if he wants to watch the movie Saving Private Ryan. Unfortunately, John lives near an army base, which is currently training officers to use the remote that controls RoboSoldiers. The remote, which has a wide range that encompasses John's house, activates John's RoboSoldier. The robot slides out its turrets and begins shooting, severely injuring John. John sues Galacticorp. The two parties meet in a settlement conference before trial. The following is an excerpt of a transcript from the conference: GALACTICORP: "We're ready to offer you $200,000 to avoid proceeding to trial." JOHN: "That's ridiculous. I can get at least $1 million from punitive damages alone." GALACTICORP: "Fine, we can give you $750,000. Final offer." JOHN: "$750,000 could work. Would you be willing to also pay for my medical expenses?" GALACTICORP: "We've already sent you $10,000. We can pay for the rest as well, but then the $750,000 would be off the table." JOHN: "No, thanks. I'd rather take my chances before a jury." At trial, John argues that his claim is worth $2 million, while Galacticorp argues that it is not liable for John's injuries and that John's claim is worth $50,000 at most. John plans to argue that Galacticorp's recent removal of weaponry from the RoboMaids after he was injured proves that the design was defective. His argument is likely to: A. Succeed, because in the interests of fairness, the evidence must be admitted. B. Succeed, because Galacticorp's removal of the weaponry after John was injured is an inherent admission that the RoboMaids were defective. C. Fail, because subsequent remedial measures are always inadmissible. D. Fail, because the evidence is not being offered to impeach a witness or to prove an appropriate issue that is disputed, such as ownership or control. E. A and B Question 2/2 Which of the statements from the transcript will not be excluded from admissibility based on public policy concerns? A. Galacticorp's initial offer of $200,000 to settle the case, if offered by John to prove that his claim is worth at least $200,000. B. Galacticorp's final offer of $750,000 to settle the case, if offered by John to rebut Galacticorp's argument that his claim is invalid. C. John's statement that $750,000 "could work," if offered by Galacticorp to prove that John's claim is worth only $750,000. D. Galacticorp's earlier payment of $10,000 for John's medical expenses, if offered by John to prove that Galacticorp is liable for his injuries. E. None of the above

Question 1/2 D. Fail, because the evidence is not being offered to impeach a witness or to prove an appropriate issue that is disputed, such as ownership or control. Explanation: Subsequent remedial measures, or measures that would have made an earlier injury less likely to occur, are inadmissible to prove a defect in product design. See FED. R. EVID. 407. However, subsequent remedial measures are admissible for other purposes, such as witness impeachment or proving, if disputed, ownership or control. Id. Here, Galacticorp's removal of weaponry is a subsequent remedial measure that would have made John's injuries less likely to occur. Thus, it cannot be used to prove that the product design was defective, so both A and B are wrong. C is wrong, because subsequent remedial measures are sometimes admissible. D is the correct answer, because the evidence is not being offered for one of the alternate, admissible purposes. Question 2/2 E. None of the above Explanation: A settlement offer is excluded from admissibility based on public policy concerns when used to prove or disprove the validity or amount of a disputed claim. See FED. R. EVID. 408(a)(1)-(2). This includes statements made during compromise negotiations about the claim. Id. at (2). A and C, which are both settlement offers or statements made regarding the offers, cannot be admissible to prove the amount of John's claim. Similarly, B cannot be admissible to prove that John's claim is not invalid. Additionally, the furnishing of medical expenses is also excluded from admissibility based on public policy concerns when it is used to prove liability. See FED. R. EVID. 409. Thus, D is also not admissible, and E is the correct answer.

Question 1/2 At 2:10 p.m., Tricia stops by Lilys, an upscale department store in a local mall, and tries on several designer blouses and skirts. However, Tricia is caught on a security camera wearing some of the blouses and skirts out of the store at 2:16 p.m., without paying for the clothing beforehand. Tricia is arrested and charged with shoplifting and theft. In a meeting before any criminal proceedings begin, the prosecutor informs Tricia that Lilys has agreed to drop all charges if Tricia agrees to give back the designer clothing in its original condition, as well as to never return to a Lilys store again. Tricia scoffs at the offer and instead proposes that the prosecutor "make the case disappear" in exchange for some of the designer clothing from Lilys. The prosecutor refuses, and the case proceeds to trial. At trial, Tricia testifies to the following: "That isn't me on the security camera. I wasn't even near Lilys that day; I was at PacMoon, which is across the mall. And even if I was at Lilys, I probably tried on all those clothes in the fitting room and just forgot to change back to my old clothes when I was done." Will Tricia's proposition from the pretrial meeting be admissible as evidence? Choose the best answer. A. No, because it is irrelevant to the shoplifting and theft charges. B. No, because this is a criminal case. C. No, because it was made during an attempt to reach a compromise. D. Yes, but only if the prosecutor adds obstruction of justice to Tricia's charges. E. Yes, because Tricia basically admitted to stealing the designer clothing. Question 2/2 Which of the following prior crimes or misconduct can the prosecutor offer as evidence against Tricia? A. Tricia's arrest for attempted robbery of a liquor store, if offered to prove that Tricia was likely to have shoplifted from Lilys due to her criminal nature. B. Tricia's arrest for shoplifting from Lemon Marcus, another upscale department store in the mall, if offered to prove that Tricia is in the habit of shoplifting from upscale department stores. C. Testimony from a mall cop that he caught Tricia shoplifting from PacMoon around 1:55 p.m. and gave chase, if offered to prove that Tricia shoplifted the clothes from Lilys to disguise herself and avoid detection. D. B and C E. None of the above

Question 1/2 D. Yes, but only if the prosecutor adds obstruction of justice to Tricia's charges. Explanation: Evidence of compromise offers and negotiations is admissible in civil or criminal cases to prove witness bias, undue delay, or an attempt to obstruct of a criminal investigation or prosecution. See FED. R. EVID. 408(b). B is wrong, because it does not matter whether this is a criminal case or not. C, too, is wrong, because not all statements made during compromise offers and negotiations are inadmissible. E is also wrong, because evidence of compromise offers and negotiations cannot be used to prove wrongdoing. While A is true in that Tricia's proposition is irrelevant to the shoplifting and theft charges, D is the better choice because Tricia's proposition will be relevant and admissible if the prosecutor adds obstruction of justice to the list of charges. Thus, D is the correct answer. Question 2/2 C. Testimony from a mall cop that he caught Tricia shoplifting from PacMoon around 1:55 p.m. and gave chase, if offered to prove that Tricia shoplifted the clothes from Lilys to disguise herself and avoid detection. Explanation: Evidence of crimes, wrongs, or other acts are not admissible to prove a person's character in order to show that, on a particular occasion, the person acted in accordance with that character. See FED. R. EVID. 404(b)(1). A is wrong because it violates the rule against the use of prior crimes to prove criminal tendencies. Habit evidence must indicate a specific, semi-automatic response to a specific situation. See FED. R. EVID. 406. Tricia's preference for shoplifting from upscale department stores is too general and non-automatic to be considered a habit, so B is wrong. Evidence of prior crimes may, however, be used for non-character purposes, such as proving motive. See FED. R. EVID. 404(b)(2). C is the correct answer because it tends to prove Tricia's motive for shoplifting the clothes from Lilys, if the prosecutor argues that Tricia's motive was to disguise herself.