evidence

Impeaching a witness versus a hearsay declarant

ASK: Are you impeaching a witness OR the declarant?? They might be different!!!!!!

Write in an essay: All relevant evidence is admissible...... Hearsay evidence is generally inadmissible....

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if it is both probative and material. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion. Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted.

Uses for hearsay statements that are not hearsay? may also be used to prove intent or common plan.

Although a defendant's crimes or other wrongful acts are not admissible to show criminal propensity, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, or common plan.

When is a judge required to recuse themselves GA?

But, due process requires that a judge possess neither actual nor apparent bias. If actual or apparent bias exists, the judge must follow a recusal process. The impermissible bias or prejudice usually must stem from an extrajudicial source. If the defendant was found guilty by a jury, and the judge expressed strong opinions during sentencing but based entirely on the testimony of witnesses, there is not an extrajudicial source of the bias.

when is confrontation clause applicable?

CRIMINAL CASE

The rules of evidence actually don't apply to grand jury proceedings , except... Also when ELSE don't the FRE apply??

those relating to privilege. Probation proceedings. Privilege rules ALWAYS apply, BUT FRE do not apply to... - Prelim-question determinations - Grand jury proceedings - search /arrest warrant determinations - preliminary examination in criminal cases - extradition or rendition proceedings - bail and other release hearings - sentencing hearings - probation/parole revocation hearings

KEEP AN EYE OUT for things that look like hearsay but are actually offered for proof that the statement was MADE or effect on the listener

u have to consider these extra things!!! when analyzing for hearsay first SAY what if its NOT Hearsay at all??? that could be a song lyric

Prior inconsistent statement hearsay exception - statement must be given......

under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

Requirement for hearsay exception for wrongfully causing declarant's unavailability?

when an unavailable declarant's hearsay statement is offered against a party who: (1) wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability and (2) did so intending that result. NOTE that this can also result in forfeiture of confrontation clause issues in criminal cases. The Sixth Amendment confrontation clause bars the admission of testimonial statements made by an unavailable declarant unless the defendant has had the opportunity to cross-examine that declarant. However, this right is forfeited when a criminal defendant wrongfully and intentionally causes the declarant's unavailability

hey buddy why don't you read all the answer choices before you make a decision If the defendant offers evidence in a homicide case that the victim was the first aggressor, then the prosecutor can...

why don't you do that Offer evidence of the victim's character for peacefulness to rebut that evidence.

Georgia Point of Law: Jury Deliberations

Demonstrative evidence that has been properly admitted into evidence may be taken into the jury room during deliberations, as are other exhibits. Moss v. State, 559 S.E.2d 433 (Ga. 2002). However, under the "continuing witness rule," testimony given at trial, as well as statements read into evidence, are not allowed into the jury room during deliberations. Royals v. State, 65 S.E.2d 158 (Ga. 1951). Such testimonial evidence is meant to be heard once, at trial, when the jury is best able to judge the credibility of the speaker, rather than reading the statements repeatedly in the jury room. Everywhere: A court may allow demonstrations and experiments to be performed in the courtroom. This may include exhibition of injuries in a personal injury or criminal case. A court has discretion to exclude evidence of personal injuries if the demonstration of such severe injuries would result in unfair prejudice. A court may also exclude a demonstration that cannot be effectively cross-examined. Science experiments are permitted but may be excluded if they will result in undue waste of time or confusion of the issues.

Self-Authenticating Evidence

Documents and other tangible evidence must be authenticated before they can be admitted. This generally requires that the proponent produce evidence (e.g., testimony) showing that the thing is what the proponent claims it to be. However, some documents are self-authenticating and can be admitted without such evidence. This includes acknowledged (i.e., notarized) documents. The proponent of a notarized document need not give advance notice to an adverse party of its intent to introduce the document.

Unavailable declarant exceptions to hearsay (5) acronym?

FSDHU Former testimony Dying declaration Statement against interest Personal/family history Wrongfully caused unavailability

FRE 302 Presumptions in Federal Civil Cases

Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases. Under this rule, when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases such as this one), the court should apply state law to determine the effect of a presumption on the claim or defense.

FRE 803(11) Records of Religious Organizations Concerning Personal or Family History

Federal Rule of Evidence 803(11) provides a hearsay exception for a statement concerning personal or family history, such as a birth, death, marriage, or divorce contained in a regularly kept record of a religious organization. Need authentication by a person prob associated with the organization to authenticate it.

GA - Statements of Sympathy

In Georgia, in any medical malpractice claim, a statement expressing sympathy, regret, or apology made by a healthcare provider to a patient, a relative of the patient, or a representative of the patient that relates to an unanticipated outcome is inadmissible. The statement is not an admission of liability or an admission against interest.

Character evidence being inadmissible (civil case) in a nice way for essays -> Georgia

In a civil case, evidence of a person's character is generally inadmissible to prove that the person acted in accordance with that character on a particular occasion. Character evidence is admissible when character is an essential element of a claim or defense. In Georgia, character evidence may be admitted only in the form of reputation or opinion testimony, regardless of whether the proceeding is civil or criminal. However, specific instances of conduct are also admissible when the person's character is an essential element or when an accused testifies to her own character.

Georgia Point of Law: Driving Under the Influence (DUI)

In a prosecution for DUI, evidence of the commission of a previous DUI conviction is admissible when: i) The defendant in the current case refused to take the state-administered blood, urine, or breath test, and the evidence is relevant to prove knowledge, plan, or absence of mistake or accident; ii) The defendant in the current case refused to provide an adequate breath sample for the state-administered test and the evidence is relevant to prove knowledge, plan, or absence of mistake or accident; or iii) The identity of the driver is in dispute in the current case and the evidence is relevant to prove identity.

Prior bad acts aren't OK for character evidence purposes to show that a criminal D committed similar crimes or bad acts, but they can be admitted for.....

MIMIC!!! A relevant noncharacter purpose.

Does an affidavit fall under the former testimony exception to hearsay?

NO because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant

Can a specific instance of conduct be proven by extrinsic evidence?

NOPE

Can you admit an accepted settlement offer into evidence?

NOPE Public policy encourages the settlement of disputes. As a result, FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to: (1) prove or disprove the validity or amount of a disputed claim or (2) impeach by a prior inconsistent statement or contradiction. This is true even when the party seeking to introduce such evidence was not a party to the agreement.

Is the identity of a lawyer's client privileged when disclosure would not reval a confidential a/c communication?

NOPE IT IS NOT PRIVILEGED.

Authenticating Oral Statements

Note for recognition of voice: ONLY A CALLER can authenticate the voice of a person who ANSWERED the call, if the caller (1) dialed a number believed to be the speakers, and (2) the speaker identified themselves upon answering. If the testifying person RECEIVED The call, this method DOES NOT WORK. Have to be the one who placed the call.

Noncharacter Purposes for admitting crime or bad act

Under Federal Rule of Evidence (FRE) 404, evidence of a criminal defendant's prior crimes or wrongful acts is inadmissible if it is used to show the defendant's propensity (or inclination) to commit the charged crime. This helps to ensure that the jury convicts the defendant for committing the charged crime—not for having a bad character. However, evidence of a prior crime or wrongful act is admissible for relevant, noncharacter purposes (i.e., MIMIC). This includes proving the perpetrator's identity—e.g., by showing that a prior crime was committed in a unique manner that is similar to the charged crime. But MIMIC evidence, like all other evidence, is subject to the FRE 403 balancing test. Under this test, a court may exclude relevant evidence if its probative value is substantially outweighed by certain dangers such as unfair prejudice.

When the crime charged is battery, D can introduce character evidence for non-violence but NOT for truthfulness

Truthfulness can come in once their character for truthfulness has been attacked, but not right off the bat because truthfulness isn't relevant to violent crimes like battery. Only if truthfulness is attacked in a violent crime case can D introduce support of their truthfulness.

When is an offer of compromise/settlement offer inadmissible (and when might it be admissible)

Under FRE 408, an offer of compromise (aka a settlement offer) is inadmissible to prove the validity or amount of a disputed claim. However, this only applies if there was a pending dispute at the time the offer was made.

FRE 104 - Judge Deciding Prelim Q's of Fact about whether evidence is admissible AND - when must hearing be made outside presence of jury ? (3)

Under Federal Rule of Evidence 104, the court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. In making this decision, the court is only bound by evidentiary rules regarding privilege. Both parties can present evidence at the hearing, but the hearing must occur outside the presence of the jury if: (1) the matter involves the admissibility of a confession (2) a defendant in a criminal case is a witness in a hearing on the matter and so requests or (3) justice so requires—e.g., when the disputed evidence would prejudice a party if heard by the jury.

Impeaching with Juvenile Adjudication

Under Federal Rule of Evidence 609, evidence of a juvenile conviction is never admissible in a civil case to attack a witness's character for truthfulness

Adoption of a statement by silence

Under Federal Rule of Evidence 801, an opposing party's statements are excluded from the rule against hearsay when they are offered against that party. This includes statements made by another person that the opposing party has adopted explicitly (e.g., by verbal agreement) or implicitly (e.g., by conduct or silence). Adoption by silence occurs when: (1) the silent party was present and heard and understood the statement (2) the silent party had the ability and opportunity to deny the statement and (3) a reasonable person similarly situated would have denied the statement.

Georgia confidential marital communications privilege

Under the confidential marital communications privilege, a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege applies to both civil and criminal cases. In Georgia, the communicating spouse is the holder of the privilege ---> OPPOSITE to what i wrote!! Communicating spouse holds the privilege and can prevent the other spouse from testifying!!!

GA - Collateral Source Rule

Under the traditional collateral-source rule, a defendant may not introduce evidence regarding outside sources of payment to the plaintiff in order to reduce the defendant's liability.

Hearsay business records exception

Under this exception, business records are admissible if they are: (1) made at or near the time of the recorded event (2) made by or based on information from someone with personal knowledge of the event and (3) made and kept as a regular practice in the course of regularly conducted business activities. CANNOT be a record prepared in anticipation of litigation bc it lacks trustworthiness

WATCH OUT FOR DOUBLE HEARSAY

WATCH OUT I am testifying that my husband said that my neighbor said... is DOUBLE HEARSAY

Efforts to settle a claim in a criminal case - who do you have to be talking to?

a prosecutor!!! not a government agency or anyone else

When IS evidence of compromise offers and negotiations admissible?

if: (1) made during negotiations in civil dispute involving government regulatory, investigative, or enforcement agency and offered in subsequent criminal case, or: (2) Admissible for other purpose—eg:proving witness's bias or prejudice, negating contention of undue delay, proving effort to obstruct criminal investigation or prosecution

How to establish the contents of a public record like a judgment?

it is generally necessary to introduce a copy of the record that has been certified by the appropriate public custodian. In the alternative, a witness who has compared the copy with the original may testify as to its correctness. Only when neither of these methods is available can the contents of a public record be proved by other evidence.

SHOW YOUR WORK: WHY IS IT HEARSAY? WHAT PURPOSE IS IT BEING OFFERED FOR??

or is it nonhearsay?? what purpose is it being offered for then??

Hearsay Public Records Exception

records or statements of a public office that set out: (1) activities of the public office or agency (like issuing vehicle registrations) (2) matters observed pursuant to a legal duty to report, excluding observations of law-enforcement personnel in criminal cases or (3) factual findings from a legally authorized investigation offered (1) in a civil case or (2) against the government in a criminal case.

When does physician-patient privilege not apply? (5)

1. made for non-medical reasons 2. physical condition at issue 3. patent-doctor dispute 4. contractual waiver 5. federal law applies (bc privilege not recognized in federal court)

When can judicial notice be taken of an adjudicative fact? 2 alternatives

If the fact is generally known within the territorial jurisdiction of the trial court, OR The fact can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned

PAY ATTENTION TO WHERE THE STATEMENT WAS MADE!!! WAS IT AT A DEPOSITION? AT TRIAL? SOMEWHERE ELSE??

If the statement wasn't made IN COURT is it HEARSAY???

What are the two instances when the opportunity to explain or deny is implicated? (one is when you HAVE to give opp to explain/deny, and one is when you DONT Have to give opportunity)

(1) Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, but this does not apply to statement by party opponent (FRE 613) (yes including for impeachment purposes this is for impeachment) (2) do NOT need opportunity to explain/deny when you are trying to attack the credibility of a hearsay declarant by showing a prior inconsistent statement or conduct. the court can admit that REGARDLESS of opportunity to explain or deny the statement. (FRE 806). So this is not a WITNESS's prior inconsistent statement, this is a DECLARANT's prior inconsistent statement they are different!!! Witness could be testifying about what the declarant said. If you are attacking the credibility OF A WITNESS, then THEY Need the opportunity to explain/deny.

What can a juror testify about after trial

(1) May not testify about jury deliberations (2) May testify about improper extraneous prejudicial information, outside influence, or mistake on verdict form

Requirements for business records exception (3)

(1) Out of court record made ot or near the time of the recorded event (2) Made by or based on information from a person with personal knowledge, and (3) the records are made and kept as part of the course of a regularly conducted business activity . Note that PERSONAL notes even if made in a business setting are NOT the organization's regularly kept business records, and they are inadmissible hearsay unless another exception applies.

IF U GET A QUESTION ASKNIG ABOUT ADMISSIBILITY, TALK ABOUT WHAT?? SHOW YOUR WORK

(1) RELEVANCE (2) 403 BALANCING (3) AUTHENTICATION (4) HEARSAY IF APPLICABLE

When is lay testimony OK? (3 things needed)

(1) Rationally based on the perception of the witness (2) helpful to a clear understanding of the testimony or a fact at issue (3) not based on scientific, technical or specialized knowledge

Evidence of a final judgment of conviction hearsay exception (3 requirements)

(1) The judgment was entered after a trial or guilty plea (2) the conviction was for a crime punishable by death or imprisonment for more than one year, and (3) the evidence is offered to prove any fact essential to sustain the judgment.

A witness may testify to a matter only if (2)

(1) it is relevant aka tends to make a material fact more or less probable, and (2) the witness has personal knowledge of the matter, i.e knowledge based on firsthand observation or experience.

Exceptions to Best Evidence Rule

- Summaries of voluminous records - Certified Public Records - Writing is collateral to litigated issue - Testimony or written admission of opponent (so if the opponent testified as to its contents in a deposition, testimony, written statement) **cannot be just an out of court statement HAS to be testimony!!!** - Original is unavailable if lost/destroyed (not by proponent's bad faith) - Opponent had original, knew it was required, and failed to produce

Impeaching witness's character for truthfulness (incl with a conviction)

A SIC that involves a conviction for a felony or crime of dishonesty can be introduced intrinsically (i.e., through the witness's testimony) or extrinsically (i.e., from other sources). In contrast, a SIC involving a mere bad act may only be introduced intrinsically. As a result, when a witness denies a SIC involving a bad act on cross-examination, the examiner is stuck with the witness's answer.

Prosecutor asking about specific acts for character purposes on cross exam must be asked in good faith

A criminal defendant may present evidence that his/her character is inconsistent with the charged crime—e.g., a defendant's peaceful character is inconsistent with a violent crime like aggravated assault. But evidence of the defendant's good character can only be established by calling a witness to provide reputation or opinion testimony (as seen here). Once the defendant's character witness has testified, the prosecution may: ● cross-examine the witness about a specific act committed by the defendant that relates to the trait in question or ● call another witness to provide reputation or opinion testimony on the defendant's corresponding bad-character trait. Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant's past behavior goes to the witness's credibility. But such questions must be asked by the prosecution in good faith. This means that questions based on a hunch will not suffice—even when the hunch proves accurate.

Business records exception - remember that the records have to be authenticated!!

A custodian of the records must testify as to their authenticity or the record must be somehow otherwise authenticated.

When can you introduce character for honesty in a murder charge?

A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. Here, because the defendant is charged with a violent crime, evidence as to his character for honesty is not admissible unless it is offered as proper rehabilitation evidence. Because the defendant has not been impeached, this is not proper rehabilitation evidence.

In a trial for civil assault, the defendant called his friend to testify regarding the defendant's location at the time of the assault. The friend unexpectedly testified that the defendant was not with the friend and that he was unsure where the defendant was at the time in question. At his deposition a month before, the friend had testified that he was with the defendant when the assault occurred. The defendant then sought to introduce the deposition transcript of his friend's testimony.Is the deposition transcript admissible? A Yes, both to impeach the friend and as proof of the defendant's location at the time of the assault. B Yes, but only to question the truthfulness of the friend's trial testimony. C No, because a party may not impeach its own witness. D No, because the statement was not made at a prior trial.

A is correct A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant's credibility and as substantive evidence. In this case, the defendant sought to introduce the friend's deposition transcript as a prior inconsistent statement. Because the friend's prior inconsistent statement regarding the defendant's location at the time of the assault was made at a deposition, the statement may be admitted both to impeach the friend and as substantive evidence of the defendant's location. Answer choice B is incorrect. While the friend's statement in the deposition transcript may be used to impeach the friend's testimony at trial, the statement may also be admitted as substantive evidence.

In a prosecution of a man for murder, the government seeks to introduce the statement of the man's alleged coconspirator as an admission of a party-opponent. In laying the foundation for admitting the statement, the prosecution offered an affidavit from the man's son describing the longtime criminal partnership between the man and the alleged coconspirator. Is the admissibility of the alleged coconspirator's statement as an admission of a party-opponent a question for the judge or jury? A The judge, as a preliminary question of fact, and the judge may properly consider the affidavit. B The judge, as a preliminary question of fact, and the judge must not consider the affidavit. C The jury, as a question of weight and credibility, and the jury may properly consider the affidavit. D The jury, as a question of weight and credibility, and the jury must not consider the affidavit.

A is correct Although the jury ultimately determines the weight and credibility of evidence, the judge must first determine whether that evidence can be presented to the jury (i.e., admitted) under the Federal Rules of Evidence (FREs) (Choices C & D). Under FRE 801, an out-of-court statement is attributable to a party—and is therefore admissible nonhearsay—if the statement: (1) was made by the party's coconspirator (2) during and in furtherance of the conspiracy. When determining if these preliminary facts are met, the court is not bound by the FREs (except with respect to privileges). Therefore, the court may consider any relevant evidence tending to establish the facts—even evidence that is otherwise inadmissible. Here, the prosecution seeks to introduce the alleged coconspirator's statement as a statement attributable to the man. To establish that the statement was indeed made by a coconspirator, the prosecution offered the son's affidavit describing the longtime criminal partnership between the man and the alleged coconspirator. Since the judge may consider any relevant evidence on that preliminary fact, the judge may consider the son's affidavit even though it constitutes otherwise inadmissible hearsay (Choice B).

During a personal injury trial, the plaintiff called an eyewitness to testify. On cross-examination, the defense attorney asked the witness about a previous conviction. Seven years ago, when the witness was 16 years old, she was tried as a juvenile and convicted of check fraud. The plaintiff objected to the introduction of evidence of this conviction, but the defense attorney maintained that he could introduce it for impeachment purposes.Is evidence of the witness's conviction admissible? A No, because the witness is testifying in a civil trial. B No, because the conviction constitutes a prior bad act. C Yes, because it was a conviction of a crime involving fraud or deceit. D Yes, because the conviction is less than 10 years old.

A is correct Evidence of juvenile adjudications is not admissible in civil cases. The court may occasionally permit evidence of a juvenile adjudication of a witness other than the accused under certain circumstances, but only in a criminal trial. Because the witness was a juvenile when she was convicted and because she is a witness in a civil trial, the conviction is not admissible. A Answer choice B is incorrect for several reasons. First, prior bad acts are not necessarily inadmissible; a witness may be asked about specific instances of conduct on cross-examination, including prior bad acts, if the judge determines that the acts are probative of truthfulness or untruthfulness, and the lawyer has a good-faith basis for asking about the conduct. Additionally, a conviction of a crime does not constitute a "prior bad act." Subject to certain rules, a witness may always be impeached with evidence that he has been convicted of a crime. Answer choices C and D are incorrect because, as mentioned above, the general rules regarding impeachment with convictions do not apply to juvenile convictions. If this were not a juvenile conviction, it would be true that this conviction would be admissible, as a witness may be impeached with evidence that she has been convicted of any crime involving dishonesty or false statements within 10 years of the conviction. Further, even if the crime did not involve dishonesty or a false statement, convictions of felonies that are less than 10 years old may be admissible, if the probative value outweighs the prejudicial effect.

A plaintiff brought suit against a defendant for injuries she sustained in a car accident that she accused the defendant of negligently causing. Prior to filing suit, the plaintiff's attorney had the plaintiff visit a physician to determine the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit. After the plaintiff's examination, while the attorney, plaintiff, and physician were discussing the extent of the plaintiff's injuries, the plaintiff admitted that she "may have had a few beers" right before the accident. At trial, the defendant's counsel sought to call the doctor to testify about the statement. The plaintiff properly objected to the introduction of this testimony. How should the judge rule on the plaintiff's objection? Answer Choices: A. Sustain the objection, as the attorney-client privilege is applicable. B. Sustain the objection, as the physician-patient privilege is applicable. C. Overrule the objection, as the statement was made by an opposing party. D. Overrule the objection, as the physician would constitute an expert witness.

A is correct The attorney-client privilege protects confidential communications between an attorney and a client that were made for the purpose of obtaining or providing legal assistance for the client. This privilege is generally waived if the communication is made in the presence of a third party. However, communications made before an attorney's representative—i.e., a person employed to assist the attorney in the rendition of professional legal services—remain protected. Attorney representatives include experts hired by the attorney to assist in litigation efforts or to consult on issues requiring outside expertise—but not experts hired to testify at trial. Here, the plaintiff's attorney had the plaintiff visit a physician (an expert) to ascertain the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit. This means that the physician was hired to assist the attorney in the rendition of professional legal services by providing medical consultation. And since there is no indication that the physician was hired to testify at trial, the plaintiff's statement in the physician's presence remains protected by the attorney-client privilege. Therefore, the judge should sustain the plaintiff's objection.

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

A is correct Under FRE 404, a criminal defendant may offer evidence of his/her good character when that trait is pertinent to the charged crime. For example, evidence of a defendant's peacefulness is admissible when the defendant is charged with a violent crime. But truthfulness is not pertinent to violent crimes like murder, so evidence of this trait should not be admitted on this basis (Choice C). However, evidence of a criminal defendant's truthfulness also may be admissible if the defendant testifies at trial—even when that trait is not pertinent to the charged crime. FRE 608 allows the admission of reputation or opinion testimony to prove the witness's truthful character after it has been attacked. But here, there is no indication that the defendant's character for truthfulness had been attacked, so testimony regarding that character remains inadmissible.

During discovery in a state court action, an attorney inadvertently disclosed an impromptu letter sent by his client to the attorney regarding the client's thoughts and feelings about the litigation. Belatedly, the attorney took steps to rectify the error. Under the applicable state law, the disclosure did not constitute a waiver of the attorney-client privilege because it was inadvertent. In subsequent litigation in a federal action to which the client was a party, the opposing party sought discovery of the letter, which was relevant to that party's claim. Does the attorney's prior inadvertent disclosure of the letter constitute a waiver of the attorney-client privilege for purposes of the federal action? Answers: A. No, because the disclosure did not constitute a waiver under state law. B. No, because the mental impressions of a client are never subject to waiver. C. Yes, because the attorney failed to rectify his error in a timely manner. D. Yes, because the effect of the disclosure is determined by applying the federal rule on inadvertent disclosures.

A is correct Under the federal rule, an attorney's inadvertent disclosure of a communication that is protected by the attorney-client privilege can operate as a waiver of the privilege when there is a failure by the attorney to promptly take reasonable steps to rectify the error. However, this rule does not apply when the disclosure was made in a state court proceeding and the applicable state law does not treat the disclosure as a waiver. When state law is more protective of the attorney-client privilege than the federal rule, applicable state law governs and the disclosure is not treated as a waiver in a subsequent federal proceeding.

A 22-year-old defendant was charged with voluntary manslaughter. At the trial, the defendant testified on his own behalf. On cross-examination, in order to impeach the defendant's character for truthfulness, the prosecution sought to question the defendant about being adjudicated delinquent with respect to a burglary when he was 16 years old. If prosecuted as an adult, the defendant could have been subject to up to 25 years of imprisonment. Should the court permit the prosecution to introduce such evidence? A No, because a defendant-witness's character for truthfulness may not be impeached by a juvenile adjudication. B No, because burglary is not a crime involving proof of a dishonest act or false statement. C Yes, because not more than 10 years have passed since the adjudication. D Yes, because an adult witness may be impeached with evidence that he was adjudicated delinquent with respect to a burglary as a minor.

A is correct I chose B The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful. Answer choice B is incorrect because, even though burglary is not a crime that involves proof of a dishonest act or false statement, a defendant may be impeached by a conviction for felony burglary when the probative value of the evidence outweighs its prejudicial effect to the defendant.

A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property. A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen. On cross-examination, the prosecutor asked the defendant, "Didn't you also previously buy a stolen stereo from the same man who sold you this television?" The defendant's attorney immediately objected. What is the strongest basis for the defense attorney's objection? A The probative value of the prosecutor's question is substantially outweighed by the danger of unfair prejudice. B The prosecutor's question was irrelevant because it does not establish an element that the prosecutor must prove. C The relevance of the prosecutor's question depends upon whether the defendant knew the stereo was stolen, and the prosecutor has not offered sufficient proof to support that finding. D The risk of unfair prejudice is not substantially outweighed by the probative value of the prosecutor's question.

A is correct, I chose B Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence, and it is admissible unless excluded by a specific rule or law. For example, under Federal Rule of Evidence (FRE) 403, relevant evidence can be excluded if its probative value is substantially outweighed by any of the following dangers: (a) unfair prejudice - evidence tends to encourage the jury to decide the case on improper grounds (b) confusing the issues - evidence leads the jury to focus on a nonmaterial matter (c) misleading the jury - evidence creates misconceptions in the jurors' minds (d) undue delay or wasting time - presenting the evidence will cause unnecessary delay or waste time (e) needless cumulation - similar evidence on the same issue has already been admitted Here, the probative value of the prosecutor's question regarding the prior receipt of a stolen stereo is substantially outweighed by the danger of unfair prejudice. That is because the question (and potential answer) tends to encourage the jury to decide the case on the defendant's past conduct instead of the evidence presented at the current trial. Therefore, this is the strongest basis for the defense attorney's objection. (Choice B) Evidence is relevant if it has any tendency to make a material fact more or less probable, so it need not, in and of itself, establish an element of a crime. Here, the prosecutor's question is relevant because it tends to make the fact that the defendant knew the television was stolen more probable. (Choice C) When the relevance of proposed evidence depends upon whether a fact exists, the court may admit the evidence on the condition that proof of its relevance is later introduced. (Choice D) An FRE 403 objection requires that the court decide if the proffered evidence's probative value is substantially outweighed by one of the above-listed dangers—not vice versa.

A defendant is on trial for felony assault. Eleven years ago, the defendant was convicted of rape. He was sentenced to three years imprisonment and served the full term. The defendant decided to testify at his current trial for felony assault, and on cross-examination, the prosecution seeks to admit evidence of the defendant's rape conviction to impeach him. Which of the following best states the standard that must be met to determine the admissibility of this conviction? A The conviction is admissible only if its probative value outweighs the prejudicial effect to the defendant. B The conviction is admissible only if its probative value substantially outweighs its prejudicial effect. C The court has discretion to exclude the conviction if the defense shows that its probative value is substantially outweighed by its prejudicial effect. D The court must exclude the conviction if the defense shows that its probative value is substantially outweighed by its prejudicial effect.

A is correct, I chose B When calculating the age of a conviction, the relevant inquiry is whether more than 10 years have passed since the witness's conviction or release from confinement—whichever is later. A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant. Here, the prosecution seeks to impeach the defendant with a prior rape conviction for which he was released from confinement eight years ago. Rape is a felony that does not involve dishonesty. Therefore, the conviction is admissible if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant. (Choice B) A court may admit a conviction that is more than 10 years old only if its probative value substantially outweighs its prejudicial effect. This is true regardless of (1) whether the conviction is for a felony or crime of dishonesty or (2) the type of witness the proponent seeks to impeach. But here, the conviction is less than 10 years old since the man was released from confinement eight years ago. so I got confused bc it's 10 years from conviction OR release whichever is later. so this was less than 10 years.

A defendant, who was charged with murder, testified at his trial. On cross examination, the prosecutor, seeking to impeach the defendant's character for truthfulness, asked the defendant if he had been convicted of obtaining government benefits by making a false statement. The benefits obtained by the defendant were less than $1,000; he had been found guilty of a misdemeanor nine years before and subject only to a fine.Is the prosecutor permitted to impeach the defendant with his conviction for this crime? A es, because it is a crime involving a false statement. B Yes, because its probative value is not substantially outweighed by its prejudicial effect. C No, because it was only a misdemeanor. D No, because the defendant was subject only to a fine.

A is correct, I chose D Any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence, provided that no more than 10 years have lapsed since the later of the date of conviction or the release from confinement. Since making a false statement was an element of the crime in question and only nine years have passed since the defendant's conviction, the prosecution may impeach the defendant with his conviction for this crime Answer choices C and D are incorrect because a witness may be impeached with the witness's conviction of a crime involving dishonesty or false statement, even if the crime is only a misdemeanor or subject only to a fine, provided it is within the 10-year limitation.

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

A is correct. I chose D Also i didn't even realize this was double hearsay so KEEP UP The nurse's statement is a present sense impression so that's ok. An unavailable declarant's former testimony is excepted from the hearsay rule if: (1) the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding and (2) the party against whom the testimony is offered—or, in a civil case, the party's predecessor in interest—had an opportunity and similar motive to develop the testimony through direct or cross-examination of the declarant. Here, the patient died before she could testify in the medical malpractice trial and is therefore unavailable. But the surgeon did not have the opportunity to examine the patient during the previous trial. And the insurance company—whose objective at trial was to justify its denial of coverage and not to clear the surgeon of liability—is not the surgeon's predecessor in interest. Therefore, the former testimony exception does not apply (Choice D). And since no other hearsay exclusion or exception applies, the patient's former testimony is inadmissible.

A defendant is on trial for the murder of an artist, who was last seen alive on February 1 and was found dead in her apartment on February 2. The defendant's fingerprints were found on a dirty glass, a plate, and a fork in the artist's sink. The defense admitted that the defendant knew the artist and visited her home on January 31 to have lunch with her and to ask her for private painting lessons, but denied killing her. The defendant claimed that the dirty dishes were from that visit. At trial, the prosecution seeks to introduce testimony that the defendant and the artist knew each other because the artist taught art classes at the local penitentiary, where the defendant had just served five years for another crime. To support their theory that the dishes were left in the sink after the artist's death, the prosecution also seeks to introduce the testimony of the artist's former roommate that the artist always locked her door at night and always washed and put away all dishes as soon as they were used, never leaving any dishes in the sink. The defendant introduced no evidence concerning the victim's character. The defendant objected to the roommate's testimony and to the introduction int

A is correct. I picked C Evidence of a person's habit is admissible to prove that the person acted in accordance with that habit on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances that is semi-automatic in nature. A habit is more specific than character evidence - it is something that a person "always" does. In this case, the roommate testifies that the teacher always washed and put away all her dishes whenever they were made and always locked her door. This is sufficient to show a habit and the testimony is admissible on that basis to rebut the defendant's claim that the dirty dishes from his visit on January 31st had not been washed. While the evidence concerning how the defendant and the victim knew each other is certainly relevant to the case, it is just barely so, and introducing the fact that the defendant was recently released from prison is likely more prejudicial than the details of their relationship are probative Answer choice C is incorrect. The roommate's testimony that the teacher always immediately did her dishes is not irrelevant because habit evidence used to establish that the artist immediately washed the dishes from the defendant's January 31st visit is relevant to rebut the defendant's claim about when the dishes were produced. It is possible that the evidence of prior incarceration is admissible as motive evidence, so long as the motive goes beyond the defendant simply having been in jail, and subject to 403. However, because the roommate's testimony is not irrelevant, this answer choice is incorrect.

Learned Treatise hearsay exception

A learned treatise is an exception to hearsay when: (1) the statements are called to the attention of OR relied on by an expert witness during examination and (2) the publication is established as a reasonably reliable authority by a party's expert or judicial notice The treatise can only be READ into evidence, it CANNOT be received as an exhibit!!!

Georgia Distinction: Statement by a Child About Abuse Is Nonhearsay

A statement by a child under the age of 16 years describing sexual contact or physical abuse is admissible through the testimony of the person to whom the statement was made. However, the adverse party must be given pretrial notice, the child must testify at trial (unless this is waived), and the person to whom the statement was made must be subject to cross-examination. Ga. Code Ann. § 24?8?820.

Georgia hearsay exemption for co-conspirators

A statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party's statement against other co-conspirators. In Georgia, a statement made during the concealment phase of a conspiracy is nonhearsay. However, a statement made by a co-conspirator after being arrested generally is not admissible.

Statement by a co conspirator exception to hearsay

A statement made by a party's coconspirator is attributable to that party, and excluded from hearsay, if it was made during and in furtherance of the conspiracy—i.e., was part of the flow of information intended to help each coconspirator perform his/her role.

What is a dead man's statute?

A statute that applies in civil cases and bars the use of testimony from an interested party about communications with a dead party against the dead party. FRE does not have this.

Prior out of court identification hearsay exemption

A witness's prior out-of-court identification of a person after perceiving that person is not hearsay and is admissible as substantive evidence if the witness (i) testifies at the present trial or hearing, and (ii) is subject to cross-examination. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

What if there's 2 originals of a document? Best evidence rule

A written contract, as a document with legal effect, is subject to the best evidence rule. Under this rule, the original must be introduced to prove the terms of the contract unless the unavailability of the original is appropriately explained. Because there were two signed originals, both must be unavailable before the terms of the contract can be proved by other evidence. Since the organizer's original contract is available, the director cannot prove the terms of the contract through his testimony.

Impeaching Witness's Character for Truthfulness

Prior ARRESTS are never good to qualify as a bad act to be used to attack a witness's character, because an arrest for misconduct is not misconduct. You have to be CONVICTED

Bases of Expert's Testimony

An expert witness typically may offer an opinion on an ultimate issue. That opinion may be based on facts and data that the expert has personally observed or has been made aware. When such facts and data are not admissible (e.g., because they constitute hearsay), the opinion itself is still admissible if experts in that particular field would reasonably rely on those kinds of facts and data in forming an opinion. Here, the expert based her opinion, in part, on the statements of the well-known surgeon with whom she had briefly discussed the facts of the case. The surgeon's statements constitute inadmissible hearsay (Choice A). However, the expert is still permitted to rely upon the surgeon's statements to form her opinion on the defendant's conduct so long as other experts in the field would reasonably rely on the statements.

What is required for an offer of proof to preserve an evidentiary issue for appeal?

An offer of proof is an oral or written explanation of the relevance and admissibility of the excluded evidence that is made on the record - no formal evidence is required. Timely if it is made within a reaonable time outside of the jury's presence so the judge has opportunity to correct.

Impeaching with criminal conviction

Any witness, including a criminal defendant, can be impeached with evidence of a prior conviction for a crime involving dishonesty if the conviction occurred within the previous 10 years NOTE: Evidence of juvenile adjudications is not admissible in civil cases.

A defendant was charged with criminal battery in federal court for allegedly breaking his wife's arm while they lived together before they were married. At the time of the alleged battery, the wife reported the incident to the police and moved to her sister's house while her arm healed. She and the defendant then reconciled and were married. The prosecution has called the wife to testify at the trial.Which of the following most accurately states the rule as to whether the wife may testify? A The wife can be compelled to testify unless the defendant objects. B The wife can be compelled to testify, even if the defendant objects. C The wife can choose to testify as long as the defendant does not object. D The wife can choose to testify, but cannot be compelled to do so.

B is correct The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. A married person may not be compelled to testify against her spouse in any criminal proceeding, regardless of who is the defendant. However, there is an exception when one spouse is charged with a crime against the other spouse or the children of either. Therefore, the wife can be compelled to testify, even over the defendant's objection. Accordingly, answer choice A is incorrect. Answer choice C is incorrect because, in federal court and a majority of states, the defendant cannot prevent the wife from testifying if she chooses to do so. Answer choice D is incorrect because, as explained with regard to answer choice B, the wife can be compelled to testify.

A defendant is on trial for bank robbery. In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller on her first day of work. The teller testified that the note presented to her on the witness stand was the note that she had received from the robber. The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the defendant, who was a bank customer, based on her comparison of the note with 10 customer signature cards, including the defendant's, presented to her by the prosecutor after the robbery. Is the teller's testimony that the handwriting on the note matches that on the defendant's customer signature card admissible? A No, because a lay witness may not testify as to whether a document is in a person's handwriting. B No, because the teller's familiarity with the defendant's handwriting arose from the actions of the prosecutor. C Yes, because the process was not unduly suggestive since the prosecutor presented the teller with 10 customer signature cards. D Yes, because a lay witness may testify as to whether a document is in a person's handwriting.

B is correct An item of evidence must be authenticated prior to admission. This requires that the proponent produce evidence sufficient to support a finding that the item is what the proponent claims it to be. This can be done by having a witness with personal knowledge of the item testify that it is what the proponent claims. Here, the bank teller testified that the note presented to her on the witness stand was the same note that she received from the robber. This testimony is sufficient to introduce the note into evidence. But the prosecutor also seeks to have the teller testify, as a lay witness, that the handwriting on the note is the defendant's based on her comparison of the note with the defendant's bank signature card. A lay witness with personal knowledge of the claimed author's handwriting may testify as to whether a document is in that person's handwriting (Choice A). But the witness must not have become familiar with the handwriting for the purpose of the litigation. If the witness did so, the witness must be qualified as a handwriting expert. Here, the bank teller, a lay witness, gained familiarity with the defendant's handwriting by studying the defendant's customer signature card given to her by the prosecutor—i.e., for the purpose of the litigation (Choice D). As a result, the teller's testimony that the handwriting on the note matches that on the defendant's customer signature card is not admissible.

A defendant is acquitted of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim's family members object to the introduction of the judgment. May the defendant introduce the copy of the final judgment from his criminal case? A No, because a judgment in a criminal case is inadmissible in a subsequent civil action. B No, because the judgment is inadmissible hearsay. C Yes, because the copy of the judgment satisfies the original document rule. D Yes, because the level of proof in a civil action is less than that in the murder case.

B is correct this isn't a judgment of conviction, it's a judgment of acquittal!!! Hearsay is an out-of-court statement (here, the judgment of acquittal) offered to prove the truth of the matter asserted therein (that the defendant did not wrongfully kill the victim). Hearsay is inadmissible absent an exclusion or exception. One exception applies to judgments of conviction (see table above). However, there is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof. Therefore, the defendant may not introduce the copy of the final judgment from his criminal case. D is wrong because the level of proof in a civil action is less than that in a murder case. However, this has no bearing on the admissibility of the judgment of acquittal.

A baker was charged with the murder of her former business partner. Years ago, when the former business partner jointly owned a restaurant with the baker, the baker was tried and convicted of embezzlement. The former business partner was the key witness for the prosecution at the baker's embezzlement trial. At that trial, she testified that the baker had embezzled thousands of dollars from the restaurant. The baker was convicted, spent a year in a state prison, and was released five years ago. At the murder trial, the baker has refused to testify. The prosecutor seeks to introduce the business partner's testimony from the embezzlement trial. However, the defense has challenged the testimony as inadmissible character evidence. Which of the following arguments will best support the prosecution's efforts to admit the business partner's former testimony? A The testimony is admissible against the baker as the party who caused the former business partner's unavailability. B The testimony is admissible to establish the baker's motive for murdering the business partner. C The testimony is admissible to show the baker's character for untruthfulness. D The testimony is admissible as evidence of a

B is correct Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In this case, although the former business partner's testimony discusses the baker's specific acts of embezzlement, the testimony is admissible to establish the baker's motive for killing the business partner. Answer choice A is incorrect. Not only is it undecided whether the baker caused the former business partner's unavailability, but this argument is a hearsay exception and does not determine the admissibility of the evidence concerning the baker's prior crimes or wrongful acts contained in the hearsay.

An employee sued her former employer after she was fired. At trial, the employee argued that when she was hired she had signed an employment contract that stated that she could be fired only for cause. The employer argued that the parties had never signed an employment contract, and that the employee was an at-will employee. The employer stipulated that there was not cause to discharge the employee, because she performed her job in a satisfactory manner. Rather, the CEO testified that, as part of a downsizing effort, he had approved the discharge of all at-will employees in the department where the employee worked. At trial, the employee sought to question the CEO about a conversation in which the CEO told the employee that he was happy with her performance. The employer objected to admission of the testimony. Is the CEO's testimony likely to be admitted? Answer Choices: No, because the testimony is hearsay not within any exception. No, because the evidence is not probative and material. Yes, because the evidence does not constitute hearsay. Yes, because the probative value outweighs any danger of unfair prejudice.

B is correct Evidence must be relevant to be admissible. Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and the fact is of consequence in determining the action (i.e., material). In this case, the employer stipulated that the employee performed her job in a satisfactory manner, and the sole fact at issue was whether the employee was an at-will or contract employee. Thus, the testimony is not relevant to any fact at issue. Answer choice A is incorrect because the CEO's statement was a statement of a party-opponent, and thus qualifies as nonhearsay. Answer choice C is incorrect because, although the evidence was nonhearsay, it is not admissible because it is not relevant. Answer choice D is incorrect because the evidence was not probative of any fact at issue in the case. Moreover, it misstates the standard for admission of relevant evidence under Rule 403, which permits the exclusion of relevant evidence where the probative value is substantially outweighed by the danger of unfair prejudice, among other factors.

In a civil trial for battery, the plaintiff's attorney called a witness to testify. When asked on the witness stand whether the defendant hit the plaintiff over the head with a flower pot, as plaintiff alleged, the witness responded that the previous week, she was speaking to her cousin on the phone when her cousin stated, "Oh my goodness! The guy next to me just hit a lady over the head with a flower pot!" The witness then testified that she responded with a question about what the man looked like, to which the cousin responded, "Who cares? Let's talk about it later. I won't forget; trust me." When then being questioned about the description of the man according her cousin, the witness testified that she did not know, as the day after the event, she and her cousin met for lunch, during which the cousin wrote on a napkin, "Flower Pot Guy is sitting at the next table! Let's get out of here before he smacks us with a plate!" The witness testified that she and her cousin immediately ran out without looking at the next table, so she neither saw the man nor received a description from her cousin. She also noted that they brought the napkin with them and could produce it to the court. The defe

B is correct, I chose A Answer choice B is correct. Under Federal Rules of Evidence 801(c) and 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is not admissible unless it falls within an exception. Here, the witness's testimony contains two out-of-court statements: one that is being offered as proof of what it asserts (that the cousin saw a man hit the plaintiff over the head with a flower pot), and one that is not hearsay at all, as it is not being used to prove the truth of the matter (i.e., that the man was actually at the next table). Although the first statement is hearsay, the present sense impression applies, as the cousin was describing the event as she perceived it. It is therefore admissible, as is the second statement, which, as explained above, is non-hearsay. Answer choice A is incorrect because the second statement is also admissible. The fact that only the first occurred at the time of the battery is irrelevant.

A defendant was sued in civil court for assault. The defendant, as his first witness in his case in chief, called a friend to testify that, on the day before the day in question, the defendant had told her that he was leaving town that afternoon to drive across the country. Is this testimony admissible to show that the defendant was not in town when the assault allegedly occurred? Answers: A. Yes, because the defendant is available to testify. B. Yes, because it is a declaration of the defendant's present mental state. C. No, because it is hearsay. D. No, because the witness is biased.

B is correct, I chose C Although the defendant's statement is hearsay, a statement of the declarant's then-existing state of mind is not excluded as hearsay. A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Consequently, the defendant's statement to his friend may be introduced into evidence to show that the defendant was not in town when the assault allegedly occurred.

A plaintiff brought a defamation action against his friend, an internet blogger, for the publication of defamatory accusations against the plaintiff that the friend allegedly published on his internet blog. The plaintiff testified that because he had always been a daily reader of the friend's writing, he read the defamatory remarks on June 10, the same day they were published. When the plaintiff's attorney asked the plaintiff how he remembered the date, the plaintiff answered, "When I called his house to demand that he take down the post, his girlfriend answered the phone and said that he was out seeing a movie that had come out that day." The friend's attorney objected and moved to strike the testimony. Should the court strike the plaintiff's testimony about the girlfriend's statement on the phone? A No, because the court may take judicial notice of the movie release date. B No, because the statement is not being offered for its truth. C Yes, because a court may refuse to admit evidence related to a collateral issue. D Yes, because the plaintiff has not established that the girlfriend is unavailable to testify.

B is correct, I chose C Hearsay is an out-of-court statement offered for the truth of the matter asserted therein. Under the rule against hearsay, such statements are inadmissible absent an exclusion or exception. However, a statement that is offered for some other purpose does not implicate the hearsay rule and is therefore admissible without an applicable hearsay exclusion or exception. Here, the plaintiff is offering the girlfriend's statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day. Since the statement is not being offered for its truth, it is not barred by the hearsay rule. Therefore, the court should not strike the plaintiff's testimony about the girlfriend's statement from the record. C is wrong because it is not a collateral issue

A security guard was charged with criminal battery of a student. The prosecution alleged that the security guard used excessive force when he removed the student from a campus event after the student became disruptive. The security guard's only argument in his defense was that he exerted lawful force to remove the disruptive student from the event pursuant to his duties as a security guard. The security guard testified that the student had a reputation on campus for disrupting campus events by starting physical fights with other students. Is the security guard's testimony regarding the student's reputation admissible? Answer Choices: A. No, because the prosecution has not presented evidence of the security guard's bad character. B. No, because the security guard has not asserted a theory of self-defense. C. Yes, because the security guard has personal knowledge of the student's reputation for violence. D. Yes, because the student's reputation for violence is relevant to whether the student was the initial aggressor.

B is correct, I chose D Under FRE 404, evidence of a person's character is generally inadmissible to prove that the person acted in accordance with that character on the occasion being litigated. However, a criminal defendant may offer evidence of an alleged victim's character, to show conformity therewith, if it is pertinent to the case.* For example, a victim's reputation for violence is pertinent to a defendant's assertion of self-defense. Here, the security guard's only defense to the criminal battery charge is that he exerted lawful force to remove the disruptive student from the campus event. In support of that defense, the guard sought to testify that the student has a reputation for disrupting campus events by starting physical fights with other students. Although that character evidence would be pertinent to a self-defense claim, it is not pertinent to whether the guard's level of force was lawful. Therefore, it is inadmissible. The security guard has not asserted that the student was the initial aggressor in an altercation but merely that lawful force was used to remove the student. Therefore, the guard's testimony regarding the student's reputation for violence is inadmissible.

A defendant was charged with battery following a bar fight with his neighbor. At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense. In addition to testifying about the event in question, he sought to testify that the preceding night, he and a coworker had gone out for a drink at the same bar, and that the evening had passed peacefully. Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak. After testifying, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person. Following testimony introduced by the prosecution that impeached the defendant's truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual. Which of the proffered testimony is most likely to be successfully challenged by the prosecution? A The testimony of the lifelong acquaintance of the neighbor regarding the neighbor's violent streak. B The testimony of the defendant regarding his peaceful behavior on the night before the bar fight. C The testimony of the defendant's pastor as to the defendant's reputation as a nonviolent person. D The testimony of the defendant's employer that the defendant was a truthful individual.

B is correct, I chose D because I didn't read all of the facts. Federal Rule of Evidence (FRE) 404 governs the use of character evidence in criminal prosecutions. Under this rule, a criminal defendant may introduce evidence that his character is inconsistent with the crime charged—e.g., a defendant's character for peacefulness is inconsistent with a violent crime such as battery. However, a defendant may only introduce such evidence through reputation or opinion testimony—e.g., the pastor's testimony as to the defendant's general reputation as a nonviolent person (Choice C). This means that evidence of specific instances of conduct—e.g., the defendant's testimony about his peaceful behavior on the night before the bar fight—is not admissible to show that his character is inconsistent with the crime charged. Therefore, the defendant's testimony is most likely to be successfully challenged by the prosecution. (Choice A) FRE 404 allows a criminal defendant to introduce evidence of the victim's character when it is relevant to an asserted defense. Here, the neighbor's violent streak is relevant to the defendant's position that he did not initiate the fight, so an objection to the acquaintance's testimony will fail. (Choice D) Under FRE 608, a witness's character for truthfulness can be rehabilitated after it has been attacked. One method of rehabilitation is to offer opinion testimony regarding the witness's truthful character. Here, the prosecution impeached the defendant's truthfulness, so the employer's opinion testimony that the defendant is a truthful individual is admissible.

A defendant was charged with fraud in connection with the sale of nutritional supplements. The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements. In fact, the defendant had no medical training. The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician. The sole issue in dispute is whether the defendant made such representations. At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant. The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the ground that the prosecution was required to introduce an original contract under the best evidence rule. The court sustained the defendant's objection. Did the court err in making its ruling? A Yes, because the best evidence rule allows for the introduction of an original or duplicate document. B Yes, because the best evidence rule is not implicated in this case. C No, because the best evidence rule applies to a document that has a legal effect, such as a contract. D No, because a photocopy is not admissible when the absence of the original is not explained.

B is correct. I chose A The defendant's objection to the introduction of his contract with the alleged victim was based on the best evidence rule. This rule requires that the original document OR a reliable duplicate be produced to prove the contents of a document—including writings, recordings, and photographs. However, this rule is only implicated in two narrow situations: (1) when a witness is relying on the document while testifying (not seen here) or (2) when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action). This fraud case concerns the defendant's verbal misrepresentations that he was a physician, which were made to convince others to sign contracts authorizing him to charge their credit cards. As a result, the defendant's misrepresentations—not the contents of the contract—are at issue. And since the contract was not relied upon by a witness while testifying, the best evidence rule was not implicated (Choice A). Therefore, the court did err in sustaining the defendant's objection. The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the contents of the document are at issue.

In the prosecution of a defendant for murder, the state seeks to qualify a forensic analyst as an expert in order to have her testify as to her professional opinion of the crime scene. The defense has objected on the ground of inadequate qualifications. The prosecution now seeks to introduce a letter written by the editor-in-chief of a well-respected academic journal of forensic science, stating that the forensic analyst has published a number of well-reviewed papers on the subject of crime-scene analysis and is generally acknowledged in her field as very qualified. On the issue of the forensic analyst's qualifications, may the judge consider the editor's letter? A Yes, because the letter is not hearsay. B Yes, because the judge may consider the letter without regard for the hearsay rule. C No, because the letter is hearsay not within any exception. D No, because it is the role of the jury to determine the credibility of the evidence of the forensic analyst's qualifications.

B is correct. I chose C A witness is qualified to provide expert opinion testimony if the witness has specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in the case. Whether a witness meets these qualifications is a preliminary question for the court—not the jury (Choice D). The court is not bound by the rules of evidence in deciding such questions. Therefore, the court may consider otherwise inadmissible hearsay—e.g., the editor-in-chief's letter—in determining if a witness is qualified to provide expert opinion testimony (Choices A & C).

A man was on trial for bank robbery and felony murder. The prosecution alleged that while the man went into a bank wearing a ski mask and wielding a gun, his getaway driver waited in a car outside. The man shot a bank patron during the robbery then got into the getaway car with the money. In the high-speed chase that followed, the getaway car crashed and the getaway driver died. At trial, the defense called a bartender who talked to the getaway driver the night before the robbery. The bartender testified that the getaway driver had told him that because the man refused to join him in the robbery unless they used a fake gun, the getaway driver had given him a real gun to use and told him it was fake. The court ruled that the statement was admissible as a statement against the getaway driver's interest. The prosecution now wishes to call a woman to testify that the getaway driver had told her a week before the robbery that the man had purchased a gun and was planning on robbing a bank. Is the woman's testimony admissible? A No, because the getaway driver had no opportunity to explain or deny the statement. B No, because the getaway driver's statement was not made under oath. C Yes, to impe

C is correct An inconsistent statement may be used for impeachment regardless of whether: it was made before or after the hearsay statement or the declarant had an opportunity to explain or deny the inconsistency (Choice A). However, the inconsistent statement may not be used as substantive evidence (i.e., for its truth) unless it is also excepted or excluded from the hearsay rule. Here, the getaway driver's hearsay statement—that he gave the man a real gun but told him it was fake because the man had demanded that they use a fake gun—was admitted as a statement against interest. Therefore, the prosecution can offer testimony regarding the getaway driver's inconsistent statement to the woman—that the man had purchased a real gun to use during the robbery—for the purpose of impeaching the getaway driver.

A son and a daughter are opposing parties in federal court. At trial, the daughter presented evidence that her father has been missing for 10 years and that no one has heard from him in that time. The son testified that he received a phone call three years ago from a person whom he believes was his father. In the jurisdiction, a rebuttable presumption that a person is dead arises when a party establishes that the person has been missing and not heard from for more than seven years. Which of the following is correct? A The burden has shifted to the son to persuade the jury that the father is alive. B The judge must instruct the jury to conclude that the father is dead. C The jury may find that the father is dead. D The jury must find that the father is dead.

C is correct A presumption is a conclusion that can be drawn once a party proves an underlying fact or set of facts. Under the "bursting bubble" approach followed by the Federal Rules of Evidence, the opposing party in a civil suit can overcome a rebuttable presumption by producing sufficient evidence to contradict the presumed fact.* Once this occurs, the presumption "bursts" and the fact finder (here, the jury) must weigh the evidence to decide the issue. Conversely, if no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. Here, the daughter presented evidence that the father had been missing for 10 years and that no one had heard from him in that time. This created a rebuttable presumption that the father was dead. But the presumption was overcome by the son's testimony that he received a phone call from a person he believes was his father only three years ago. Since the presumption burst, the jury must weigh the evidence to decide the issue. Therefore, the jury may find that the father is dead (or not) (Choices B & D). *The bursting-bubble approach does not apply to conclusive presumptions or in federal diversity cases, where state law governs the effect of a presumption. (Choice A) Once a party produces sufficient evidence to establish a presumption, the burden of production shifts to the opposing party to produce sufficient evidence to rebut the presumption. But the ultimate burden of persuasion—in most civil cases, proving a fact by a preponderance of the evidence—remains with the party who had it originally. So here, the burden stays with the daughter to persuade the jury of the father's death.

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

C is correct A prior inconsistent statement is a past statement that is contrary to a witness's present testimony. These statements are inadmissible to prove the truth of the matter asserted therein (i.e., for substantive purposes) unless they are excepted or excluded from the hearsay rule. Since there is no indication that the witness's prior statement from the investigating officer's report falls within a hearsay exception or exclusion, it is not admissible as substantive evidence that the car driver did not run the red light (Choice B). Additionally, the car driver offered the witness's statement solely to impeach the witness's testimony—not for substantive purposes. Intrinsic evidence is always admissible for impeachment purposes. But extrinsic evidence (e.g., the police report) is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the inconsistent statement (or if justice so requires). Here, after testifying, the witness was dismissed and left the jurisdiction. Therefore, the witness has no opportunity to explain or deny—and the truck driver cannot examine the witness about—the inconsistent statement in the police report. Since extrinsic evidence may not be used to impeach the witness under such circumstances, the court should sustain the truck driver's objection (Choice A). Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the impeached witness has the opportunity to explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires).

At a trial for burglary, the prosecutor called a witness who lived next door to the victim. The witness testified that on the night of alleged burglary, she heard the victim shout, "[The defendant] has a gun pointed right at me and said he is going to kill me! I'm going to die! Please help!" The victim was not available to testify at trial because the traumatic incident had caused her to suffer from severe anxiety and depression. The defendant objected to the neighbor's testimony on the grounds that it was hearsay. In response, the prosecutor contended the testimony was admissible as a dying declaration. Is the neighbor's testimony admissible as a dying declaration? A Yes, because the victim believed that death was imminent. B Yes, because the victim is unavailable to testify. C No, because the defendant is being tried for burglary. D No, because the victim did not actually die.

C is correct A statement qualifies as a "dying declaration" if (i) the declarant believes that her death is imminent, and (ii) the statement pertains to the cause or circumstances of the death she believes to be imminent. Although the declarant must be unavailable, the declarant need not have actually died in order for the statement to avoid exclusion as hearsay. However, the dying-declaration exception applies only in homicide prosecutions and civil cases. Here, the prosecution was for burglary. Therefore, the dying-declaration exception does not apply.

A defendant was charged with the sale of narcotics. At his trial, the prosecution planned on calling as witnesses the police officer who investigated the crime, an eyewitness to the crime, a desk officer to testify regarding chain of custody, and a former co-defendant who had reached a plea agreement with the prosecution. The defendant demanded, as a matter of right, that each of these individuals be excluded from the courtroom to prevent them from hearing the testimony of the other witnesses. The prosecution objected to removing any of these individuals from the courtroom. Which of the following individuals should the judge order be removed from the courtroom? Answer Choices: The eyewitness only. The eyewitness and the former co-defendant only. The eyewitness, the former co-defendant, and the desk officer, but not the investigating officer. The eyewitness, the former co-defendant, the desk officer, and the investigating officer.

C is correct At a party's request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case. Answer choices A and B are incorrect because there is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant. Answer choice D is incorrect because it would wrongfully exclude the investigating officer, who would not be excluded as a matter of course like the other three parties would be.

A plaintiff employee brought an action in federal court against her supervisor for gender discrimination in violation of a federal statute. Prior to trial, the court properly ruled that evidence of the defendant supervisor's gender discrimination against anyone other than the plaintiff was inadmissible. At trial, the defendant, in response to questioning by his attorney, testified that he had never discriminated against any female employee because of her gender. The plaintiff's attorney did not object to this question. Subsequently, the plaintiff's attorney sought to introduce testimony by another female employee as to the defendant's gender-based discriminatory conduct towards that employee. May the court permit this testimony? A No, because of the court's pretrial ruling. B No, because the plaintiff's attorney failed to object to the defendant's testimony that he had never discriminated against any female employee. C Yes, as a curative admission. D Yes, pursuant to Federal Rule of Evidence 403.

C is correct When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such additional evidence can be admitted in the court's discretion when necessary to remove unfair prejudice. Here, although the supervisor's testimony as to his nondiscrimination against any female employee was inadmissible based on the court's pretrial ruling, because this testimony was admitted into evidence, the court has the discretion to permit testimony by another female employee regarding the supervisor's gender discrimination against her as a curative admission. Accordingly, answer choice A is incorrect. Answer choice B is incorrect because, while the failure of a party to object to the admission of the initial inadmissible evidence is a factor to be considered in determining whether the party was unfairly prejudiced by it, this failure is not a complete bar to a curative admission. Answer choice D is incorrect because Rule 403 permits a court to deny the admission of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Consequently, while it could serve as grounds for the court to deny the admission of the other female employee's testimony against the supervisor, it does not constitute a reason for the court to permit this testimony.

A defendant was charged with illegal possession of a firearm by a felon. At trial, a prosecution witness testified that he and the defendant were involved in a verbal altercation during which the defendant pulled a pistol. The witness further testified that the defendant shot at him with the pistol and that he returned the defendant's fire. On cross-examination, the defendant's attorney asked the witness if it was true that he, and not the defendant, fired first. The witness maintained that the defendant shot first. While the witness was subject to recall, the defendant called a police officer to the stand in order to impeach the witness by testifying that the witness told her that he, not the defendant, had fired first. The prosecution has objected to the officer's testimony. Should the court exclude the officer's testimony as to the witness's prior statement? A No, because it relates to the witness's prior inconsistent statement. B No, because the witness is subject to recall. C Yes, because it involves a collateral matter. D Yes, because it is inadmissible hearsay.

C is correct, I chose A A prior inconsistent statement is a past statement that is contrary to a witness's present testimony. Such statements may generally be used to impeach a witness by: (a) examining the witness about the statement or (b) introducing the statement through extrinsic evidence if (1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires. However, a party generally may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter—i.e., a matter that is irrelevant to the outcome of the case. Instead, the party must accept the witness's testimony. Here, the defendant sought to impeach the witness by introducing his prior inconsistent statement through the officer's testimony (extrinsic evidence). The witness was subject to recall, so he could explain or deny the statement and the prosecution could question him about it. However, the issue of who fired first is collateral to the crime with which the defendant was charged—illegal possession of a firearm by a felon. Therefore, the officer's testimony should be excluded as collateral evidence (Choices A & B).

A plaintiff sued a defendant under a disabilities discrimination statute, alleging that the defendant refused to hire the plaintiff because of her physical disability. The defendant has asserted that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant sought to testify that the plaintiff's former employer advised him not to hire the plaintiff because she was unable to work productively for more than three hours each day. Is the defendant's testimony admissible? A No, because the defendant's opinion of the plaintiff's abilities is not based on personal knowledge. B No, because the former employer's statement is hearsay not within any exception. C Yes, as evidence of the defendant's reason for refusing to hire the plaintiff. D Yes, as evidence that the plaintiff would be unable to work longer than three hours each day.

C is correct, I chose B For example, the rule against hearsay bars otherwise relevant out-of-court statements that are (1) offered to prove the truth of the matter asserted therein and (2) not excluded or excepted from the hearsay rule. But the hearsay rule does not bar out-of-court statements that are offered for another purpose—e.g., to show the statement's effect on the listener. Here, evidence pertinent to the defendant's hiring decision is relevant in this discrimination suit. The defendant testified that he did not hire the plaintiff because he reasonably believed that she was unable to perform the job. That belief stemmed from the former employer's out-of-court statement that the plaintiff was unable to work productively for more than three hours a day. Although this statement cannot be used to prove the truth asserted therein, it is admissible to show the statement's effect on the defendant's hiring decision (because effect on the listener)

An animal rights activist is on trial for the burglary of a pharmaceutical lab. The prosecution's theory of the case is that the activist broke into the lab using a maintenance access tunnel connecting the lab to a neighboring building. The tunnel was difficult to locate by anyone unfamiliar with its existence. The prosecution hopes to call an intern who works for the architect of the lab to testify that the activist visited the architect's office on several occasions to interview the architect, who is now out of the country, for a story. The prosecution further hopes to have the intern testify that the activist had ample time to inspect a three-dimensional model of the lab that sat in the architect's office and clearly depicted the access tunnel. The model has since been recycled as part of the architect's regular business practices and cannot be retrieved to be entered as evidence. The intern has no knowledge of the lab or access tunnel independent of the model. Although the intern was included on the prosecution's witness list, the prosecution did not provide advance notice of the intern's testimony. Can the intern properly testify as to the appearance of the model? A No, because the

C is correct, I chose B The best evidence rule—also known as the original document rule—generally requires that an original recording, writing, or photograph (referred to as "document") be produced to prove its contents. This rule applies when a witness is testifying based on facts learned from the document—as opposed to personal knowledge. However, real or physical evidence (e.g., a three-dimensional model) is not subject to the best evidence rule. Therefore, the intern can testify to the model's appearance. (Choice B) At the defendant's request, the prosecution must give the defendant a written summary of testimony from any expert witness the prosecution intends to introduce at trial. But here, the intern's testimony does not constitute expert witness testimony, and no other requirement for advance notice of the testimony applies.

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

C is correct, I chose D When the relevance of evidence depends on whether a fact exists, proof must be introduced to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that such proof be introduced later (Choice B). And in determining whether sufficient proof has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence. Here, the witness's testimony about calls from an unidentified caller is irrelevant unless there is evidence that the defendant was the caller (Choice A). That is because such evidence would tend to make the material fact that the defendant also made the threatening phone calls to the woman more probable by establishing a common scheme or plan.* Therefore, the testimony is admissible on the condition that evidence is later introduced that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant. *Evidence of a criminal defendant's prior or bad act is inadmissible character evidence when offered to prove the defendant's propensity to commit the charged crime. But such evidence is admissible for relevant, noncharacter purposes—e.g., to prove a common plan or scheme (as seen here). (Choice D) The court need only determine whether the jury could reasonably find that the conditional fact exists by a preponderance of the evidence. The court need not find that fact itself.

A female and a male candidate were both competing for a junior coaching position with a college football team. Although the female candidate was more qualified and experienced, the head coach chose the much less competent male candidate for the coaching position. The female candidate subsequently sued the head coach for employment discrimination. At trial, the female candidate's lawyer sought to introduce testimony by a football player on the team claiming that the head coach had told him that "women don't belong on the football field unless they are wearing a cheerleading uniform." Is the head coach's statement admissible? A No, because the probative value of the statement is substantially outweighed by its prejudicial effect. B No, because the statement is hearsay that does not fall within an exception. C Yes, because it is relevant to the claim of employment discrimination against the head coach. D Yes, because the statement falls within the state of mind exception to the hearsay rule.

C is correct, I got it right for the wrong reason This is circumstantial evidence of declarant's state of mind: that he doesn't believe women should work on football field. NOT being offered for its truth!!!! it is not being offered to show that the coach literally thinks that women need to be wearing cheerleader clothes!!! Here, in this employment discrimination suit, the head coach's statement is relevant because it tends to make it more probable that he hired the less competent male candidate based on gender. And the statement is not barred by the rule against hearsay because it was offered to show the head coach's thoughts about women coaching male sports—not for the literal truth that women do not belong on a football field unless they are cheerleaders The hearsay rule bars out-of-court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose—e.g., to illustrate the declarant's world view or belief system

A restaurant management group brought an action for negligence against a chef of one of its restaurants, claiming that his actions resulted in the burning down of the restaurant where he worked. At trial, it was established that the chef had been experimenting with high-flame cooking techniques after the restaurant was closed. The restaurant management group claimed that the chef started the fire by attempting to use the high-flame techniques while inebriated. The chef, however, contended that the restaurant burned down due to faulty wiring. An investigation of the fire was inconclusive as to its cause. When the owner of the building where the restaurant was located was called to the witness stand, he testified that the fire was likely caused by faulty wiring, as there had been some minor wiring issues in the past. On cross-examination, the restaurant management group attempted to enter into evidence a fire insurance policy on the restaurant in the building owner's name that would pay out $750,000 for fires stemming from malfunctioning restaurant equipment, faulty wiring, or other related issues. However, it would not pay out for fires caused by the negligent conduct of restaurant employ

C is correct. I chose A Under Federal Rule of Evidence 411, evidence of liability insurance (or the lack thereof) is inadmissible to prove negligence or wrongdoing. This public-policy rule helps ensure that the jury will not infer fault based on the existence or lack of coverage and will not base its verdict on the defendant's or insurer's ability to pay (Choice D). However, such evidence is admissible for other purposes, such as: impeaching a witness with evidence of self-interest, bias, or prejudice or proving agency, ownership, or control of the insured item. Here, evidence of the existence of the fire insurance policy is admissible to establish that the building owner's testimony may be biased as to the cause of the fire. That is because the owner stands to recover $750,000 under the policy for a fire stemming from faulty wiring and he could not go on record stating any other opinion (e.g., that the fire was caused by the chef's negligence) if he wished to collect on the policy. (Choice A) Public policy prohibits evidence of liability insurance to prove negligence or wrongdoing. But there is no prohibition against using such evidence to establish bias (as seen here).

When are Pleas, Plea Discussions and related statements admissible against D?

D CANNOT be impeached with a statement made during plea negotiations

When is evidence of insurance admissible - GA?

Evidence that a person was insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness's bias or prejudice.

In a murder trial, the prosecutor planned to call an eyewitness to the stand to testify that he saw the defendant kill the victim. However, the witness recently suffered a severe head injury that seriously affected his memory. The witness can no longer remember witnessing the murder. Prior to the witness's injury, he testified to what he saw before the grand jury. The prosecutor would like to introduce the witness's grand jury testimony as substantive evidence that the defendant committed the murder. The defendant objects to the introduction of the evidence. Should the court admit the witness's grand jury testimony into evidence? Answers: A. Yes, because the witness is unavailable to testify. B. Yes, if used to refresh the witness's recollection. C. No, because the witness does not meet the "unavailability" standard. D. No, because the former testimony exception does not apply to these facts.

D is correct Although the witness is "unavailable" for the purposes of the hearsay rules (as will be discussed below), and there is a "former testimony" exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony. Although grand jury testimony could be admissible as a prior inconsistent statement, because the witness is not testifying here, there is no statement that is "inconsistent" with a prior statement. To be admissible, the former testimony of an unavailable witness must be given under oath in a hearing or deposition, and the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination; grand jury testimony does not meet this standard because the defendant does not have the opportunity to cross-examine grand jury witnesses.

A witness testified in a federal case on behalf of a criminal defendant. On cross-examination, the government sought to impeach the witness with a state court conviction for felony assault nine years prior. The witness had started a ministry for other prisoners during his short time in prison, and he became an active religious and community leader following his release. He has not had any arrests or convictions since being released from prison, and he was previously pardoned by the outgoing governor based on his efforts on behalf of the community. The defense has filed a motion to exclude evidence of the conviction. When presented with the motion, the judge noted that the conviction was probative of the veracity of the witness and would have little prejudicial effect. Is the judge likely to allow evidence of the assault conviction to be admitted? Answer Choices: A. Yes, because the conviction is less than 10 years old. B. Yes, because the probative value of the conviction is not outweighed by its prejudicial effect. C. No, because assault is not a crime of dishonesty or false statement. D. No, because the witness was pardoned and has not been convicted of another felony.

D is correct A party may attack a witness's character for truthfulness by introducing (1) reputation or opinion testimony about that character (not seen here) or (2) pertinent specific instances of the witness's conduct (SICs). One type of SIC that is admissible for this purpose is convictions involving a crime of dishonesty or a felony (i.e., a crime punishable by imprisonment for more than one year or death) These convictions may be introduced through intrinsic or extrinsic evidence. And when (1) a felony conviction not involving dishonesty is no more than 10 years old and (2) the witness is not a criminal defendant, the conviction is generally admissible unless its probative value is substantially outweighed by its prejudicial effect. A conviction that was the subject of a pardon, annulment, or certificate of rehabilitation based on (1) a finding of innocence OR (2) a finding of rehabilitation with no subsequent felony convictions is inadmissible to impeach a witness.

A man sued his neighbor for assault. The man testified that on the three nights that his neighbor had threatened to hurt him, his wife had recorded the events in her diary. However, the man could not remember the dates of the events or the reasons that the neighbor made the threats. The man's attorney permitted the man to examine his wife's diary while on the stand. After a brief examination of the diary, the man then testified to the exact dates of the threats and the reasons that the neighbor made the threats. The neighbor seeks to introduce the relevant portions of the diary into evidence to prove that the man was lying. Can the diary be entered into evidence? A No, because it can only be used to refresh the man's recollection while testifying. B No, because it is hearsay not subject to an exception. C Yes, because a writing used to refresh a witness's recollection may always be admitted for substantive purposes. D Yes, because the neighbor is entitled to enter into evidence any portion of the diary relevant to the assault claim to impeach the man.

D is correct A party may use a writing to refresh a witness's recollection when (1) the witness once had personal knowledge of a fact or event but is now unable to recall it and (2) the writing will help the witness recall that information. Under Federal Rule of Evidence (FRE) 612, the adverse party may then: (1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness's testimony.—e.g., to impeach the witness (Choice A). However, a writing introduced under FRE 612 is not admissible for substantive purposes (i.e., for its truth) unless it falls within a hearsay exclusion or exception (Choice C). Here, the man examined his wife's diary on the stand for the purpose of refreshing his recollection. As a result, the neighbor is entitled to introduce any relevant portions of the diary into evidence to prove that the man was lying—i.e., to impeach the man. Accordingly, the diary can be entered into evidence. (Choice B) Although the diary is an out-of-court statement, it is being offered for impeachment purposes—not to prove the truth of the matter asserted therein. Therefore, it is not subject to the rule against hearsay.

A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher's character for violence, objected to this testimony. Should the court admit this testimony? Answer Choices: Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait. Yes, because character evidence may be introduced through reputation testimony. No, because the plaintiff had not introduced evidence of the teacher's character for violence. No, because such evidence is not admissible in a civil action.

D is correct Evidence of a defendant's character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant's character is an essential element of a claim or defense. Since the defendant's character for peacefulness is not an element of either battery or self-defense, the principal's testimony is not admissible. There is an exception allowing a party to introduce evidence of his peaceful character in cases in which the defendant is claiming self-defense, but only when there is a dispute as to who was the initial aggressor. Because there is no indication that there is such a dispute in this case, the exception does not apply, and the testimony is inadmissible. Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case.

Test for competency of a witness

Every person, including a child, is generally presumed competent to be a witness until proven otherwise. But if a child's competency is questioned, then the court must evaluate the child's: (a) intelligence (b) ability to differentiate between truth and falsehood and (c) understanding of the importance of telling the truth. If the child is unable to understand the requirement to tell the truth, the child is incompetent to be a witness. Additionally, as a non-expert witness, the child must have personal knowledge of the matter on which he/she intends to testify.

In a negligence action in a jurisdiction that had adopted comparative negligence, a jury rendered a verdict that the plaintiff suffered $90,000 in damages and was 10 percent at fault. The plaintiff's attorney had presented evidence and argued in his closing argument that the plaintiff's damages were $100,000. Immediately after the verdict, the plaintiff, with permission from the court, discussed the case with all six of the jurors together before they left the courtroom. The plaintiff discovered that each of the jurors thought, contrary to the court's instructions, that the damage amount was the amount that the plaintiff would receive, rather than the amount from which 10 percent would be deducted. The plaintiff seeks to offer testimony from each juror to that effect in order to increase the amount of the verdict to $100,000. Is the testimony of the jurors admissible? Answer Choices: A. Yes, because a mistake was made by the jury in rendering its verdict. B. Yes, because the jury misunderstanding was related to the applicable law, rather than the facts. C. No, because a juror cannot be questioned about a verdict in the presence of the other jurors. D. No, because a juror cannot testify

D is correct Federal Rule of Evidence (FRE) 606 addresses a juror's competency as a witness during a posttrial inquiry into the validity of a verdict. Under that rule, a juror may not testify about: any statement made, or incident that occurred, during jury deliberations the effect of anything upon that juror's or another juror's vote or any juror's mental process concerning the verdict. However, there are exceptions to this rule. A juror may testify about whether (1) extraneous prejudicial information was improperly brought to the jury's attention, (2) an outside influence was improperly brought to bear on a juror, or (3) a mistake was made in entering the verdict onto the verdict form. Here, the plaintiff seeks to offer testimony as to the jurors' mental processes concerning their award of damages by having jurors testify that they misunderstood the court's instructions on the proper calculation of those damages. But since that testimony does not fall within any of the exceptions to FRE 606's general prohibition of posttrial juror testimony, the jurors' testimony is inadmissible. (Choice A) is wrong bc The jury did make a mistake in rendering its verdict. But that mistake stemmed from a misunderstanding of the court's instructions on how to properly calculate the plaintiff's damages. Since testimony on that misunderstanding would violate the general prohibition against testimony on a juror's mental process, the testimony is inadmissible.

A defendant is on trial for bank robbery. On the day of the robbery, a witness called 911 and read the license plate of the getaway car as it drove away. When the witness was called to testify at trial, she no longer recalled the license plate number. She was given the properly authenticated transcript of the call in an attempt to refresh her recollection. The witness, who had listened to the recording immediately after calling 911 and verified to police that she had accurately relayed the license plate number, testified that though the transcript seemed correct, she still could not remember the license plate number. The prosecution now seeks to play the recorded 911 call into evidence to prove the license plate number of the getaway car. The defense objects. Can the prosecution play the recording for the jury? A No, because the recording is inadmissible hearsay. B No, because the witness is available to testify. C Yes, as nonhearsay circumstantial evidence. D Yes, under the hearsay exception for recorded recollections.

D is correct So I was mistaken because this is not just a recollection refreshed - which can only be admitted as an exhibit by the opposing party and NOT read into evidence, but this is under the past recollection recorded hearsay exception, which CAN Be read or played to the jury - it just CANNOT be entered as an exhibit by the party reading it - only the opposing party. Hearsay is an out-of-court statement offered for the truth of the matter asserted therein and is inadmissible absent an exclusion or exception. The past recollection recorded exception allows a record to be read—or, in the case of an audio recording, played—to the jury if it: (1) concerns a matter that a witness once knew but cannot recall at trial (2) was made or adopted by the witness when the matter was fresh in his/her mind and (3) accurately reflects the witness's personal knowledge at the time it was made. Before invoking this exception, the examining party should attempt to refresh the witness's memory (as seen here). If the witness still cannot sufficiently recall the recorded events, then the past recorded recollection may be admitted by reading or playing it to the jury—but not by entering it as an exhibit.**However, the opposing party may admit the writing or recording into evidence as an exhibit. Here, the witness testified that she no longer recalled the license plate number she had relayed to the 911 operator. But immediately after calling 911—while the matter was still fresh in her mind—the witness adopted the recording by verifying that it accurately reflected the number she had given to the 911 operator. Therefore, the recording falls under the hearsay exception for recorded recollections and may be played to the jury. NOT admitted as an exhibit!! Only the opposing party can admit as an exhibit.*

In a retailer's strict products liability action against a manufacturer, the retailer properly served the manufacturer with an interrogatory asking for information about the manufacturing process it used in making its widgets. The manufacturer replied by identifying the process patent that detailed its manufacturing process, claiming that it followed this process to manufacture its widgets. The retailer wants to admit a properly authenticated copy of the process patent into evidence to establish a possible design defect. Is the copy of the patent admissible? A No, because it is hearsay not within any exception. B No, because the copy of the patent violates the best evidence rule. C Yes, as a public record. D Yes, as an adoptive admission by the manufacturer.

D is correct The rule against hearsay bars admission of an out-of-court statement offered for the truth of the matter asserted therein. However, certain statements are excluded from this rule and are therefore considered nonhearsay. One exclusion applies to statements made by and offered against an opposing party. Such statements are sometimes referred to as party admissions. Answers to interrogatories are nonhearsay party admissions. And when such an answer incorporates a document—e.g., by referring the interrogating party to the document—the contents of the document are considered adopted by the answering party. This means that the contents are nonhearsay if offered against the answering party. However, admission of the document itself must comply with other evidentiary rules. (Choice C) The public records hearsay exception applies to records of a public office that set out a matter observed pursuant to a legal duty to report. Here, the process patent likely meets the criteria for admission as a public record. But since the document was adopted by the manufacturer, it is nonhearsay and no exception is necessary.

A plaintiff who had been injured in a car accident with a truck brought an action against the employer of the truck driver for negligent hiring. Prior to trial, the employer filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law. In her response, the plaintiff submitted an affidavit by a former secretary of the employer stating that the secretary overheard the truck driver tell the employer that he had a history of accidents while interviewing for the job. Can the court properly consider the driver's statement in the affidavit in ruling on the employer's summary-judgment motion? A No, because the affidavit constitutes double hearsay. B No, because the statement constitutes hearsay. C Yes, because it is an opposing party's statement. D Yes, because it is not hearsay.

D is correct The rule against hearsay bars admission of out-of-court statements offered for the truth of the matter asserted unless an exclusion or exception applies. However, a statement is not hearsay if offered for a different purpose. For example, a statement offered to show that a party had notice of a relevant fact or condition is not hearsay. Here, the secretary's affidavit stated that the secretary heard the driver disclose a history of accidents to the employer. That statement is hearsay if offered for the truth of the matter asserted—because no exclusion or exception applies. But it is not hearsay if offered to show that the employer had notice of the driver's history and may have been negligent in hiring him (Choice B). Therefore, the court may consider the driver's statement. (Choice A) An affidavit offered to support or oppose a motion for summary judgment is not itself considered hearsay. That is because the affidavit is a representation of the testimony that the party would offer at trial. (Choice C) A statement is attributable to a party-opponent (i.e., is nonhearsay) if the statement (1) was made by the party-opponent's employee during the employment relationship and (2) concerned a matter within the scope of that relationship. But here, the driver's statement was made prior to the existence of the employment relationship (i.e., during his job interview).

IN ESSAYS: Talk about AUTHENTICATION!!

Evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is. Things like certified public records are self-authenticating and do not require extrinsic evidence. So a certified copy of a criminal conviction? It would be self-authenticating!!

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

D is correct Withdrawn guilty pleas are inadmissible Statements made during plea negotiations are inadminssible even if the plea is later withdrawn

A police officer stepped out of a coffee shop to find a woman standing on the sidewalk, visibly shaken and clutching a purse with a torn handle. She looked at the officer and stammered, "He just tried to take it, that hooligan in the red jacket! He had a gun!" She then pointed down the street in the direction that the hooligan had run. The officer jumped in his car and described the incident to a detective over the radio. The detective replied, "I just saw someone fitting that description running down Main Street." The officer drove to Main Street and, seeing nobody there, turned onto nearby Oak Street, where he arrested an innocent man who was running and wearing a blue jacket. The man is now suing the officer for false arrest. The man seeks to introduce the statements of both the woman and the detective for their truth, and the officer has filed motions to exclude both statements. How should the court rule on these motions? A Grant both motions. B Grant only the motion regarding the detective's statement over the radio. C Grant only the motion regarding the woman's description of the hooligan. D Deny both motions.

D is correct, I chose A because i did not read the question right he filed motions to exclude both statements, but both were admissible, so the motions should be denied. READ REad read read u got it right except the first one was excited utterances second one was present sense impression

A woman is on trial for a burglary that took place at about 6:00 p.m. on November 1. A surveillance video from a local gas station shows that the woman visited the gas station at 7:00 p.m. on November 1. The woman alleges as an alibi that she was actually at the gas station at 6:00 p.m. She argues that the gas station failed to change the time display on its camera to reflect the end of Daylight Savings Time on the morning of November 1. The judge, on his own initiative and after first giving the prosecutor the opportunity to object, took judicial notice of the fact that Daylight Savings Time did end in the year in question on November 1. The judge instructed the jury that it may or may not accept any judicially noticed fact as conclusive. Were the judge's actions with regard to judicial notice of this fact proper? A No, because the court should have instructed the jury that it is required to accept the noticed fact as conclusive. B No, because the fact is not one that is generally known within the territorial jurisdiction of the trial court. C Yes, because the court gave the prosecution an opportunity to be heard on the propriety of taking judicial notice before doing so. D Yes, because

D is correct, I chose C Choice C is wrong bc upon a party's timely request, the judge must give that party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact. Judge can just do it themselves.

A company shipped a fluid in a tanker car via a railroad. The following morning after having transported the car to a holding area owned and maintained by the railroad, a railroad employee noticed that fluid was gushing from the outlet spout on the bottom of the tanker car. The railroad cleaned up the fluid and then sued the company for the cleanup costs, alleging that the company had negligently failed to properly secure the outlet cap. The company, denying liability, contested the lawsuit. While the company presented no evidence as to actions of its employees regarding the tanker car in question, two company employees did testify, over the railroad's objection, that they routinely follow a procedure in inspecting tanker cars before the cars leave the company's premises, which includes making sure that the outlet cap is properly secured. As evidence of this procedure, the company submitted a copy of a checklist routinely used by its employees to inspect tanker cars to be shipped by rail, which contained the item, "Outlet cap—secured." Is the court's admission of the testimony by the two company employees proper? Answers: A) No, because, as employees of the company, their testimony was b

D is correct, I chose C Evidence of a person's habit or an organization's routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. Here, the employees' testimony and the checklist are evidence of the company's routine of checking the outlet caps of any tanker car before it is shipped by rail. Answer choice A is incorrect because, although the employees' testimony is subject to impeachment, this does not prevent it from being introduced into evidence. Answer choice B is incorrect because, while the employees did not testify as to the action taken with respect to the outlet cap in question, their testimony is admissible as relevant evidence of the company's routine practice. Answer choice C is incorrect because the testimony of the employees is not hearsay. Each is testifying as to his own actions and personal knowledge, not statements made by someone else.

A defendant on trial for forging checks took the stand in his own defense. On direct examination, the defendant denied having forged any checks; he stated that before he graduated from college the year before, he worked in his university's academic records office, indicating that he was "a trustworthy person." On cross-examination, the prosecutor asked the defendant if he had falsified records while working in the academic records office. The defendant denied that he had done so. The prosecutor then wanted to call to the stand his former supervisor from the university to testify that she had to investigate the defendant after allegations of misconduct, and that when questioned, he had admitted to her that he had falsified records. The defendant was removed from his position, but no formal charges had been brought against him. Should the prosecutor be allowed to call the defendant's former supervisor to the stand to testify as to the falsified records? Answer Choices: Yes, in order to impeach the defendant and to present propensity evidence. Yes, but only to impeach the defendant. No, because the testimony would contain hearsay. No, because the testimony would be extrinsic.

D is correct. The former supervisor may not testify about the falsified records because it would be impeachment by extrinsic evidence of a specific instance of conduct. A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it. Since the evidence about the falsification of records is only admissible, if at all, to impeach the witness, extrinsic evidence (such as the supervisor's testimony) may not be used to refute the defendant's denial. Answer choice A is incorrect because when a person is charged with one crime, extrinsic evidence of a specific instance of conduct is inadmissible to establish that the defendant had a propensity to commit that crime. Since the facts do not indicate that the prior bad act is being used as evidence for something circumstantial and relevant, such as motive, common plan or scheme, or identity, the supervisor's testimony is not admissible as substantive evidence.

A consumer filed a products liability action in federal court on the basis of diversity jurisdiction. In complying with a discovery request, the defendant's lawyer inadvertently, despite the lawyer's reasonable efforts to protect privileged material, included a report prepared at the lawyer's request by an investigator who was employed in anticipation of the litigation and was not expected to be called as a witness at trial. Immediately upon learning of the mistake, the defendant's lawyer sought to retrieve the report from opposing counsel, but the plaintiff's lawyer refused, asserting that the defendant's lawyer's inclusion of the report in the discovery material constituted a waiver of the protection for the material. The defendant's lawyer contended that the federal inadvertent-waiver rule applied to this disclosure. Is the defendant's lawyer correct? A No, because the federal inadvertent-waiver rule applies only to disclosures made to a federal office or agency. B No, because the federal inadvertent-waiver rule does not apply to a federal case based on diversity jurisdiction. C Yes, because the federal inadvertent-waiver rule applies to the disclosure of communications protected by t

D is correct. I chose C The federal inadvertent-waiver rule applies to (1) communications covered by the attorney-client privilege and (2) materials protected under the attorney work-product doctrine. Under this rule, disclosure of a communication protected by the attorney-client privilege or material that qualifies as attorney work product does not operate as a waiver in a federal or state proceeding if: the disclosure was made in a federal proceeding or to a federal agency the disclosure was inadvertent the privilege holder had taken reasonable steps to prevent disclosure and the privilege holder promptly took reasonable steps to rectify the error. Materials qualify as attorney work product if they were prepared by or for an attorney in anticipation of litigation—as seen with the investigator's report. The report was inadvertently disclosed in a federal case, and the defendant's lawyer had taken reasonable steps to prevent disclosure and immediately sought to retrieve it. This satisfies the four requirements of the federal inadvertent-waiver rule. Therefore, the defendant's lawyer correctly contended that this rule applied to his disclosure of the report. (Choice A) The federal inadvertent-waiver rule applies to disclosures made in a federal proceeding or to a federal office or agency. (Choice B) Under FRE 501, state law governs privilege regarding a claim or defense for which state law provides the rule of decision (i.e., in diversity cases). But notwithstanding FRE 501, the federal inadvertent-waiver rule applies even in a case based on diversity jurisdiction. (Choice C) The federal inadvertent-waiver rule does apply to the disclosure of communications protected by the attorney-client privilege. But that is irrelevant here because the investigator's report is not protected by this privilege. Instead, the report falls under the attorney work-product doctrine.

A woman sues a jewelry company for injuries stemming from an allergic reaction she had to a metal in a bracelet that she believes was manufactured by the jewelry company. The jewelry company alleges that the bracelet is a forgery made by another manufacturer and that the company is not liable. The woman seeks to introduce the following pieces of evidence: (1) trademark registrations with accompanying photographs indicating that the bracelet that allegedly caused her injuries bears the jewelry company's trademark, (2) a bracelet the jewelry company acknowledges as its own for the jury to compare with the woman's bracelet, (3) purchase orders for the jewelry company's bracelets from the store from which the woman purchased her bracelet, and (4) a judgment obtained by another plaintiff against the jewelry company for a similar reaction to a bracelet made by the jewelry company. Which of these is LEAST likely to be admissible on the issue of whether the bracelet is a forgery? A The evidence concerning the jewelry company's trademark on the bracelet. B The evidence that the store purchased bracelets from the jewelry company. C The jewelry company's bracelet, for comparison to the woman's brac

D is correct. I got this right for the wrong reasons To be admissible, evidence must be relevant—i.e., tend to make a material fact more or less probable—and not excluded by law or other evidentiary rules. Here, each item of evidence is relevant to whether the woman's bracelet was manufactured by the jewelry company, but much of the evidence raises hearsay concerns. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and is inadmissible absent an exclusion or exception. The civil judgment obtained against the jewelry company is hearsay because it is offered to prove that the jewelry company in fact uses a metal that causes allergic reactions. But unlike criminal judgments, no specific hearsay exception applies to civil judgments. And since no other hearsay exclusion or exception applies, the judgment is least likely to be admitted. (Choice A) The trademark registrations are hearsay since they are offered to prove that the jewelry company used a particular mark. But the public records exception applies to records of a public office that set out a matter observed pursuant to a legal duty to report. Since trademark registrations are required by law to be recorded in a principal registry by the U.S. Patent and Trademark Office, the registrations are admissible. (Choice B) The purchase orders are hearsay because they are offered to prove that the store from which the woman purchased the bracelet ordered inventory from the jewelry company. But business records are excepted from the hearsay rule when, as here, they were (1) made at or near the time of the recorded event, (2) based on personal knowledge, and (3) made and kept as a regular practice. (Choice C) The bracelet that the jewelry company acknowledged as its own (i.e., authenticated) can be compared to the bracelet that the plaintiff purchased by the jurors as lay individuals without the need for expert testimony.

Literally start ANY Evidence essay talking about relevance and say WHY the evidence is relevant.

Evidence must be relevant to be admissible. Evidence is relevant if it has any tendency to make any fact of consequence to determining the action more or less probable that it would be without the evidence. However, relevant evidence can be excluded if its probative value is substantially outweighed by a danger of unfair prejudice.

Relevance for an essay

Evidence must be relevant to be admissible. Evidence is relevant if it is probative in determining a material fact.

When can u use subsequent remedial measures

Evidence of subsequent remedial measures is inadmissible to prove negligence or other culpable conduct. But a court may allow evidence of such measures for other limited purposes such as (1) resolving a dispute about the feasibility of precautionary measures, (2) impeaching a witness, or (3) proving ownership or control.

How to authenticate an x-ray image and electrocardiogram

Evidence showing accurate process was used, machine was working properly, machine operator was qualified & chain of custody this is the Required method for authenticating physical representations of things that cannot otherwise be seen

DO NOT FORGET ABOTU 403 BALANCING IN YOUR ESSAYS!!!

DO NOT FORGET ABOTU 403 BALANCING IN YOUR ESSAYS!!!

Georgia dying declaration

Defendant must ACTUALLY DIE

Evidence on Criminal Defendant's Character

If the Defendant themselves testifies (opens the door) , P may show D's untruthfulness with reputation/opinion, specific instances (bad act and conviction) on cross examination, and specific instances (conviction) with extrinsic evidence, and D can rebut this with reputation/opinion testimony .

Hearsay Exceptions for Public Records

For absence of public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—so long as the public office regularly kept records for a matter of that kind.

Georgia Physician Shield Statute

Georgia does not recognize the physician-patient privilege. Georgia does have a "physician's shield" statute providing that a physician is not required to release a patient's medical information except when authorized by the patient, required by court order, or when the patient has placed her treatment or extent of her injuries in issue.

GA Psychologist - Patient Privilege

Georgia recognizes a privilege for confidential communications made between a patient and a licensed psychologist. The patient holds the privilege, but the psychotherapist must assert the privilege in the patient's absence. However, the privilege does not exist if the patient's mental condition is at issue or the evaluation was court-ordered.

Nonhearsay Statements FRE 801(d)

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein that is generally inadmissible under Federal Rule of Evidence 802. But an out-of-court statement is excluded from the hearsay rule (i.e., is nonhearsay) and admissible as substantive evidence if (1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant's statement satisfies any of the following criteria: (a) it is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding (b) it is consistent with the declarant's testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant's credibility when attacked on other grounds or (c) it identifies a person as someone the declarant perceived earlier.

What must you do if you want to use MIMIC evidence in Georgia????

PROVIDE THE DEFENDANT WITH REASONABLE NOTICE!! Unless the court excuses the notice requirement upon a showing of good cause. BUT: notice is not required if the evidence of the prior act is offered to prove the circumstances immediately surrounding the crime charged, the motive, or the prior difficulties between the defendant and the victi

Georgia Spousal Immunity

Spousal immunity prevents a spouse from being called as a witness by the prosecution in a criminal proceeding.

One witness testifies that they heard a bystander excitedly utter a detail about an accident. Another witness offered by the other party testifies that they heard the same bystander say a contradictory detail about the accident. Can that bystander be impeached?

Sure thing. The hearsay excited utterance is admissible, so the other party can attack the bystander's credibility by offering testimony from another witness about the bystander's inconsistent statement. The second statement can't be used as substantive evidence bc it doesnt fall under exception, so only can be used to impeach. It doesn't matter whether the bystander was on the stand or not or whether they had opportunity to explain or deny bc it can still be used to impeach.

Pleas, Plea Discussion & Related Statements

The law encourages plea-bargaining, so a defendant's statements during plea negotiations are generally not admissible against the defendant. However, a defendant may waive this protection—just like any other privilege—if the waiver is made knowingly and voluntarily

Spousal Privileges

The marital-communications privilege protects confidential communications made between spouses during the marriage. This privilege applies in both civil and criminal cases. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and: refuse to testify about the communication or prevent the other spouse from testifying about the communication = majority view. (minority view is that only the communicating spouse can assert the privilege) The spousal testimonial privilege is held by the witness-spouse who has the unilateral right to either (1) refuse to testify or (2) waive the privilege and testify.

When does the wrongfully caused declarant's unavailability hearsay exception apply? & standard to prove?

The party has to wrongfully cause or acquiesce in causing the declarant's unavailability AND do so INTENDING that result. Party attempting to prove forfeiture must do so by preponderance of the evidence so have to be 50%+ that the D wrongfully caused unavailability.

What might destroy spousal testimonial privilege?

The presence of a third party when the communicaiton was made

Prosecutor duty to disclose material evidence favorable to the D

The prosecution has an affirmative duty to disclose any material evidence favorable to the defendant and relevant to the prosecution's case in chief that would negate guilt or diminish culpability or punishment. Failure to make such a disclosure violates the Due Process Clause and is grounds for reversal, regardless of whether the failure to disclose was intentional, if the defendant can show that (i) the evidence is favorable to the defendant and (ii) failure to disclose caused prejudice against the defendant

The routine practice of an organization

The routine practice of an organization, such as a hospital, is admissible into evidence to prove that on a particular occasion the organization acted in accordance with that practice.

Georgia Point of Law: Surrounding Circumstances for Parol Evidence Rule

The surrounding circumstances are always admissible to aid in the construction of contracts. In Georgia, parol evidence is also admissible to (i) rebut an equity, (ii) discharge an entire contract, (iii) prove a new and distinct subsequent agreement, (iv) enlarge the time of performance, or (v) change the place of performance. In Georgia, all contemporaneous writings are admissible to explain each other. This is true even if one of the writings purports to contain the parties' entire understanding regarding the transaction.

When ARE compromise offers and negotiations admissible?

To prove efforts to obstruct a criminal investigation or prosecution; Negate contention of undue delay; Prove witness's bias or prejudice

What can the court do when inadmissible evidence is improperly admitted?

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal. This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Nonhearsay statements between coconspirators - when is it nonhearsay? GA/Fed

When it is in the concealment phase of the conspiracy - GA When it is part of the flow of information between coconspirators intended to help each perform their role (Fed)

Evidence of Subsequent Remedial Measures

When measures are taken by a defendant that would have made an earlier injury or harm to a plaintiff less likely to occur, evidence of those subsequent remedial measures is not admissible to prove any of the following: (1) negligence or other culpable conduct (2) a defect in a product or its design or (3) the need for a warning or instruction. The grounds for this exclusion rest on the public policy of encouraging people to take steps in furtherance of added safety without the fear of having the remedy used as evidence against them—with limited exceptions, as listed in the table above. However, this exclusion does not apply to remedial actions taken before the plaintiff was injured. Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.

When is the only time that compromise offers can be admitted to prove the validity or amount of claim or impeach a witness?

When the statement was made during negotiations in civil dispute involving govt agency AND it is being offered in a subsequent criminal case Can also be usd to prove witness bias/prejudice, negate contention of undue delay, and prove efforts to obstruct criminal investigation Statements made in civil settlement negotiations are NOT ALLOWED in subsequent criminal investigations unless it was made in a civil dispute with a govt agency.

What can't an expert witness give an opinion about

Whether the defendant possessed the requisite mental state for the charged crime or an asserted defense (but they can give an opinion on an ultimate issue)

Can juries compare authenticated handwriting against disputed handwriting?

Yep they sure can. So can an expert and a non-expert witness with personal knowledge of handwriting not acquired for litigation.

Question where D is released on bail and whether evidence of him buying a plane ticket under an alias is admissible?

Yes it's relevant bc it shows consciousness of guilt, which does make the material fact of his guilt more probable.

If a judge determines in a pretrial hearing that a d's confession was given voluntarily, can the D still at trial introduce evidence that seeks to call into question the voluntariness of the confession?

Yes they can, because a party may introduce evidence that is relevant to the weight and credibility of other evidence.

Efforts to settle a claim require both parties to intend to enter such negotiations.

You can't just write on a letter "this is a settlement attempt" and then try to use that to keep the letter out of evidence if the other person.

Statement against interest hearsay exception

declarant must be UNAVAILABLE

Don't forget about multiple hearsay

don't do it

Then-existing state of mind hearsay exception

so if someone says "I am afraid" that is their then-existing state of mind. Declarant does not have to be unavailable.

A/C privilege extends to attorney's agents

such as an investigator that the attorney hires

If u are trying to prove the terms of an agreement or contract or writing, then u should probably INTRODUCE THE WRITING But what if the document is absent??

that is a best evidence rule question. The best evidence rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (referred to as "document") be produced to prove its content. The rule is implicated when the content of a document is at issue—such as when the document has a legal effect (e.g., contract). One exception to this rule allows a party to use other evidence to prove the document's content upon proving that all originals are lost, destroyed, or otherwise unattainable Another exception allows a party to prove a document's content through the testimony, deposition, or written statement of a party-opponent without accounting for the original document's absence. However, a party-opponent's oral statement (or nonverbal conduct) that was made outside the context of testimony or deposition does not fall within this exception. As a result, the proponent must account for the document's absence before the proponent may use the statement to prove the document's content.