Evidence Cumulative Review

COCONSPIRATOR STATEMENTS Nick's boss: "Courtney begged me to give Nick a night off from work on Sept. 23. She said they had an important project that night." Admit?

Admit if prosecutor can prove that the statement was made during the conspiracy or in furtherance of it.

Aragorn and Sauron signed a contract in which Sauron agreed to sell Aragorn 20 precious rings in exchange for a payment of $100,000. When Aragorn received the rings, he found them to be of inferior quality and he asked for his money back. Sauron refused, and Argorn sued. One month before the trial, Sauron called Aragorn on the phone and said: 'Listen, this has gone way too far; this lawsuit is really damaging my reputation. I'm not admitting to anything, but it's possible I accidentally used an inferior alloy in making the rings. Give me two weeks and I'll make you twenty more rings that I promise you'll be satisfied with. I'll also give you $10,000 back for all the trouble. If I do that, will you drop the lawsuit?' Aragorn replied, 'Would you go to $20,000?' and Sauron hung up the phone. At trial, Aragorn wants to testify to Sauron's statement: (Continue . . . )

"I'm not admitting to anything, but it's possible I accidentally used an inferior alloy in making the rings." (A) Admissible. (B) Admissible under the hearsay rule but inadmissible for other reasons. (C) Not admissible under the hearsay rule, and for that reason alone inadmissible. (D) Not admissible under the hearsay rule, and also inadmissible for other reasons. B; The evidence is a party-opponent admission, so is not barred by the hearsay rule. However, it is a statement made as part of settlement negotiations after a dispute has arisen, and so it is barred by Rule 408.

Martha Stewart has been charged with insider trading--that is, trading a stock based on confidential information from the corporation. Her defense is that she had a pre- existing agreement with her stockbroker to sell the stock once it dropped below a certain price, and the sale was based on that agreement, not any newly acquired inside information. Assume Martha testifies on direct that she had a conversation with her stockbroker three months before the stock was sold in which she said: "Make sure you sell the IMClone stock as soon as it drops below 60," and her stockbroker said "Good idea, I'll do that." The prosecution objects to this testimony as hearsay. On cross, the prosecution plays a tape recording of a message Martha left on a friend's answering machine the day after the stock was sold in which she says: (Continue . . . )

"Veronica, you absolutely MUST start using my stockbroker. Yesterday he passed along some very useful information about a stock and I was able to save a bundle of cash." The defense attorney objects to the tape as hearsay. How should the judge rule? (A) Preclude both statements as inadmissible hearsay. (B) Allow Martha's testimony on direct and allow the tape on cross-examination ONLY for impeachment. (C) Preclude Martha's testimony on direct and allow the tape on cross-examination ONLY for impeachment. (D) Admit Martha's testimony on direct for a non-hearsay purpose and allow the tape on cross- examination for the truth of the matter asserted. D; 1st Statement is not hearsay (Don't care about truth of matter). 2nd Statement is hearsay, but falls under an exception (Rule 801(d)(2)- Opposing Party's Statement).

Frieda is the manager of a small bank in Toledo or Fairbanks. On the night of January 10th, a male individual posing as a U.P.S. deliveryman approached her house with a package. Once inside her house, he put on a mask, grabbed Frieda, tied her to a chair and raped her, then spent the night in the house, leaving her bound. In the early morning he untied her and forced her at gunpoint to drive him to the bank, unlock the doors, and de-activate the alarm. Calvin was arrested two days later and charged with rape, kidnapping, and armed robbery. In the prosecution's case in chief, they wish to offer the following evidence: (Continue . . .)

(1) The testimony of Ted, who will testify that five years ago, Calvin posed as a U.P.S. deliveryman and this gained entry to Ted's home. He ties Ted to a chair and left him bound all night, and early the next morning forced Ted to drive him to Ted's bank, unlock the doors and disarm the alarm system. Calvin then stole all the money in the case registers. (Ted's testimony) (2) A certificate of conviction for rape, in which Calvin was convicted of raping a woman ten years ago in his house after they had come home from a date. (A) Preclude both (1) and (2). (B) Admit (1) (subject to a Rule 403 test) and preclude (2). (C) Preclude (1) and admit (2) (subject to a Rule 403 test). (D)Admit both (1) and (2) (both subject to a Rule 403 balancing test). D; Admit both (1) and (2) (both subject to a Rule 403 balancing test). (1) Admissible under 403 and (2) 413.

Timothy is on trial for tax evasion. The prosecution alleges that he intentionally understated his income in 2006, and thus underpaid his taxes by over $100,000. The prosecution has three pieces of evidence it would like to admit: (1) Part of a letter Timothy wrote to the IRS in 2007, in response to a letter the IRS had sent him after filing a civil claim against him and demanding that he pay back taxes for 2006. In the letter, Timothy denied owing any taxes or making any mistake in his 2006 return, but at the end of the letter he wrote: "I would agree to pay $105,000 in back taxes and penalties to settle the issue." The government seeks to admit only this statement from the letter. (2) One of Timothy's business partners will testify that Timothy "is the kind of guy who would always try to cut corners and get away with something if it meant he could make some more money."; (Continued . . .)

(3) A few weeks before trial, Timothy agreed to plead guilty to a lesser crime of obstructing official business; however, that pleas was withdrawn after the judge refused to go along with the prosecutor's lenient sentence recommendation. Which (if any) of the three are admissible? (A) (1) only. (B) (1) and (3) only. (C) (2) only--and only in rebuttal if Timothy calls his own character witness first. (D) (1)-- only if Timothy testifies and claims he never offered to settle the civil claim; and (2)--only in rebuttal if Timothy calls his own character witness first. C; (1) Not Admissible because offer for settlement (Rule 408- Prosecutor offering (criminal case)). (Rule 408(a)(2)- Exception not applicable). Not in civil case (Not 410), (2) Admissible, character evidence (prosecutor offering, so it can apply if defendant opens the door), & (3) Not admissible under Rule 410.

John is on trial for raping Cynthia. J's defense is consent. He claims that they met in a bar, and after an hour C said: "Want to take me for a ride?" When J agreed, they went to his car and she directed him to the secluded location, saying it was "my favorite spot; nobody around for miles." They parked and had consensual sex. At trial, J wishes to introduce the following evidence: (1) Three different men will testify that on separate prior occasions over the past month, C has met each of them in the same bar and after some conversation asked "Do you want to take me for a ride?", then directed them to the same secluded area, describing it as her "favorite spot, nobody around for miles" and had sex with them. (2) A witness will testify that ten minutes before J and C left the bar together in J's car, he saw them in a back room in the bar "kissing passionately and feeling each other up." (Continued . . .)

(3) Testimony by the bartender at the bar that he is familiar with C's reputation, that she is present at the bar almost every night, and that she is known as "easy," and that "everyone knows she always gets all the way on the first date." (1) = Prior similar acts of consensual sex. (2) = Sexual acts with the accused from that night. (3) = Reputation evidence of the victim's sexual propensity. (A) 1, 2, and 3 (B) 1 and 2, but not 3. (C) Only 2 (D) None of them C; (2) Admissible under exception of Rule 412(b)- Prove Consent. (1) Does not meet any of the 3 exceptions (Easy and promiscuous). (3) Not admissible, Rule 412 prevents!

The Columbus Dispatch published a front-page story calling the lottery commissioner of Ohio "a thief who steals money from the public purse for his own personal gain." The commissioner sues the Dispatch for libel. In its defense, the Dispatch wishes to offer evidence that: (1) the commissioner diverted funds from the Ohio state lottery to pay for renovations to his home; (2) five years ago the commissioner was working for the Indiana state lottery and used funds from that lottery to buy a new car; and (3) last year the commissioner was arrested for drunk driving but used his connections in state government to cover it up. What are the proper rulings for these pieces of evidence?

(A) (1), (2), and (3) are all admissible. (B) (1) and (2) are admissible, but not (3). (C) (1) is admissible, but not (2) or (3). (D) (1), (2), and (3) are all inadmissible. B; Libel case (Defamation- everything character goes). (3) Rule 404(b) and 405.

Last year one of Patriot Mining's coal mines suffered a cave-in, trapping and killing three of it's miners. When the bodies of the miners were discovered, there was a handwritten note found next to one of the bodies. It read: "I was placing the blasting units along the far wall and they detonated prematurely, knocking out support beam. Cave collapsed. Now it's getting hard to breathe. I'm the last one alive." The families of the dead miners are suing the manufacturers of the blasting units, claiming that the blasting units were defective. They offer the handwritten note into evidence after it is properly authenticated. The defendant corporation objects on hearsay grounds. The note is:

(A) Admissible as a dying declaration. (B) Admissible as a statement against interest. (C) Admissible as a present sense impression. (D) Inadmissible. A.

Alexander is on trial for assaulting Spike in a bar. During the trial the prosecution calls Rupert, who was also present in the bar at the time of the incident. Rupert testifies that he was standing on an indoor balcony in the bar, looking down onto the first floor, when he saw Alexander come up from behind Spike and hit Spike in the back of the head with a beer bottle. On cross-examination, the defense attorney asks Rupert whether he spoke to his girlfriend about the incident the next day. Rupert agreed. The defense attorney then asked whether Rupert told his girlfriend: "Boy, I got lucky last night--I was on the indoor balcony at The Bronze and I dropped a beer bottle on some guy's head by accident and the police arrested someone else for it." The prosecutor objects. The evidence is:

(A) Admissible as impeachment evidence only. (B) Inadmissible. (C)Admissible to impeach Rupert and also as former testimony under 804(b)(1). (D) Admissible to impeach and also for the truth of the matter asserted therein (i.e., that Rupert is the one who hurt Alex), as a prior inconsistent statement by the witness, under Rule 801(d)(1)(A). A; Rule 801(d)(1)- A Declarant-Witness's Prior Statement.

Rosenberg and Summers are arrested for robbing a convenience store. The judge grants a mutual defense motion for severance and Rosenberg is tried first. At Rosenberg's trial, the prosecution calls Faith, the clerk at the convenience store, who was the only eyewitness to the crime. Faith testifies that a woman wearing a yellow jacket came into the store and put a gun to her head while a second woman wearing a denim jacket emptied the cash register. A police officer later testifies that Rosenberg and Summers were arrested minutes later one block from the store, and Rosenberg was wearing a yellow jacket and Summers was wearing a denim jacket. Rosenberg is convicted, and Faith, the eyewitness, dies shortly thereafter. At Summers' trial, the prosecutor seeks to admit the court transcript of Faith's testimony. The defense attorney objects. The evidence is:

(A) Admissible under Rule 804(b)(1). (Former testimony) (B) Admissible under Rule 801(d)(1). (A Declarant-Witness's Prior Statement) (C) Admissible under Rule 803(8). (Public Records) (D) Inadmissible. D; For 804(b)(1)- Former testimony: needs to be same party (here different party) and civil case (here criminal case).

Katrina is contesting her father's will. She testifies that her father was not in his right mind when he signed a new will, which left all of his money to Katrina's stepmother. On cross-examination, the stepmother's attorney holds up a copy of the resume that Katrina used to get her current job and asks if everything on it is true. Katrina states that it is. The attorney then seeks to call Katrina's current employer, who will testify that Katrina claimed to have graduated from a particular college on her resume, but that Katrina later admitted that she never actually graduated. Katrina's attorney objects to the proposed employer testimony. This testimony is

(A) Admissible, because the testimony would show that Katrina lied in the past, which makes it more likely that she is lying now. (B) Inadmissible, because the proposed testimony constitutes extrinsic evidence on a collateral matter. (C) Inadmissible, because the proposed testimony is irrelevant to Katrina's credibility. (D) Inadmissible, because Katrina's current employer does not have personal knowledge regarding whether Katrina actually graduated from college or not B

Pam is contesting her father's will. She testifies that her father was not in his right mind when he signed a new will that left all of his money to her stepmother. On cross-examination, the defendant's attorney holds up a copy of the resume she used to get her current job and asks if everything on it is true. Pam states that it is. The attorney then seeks to call Pam's current employer, who will testify that Pam claimed to have graduated from college on her resume, and she later admitted that she never in fact graduated. Pam's attorney objects. The testimony is:

(A) Admissible, since it proves that Pam lied in the past and is therefore more likely to be lying now. (B) Inadmissible, because this is extrinsic evidence about a prior dishonest act. (C) Inadmissible, because it is irrelevant to her credibility. (D) Inadmissible, because Pam's employer does not have firsthand knowledge of whether Pam graduated from college. B; Can't use extrinsic evidence on collateral matter. Impeach her on lying about resume (collateral matter). If father is in right state of mind.

Same fact pattern as the last question. Assume (rightly or wrongly) that the court allows Billy to testify to his opinion about the cause of the fire. On cross-examination, the defense attorney asks Billy to repeat exactly the statements that were made to him that allowed him to form his opinion. The prosecutor objects based on hearsay. The judge should:

(A) Admit the statements but give a limiting instruction which explains they may only be considered for the purpose of explaining the basis of Billy's testimony, and not for the truth of the matter asserted. (B) Admit the statements only if the defense attorney proves that their probative value outweighs their unfair prejudicial effect, and then only with the limiting instruction mentioned above. (C) Admit the statements with no limiting instruction. (D) Preclude the statements. A; Hearsay but expert put on cross.

Franklin was sleeping on board his yacht, "Charity," when it exploded early one morning, killing him. The cause of the accident was determined to be propane from the boat's stove, which filled the cabin and ignited from a candle that was burning near his bunk.• Franklin's estate has sued the stove manufacturer, claiming that it developed a leak, which allowed the propane to escape and caused the explosion. The defendant manufacturer has some physical evidence that the stove's gas had been (negligently) left on.• At trial, the attorney for Franklin's estate calls his longtime girlfriend, Alice, who had stayed on the boat with Franklin on at least 20 nights over the past year, though she was not present on the night before or the morning of the explosion. She intends to testify that every night before going to bed, Franklin would take five minutes to check the anchor, the sale ties, the motor lock, and the cooking

(A) Admit the testimony as habit evidence under Rule 406. (B) Exclude the testimony as irrelevant because Alice wasn't present at the relevant time. (C) Exclude the testimony as substantially more prejudicial than probative under Rule 403because Alice wasn't present at the relevant time A

Francis was living on board his Yacht "Charity" when it exploded one morning, killing him instantly. Investigators determine that the cause of the accident was propane from the stove in the boat that escaped and filled the cabin, causing an explosion when Francis tried to light the stove in the morning. Francis' estate sues the manufacturer of the stove, claiming that it developed a leak which caused the gas to escape. The defendant manufacturer has some (inconclusive) physical evidence recovered by divers that the gas for the stove might have been negligently left on the night before, causing gas to escape into the boat, and the defendant claims that Francis was at fault for not turning off the gas after he was done cooking the night before. At trial, the attorney for Francis' estate calls Samantha, who has been on the boat with Francis at least twenty nights over the past year, though she was not with him on the n

(A) Admitted under Rule 406. (B) Precluded under Rule 411. (C) Precluded under 404(a). (D) Precluded under Rule 403. (Not Prejudicial). A- Habit.

Same facts as Question 4. Assume the trial judge denies Youngstown University's motion in limine to preclude the evidence of the prior firings. When Greg or Mark then presents this evidence at trial, Youngstown University does not object. After Mark wins at trial, Youngstown University appeals the case, arguing that the evidence of the prior firings was improperly admitted. The appellate court should

(A) Affirm (Sustain) the lower court decision because Youngstown University did not make a timely objection to the evidence at trial, as required by Rule 103(a)(1). (B) Reverse (Overrule) the lower court if and only if the appellate court determines that the trial court was incorrect in ruling that the evidence was admissible. (C) Reverse (Overrule) the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence. (D) Reverse (Overrule) the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence and that the mistake affected a substantial right of Youngstown University. D

Jeremiah is on trial for assault with a deadly weapon. He has one previous conviction for assault with a deadly weapon. Jeremiah does not testify, but he does offer the testimony of his wife, Kalinda, who testifies that she has known Jeremiah for 10 years, and she has never observed him to be violent. Jeremiah also offers the testimony of a man who used to be friends with the alleged victim, who will testify that the victim was known for starting violent conflicts. Which evidence is admissible? (1) Jeremiah's conviction is admissible to show his history of criminal conduct. (2) Jeremiah's conviction is admissible, but only to potentially impeach Kalinda. (3) The evidence about the alleged victim

(A) All of the evidence is admissible as described. (B) Only #3 is admissible. (C) # 3 is admissible and #2 may be admissible, subject to Rule 403. (D) None of the evidence is admissible C

John is on trial for raping Anna. He maintains that he met her at a particular bar and that after they talked for a while, she asked, "Want to take me for a ride?" When he agreed, they went out to his car and she directed him to a secluded rural location that she described as her "favorite spot." John maintains they then had consensual sex. Anna alleges that John then raped her. At trial, John wants to introduce the following: (1) two men who will testify that during the past month, they met Anna at the same bar and that, after some conversation, she asked, "Do you want to take me for a ride?" and that Anna then directed them to the same secluded location(describing it as her "favorite spot") and had consensual sex with them; (2) a witness who will testify that shortly before John and Anna left the bar together, she saw them in a back room"kissing passionately and feeling each other up"; and (3) testimony by the

(A) All of the evidence should be admitted. (B) (1) & (2) should be admitted, but not (3). (C) Only (2) should be admitted. (D) None of this evidence should be admitted C

Martha Stewart is being prosecuted for insider trading. She chooses to testify in her own defense at trial and testifies on direct that she had a conversation with her stock broker three months before the stock was sold in which she said: "Make sure you sell the IMClone stock as soon as it drops below 60," and her stockbroker said, "Got it. I'll do that."The prosecution objects to all of this testimony as hearsay. On cross-examination, the prosecution plays a tape recording of a message Martha left on a friend's answering machine the day after she actually sold the IMClone stock, in which she says: "Veronica, you absolutely MUST start using my stockbroker. Yesterday he passed along some very useful information about a stock, and I was able to save a bundle of money by dumping it." Martha Stewart's attorney objects to this recording as in admissible hearsay. How should the judge rule on both objections?

(A) All of the statements should be excluded as inadmissible hearsay. (B) Allow Martha's testimony and admit the tape recorded message only to impeach her (but not for its truth value) (C) Allow Martha's testimony but exclude the tape recording as inadmissible hearsay. (D) Allow both Martha's testimony and the tape recording (without limitation). D

Michael has been charged with 4 counts of sexually molesting Emily, the 10-year-old daughter of his former girlfriend. Michael was living in his girlfriend's home at the time and was often left alone with Emily while his girlfriend worked a "late shift" at a local restaurant. The prosecution has given notice that it plans to introduce the following atMichael's child molestation trial: (1) evidence that 8 years earlier, Michael was convicted of raping a 20-year-old woman; (2) testimony that Michael was fired from his job at Wal-Mart for making sexually explicit comments to his (adult) female co-workers; and (3)testimony from Melinda, who is now 18, who will testify that when she was 9 years old,Michael molested her during the time period when her mother dated him. Michael will not testify at trial and challenges the admissibility of all of this evidence.What evidence should the trial court admit?

(A) All of this evidence should be admitted. (B) (1) & (3) should be admitted, but not (2). (C) Only (3) should be admitted. (D) None of this evidence should be admitted C

Ted is on trial for killing Steve while both men were watching their sons play football. Ted testifies in his own defense, and says that he and Steve were arguing about a ruling on the field when Steve suddenly came at his throat with a knife. Ted calls no character witnesses during his case. In rebuttal, the prosecutor calls Helen, Steve's wife, to testify, over the defendant's objection, that she knew Steve for twenty-two years and that he was "peaceful and non-violent." On cross-examination, the defense attorney asks Helen if she knew that Steve had been arrested for assaulting a man with a knife nine years ago. What are the proper evidentiary rulings?

(A) Allow Helen's direct testimony under Rule 404, but preclude the question on cross-examination under Rule 405. (B) Allow Helen's direct testimony under Rule 404, but only if she also testifies as to specific instances of conduct on the part of Steve to support her opinion. The question on cross-examination should be permitted under Rule 405. (Character witness cannot testify to this on cross). (C) Allow Helen's direct testimony under Rule 404, and allow the question on cross-examination under Rule 405. (D) Preclude Helen's testimony entirely, based on Rule 404. (Because Ted did not present any character witnesses). C; Defendant says victim is the 1st aggressor. Plaintiff can bring into testify that peaceful.

Laertes sues Hamlet after the two of them were involved in a car accident. After the lawsuit is filed, H's attorney meets with L and presents him with a report made by Rosencrantz, an expert in accident reconstruction. The report states that in R's opinion, H and L were both going over 60 mph in a 45 mph zone, and that the axle in H's car broke, causing H to swerve and strike L. H's attorney argues that this proves that H was not at fault, and he offers to pay L's attorney's fees if the case is dismissed. L rejects the offer. At trial, H calls R to testify. R testifies that in his expert opinion Hamlet was travelling at the speed limit when his axle broke, causing his car to swerve. On cross, L asks R about the earlier report he had prepared which stated that H was speeding. H objects, citing Rule 408. Assume that R's report was discoverable under the Rule of Civ Pro. How should the court rule on H's objection?

(A) Allow Laertes to use the report to impeach the expert, but not allow it as substantive evidence that Hamlet was speeding.(B) Allow Laertes to use the report to impeach the expert and as substantive evidence that Hamlet was speeding. (C) Allow Laertes to use the report as substantive evidence that Hamlet was speeding but not to impeach the expert. (D) Preclude Laertes from using the report for either reason. B.

Kameron worked as a clerk in a MetroShoe Warehouse and has been charged with stealing cash from one of the store's cash registers on September 25, 2020. The theft was reported by Kamiah, another employee, who has testified that she saw Kameron take cash out of the register and put it in his backpack that day. Kamiah is also prepared to testify that she saw Kameron do the same thing on 2 other occasions, but that she didn't report it until the third time because she felt like it was getting out of hand. None of the cash was ever recovered. Kameron's attorney has filed a motion to exclude Kamiah's testimony regarding the alleged prior thefts as uncharged prior crimes evidence, under Rule 404, and overly prejudicial. The defense team intends to question Kamiah about the fact that she and Kameron were previously engaged but that he broke if off, after getting involved with another store employee. The prosecutor has fil

(A) Allow all of Kamiah's testimony and prevent the proposed cross-examination. (B) Allow all of Kamiah's testimony but allow the proposed cross-examination. (C) Prevent the questioning about the alleged prior thefts by Kameron, but allow the cross. (D) Prevent the questioning about alleged prior thefts and prevent the cross-examination of Kamiah because it is "beyond the scope" of her direct testimony C

Wendy, a Democrat and a political activist, attended a speech being given by Donald Trump and started shouting, "Impeach Trump!" At that point, someone standing next toWendy punched her in the face. Wendy accused Jack of being the one who punched her and sued him for battery, seeking civil damages. Jack was standing near Wendy while she was heckling. At the civil trial, Jack offers the following evidence in his defense: (1) At a previous Trump rally, Jack stood near numerous anti-Trump protesters who were heckling the speaker, but he did nothing in response. (Jack will testify himself about this.) (2) Jack offers a character witness who will testify that he has known Jack for 10 years and that in his opinion Jack is a peaceful man who never loses his temper. How should the trial court rule if Wendy's counsel objects to all of this evidence?

(A) Allow both types of evidence. (B) Admit Jack's testimony about his own conduct, but exclude the character witness. (C) Exclude Jack's testimony about his own conduct, but allow the character witness. (D) Prohibit both types of evidence. D; (1) Not allowed because character evidence in civil case and (2) Not allowed because character witness (only allowed in criminal cases). Not a criminal case.

Same trial as in Question 1. Teresa's supervisor, Cameron, has testified that he has never made any inappropriate statements to Teresa and that he has never treated her in any way that could be considered demeaning or inappropriate at work.• Teresa's attorney is now cross-examining Cameron. He asks the following question: "Isn't it true that you said to your co-worker, Martin Mathis, that: 'The cool thing about Teresa is that she doesn't mind talking nasty with the boys.'" And Teresa's attorney is prepared to offer the testimony of Martin to state that Cameron made this statement. The employer's attorney objects to both the question and Martin's testimony under Rule 613.Teresa's attorney has previously disclosed Cameron's testimony to the defense team. The trial court should:

(A) Allow the question to Cameron but prevent the testimony of Martin, regardless of howCameron answers the question. (B) Allow the question to Cameron and also the testimony of Martin, but only if Cameron denies making the statement. (C) Sustain the objection to the question to Cameron, but allow the testimony of Martin B

Teresa is testifying as a witness in her civil lawsuit suing her employer for damages based on allowing sexual harassment to occur in the workplace by her supervisor, Cameron. On cross-examination, the employer's attorney asks Teresa the following question: "Isn't it true that you were caught cheating on a Chemistry 101 exam while you were a freshman in college?" The employer has subpoenaed Teresa's college Chemistry professor, who is present and is prepared to testify that this occurred. Teresa's attorney objects to both the question to Teresa and to any testimony by the professor. The trial court should

(A) Allow the question to Teresa, but only allow the professor to testify if Teresa denies cheating. (B) Sustain both objections because such cheating does not constitute a "conviction." (C) Allow the question to Teresa but sustain the objection regarding the professor's testimony, even if Teresa lies about never getting caught cheating. (D) Sustain the objection to the question to Teresa but allow the professor's testimony C

Julian and Jake are accountants who work for Sisko Industries, and are both indicted for tax fraud after a lengthy I.R.S. investigation. Juilan agrees to plead guilty to a lesser offense in exchange for his cooperation in the case against Jake. After Julian testifies on direct, the defense attorney begins his cross by asking: "Isn't it true that the prosecutor agreed to let you plead to a much less serious crime than the one you were originally charged with?" The prosecutor objects. The question should be:

(A) Allowed. (B) Barred by Rule 611. (Judge cannot permit this to happen b/c he has a bias). (C) Barred by Rule 410. (Not withdrawn (For 410 to apply he needs to be defendant and was a participant in the plea discussions)). (D) Barred by Rule 403. (Not too Prejudicial). A; Prejudicial Bias.

Terry is on trial for arson. At trial, the prosecution calls Billy Blazes, an investigator for the fire department. Billy joined the fire department immediately after graduating from college and had had no schooling in arson investigation. However, Billy worked with two senior fire department investigators over the first three years of his career, and he has now been working at the job for over ten years, having investigated hundreds of fires. • At trial, Blazes will testify that he spoke to six individuals who saw the fire burning at different stages and that based upon their statements, he has concluded that the fire was set intentionally. On cross-examination, Billy admits that he has never heard of a case where an arson investigator relied solely on the observations of witnesses regarding a fire's cause, but emphasized that in this case there was almost no physical evidence left.

(A) Billy lacks the expertise to be qualified as an expert and so his testimony will not be admissible. (B) Billy's conclusion about the cause of the fire is based on inadequate (improper underlying) data. (C) Billy's testimony is inadmissible for both reasons. (D) Billy's proposed testimony is admissible expert testimony. OR the evidence is admissible. B; Rule 705 - Disclosing the Facts or Data Underlying an Expert.

Joyce runs a small art gallery specializing in sculptures and masks. Last year she sold Riley a set of sculptures that she claimed were "genuine Chumash tribe artifacts." As it turned out, the artifacts were covered in a thin green moss which caused Riley's hands to blister and itch uncontrollably. He brought the statues with him to the emergency room and told the intake nurse that: "My hands started to turn red and itch right after I picked up these stupid statues." Riley later sued the gallery for selling him the poisoned statues. He seeks to admit the statement he made to the nurse in the emergency room. In her defense, Joyce denies ever selling him the statues, and as evidence she seeks to admit inventory and sales records from her store showing that she never owned nor sold any item fitting Riley's description. How should the judge rule?

(A) Both Riley's statement to the nurse and Joyce's inventory and sales records are inadmissible. (B) Riley's statement to the nurse is inadmissible, but Joyce's inventory and sale records are admissible. (C) Riley's statement to the nurse is admissible, but Joyce's inventory and sales records are inadmissible. (D) Both Riley's statement to the nurse and Joyce's inventory and sales records are admissible. D; Rule 803(4)- Medical treatment or diagnosis (Inventory). Rule 803(7)- Absence of business records (Sales Records). Offered to show that never owned nor sold any item (Absence).

Brady was working outside in his yard when he saw a car pull up the driveway to his house. A man stepped out of the car carrying a shotgun and fired two blasts of the gun at Brady. The man then re-entered the car and drove away quickly. Brady's wife heard the shots and heard her husband yell "Help! Davis has shot me!" She came out to find Brady lying in the yard bleeding from the leg. He is taken to the hospital and two hours later is being prepped for surgery when the doctor tells him: "Do you know who shot you?" Brady replies in a calm tone of voice: "Yes. I am certain it was Davis." Davis is arrested and charged with attempted murder. Brady is unavailable to testify at trial, so the prosecutor calls the wife and the doctor to testify as to Brady's statements to them on the day of the shooting. What are the proper rulings?

(A) Both statements are admissible. (B) Neither statement is admissible. (C) The statement to the doctor is admissible, but the statement to the wife is not. (D) The statement to the wife is admissible, but the statement to the doctor is not. D; Statement to Wife is excited utterance and statement to doctor is not excited utterance because it was said in calm tone. Coma = not dead.

Uma and Charles are going through a divorce and are currently engaged in a custody dispute over their twelve- year-old daughter Lana. While the court case is pending, they are living apart and sharing custody. Neither one wants to call Lana to the stand in court. Instead, Uma testifies in her case in chief that Lana told her one night: "I am so happy living with you, Mom. I love you very much." Charles takes the stand in his case in chief and testifies that Lana told him: "Last week Mom spanked me so hard I couldn't even lie on my back in bed." What are the proper rulings?

(A) Both statements are inadmissible. (B) Lana's statement to Uma is admissible, but Lana's statement to Charles is inadmissible. (C) Lana's statement to Uma is inadmissible, but Lana's statement to Charles is admissible. (D) Both statements are admissible. B; In 1st statement (L to U), the State of Mind Exception applies. 2nd statement (L to C), is hearsay.

Ronald is suing his former employer for breach of contract. Ronald claims that his producer, Steve, promised him a large bonus in exchange for filing 10 extra news reports, and that even though he filed the reports, the bonus was never paid. To support his claim, he offers two pieces of evidence: (1) a contract, signed by Ronald and Steve, which states that Ronald will be paid a $5,000 bonus if he files 10 extra stories in 2021, and (2) a letter Ronald wrote to his wife, dated the day before the contract was signed, stating: "Honey, we can plan that trip to Hawaii now! Steve has just promised me an extra $5,000 if I do ten more stories this year!" Which of the following is true?

(A) Both the contract and the letter are hearsay. (B) The letter is hearsay but the contract is not. (C) The contract is hearsay but the letter is not. (D) Neither the letter nor the contract are hearsay B; Contract is not hearsay as it is not a statement because it has legal meaning. Letter is hearsay.

Cameron has been arrested as a suspect in an armed robbery and taken to the police station. After he is given his Miranda warning, a detective asks Cameron if he is willing to talk. Cameron states, "Yeah. I was at that bank on the night you are talking about, butI wasn't armed and I wasn't involved in the robbery." He then adds, "I want an attorney." Cameron and his attorney later met with the district attorney, who asked what Cameron was willing to admit to. Cameron responded that he was only willing to plead to being an accessory after the fact to the robbery. The district attorney responded, "That's not enough" and ended the meeting. Which of the following is admissible at Cameron's criminal trial on a charge of armed robbery?

(A) Cameron's statement to the detective that he was at bank on the night of the robbery. (B) Cameron's statement to the district attorney that he was willing to plead to being an"accessory after the fact" to the robbery. (C) Both statements are admissible. (D) Neither statement is admissible. A

Angelina is on trial for assault with a dangerous weapon. She is accused of hitting her then-boyfriend with a baseball bat, after learning that he had cheated on her. She denies actually hitting her ex-boyfriend with the bat, and she wants to present evidence that she is not the kind of person who would do that sort of thing. Her attorney proposes to put onAngelina's best friend, Erika, who knows Angelina well and also knows her ex-boyfriend. What kind of testimony will Erika be allowed to offer on direct? Pick the best answer

(A) Erika will be allowed to testify that she knows Angelina well and that Angelina is "a very calm, peaceful, and non-violent person." (B) Erika will be allowed to provide the testimony noted in A and also testify thatAngelina has a reputation for being calm and peaceful, even under pressure. (C) Erika will be allowed to provide the testimony noted in A and B and also testify thatErika has never seen Angelina react violently in a conflict situation. (D) All of this testimony would be excluded because it is prohibited propensity evidence B

Tara is shot while walking on a neighborhood trail by a white adolescent male whom she did not know. Officer Snyder asks Tara questions about what happened and takes notes, but he does not show his notes to Tara. He later comes back and shows Tara pictures of 6 white, adolescent males that are consistent with her description of the shooter. Tara points to picture #4 and says, "He's the one who shot me." At trial, Tara is unable to confidently identify the defendant (who was #4) as the person who shot her. She testifies that she remembers looking through the pictures, but can't remember which one she chose. The prosecutor asks Tara if seeing the officer's notes would refresh her recollection about who she chose, and Tara says, "yes." Tara looks at Officer Snyder's notes and then testifies that picture #4 is the one the that she selected as the person who shot her. • The defense attorney objects. What should the ju

(A) Exclude Tara's testimony about earlier identifying the defendant (#4) as hearsay. (B) Exclude Tara's testimony because Officer Snyder's report can't be used in that way. C) Exclude Tara's testimony because her prior identification is hearsay and because Officer Snyder's report can't be used in the way that the prosecutor used it. (D) Overrule the objection entirely because Tara's testimony in this regard is admissible D

Sarah is a software engineer at WebCo, a small company that designs software. She is on trial for insider trading, after selling 5,000 of her own shares of the company on June 1, 2021, the day before WebCo publicly announced that it had lost its bid to contract with Microsoft.• At trial, the prosecutor seeks to admit: (1) evidence obtained from Sarah's work computer that on June 1, 2021, a few hours before making the sale, Sarah hacked into WebCo's email system and reviewed management emails discussing the lost bid, and (2) evidence that 3years earlier, Sarah was fired from her job at Oracle after the company discovered that she had hacked into Oracle's email system and then sold a large amount of Oracle stock, 1 day before Oracle announced much lower-than-expected profits. Oracle fired Sarah without reporting its discovery to authorities. How is a judge likely to rule?

(A) Exclude both types of evidence under Rule 404. (B) Allow (1) but exclude (2) under Rule 404. (C) Allow (1) and perhaps allow (2), because (2) demonstrates knowledge and tends to show a common plan (identity) through a distinctive modus operandi (method). (D) Allow (1) and perhaps allow (2), because (2) tends to show that Sarah has a tendency to commit this kind of crime. C; (1) Admissible because physical evidence that ties her to the crime & (2) Rule 404(b)- used to show knowledge and ability (Opportunity since worked here).

Kennedy is entering an Athletes First sporting goods store in a shopping mall when her heel gets caught in a heating grate at the threshold between the mall and the store. She falls, is injured, and sues the mall. After the accident, Athletes First installs signs just inside the threshold, warning customers to watch their step. A few months later, the mall installs brand new store thresholds, with the heating grates on the ceiling instead of in the floor. If the admissibility of this evidence is challenged at trial under Rule 407, how should the judge rule?

(A) Exclude the evidence of both the sign installation and the re-design of the threshold. (B) Exclude the evidence of the re-design of the threshold, but allow evidence of the sign installation. (C) Allow the evidence of the re-design of the threshold, but exclude the evidence of the sign installation. (D) Allow the evidence of both the re-design and of the sign installation B

Gavin is the Chief Financial Officer at BioTech, Inc. In 2018, the SEC filed a civil complaint against Gavin, alleged that he sold shares of BioTech based on inside information. During the SEC's investigation, Gavin admitted that he had made the sales after a particular board meeting and then paid a fine of $100,000 in exchange for theSEC's agreement not to further pursue the civil action. In 2019, BioTech shareholders filed a class action lawsuit against Gavin, based on the same allegation of insider trading. During settlement negotiations, Gavein eventually admitted that he had wronged the shareholders and agreed to pay them $1 million. In 2020, the U.S. attorney filed criminal charges against Gavin based upon the same allegations. Which of the following are admissible against Gavin in a criminal trial?

(A) Gavin's admission to the SEC that he made the sales after a particular board meeting. (B) Gavin's payment of a $100,000 fine to the SEC. (C) Gavin's admission during the class action case that he had wronged the shareholders. (D) Gavin's payment of $1 million to settle the shareholder lawsuit. A

John Grisham, a famous author, is accused of killing Xavier Daniels. When Grisham was arrested, the police found a letter in his coat pocket written by Daniels and addressed to Grisham. The letter said: "You plagiarized almost all of your last novel from my father's work. I know it. I demand that you pay me $500,000, or I will sue you in court and destroy your reputation." The prosecutor wishes to admit the letter as evidence against Grisham. The letter is:

(A) Hearsay if used to prove/suggest motive. (Not hearsay) (B) Hearsay if used to prove/suggest that Grisham plagiarized his last novel. (C) Hearsay for either of the two purposes. (D) Not hearsay regardless of the purpose for which it is offered. OR Not hearsay no matter what it is meant to prove. B; Letter is a statement (assertion). Declarant is person who wrote the letter, content of letter (hearsay), and motive of guy that receive letter (not hearsay).

Angelina was also shot while walking on a neighborhood trail by a white adolescent male whom she did not know (on the same day that Tara was shot). Angelina was brought by ambulance to the hospital. While she was in the ambulance, she was asked if she remembered what happened. Angelina, who was weak and barely conscious, stated that she remembered being "hit in the back first" and that when she turned around, she saw "a young, white male in a red jogging suit," who "looked directly at me and then shot me in the leg." Angelina died from her wounds 3 days later. If the ambulance medic is on the stand testifying, which of Angelina's statements will he likely be allowed to testify about?

(A) Her statements indicating that she was hit first in the back and then in the leg. (B) Her statement that the person who shot her was "a young, white male in a red jogging suit." (C) Testimony about both statements will be allowed. (D) Testimony will not be allowed about either statement A

Hal and Falstaff got into a fight in a bar, and Hal pushed Falstaff to the ground and repeatedly kicked him in the head. Hal was arrested for assault, and Falstaff sued Hal for battery. One week before the criminal trial, Hal paid Falstaff $10,000 and Falstaff dropped the battery case against him. During the criminal trial, the prosecutor calls Falstaff to the stand and asks him whether Hal paid money to him after the assault. The defense attorney objects. Falstaff's answer would be:

(A) Inadmissible to prove Hal's guilt because it is irrelevant. (B) Inadmissible to prove Hal's guilt under Rule 408. (C) Inadmissible to prove Hal's guilt under Rule 408, but potentially admissible to impeach Falstaff if Falstaff testifies. (D) Inadmissible to prove Hal's guilt under Rule 410. (E) Admissible to prove Hal's guilt. C; Rule 408 (Settlement/Compromise Negotiations). Impeach because can lie & show that he was paid to back out of case. If testifies, then he is already biased.

While shopping at Homeland or Kwik-E-Mart , Marcus or Homer slipped on a puddle of spilled liquid in the aisle and cracked his tailbone. Marcus has sued Homeland for negligence in not cleaning up the spill before the accident. Lisa or Apu, the store manager at Homeland, testifies at trial that her employees regularly patrol the store for such spills and that "since the accident, I haven't even felt the need to change how often we patrol." On rebuttal, Marcus's attorney offers evidence from another Homeland employee that a week after the accident, Lisa ordered store employees to patrol for spills every half an hour instead of every hour. Homeland objects under Rule 407. This evidence is

(A) Inadmissible under Rule 407, since it is evidence of a subsequent remedial measure. (B) Admissible because it impeaches Lisa's or Apu's testimony. (C) Admissible because increasing the rate at which employees patrol for spills would not be considered a "subsequent remedial measure." (D) Admissible to prove that Homeland had control over the actions of its employees B; Impeaches.

George is being prosecuted for breaking into Victor's home in downtown Columbus on the night of December 28th. George takes the stand in his own defense and claims that he was in Florida from Christmas until New Year's Day. On re-direct, the prosecution wishes to introduce evidence that early in the morning on December 30th, the defendant was arrested in Columbus for drunk driving. This evidence is

(A) Irrelevant, since it does not make the fact that the defendant robbed the house onDecember 28th any more or less likely. (B) Probably inadmissible, since it will unfairly bias the jury by exposing them to prejudicial information about the defendant, and the information that is relevant has little probative value. (C) Probably admissible, since it tends to prove that the defendant was lying when he claimed to be in Florida. Any issue of unfair prejudice can be cured with a limiting instruction to the jury or by not mentioning the crime for which George was arrested. (D) Probably admissible, since it proves that the defendant has a propensity to break the law and thus is more likely than a law-abiding citizen to have committed the robbery. Any issue of unfair prejudice can be cured with a limiting instruction to the jury C; Rule 403 (Prevent unfair prejudice but evidence still relevant).

Mark slips and falls on ice outside a business. When the owner of the business(Lisa) finds Mark on the ground outside, she offers to pay any medical expenses that he incurs due to the fall. If Mark later sues Lisa for negligence regarding the up keep of her property, which of the following is correct regarding the admissibility of Lisa's offer to pay Mark's medical expenses?

(A) Lisa's offer is inadmissible under both Rules 408 and 409. (B) Lisa's offer is admissible under Rule 408, but it will be excluded under Rule 409. (C) Lisa's offer is admissible under Rule 409, but it will be excluded under Rule 408. (D) Neither Rule 408 nor Rule 409 will prevent Lisa's offer from being admitted. B

Steven took his 10-year-old son Ben and Ben's friend Braden out on the lake for a boat ride one afternoon. Steven let Ben drive the boat while Braden was trying to learn to ski. Ben got too close to Braden when trying to retrieve Braden's ski from the water, and Braden's arm got stuck in the boat's motor, causing severe injuries to Braden. Steven called his wife (Kim) right after call 911 to get an ambulance. Kim immediately called Braden's mom, Kamiah, to tell her what had happened. Kim was very emotional and stated, "I told Steven not to let those kids drive the boat." If Braden's family later sues Steven for negligence leading to Braden's injuries, will Kim's statement be admissible against Steven to suggest that he was, in fact, "negligent"? (Kim invokes her spousal privilege and will not testify.)

(A) No. Kim's statement is inadmissible hearsay. (B) Yes. Kim's statement is admissible as an excited utterance. (C) Yes. Kim's statement is admissible under the "state of mind" exception. (D) Yes. Kim's statement is admissible as both an excited utterance and as a statement about her state of mind B

Moses has convinced brothers Cain and Able to help him distribute cocaine in a particulartown. Cain and Able have been selling cocaine for Moses (and keeping a share of theprofits, as agreed) for about a week when Cain gets caught by local police. He is arrested,given his Miranda warnings, and agrees to talk to the police. He then tells the policeabout the arrangement that he and his brother made with Moses to sell cocaine for him,but he notes that Moses was the one "running the show." Cain agrees to be a witness for the government. Able and Moses are then charged withcocaine distribution. When the time comes for their trial, Cain has disappeared.• Can the government use Cain's statements about Able and Moses's involvement in theconspiracy against Able & Moses at trial?

(A) No. The government can't use any of Cain's statements that implicate either Able or Moses because they are inadmissible hearsay (and would violate Sixth Amendment). (B) Yes. The government can use all of Cain's statements, including those implicating Able and Moses, under the coconspirator exception to the hearsay rule. A

Same fact pattern as #2--Pam is contesting her father's will, and on direct she testifies that at the time he signed the will, his mental condition had deteriorated to the point where he always seemed confused and could only mumble unintelligibly. On cross-examination, opposing counsel asks her: "Isn't it true that the day after the will was signed, you were talking to your friend Marge, and you said: 'I can't believe Daddy's mind is so sharp at his age!'" Pam's attorney objects, and is overruled. Pam denies that she said this. During his own case-in-chief, the defendant's attorney calls Marge to testify to the conversation. Pam's attorney objects to that as well. How would you rule on these two objections?

(A) Overrule both objections--allow the attorney to ask Pam the question and allow Marge to testify. (B) Allow the attorney to ask Pam about the prior statement, but do not allow him to call Marge to the stand. (C) Allow the attorney to call Marge to the stand, but do not allow him to ask Pam about the prior statement. (D) Sustain both objections--preclude the question and Marge's testimony. A; Non-collateral matter (Can bring in extrinsic evidence).

Annalise is accused of killing her husband and is charged with first-degree murder. The day after she was arrested, she met with her attorney, Andy. They talked for over two hours. One week later, Andy, who had also been friends with Annalise's husband, filed a motion to withdraw as Annalise's counsel, which was granted. At Annalise's trial, the prosecution calls Andy to the stand as a hostile witness and asks whether it is true that at their initial meeting, Annalise admitted to Andy that she had killed her husband and that she said, "I need you to do everything that you possibly can to get me acquitted. I won't survive in prison." Annalise's attorney strenuously objects, claiming that both topics that the prosecutor is asking about are protected by the attorney-client privilege. What should the trial court do?

(A) Overrule the objection regarding both topics because Andy is no longer Annalise's attorney. (B) Overrule the objection regarding Annalise's statement that she needed Andy to "get her acquitted" under the crime/fraud exception to the attorney-client privilege, but sustain the other objection. (C) Sustain both objections, unless Andy agrees to provide the testimony being sought. (D) Sustain both objections under the attorney-client privilege & regardless of whether Andy wants to testify. D

Prospero is arrested for illegally selling handguns. After he is arrested, the police read him his Miranda rights & put him in the sqaud car. Before they ask him any questions, P tells them: "Look, I'll plead guilty and I can tell you where I got the guns if you promise me probation." The officer replies: "You'll have to talk to the prosecutor about that." After his arraignment, P's defense attorney brings him to the prosecutor's office, where she offers to plead P guilty if the prosecutor will recommend probation. During this meeting, the defendant admits to the prosecutor he sold the guns. The prosecutor refuses to make a deal, & the case goes to trial. During the defendant's case, P testifies that he has never sold nor even possessed a gun in his life. The prosecutor wishes to admit both the defendant's statement to police in the squad car & the statements he made to the prosecutor in her office. The court should:

(A) Preclude both statements under Rule 410. (B) Allow the statement in the squad car for any relevant purpose, and admit the statements made in the prosecutor's office but only for impeachment purposes. (C) Allow the statement made in the squad car, but only for impeachment purposes, and allow the statements in the prosecutor's office, but only for impeachment purposes. (D) Allow the statement in the squad car for any relevant purpose, but preclude the statements made in the prosecutor's office completely. D

While walking her child Wesley to school one day, Beverly was struck by a cement truck that pulled out of a construction site. Beverly sued the construction company for negligence. As a result of the accident, Beverly suffered brain damage which caused her to have difficulty communicating through speech, although her mental faculties appeared unharmed. At trial, her attorney proposes that Beverly be allowed to testify through American Sign Language, which she has learned over the past few months. Beverly's attorney has brought Beverly's brother Will as an interpreter: he is a former sign language instructor at a school for the deaf and he has been tutoring Beverly since the accident. Beverly's attorney also wishes to have Beverly's child Wesley testify as to the event. Wesley is four years old, and when questioned by the court, says he remembers what happened on that day and that he knows the difference between a lie

(A) Preclude both the Beverly and the child from testifying at all due to incapacity. (B) Preclude the child from testifying on the grounds of incapacity, but allow the Beverly to testify with her brother as an interpreter. (C) Allow the Beverly to testify ONLY if a neutral interpreter can be found, and allow the child to testify. (D) Allow the Beverly to testify with her brother as an interpreter, and allow the child to testify. D; Rule 604 (Interpreters). Truth and swear to translate correctly. Super bias, but can bring up in cross.

Ophelia is entering a Get Fit! sporting goods store in a shopping mall when her heel gets caught in a heating grate at the threshold between the mall and the store. She falls, is injured, and sues the mall. After the accident, Get Fit! installs signs just inside the threshold, warning customers to watch their step. A few months later, the mall installs ceiling instead of the floor. At trial, the shopping mall calls a national expert in mall safety to testify that the heating grates in the floor are the industry standard and that she has never seen an accident prior to this where an individual trips over such a grate. The Plaintiff wants to admit evidence of the re-design of the heating grate and the sign installation.

(A) Preclude both the sign installation and the re-design of the threshold as inadmissible under Rule 407. (B) Preclude evidence about the re-design of the threshold but allow evidence of the sign installation. (C) Allow evidence of the re-design of the threshold to prove feasibility, and allow evidence of the sign installation. (D) Allow evidence of the re-design of the threshold to prove ownership and control, and allow evidence of the sign installation. B; Rule 407 (Subsequent Remedial Measure) Both are remedial measures. Parties are Ophelia v. Mall (Not Get Fit) and allow sign because she is suing the mall (preclusion is only for the parties).

Viola and Antonio collide while skateboarding at the local Skate Park. Both of their skateboards are totalled, and both parties are injured. The day after the collision, Antonio gives Viola a brand new skateboard. The next week, Viola sues Antonio for negligence, and at trial she seeks to testify that Antonio gave her a new skateboard the day after the event. Antonio objects. The judge should: Preclude the evidence because it is irrelevant. Preclude the evidence because it is unfairly prejudicial. Preclude the evidence because it was a settlement offer. Admit the evidence.

(A) Preclude the evidence under Rule 401, since it is irrelevant. (B) Preclude the evidence under Rule 403, because it is unfairly prejudicial. (C) Preclude the evidence under Rule 408, because it was a settlement offer. (D) Admit the evidence. D; Not a Settlement. Not Compromise Negotiation (Rule 408). No words ("without prejudice"). No disputed claim.

Colin is suing Joe for battery, claiming that Joe jumped him from behind in the street and then took off both of his own (Joe's) shoes and beat Collins on his head with his shoes.• At trial, Collins calls Tom to the stand, who will testify that about four weeks before the assault on Collins, Joe jumped him from behind in the street and then took off both of his own shoes and beat Tom in the head with the shoes. Joe was arrested for the assault onTom, but the criminal case was dismissed a week later, and Tom never filed a civil suit. The court should:

(A) Preclude the evidence, because this is a civil case, so Rule 404(b) does not apply. (B) Preclude the evidence, because its only relevance is to prove propensity, and the evidence does not fall into one of the Rule 404(a) or (b)(2) exceptions. (C) Preclude the evidence because there is insufficient evidence that Joe committed the earlier assault. (D) Conduct a Rule 403 analysis, and if the probative value of the evidence is not substantially outweighed by its unfair prejudicial effect, admit the evidence. D; Civil Case. Evidence coming in under 404(b) (Knowledge/Motive).

Same trial as in Questions 2 and 3, but now Timothy has presented the alibi testimony of his cousin Guido, who has testified that Timothy was with him playing a late-night game of pickle ball at the time of the armed robbery. The federal prosecutor wants to impeach Guido by presenting evidence that Guido was found to be a "juvenile delinquent" 9 years earlier (based upon repeatedly skipping school) and that he has had 5 misdemeanor convictions for writing bad checks for merchandise. Timothy's counsel objects to both the delinquency evidence and the "hot checks"convictions under Rule 609. How should the trial court rule?

(A) Sustain the objection to both the delinquency evidence & the bad checks evidence. (B) Allow the delinquency evidence but sustain the objection to the bad checks evidence. (C) Allow the bad checks evidence but sustain the objection to the delinquency evidence. (D) Allow both the delinquency evidence and the bad checks evidence C

Daniel Osborne, a former guitarist in the band Dingoes Ate My Baby ("DAMB") has recently launched a successful solo career. His first album: "Werewolves in California," has sold over one million copies on the Capitol Records label. Unfortunately the remaining members of DAMB, Osborne's former band, are suing Osborne. They claim that the lyrics to the title track of his new album were stolen from a DAMB song of the same name from four years ago. At trial, the lead singer for DAMB presents handwritten lyrics which he claims to have written four years ago and which are identical to the lyrics to "Werewolves in California." Later in the plaintiffs' case, in order to prove damages, the plaintiffs present the jury with sales records obtained from Capitol Records that purport to show that "Werewolves in California" sold 1.2 million copies. Osborne's attorney objects to the admissibility of the handwritten lyrics and to the

(A) Preclude the lyrics and the sales figures, since both are hearsay. (B) Preclude the lyrics as hearsay but admit the sales figures. (C) Admit both the lyrics and the sales figures. (As business records if certified by a qualified representative). (D) Admit the lyrics but preclude the sales figures as hearsay. C; Lyrics are not hearsay because we don't care what lyrics say, but we do care that it says the same thing. Sales is not hearsay, just business records.

Sally crashed into Lucy's car, and Lucy claimed Sally was negligent and sued Sally for damages. At trial, Lucy wishes to call Sally's brother Charlie, who will testify that Sally "is always speeding, and never pays attention to the road when driving." Sally objects. The court should:

(A) Preclude this testimony as irrelevant. (B) Preclude this testimony under Rule 404(a). (C) Admit this testimony under Rule 406. (D) Admit this testimony under Rule 404(b) with a limiting instruction that it is not to be considered to prove propensity. B; Not habit because you wouldn't get 2 blocks without getting into an accident. Impossible you have to stop at some point. (Key words = Always and Never).

The Oklahoma City Zoo is being sued for damages after a tiger escaped from its exhibit and mauled a small child. The director of the zoo contacted the zoo's attorney the day after the incident and said: "I expect that we are going to be sued. I just reviewed the records for the tiger exhibit. Last year we apparently hired an independent safety consultant to review all of our large cat exhibits, and the report for the tiger exhibit stated that it was 'unsafe' because it 'could potentially allow a tiger to escape.' Unfortunately, it appears that we took no action as a result of that report." The attorney makes a record of this conversation and then asks to see the report. The zoo director sends the report to the attorney. The attorney (who is representing the zoo) later receives a discovery request from the attorney for the parents of the injured child seeking both "any notes or records of any statements made by the

(A) Refuse to comply with either request, citing attorney-client privilege regarding both requests. (B) Provide the safety report but refuse to provide any records regarding any statements by the zoo director, citing attorney-client privilege. (C) Provide a summary of the the zoo director's statements but refuse to provide the safety report, citing attorney-client privilege. (D) Provide both the safety report and a summary of the zoo director's statements B

The Columbus zoo is being sued for damages after a white tiger escaped from its exhibit and mauled a small child. The director of the zoo contacted the zoo's attorney the day after the incident and said: "I think we're going to be in trouble. I just reviewed the records for the tiger exhibit and it turns out that a year ago we hired an independent safety consultant who wrote up a report which said the exhibit was unsafe and might result in tigers escaping. We took no action as a result of the report." The attorney makes a record of the conversation and then asks to see the report. The director sends the report to the attorney. During the lawsuit, the family of the mauled boy issues an interrogatory to the zoo's attorney, asking for notes of "any record of statements made by the zoo's director after the incident" as well as "any safety reports or reviews that were made of the tiger exhibit."

(A) Refuse to respond to either interrogatory because of attorney-client privilege. (B) Provide a copy of the safety report but not the record of the zoo director's statement. (C) Provide the record of the zoo director's statement but not a copy of the safety report. (D) Provide a copy of both the zoo director's statement and the safety report. B.

Harold is charged with raping Martha. Three days after the date of the alleged attack, Martha visited one of her college professors in her office and said: "I have something important to tell you, but you have to promise me that you will keep it confidential." After the professor promised, Martha talked with the professor for an hour about what had happened with Harold. The professor then walked Martha over to the university health center, where Martha made an appointment with a licensed rape crisis counselor. Martha attended the appointment the next day and spoke with the counselor. Harold's attorney learns about these meetings and subpoenas both the college professor and the rape crisis counselor to testify regarding what Martha told them, citing his constitutional right to present witnesses in his own defense. Both women refuse to testify, citing their privilege to protect the confidential communications made to

(A) Require both the professor and the rape crisis counselor to testify to protect the defendant's Sixth Amendment rights. (B) Require the professor but not the rape crisis counselor to testify. (C) Require the rape crisis counselor to testify but not the professor. (D) Rule that the statement to both the professor and the rape crisis counselor are privileged. B.

Sarah is talking to her friend Liz on the phone. Liz is at home. Liz abruptly ends the call saying, "Oops. Gotta go. Michael just walked in." Michael is Liz's extremely jealous husband. Just before hanging up, Sarah hears a gunshot. If Michael is later charged with killing Liz, can Sarah testify about what Liz said and that she heard what sounded like a gunshot?

(A) Sarah can testify about the sound of the gunshot, but the statement by Liz is inadmissible hearsay. (B) Sarah can testify about the sound of the gunshot and the statement by Liz because the statement by Liz is an "excited utterance." (C) Sarah can testify about the sound of the gunshot and the statement by Liz because the statement by Liz is a "present sense impression." (D) Sarah can't testify about either what Liz said or the sound she heard because both are inadmissible hearsay C

At a murder trial, the prosecution offers an expert witness, who testifies that the victim's wounds suggest that the murder weapon was not an ordinary knife, but instead a rather unusual dagger called a "stiletto," which has a long, thin blade and leaves deep but narrow cuts. The prosecutor shows the expert a stiletto that he brought to the courtroom and asks if this is the type of weapon that could cause the victim's wounds.The expert agrees and then, over the objection of defense counsel, the expert shows how the distinctive blade of the stiletto could have caused the wounds found on the victim's body. The prosecution then offers the testimony of an eyewitness, who testifies that the day before the killing, he saw Sammy brandishing a "wicked-looking knife with a really long, skinny blade." The prosecutor then showed the witness the stiletto that he had shown the expert witness and asked if resembled Sammy's knife..

(A) Sustain the objection, as there is no evidence that the stiletto is the same stiletto that was used on the night of the killing. (B) Overrule the objection. If this were the actual stiletto used in the crime, it would be admissible, and there is no significant difference between the actual stiletto and one offered into evidence at trial. (C) Sustain the objection, since the eyewitness testified that the stiletto offered into evidence looked different from the one used in the killing. (D) Overrule the objection, since the prosecutor has laid a sufficient foundation tying the defendant to this type of knife, and the expert has tied this type of knife to the killing. D; Rule 401 (Relevance), Giving perspective to jury but not real weapon (Demonstrative Evidence), Stiletto becomes relevant.

Mathew, Mark, Luke, and John are indicted for conspiring to distribute cocaine and trafficking in cocaine. John agrees to plead guilty to possession with intent to distribute cocaine, in exchange for cooperating with the prosecutor and testifying against the other defendants. After John testifies at Mark's trial, Mark's attorney begins his cross-examination of John by asking the following question: "Isn't it true that you were also originally charged in this case with both conspiring to distribute cocaine and trafficking in cocaine and that you are only testifying because the prosecutor agreed to let you plead guilty to a much lesser offense"? If the prosecutor objects to this question, the objection should be:

(A) Sustained under Rule 611. (B) Sustained under Rule 410. (C) Sustained under Rule 403. (D) Overruled D

Daniel is accused of murder. The day after he was arrested he met with his attorney Andy and the two spoke for more than two hours. One week later, Andy files a motion to withdraw as counsel, which is granted. At trial, the prosecution calls Andy to the stand as a hostile witness and asks whether it was true that at their initial meeting Daniel told Andy that he committed the crime but "I want you to do everything you can to get me off." The new defense attorney objects, claiming privilege. How should the judge rule?

(A) The attorney-client privilege does not apply because Andy is no longer Daniel's attorney. (B) The attorney-client privilege does not apply to this statement under the crime-fraud exception because Daniel had asked Andy to help him avoid liability for a crime Daniel committed. (C) The attorney-client privilege applies unless Andy the former attorney agrees to waive the privilege. (Andy is attorney and does not hold right to waive). (D) The attorney-client privilege applies and the question is improper. D.

James crashes his car into Martha's new (parked) car on his way home from a bar onFriday night. Martha smells alcohol on James's breath when she comes outside and later sues him for negligent damage to her car, claiming that he was drunk when he hit her car. When the parties get together to discuss options, James's attorney states that when he checked in with the bartender on duty that Friday night, he found out that James had drank quite a bit that night and offers to pay Martha for the damage to her car, but states that her claim for lost wages is "not one that a jury will go for anyway." If Martha rejects the offer but tracks down the bartender, is the bartender's testimony admissible at trial?What about the fact that James's attorney offered to pay for the damage to her car?

(A) The bartender's testimony will be admissible, but the offer to pay for car damage will not be admissible. (B) The offer to pay for car damage will be admissible, but the bartender's testimony will not be admissible. (C) Both the bartender's testimony and the offer to pay for car damage are admissible. (D) Neither the bartender's testimony nor the offer to pay for car damage are admissible A

Barack files a libel suit against a company, "Chicago Citizens for Truth," which has run commercials in which members of the organization call Barack a "crook who took backdoor money from developers in exchange for votes." "Corrupt Lawmaker." At trial, Chicago Citizens offers the following evidence: (1) testimony from a staffer who worked for Barack when he was a state legislator, who testifies that he was present in the room when developers gave Barack suitcases full of cash; and (2) testimony from a former college friend who testifies that he observed Barack smoking marijuana and drinking heavily while he was a state legislator. After this evidence is admitted, Barack's attorney offers (3) testimony from a developer in Chicago who states that he once offered to take Barack out to dinner to discuss a pending bill, and that Barack refused, saying that he couldn't accept any favors from private developers.

(A) The court should have precluded all three pieces of evidence under Rule 404. (B) The court properly allowed in all three pieces of evidence. (C) The court should have allowed in (1), Chicago Citizens' evidence of Barack taking suitcases full of cash, but should have precluded the other two pieces of evidence. (D) The court should have allowed in (1) and (3), but should have precluded the evidence of Barack's drinking and marijuana use. D; Obama files libel case (Defamation- Character essential element of the case). (1) Allowed because trying to determine if he is corrupt, (2) Not allowed because not relevant character trait we are looking for (we are looking for corruption), & (3) Allowed because shows he knows ethics and is refusing.

Romeo is visiting his friend Juliet at her house, and as he enters the house, the brick stairs leading up to her front door collapse. Romeo falls and breaks his leg. Juliet rushes out of the house immediately and says: "Omigod, I'm so sorry, I knew I should have gotten those fixed. I'll pay whatever it takes to get your leg fixed. Don't worry about the cost, my insurance company will pay for everything." Romeo sues Juliet and wishes to testify about the statements she made to him as evidence that he has admitted liability. What is your ruling?

(A) The entire statement is precluded under Rule 408. (B) The first sentence is admissible, but the next second is precluded. (C) The first and third sentences are admissible, but the statement about paying for the leg getting fixed is precluded. (D) The entire statement is admissible. B; Rule 409 (Offers to Pay Medical and Similar Expenses).

Harry, a pharmacist, is charged with killing his employer Kathryn by running her down in the parking lot with his truck. H admits to killing KA but claims death was accidental. As first witness, the prosecutor calls Kes, a fellow employee of H's, who testifies that the day b/4 the incident, she saw H pouring a large amount of white powder into KA's morning coffee (KA never drank). She later looked at the bottle which H poured the powder & saw that the substance was poison, Dilithiade. H's attorney objects to this testimony under 404, & the objection is overruled. On cross-examination, H's attorney asks Kes: "Isn't it true that you & H used to be engaged?" The prosecutor objects on relevance grounds & is overruled, & Kes answers yes. H's attorney then asks "Isn't it true that H broke off the engagement b/c he met another woman?" Prosecutor objects again & objection sustained.

(A) The judge should have precluded the evidence of Harry's attempted poisoning but allowed the evidence of Harry's relationship with Kes (subject to a 403 balancing test). (B) The judge should have allowed the evidence of Harry's attempted poisoning (subject to a 403 balancing test) but precluded the evidence of Harry's relationship with Kes as irrelevant. (C) The judge should have allowed the evidence of Harry's attempted poisoning (subject to a 403 balancing test) but precluded the question about Harry's relationship with Kes as beyond the scope of direct (but Harry's attorney could re-call Kes on the defense case and ask about the relationship). (D) The judge should have overruled all objections (subject to a 403 balancing test) and let all the questions be asked. D; All questions should be asked. Admissible- Prove intent (404(b)).

Machines That Kill Inc. ("MTK") is a large corporation that manufactures weapons systems for the United States military. Last year, three small attack submarines manufactured by MTK were lost at sea. The United States Navy is suing MTK for breach of contract and negligent manufacture of the submarines. While the litigation is pending, MTK's general counsel received a letter from Fran, who is an assembly line worker in MTK's helicopter production facility. The letter read in part: "I assume you will keep this confidential, but I thought you ought to know. I go to visit the submarine production facility sometimes during my breaks to watch the work, and it is clear to me that their production methods are shoddy and their quality control system is virtually nonexistent." Is the letter covered by the attorney-client privilege?

(A) The letter is not privileged since Fran does not have the power to act on any legal advice the attorney might give her regarding the lawsuit. (B) The letter is not privileged since Fran's statement did not concern a matter within the scope of her job. (C) The letter is privileged because Fran is an employer of MTK and thus considered an "client" for the purposes of the attorney client privilege. (D) The letter is privileged because Fran expected it to be kept in confidence. B.

David is suing the Ford Motor Company for damages arising from a car accident. David contends that his car was negligently manufactured and that a properly built passenger compartment would not have collapsed (as his did in the accident). • At trial, David calls Dr. Matthews, who is certified as an expert in orthopedics. Dr. Matthews testifies that she examined David personally, that she examined the wreckage of the car, and that she has concluded that the collapsed passenger compartment caused David's injuries and that he will likely never walk again. • David's attorney then asks Dr. Matthews whether the passenger compartment would still have collapsed if it had been buttressed by six steel rods, instead of just four. Ford's attorney objects to this question as seeking inadmissible evidence. What is the proper ruling?

(A) The proposed testimony is inadmissible because it is irrelevant. (B) The proposed testimony is inadmissible because the underlying data that forms the basis of the proposed expert testimony is inadmissible. (C) The proposed testimony is inadmissible because it calls for an opinion beyond the scope of the witness's expertise. (D) The proposed testimony is admissible. C; Need expert on car safety to talk about the car.

BigIndustry Inc. is being sued by several landowners in rural Ohio for illegally dumping garbage on their property. In their case-in-chief, the landowners call Walt, an inspector for the state environmental agency. He testifies that he investigated BigIndustry's practices as part of his duties as an inspector and filed a report with the agency based on his investigations. He testifies to his findings, which were that several tons of waste traceable to BigIndustry were found on the properties in question. The plaintiffs then show him a copy of the report and he verifies that it is the report that he filed after his investigation. The plaintiffs then offer the report into evidence, and the defendant objects. What is the proper ruling?

(A) The report can be read to the jury as a recorded recollection, but not admitted into evidence. (He remembered). (B) The report is admissible as a public record. (C) The report is both a recorded recollection AND a public record. (D) The report is inadmissible because the witness has testified live on the stand as to its content. (Not enough, you can have additional evidence). B; Report is hearsay (submitting to believe there was contamination).

Wellington Watermelon Inc. is being sued by the federal government for allegedly using illegal pesticides in growing its watermelon crop. Wellington retains Astor & Astor as its lawyer. Astor hires an independent chemical testing company to go out to Wellington's fields and take soil samples, which the company then tests for various pesticides. The results of the test are sent to Astor. The government then issues a subpoena to both Wellington and Astor asking for any and all results from any soil test conducted over the past three years. What is the best analysis of the situation?

(A) The results of the soil test are probably protected by the attorney-client privilege but not the work product privilege. (B) The results of the soil test are protected by the work product privilege but probably not the attorney-client privilege. (C) The results of the soil test are protected by the privilege against self-incrimination. (D) The results of the soil test are not protected by any privilege. B. Attorney-Client privilege (Communications).

Angela's kitchen was damaged when the air fryer that she purchased from a local home goods store caught fire as she was reheating some food. Angela sued both the local home goods store and Presto, the manufacturer of the air fryer. Angela soon settled with the local home goods store for $8,000. The settlement agreement required Angela to continue to pursue her claim against Presto and that if she recovered more than $8,000 from her claim against Presto, to refund $4,000 to the local home goods store. When the owner of the local home goods store (Mack) testified at the products liability trial against Presto that the air fryer was quite dangerous, since it caught on fire under conditions of normal use, Presto sought to introduce evidence of the settlement betweenAngela and the home goods store. Which of the following is correct?

(A) The settlement agreement is inadmissible under Rule 408. (B) The settlement agreement is inadmissible under Rule 411. (C) The settlement agreement is admissible to impeach Mack's testimony. (D) The settlement agreement is admissible to suggest that Mack is biased. D

Lee Malvois on trial for murder. The victim was shot in the back of the head, and the killer took the body to a farm in the country and buried it between two trees next to an old barn. Malvo's defense is that the killing was carried out by another man, Howard Drexel, who committed suicide the day after the shooting. There is no evidence that Drexel and Malvo were working together; thus if Drexel committed the crime, Malvo is innocent. At Malvo's trial, the defense attorney calls Sam, a local bartender, who testifies that the day after the shooting, Howard Drexel came into his bar and had a couple of drinks. As Howard was leaving he laughed and said to the bartender "There's a surprise waiting for the police underground between the two trees next to the old Franklin barn." The bartender said he thought that Howard was joking until the body was found in that location three weeks later.

(A) The statement can be admitted for a non-hearsay purpose. (B) The statement is hearsay and therefore inadmissible. (C) The statement is admissible as a present sense impression. (D) The statement is not hearsay, but it is irrelevant. A; Guilty Conscience. Proving that other guy knew about murder. Don't have to believe statement because cop found body anyway, so admissible.

Lucas has sued Graham for breach of contract. Lucas claims he purchased an order for 1,000 cowboy hats, and they were never delivered. Graham claims he delivered them on time and Lucas is fraudulently claiming he never received them. At trial, Graham calls his partner Allen to the stand. Allen testifies that one week before the Lucas order was due, Graham told him "I'm going to ship the Lucas order tomorrow." Lucas objects to the statement as hearsay.

(A) The statement is not hearsay because the declarant is now testifying on the stand and can be cross-examined as to the statement. (B) The statement is hearsay but is admissible under 803(3). (C) The statement is not hearsay because it is a legally operative statement and therefore we are not admitting it for the truth of the matter asserted. (D) The statement is inadmissible hearsay. B

Sharon is on trial for murder. Her defense is mistaken identity. To prove someone else was the killer, Sharon calls Dr. Crick, who is prepared to testify that she ran numerous DNA tests on skin cells found on the murder weapon & determined that it was impossible any of them came from Sharon. On voir dire (outside the jury's presence), the prosecutor elicits the following facts: (1) Dr. Crick did not personally conduct all of the necessary DNA tests herself, in order to reach this conclusion. Rather, Dr. Crick runs a laboratory in which many different technicians run different tests and report the results to her. Dr. Crick notes, however, that it is a standard practice in the field for laboratory teams to work together in this way. (2) The amount of DNA recovered from the weapon in this case was so small that Dr. Crick and her team used a new technique to test the DNA. Dr. Crick invented this technique herself--no

(A) The testimony should probably be admitted, notwithstanding (1) and (2). (B) The testimony should be barred because of (1): (Crick's assistant actually performed many of the tests). (Crick didn't do all of the testing). (Crawford) (C) The testimony should be barred because of (2): (Crick used a new, untested method of DNA identification). (D) The testimony should be barred because of both (1) and (2). C.

Timothy and his friend Jeremiah were charged with armed robbery as co-defendants.Jeremiah has pleaded guilty to a lesser offense (robbery), in exchange for testifying against Timothy at trial. Timothy's counsel wants to impeach Jeremiah's testimony at trial with Jeremy's prior conviction for armed robbery (from 9 years ago). The federal prosecutor objects, arguing that this violates Rule 609. How should the trial court rule?

(A) The trial court should sustain the objection because the armed robbery conviction is so similar to the crime that Timothy is charged with (making it very unfairly prejudicial). (B) The trial court should sustain the objection because the conviction does not involve and is honest act or false statement. (C) The trial court should overrule the objection. (D) The trial court should only overrule the objection if the court finds that the probative value of the robbery conviction outweighs its prejudicial effect. C

Same trial as in Question 2, but now Timothy is testifying in his own defense. He testifies that he heard about the armed robbery that he is being charged with but that he wasn't involved in any way. The federal prosecutor wants to impeach Timothy using a conviction for armed robbery from 14 years earlier, upon which Timothy was released 5 years before the crime alleged in the current case. Timothy's counsel objects to the admission of his armed robbery conviction under Rule 609.How should the trial court rule? Pick the best answer

(A) The trial court should sustain the objection because the armed robbery conviction is too old to be relied upon for impeachment. (B) The trial court should sustain the objection because the armed robbery conviction did not involve a dishonest act or false statement. (C) The trial court should overrule the objection regardless of the prejudicial impact onTimothy. (D) The trial court should overrule the objection, but only if the court determines that the probative value of the prior conviction outweighs its prejudicial effect on Timothy D

Same facts as Question 1. Katrina is contesting her father's will, and on direct she testifies that when he signed the will, his mental condition had deteriorated to the point where he always seemed confused and could only mumble unintelligibly. On cross-examination, opposing counsel asks Katrina: "Isn't it true that the day after the will was signed, you commented to your friendMarge: 'I can't believe Daddy's mind is so sharp at his age!'" Katrina's attorney objects to this question, but the objection is overruled. Katrina then denies making that statement to Marge. In his case-in-chief, opposing counsel calls Marge to testify about Katrina making the statement.Katrina objects to the proposed testimony from Marge Should the trial court have allowed the question to Katrina? What about Marge's testimony?

(A) The trial court was right to allow the question to Katrina, but should not allow Marge's testimony. (B) The trial court was right to allow the question to Katrina and should also allow Marge's testimony (C) The trial court should have granted the objection regarding the question to Katrina, but the court should allow Marge's testimony. (D) Both the question to Katrina & Marge's testimony are improper and should be excluded B

Jaylie has been charged with possession of marijuana. She was a passenger in her new boyfriend's car when he was stopped for speeding. When the officer ran a "warrants check" on her new boyfriend (Mark), it turned out that there was an arrest warrant out for Mark on a charge of possession with intent to distribute (marijuana). The police officer ordered both Mark and Jaylie out of the car, searched the car, and found a onepound bag of marijuana underneath the passenger seat where Jaylie had been sitting. Both Jaylie and Mark were charged with "possession with intent to distribute (marijuana)." Jaylie maintains that the marijuana did not belong to her and that she had no idea there was marijuana in the car. If Jaylie wants to testify that not only did she not see the marijuana, she did not smell it or have any reason to believe that it was in the car, will she be allowed to do so?

(A) Yes, because Jaylie has a right to testify in her own defense (B) No, because Jaylie is not an expert in illegal drug interdiction or evidence collection. (C) Maybe. It depends on whether Jaylie's counsel can lay an adequate foundation that Jaylie was familiar with the smell of marijuana. C

Luke and John are brothers and both worked for the family business. Their father, Sam, has recently discovered that nearly $200,000 has been embezzled from the family business. After reviewing the business's records, Sam concluded that Luke was the one who embezzled all the money and reported his suspicions to police. Luke was subsequently charged with felony embezzlement. • Two months before the trial, John was found dead in his home with a gunshot wound to his head. A "suicide note" in his pocket read: "I can't take it anymore. Luke is being blamed for my sins against the family business, but I'm the one who took all the money. I can't face what I've done, but it was me, not Luke." Will "suicide note" be admissible as exculpatory evidence at Luke's embezzlement trial?

(A) Yes. The note will be admissible as a dying declaration by John. (B) Yes. The note will qualify as a "statement against interest" by John. (C) Yes. The statement will likely be admissible under the residual hearsay exception. (D) No. The "suicide note" will likely be excluded as hearsay. D

Bill has been involved in a terrible car accident. When emergency personnel come to the scene, Bill, who is bleeding profusely and clearly very worried about his condition says: "I have something that I need to get off my chest. Back when I was in high school, I raped a woman named Eve Bell. A man named Simon Pierce was convicted of the rape, but he didn't do it. It was me. I should have spoken up before now." Bill lives and later denies ever making this statement. Can Bill's "confession" be used to prosecute him for the rape?

(A) Yes. The statement qualifies as a dying declaration. (B) No. It doesn't qualify as a dying declaration because Bill didn't actually die. (C) Maybe. It doesn't qualify as a dying declaration, but it may be admissible under a different hearsay exception. C

The federal government has accused Martha of insider trading. Her husband, Sam, testified against her before the grand jury that indicted her (hoping to avoid being indicted himself). The federal prosecutor was planning to rely on Sam's testimony at Martha's trial, but Sam now refuses to testify and has claimed spousal privilege. Can the federal prosecutor introduce Sam's grand jury testimony at Martha's criminal trial?

(A) Yes. This qualifies under the Rule 804 "former testimony" exception. (B) No. This doesn't qualify under the former testimony exception because Sam is not actually "unavailable." (C) No. This doesn't qualify under the former testimony exception because Martha did not have an adequate opportunity to cross-examine Sam before the grand jury. C

Tina broke into Ralph and Lisa's home with the intent to steal valuable jewelry inside the home. While she was there, Ralph and Lisa returned home. They were having a big argument. Lisa was accusing Ralph of being unfaithful (recently and previously) & Ralph was saying that he was "sorry." Eventually, Tina heard a gunshot and then heard someone run out of the home. When Tina left the home (without taking anything), she saw Ralph's body on the living room floor. Tina waited 3 days but then called the police, met with an investigator, and told him what she had heard. But Tina has since left the jurisdiction and can't be found. • The State has charged Lisa with the first-degree murder of Ralph and wants the investigator to be allowed to testify about what Tina heard both Ralph and Lisa say before she heard the gunshot. Is this testimony admissible?

(A) Yes. This qualifies under the Rule 804(b)(3) "statement against interest" exception. (B) No. This testimony is not sufficiently against Tina's interest to fit this exception. (C) Yes. This testimony would qualify as an "excited utterance" by Tina. (D) Yes. This testimony would qualify as a "present sense impression" by Tina. B

Chris is on trial for robbing a jewelry store. Three days before his trial is set to begin, an unknown hit-and-run driver kills the jewelry store security guard who would have been a key eyewitness against Chris. The prosecutor wishes to admit the security guard's grand jury testimony against Chris at trial. Is this permissible? A Yes, since the grand jury testimony was given under oath at a prior proceeding. B Yes, but only if the prosecutor can prove by a preponderance of the evidence that Chris was the hit-and-run driver and that he intended to make the guard unavailable. C Yes, but only if the prosecutor can prove by a preponderance of the evidence that (i) Chris either was the driver or acquiesced in the driver's act, and (ii) in doing so, Chris intended to make the guard unavailable for Chris' trial. D No, the security guard's former testimony is inadmissible hearsay.

(C) sets out the proper standard—Chris, the opposing party, has to have committed the wrongdoing or has to have acquiesced in it. (A) is incorrect because Chris had no chance to cross-examine the security guard in the grand jury, so 804(b)(1) does not apply. And (B) is incorrect because there is no need for Chris himself to have committed the wrongdoing.

Debra sued Renew Homes for breach of contract; she claims that Renew Homes installed used roofing tiles on her house instead of new tiles as specified in the contract. Debra deposed Gabriel, a Renew Homes employee who left the company after work was completed on Debra's home. At the deposition, which Renew Homes's attorney attended, Gabriel stated that his boss at Renew Homes ordered him to rip roofing tiles off a house that was being torn down and deliver those tiles to Debra's house for re-installation. Shortly after this deposition, Renew Homes re-hired Gabriel and gave him a position as a site manager, a promotion from his earlier position. Debra's claim has come to trial, and Gabriel refuses to testify against Renew Homes; he persists in this refusal even when threatened by the court with contempt. Debra now seeks to admit Gabriel's statements from his deposition. These statements are: A Admissible. B Inadmis

(A) is correct. This is a valid 804(b)(1) use of prior testimony. Renew Homes was present at the deposition and had an opportunity and similar motive to cross-examine Gabriel there. If Gabriel's prior statements had been made outside the deposition context, (C) would be correct, since Renew Homes did not commit a 'wrongdoing' by re-hiring and promoting an employee. (B) is wrong because refusal to testify does constitute unavailability, and (D) is wrong because even if there were the requisite intent, there was no wrongdoing by Renew Homes.

MaryAnn is suing Ginger, alleging that Ginger stole her black silk dress when they were roommates. At trial, MaryAnn calls Thurston to the stand, who testifies that he saw Ginger wearing the black silk dress in question at a party two weeks after Ginger moved out of MaryAnn's apartment. The trial ends in a mistrial, and the case is re-tried. At the re-trial, Thurston does not testify. MaryAnn seeks to admit a transcript of Thurston's testimony at the first trial. Ginger objects, and the judge overrules the objection. Ginger then calls Thurston's widow Lovey to the stand. Lovey will testify that she had been married to Thurston for forty years and that in her opinion Thurston was a dishonest man who lied about everything. MaryAnn objects to Lovey's testimony, and the judge overrules the objection. Were either of the judge's rulings correct? A It depends: "Thurston's prior testimony is admissible only if Thurston we

(A) is correct. Thurston's prior testimony is admissible under 804(b)(1), but only if the proponent of the testimony can prove that he is unavailable. Once the testimony is admitted, the opposing party should be allowed to impeach Thurston in any way which would have been permissible had he testified live. Rule 608 allows the opposing party to impeach a witness by opinion evidence to prove his propensity to lie, so this testimony should be permitted. (B) is incorrect because Thurston's prior testimony would not be permitted unless Thurston were proven to be unavailable.

Henry is suing Susan in a wrongful death action for causing the death of his wife, Florence.Florence was a passenger in Susan's car. Henry alleges that Susan was driving 90 miles when she crashed, causing Florence to fly through the windshield, and resulting in her fatal injuries. Henry's attorney offers several photographs that show Susan's car with a mangled front end and graphic bloodstains on the inside of the windshield. Henry's attorneys claim that the extensive damage to Susan's car indicates how fast she was driving, while the blood stains and the hole in the windshield help to prove cause of death. Susan's attorney objects to the photographs under Rule 403 and states that she is willing to stipulate thatSusan was traveling at 90 miles per hour and that Florence was killed due to being thrown through the windshield as a result of the collision. The trial court is likely to:

(A) sustain the objection, because a stipulation that proves the fact in consequence is superior to graphic evidence, which carries a risk of unfair prejudice. (B) sustain the objection, because courts recognize that such evidence is disturbing to the jury. (C) overrule the objection, because the pictures don't risk unfair prejudice & are relevant. (D) overrule the objection, because the probative value of the photos is not substantially out weighed by the unfair prejudice that may accompany them D

Michael is on trial for sexually molesting his 8-year-old daughter, Trinity. Michael and Trinity's mother, Carol, got divorced the previous year, and their divorce case involved a bitter battle regarding custody of Trinity. Carol was ultimately granted sole custody of Trinity. Trinity first disclosed that her father was sexually abusing her by telling her 16-year-old babysitter about it, in December of 2020. The babysitter then told Carol about it, who reported it to the police and then also filed for a divorce from Michael. Trinityhasjusttestifiedatherfather'strialandtestifiedthattheabusebeganwhenshewas5 years old. Some of her testimony was quite vague, and defense counsel suggested, through cross- examination, that perhaps Trinity was saying these things about her dad because she really wanted to just keep living with her mom. Can the prosecutor now ask Trinity about earlier telling her babysitter about the abuse?

(A)No. The earlier statement is inadmissible hearsay. (B)No. Even though Trinity is testifying now, the earlier statement wasn't under oath. (C)Yes. But the earlier statement is admissible only to rehabilitate Trinity's credibility. (D)Yes. The earlier statement is admissible to rehabilitate Trinity's credibility and as substantive evidence that her father did, in fact, molest her, under Rule 801(d)(B).

Gary is on trial in the Southern District Court of Florida for shooting and killing Francis as part of a contract killing. The killing occurred onboard a private yacht off the coast of Florida. Gary's primary defense is that he did not kill Francis until the yacht had reached international waters, and so United States courts have no jurisdiction over his actions. In his defense, Gary calls Ernie, who testifies that he was on board the yacht on the night of the killing and he heard the captain of the yacht tell the pilot: "Blow the horn three times when we reach international waters." A few minutes later Ernie heard the boat horn blow three times, and a moment later Ernie heard a gunshot. The prosecution objects to Ernie's testimony as hearsay. What is the correct ruling?

(A)The sound of the gun shot and the blowing of the horn are both hearsay. (B)Neither the sound of the gun shot nor the blowing of the horn are hearsay. (C)The sound of the gun shot is hearsay, but the blowing of the horn is not hearsay. (D)The sound of the gun shot is not hearsay, but the blowing of the horn is hearsay. D; Horn is a statement saying we reached international waters (assertion), thus hearsay. Gunshot is not a statement (Not saying anything), thus not hearsay. Note: The statement by the captain is not hearsay, but the blowing of the horn is hearsay.

Ed is riding in a rodeo when his horse steps into a huge gopher hole in the southwest corner of the arena, causing the horse to fall and throwing Ed into the fence of the arena. Ed breaks his leg and sues Andy, the owner of the arena, for negligently maintaining the grounds. During the trial, Ed calls Jack as a witness. Jack works at the arena and will testify that the day before the incident, he overheard a conversation between Ron, another rodeo rider, and defendant Andy. Jack testifies that during this conversation Ron told Andy: "There's a large hole near the southwest corner; my horse almost stepped into it." Andy's attorney objects to Jack's testimony, claiming the statement by Ron is hearsay. Which of the following is correct?

(A)The statement should be entirely excluded as hearsay. (B)The statement should be admitted with no limiting instruction. (C) The statement should be admitted with a limiting instruction that the statement should only be considered for the purposes of proving that Andy knew there was a hole, not to prove there was, in fact, a hole. (D)Thestatementshouldbeadmittedwithalimitinginstructionthatthestatementshould only be considered for the purpose of proving the existence of the hole and for no other purpose. C; Prove knowledge that there was a hole there.

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

(B) is correct. The evidence is a prior inconsistent statement, and it is not a collateral matter, so extrinsic evidence is allowed. Therefore (A) is incorrect. However, the statement is not admissible as a prior statement of a witness (i.e., for the truth of the matter) because it was not made under oath at a proceeding. Nor is it admissible as a statement against interest because Delores is available and testified at the trial. Therefore (C) is incorrect. If Delores were unavailable, (D) would be correct, since this is a statement against interest that exculpates the accused and could expose Delores to criminal liability for filing a false report and perjury.

Sarah's body was found at the base of her apartment building; an autopsy confirmed that she died at about 7:00 p.m. on September 14 from injuries sustained in a fall. Sarah's window on the twentieth floor was open, and on a table next to her bed was a note written in her handwriting that said: "I can no longer live with what I have done. I have stolen millions from the family business, and my brother has been falsely accused. Now the entire family faces financial ruin because of me. The only way out is to kill myself." The note was dated "6:45 p.m., September 14." Sarah's life insurance company refused to pay a benefit for Sarah's death because her policy did not cover suicide. The beneficiaries of the policy sued the insurance company, claiming that Sarah fell accidentally from the window. Meanwhile, Sarah's brother Greg comes to trial on charges that he embezzled money from the family business. Sarah's note is: A

(B) is the best answer. The letter is probably a dying declaration and may also be admissible as a state of mind under 803(3) to prove the cause of her death. A) is incorrect because because--even if a court concluded that the theft was part of the "circumstances" that led to her suicide (which would be a stretch)--Greg's trial is a criminal trial which is not a homicide, so the dying declaraton rule does not apply. Therefore, (C) is also incorrect. See State v. Satterfield, 193 W. Va. 503, 457 S.E.2d 440 (W.Va. 1995) for a good discussion on the admissibility of suicide notes as dying declarations.

Charles was wheeled into the emergency room on a stretcher. He was bleeding badly from the head and coughing up blood. When a nurse came over to examine him, Charles grabbed her by the sleeve and asked, 'Am I going to survive?' The nurse looked grave and replied: 'We'll do all we can.' Charles became very calm and serious. He looked the nurse straight in the eyes and said: 'I understand what you're saying. I don't have very much time left. You need to know this. My wife hit me with the car in the garage'I was at my tool chest and she gunned the gas; I was pinned up against the back wall.' Charles then lost consciousness. Luckily, Charles survived the ordeal, and the government prosecuted his wife for attempted murder. The prosecutor tries to admit Charles' statement to the nurse. How is the court most likely to rule? A The entire statement is inadmissible regardless of whether Charles is available. B Part of the stat

(B) is the correct answer. This is somewhat of a trick question'the statement to the nurse is potentially both a dying declaration and a statement made for the purpose of diagnosis and treatment. However, it can never be a dying declaration because this is a criminal, non-homicide case. It is still an 803(4) statement and is thus partially admissible'though any reference to his wife would have to be redacted. Thus, part of the statement--the part in which he states the cause of his injury--is admissible as a statement made for medical diagnosis (an exception which does not rely on unavailability), and the rest of the statement is inadmissible no matter what.

The furnace in Donald's basement exploded, destroying the house and severely burning Donald. Donald sued the manufacturer of the furnace, Steamfast Furnace, for unsafe design. Steamfast's defense is that the contractor who installed the furnace five years ago did so improperly, placing the furnace in a room that was far too small. Steamfast also claims that Donald knew about the improper installation and assumed the risk of any explosion. The contractor's president, Edward, died last year and the company went out of business; neither Edward nor the company is a party to the lawsuit. At trial, Steamfast offers a letter written by Edward to Donald just before the furnace was installed. The letter says: "I have advised you not to install a Steamfast furnace because your basement is too small to handle that product. The furnace won't have adequate space to vent, and the whole thing could explode. We're violating municipa

(C) is correct. The statement is admissible to prove knowledge regardless of whether a hearsay exception applies, since that is not a hearsay use of the statement. Therefore, (A) is incorrect. The letter is also admissible for the truth of the matter asserted, because Rule 804(b)(3) applies to the letter. Edward, the author of the note, is dead, so he is not available. And it was against his interest to write the note, because he subjected himself to potential civil and criminal liability (violation of the municipal code). Finally, this is a civil trial, so special corroboration is not necessary.

PARTY OPPONENT STATEMENT Eddie Haskell goes on a drinking binge and, in a drunken stupor, runs out of his house and jumps onto the hood of his neighbor's car, slamming it with his foot and denting it badly. The next morning he writes a letter to Ward, the owner of the car, in which he states: 'I am the person who jumped on your car. I am really sorry. If I pay for the damage, will you promise not to press criminal charges against me? Thanks! Eddie Haskell.' Ward hands the letter over to the police, who arrest Haskell later that day. Haskell is now being prosecuted for damaging the car, and the prosecutor seeks to admit the letter. What is the proper ruling? A The letter is inadmissible hearsay. B The letter is inadmissible hearsay but admissible for a non-hearsay purpose. C The letter is admissible under the hearsay rule but barred by Rule 408. D The letter is admissible for the truth of the matter asserted.

(D) The letter is admissible for the truth of the matter asserted. CORRECT, b/c there is no hearsay problem. The statement is offered by opponent party so it is admissible as a party opponent statement under 801(d)(2). (C) The letter is admissible under the hearsay rule but barred by Rule 408 is INCORRECT, b/c although it is an offer to compromise, and although FRE 408 applies in criminal cases, there was no "dispute" at the time the offer was made.

Ritchie Cunningham was walking to school when he was suddenly struck by a motorcycle that had ridden up on the sidewalk. The motorcycle then speeds off. Ritchie hits his head on the cement and blood starts coming out of his ears and mouth. About ten minutes later, Ritchie's friend Warren 'Potsie' Weber is walking by and sees Ritchie bleeding on the sidewalk. He runs over to Ritchie, who sits up with the last of his strength and grabs Potsie, saying in a clear and calm voice: 'Potsie, I don't think I'm going to make it. Tell everyone that Arthur Fonzarelli hit me with his motorcycle.' Ritchie then passes out. Potsie is overwhelmed by the tragedy, and starts crying uncontrollably. When the ambulance arrives, he is still sobbing and he screams hysterically at the paramedic: 'Ritchie told me it was Fonzarelli that did this! He said he hit him with a motorcycle!' Ritchie dies on the way to the hospital. Fonzarelli is arre

(D) is the correct answer. The question involves a "double hearsay" statement. Potsie's statement to the ambulance driver is clearly an excited utterance; thus, the second "leg" of the double hearsay statement is not a problem. But this only gets us to the statement "Ritchie told me..." In order to admit the statement for the truth of what Ritchie asserted (which is the only relevant purpose), Ritchie's statement itself must be admissible under the hearsay rule. Ritchie's statement qualifies as a dying declaration--it was made under belief of impending death, Ritchie is now dead and thus unavailable, and this is a homicide case. Thus, both "legs" of the hearsay statement are satisfied and (D) is correct. Since the evidence is admissible, (A) is incorrect. Since Ritchie's statements are admissible as a dying delcaration, we need not use the medical diagnosis exception to admit any part of the statement (and at any rate there is no evidence that Ritchie intended for this to be used by a medical professional--the paramedics did not appear until long after the statement was made). Thus, (B) is incorrect. Finally, (C) is incorrect because Potsie's statement is admissible as an excited utterance, and that exception is not dependent upon availability.

Harry Bentley picked up his dry cleaning from Jefferson Cleaners and found that a hole had been burned through the collar of his favorite tweed jacket. He sued Jefferson Cleaners for damage to the jacket. Jefferson's defense was that the hole in the jacket already existed before it was dropped off at the cleaners. Which of the following pieces of evidence is LEAST likely to be admitted? A The laundry ticket for the jacket in question, properly authenticated, filled out by the Jefferson Cleaners worker who accepted the jacket for cleaning. There is a box on the ticket which states: 'Clothing damaged when received by cleaner?' inside the box someone has written 'Small hole in collar.' The ticket is offered into evidence by Jefferson, and it is introduced by a Jefferson employee who testifies that it is company policy that every worker fill out the form completely and accurately when clothing is dropped off. B A memo,

(D) is the correct answer. This problem requires you to review a number of different rules. The evidence in (A) is admissible as a business record to the hearsay rule. It is kept in the ordinary course of business and it is the regular business of Jefferson Cleaners to keep these records, and the records were made by a person with personal knowledge. The evidence in (B) is also admissible--it is not hearsay because it is a statement made by an agent of Jefferson Cleaners within the scope of his employment and it is being offered against Jefferson Cleaners--therefore, it is a party-opponent admission. Although it is a subsequent remedial measure, it is not barred by Rule 407 because the CEO of Jefferson Cleaners denied that any change in policy occurred after the incident; therefore, this is admissible to impeach. The evidence in (C) hearsay, but it is admissible under 804(b)(1)--Deenan's statements were made under oath and subject to cross-examination, and Deenan is now unavailable to testify. The evidence in (D) is also hearsay--it is a statement made by Bentley and offered by Bentley to prove the truth of the matter it asserts. It does not fit into any exception. Therefore it is inadmissible hearsay.

Eddie Haskell goes on a drinking binge and, in a drunken stupor, runs out of his house and jumps onto the hood of his neighbor's car, slamming it with his foot and denting it badly. The next morning he writes a letter to Ward, the owner of the car, in which he states: 'I am the person who jumped on your car. I am really sorry. If I pay for the damage, will you promise not to press criminal charges against me? Thanks! Eddie Haskell.' Ward hands the letter over to the police, who arrest Haskell later that day. Haskell is now being prosecuted for damaging the car, and the prosecutor seeks to admit the letter. What is the proper ruling? A The letter is inadmissible hearsay. B The letter is inadmissible hearsay but admissible for a non-hearsay purpose. C The letter is admissible under the hearsay rule but barred by Rule 408. D The letter is admissible for the truth of the matter asserted.

(D) is the correct ruling. There is no hearsay problem with the letter--it is a statement by a party, offered against that party, so it is admissible as a party-opponent statement under Rule 801(d)(2). Thus, (A) and (B) are incorrect. (C) is incorrect because, although this is an offer to compromise, and although Rule 408 applies in criminal cases, there was no "dispute" at the time that Haskell made the statement--this is simply an admission.

The Internal Revenue Service prosecuted Tony Trump for failing to pay sufficient tax on the sale of his Happy Donut stock. To show the original cost of the stock, Trump introduced a letter written by his father on April 6, 1980. The letter read: "Dear Tony, I am transferring all of my Happy Donut stock to you. You can consider this a gift equal to the current value of the stock. I checked the stock market ticker this morning and that value is $1.24 per share. It may never be worth more than this, but it is all I have. Your loving father, Fred." Assume the trial is occurring today. What is the best argument for admitting the letter to prove the value of the Happy Donut stock on April 6, 1980? A The letter is admissible as the father's state of mind. B The letter is admissible as a business record. C The letter is admissible as a present sense impression. D The letter is admissible as an ancient document, which refers

(D) represents the best argument in this case. The letter qualifies as an ancient document, although the reference to the ticker report is hearsay within that ancient document. Tony can argue that the ticker report would be admissible under 803(17), the hearsay exception for market reports. He may have some trouble laying the foundation for that exception, because he must persuade the judge by a preponderance of the evidence that his father did rely upon the ticker report rather than some other source. But this is Tony's best argument. (A) is wrong because the state of mind exception does not include statements of memory or belief used to prove the things remembered or believed. Tony could use that exception to admit this letter to prove that his father believed the stock was worth $1.24 per share, but he can't use that exception to admit the letter to prove that the stock was worth that amount. (B) is incorrect because the business records exception does not apply to personal records or household accounts. There is no evidence that Tony's father held this stock as part of a business. Other aspects of the business records exception also are missing here. (C) is incorrect because Tony's father said that he checked the ticker that morning; he was not recording the price directly as he looked at it.

Tricia breaks into Victor's home to steal. Tricia sees Paul kill Victor. Days later, Tricia tells Fred about burglary and seeing Paul kill Victor. Tricia dies. Can Fred testify about Tricia's statement?

1. Is Tricia unavailable? YES, she is dead! 2. Was her statement against interest? YES, b/c she exposed herself to criminal liability 3. Against interest at the time it was made? YES 4. Is corroboration necessary? NO, b/c this is not being offered by Paul to get Paul out of liability, this is statement against interest offered by prosecutor. It might get redacted though since the only statement against interest was that she was in the house to rob Victor.

In 1938, Orson Wells broadcast a radio drama that many listeners did not realize was fiction: One family gathered all of its many generations in a home in New Jersey, so they could die together. Unfortunately, they decided that this was an opportunity to "air" all of their buried grievances and secrets. During that three-hour family "reunion," John told his sister Mary that John had always hated her and that was why John had gotten their Mother (who had Alzheimer's) to sign a back-dated will disinheriting Mary. If a year later Mother dies and Mary challenges the will that disinherits her, is John's statement admissible? 1. Yes, as a dying declaration. 2. Yes, as an excited utterance. 3. Yes, as a statement against interest. 4. No.

1. NO, because John is available. If he took the fifth, then he would be unavailable though. Dying declarations only limited to circumstances around the death.

LIABILITY INSURANCE Delia has blown through a red light causing collision with Eliot, the victim. Delia is driver for Mama Jongs Pizza. Eliot sues Mama Jongs Pizza and contends that the car run through Mama Jong. Mama Jong has liability insurance policy. Is evidence of the liability insurance policy admissible? 1. No: Rule 411 bars liability insurance to prove liability 2. No: It's hearsay 3. No: It's irrelevant 4. Yes

1. No: Rule 411 bars liability insurance to prove liability

What standard will the judge apply when weighing if the policy refers to Delia? 1. Preponderance of the evidence 2. Clear and convincing evidence 3. A reasonable jury could find by a preponderance of the evidence 4. Substantial certainty

1. Preponderance of the evidence

PARTY OPPONENT STATEMENT Lawn ornaments are stolen. Bert said: "Ernie and I liberated all the lawn art!" Two trials. Is Bert's declaration admissible against Bert? 1. Yes 2. Only if it was excited 3. Only if he is subject to cross-examination 4. No

1. Yes

United States v. Ricketson Ricketson charged with robbing jewelry from elderly widow's home. Widow too ill to attend court. Government deposed widow in her home, with notice to Ricketson that she would not attend trial. Widow's deposition admissible against Ricketson under 804(b)(1)? 1. Yes 2. No, depositions not admissible in criminal cases 3. No, because she is still alive 4. No, because motives at deposition differ

1. Yes

United states v. Brooks Brooks charged with selling cocaine. Police Officer Christie Hoyle testified that she bought cocaine from Brooks. There was "hung jury" proceeding. (In a hung jury, the jury cannot unanimously conclude guilt, therefore the case wasn't decided there.) Hoyle killed by boyfriend. At new trial of Brooks where Hoyle is unavailable, admit Hoyle's testimony from first trial under 804(b)(1)? 1. Yes 2. Only if Brooks actually cross-examined her 3. Only if probative value outweighs prejudice 4. No

1. Yes

COCONSPIRATOR STATEMENTS If the judge finds a conspiracy, is Courtney's statement admissible against Nick? 1. Yes 2. Only if Courtney takes the stand 3. Only if Nick takes the stand 4. No

1. Yes, b/c it doesn't matter who takes the stand. The statement is attributed to Nick as well.

COCONSPIRATOR STATEMENTS Is Courtney's statement admissible against Rachel as a statement against interest? 1. Yes, but only the part about Courtney's role 2. Yes, the judge will admit the entire statement 3. No

1. Yes, but only the part about Courtney's role

In case with Chinn's deathbed confession about witnessing a 20-year old unsolved murder. Admit evidence that Chinn was using narcotic pain relievers? 1. Yes, it affects Chinn's credibility 2. No, because Chinn is not a witness 3. No, because it's unfairly prejudicial 4. No, because it's extrinsic evidence

1. Yes, it affects Chinn's credibility

Assume she is Joseph's girlfriend, not wife, and girlfriend "forgets." Grand jury testimony is... 1. Admissible under 804(b)(1) 2. Admissible under 801(d)(1)(A) 3. Admissible under both 4. Admissible under neither

2. Admissible under 801(d)(1)(A) Girlfriend's Grand Jury Statement Is NOT Admissible as Former Testimony because she is unavailable (memory loss), previous statement was at a hearing, but opponent (Joseph) was not present and had no opportunity to develop testimony during that hearing. But the Grand Jury Statement IS Admissible as a Prior Inconsistent Statement because memory loss is inconsistent with prior detailed statement, prior statement was made under oath at a proceeding, and girlfriend IS subject to cross-examination in current proceeding.

Best method for suggesting that Chinn lied to insurance company: 1. Introduce testimony of insurance agent 2. Ask Chinn's brother if he knows 3. Call a character witness 4. No way: can't do it

2. Ask Chinn's brother if he knows

FORFEITURE Government wants to argue forfeiture. Why did Yezhek leave? How does the court figure out what the reason is why Yezhek left? Government must prove wrongdoing, etc... 1. By clear and convincing evidence 2. By a preponderance of the evidence 3. With enough evidence to meet the prima facie standard 4. Beyond a reasonable doubt

2. By a preponderance of the evidence If Zlatogur had a hand in it and did it wrongfully, the grand jury testimony would be admissible. This is a preliminary question.

PARTY OPPONENT STATEMENT In a joint trial, if Bert testifies, then his former statement is admissible... 1. Against both defendants 2. Only against Bert, with a limiting instruction 3. Only against Bert, but no instruction needed

2. Only against Bert, with a limiting instruction (Bert taking the stand solves the Sixth Amendment problem, but does not solve the hearsay problem; so unless this comes in through adoption, agency, or another hearsay exception, it is still hearsay as to Ernie.)

COCONSPIRATOR STATEMENTS Gina confesses to a friend that she and Mark poisoned Chuck. Government gathers other evidence that Mark and Gina conspired. Mark and Gina are prosecuted jointly. Is Gina's confession admissible against Mark as a co-conspirator statement? 1. Yes, but only if there is evidence of a conspiracy 2. Probably not, absent evidence that this was is the course of, and in furtherance of, the conspiracy 3. Only if Gina takes the stand

2. Probably not, absent evidence that this was is the course of, and in furtherance of, the conspiracy. Because it was a confession, the statement was AFTER she was arrested. The conspiracy t/f over. Have to be careful in admitting these.

COCONSPIRATOR STATEMENTS To prove that the conspiracy existed, the prosecutor... 1. May rely solely on Courtney's statement 2. May not rely at all on Courtney's statement 3. May rely on the statement with other evidence

3. May rely on the statement with other evidence. Need some external corroborating evidence to prove the conspiracy.

COCONSPIRATOR STATEMENTS Can the prosecutor admit Courtney's statement against Nick as a co-conspirator statement? 1. Yes 2. Yes, but only with a limiting instruction 3. No

3. No, b/c not done during conspiracy or in furtherance of the conspiracy.

If the judge holds a hearing (104), do the rules of evidence apply? 1. Yes 2. No 3. Only the rules related to privilege 4. Only the rules of hearsay

3. No, only privilege applies.

A man beats Mamie brutally outside her house. As Mamie collapses, a neighbor hears her say: "I'm dying—don't let Roscoe get away with this." Mamie survives, but has amnesia. Government prosecutes Roscoe for assault. Can the neighbor testify about Mamie's statement? 1. No, it's hearsay 2. No, because Mamie is available 3. Yes, it's a dying declaration 4. Yes, it's an excited utterance

3. Yes, it's a dying declaration Her testimony is unavailable b/c amnesia. She gave declaration believing she was dying. Doesn't matter that she actually didn't die.

COCONSPIRATOR STATEMENTS Chuck dies of anthrax poisoning. Gina confesses to police that she and Mark worked together to kill Chuck. Government prosecutes Gina for murder. Gina doesn't take the stand. Is Gina's confession admissible against Gina? 1. Yes, it's a prior inconsistent stmt 2. Yes, it's former testimony 3. Yes, it's a party-opponent stmt 4. No, she wasn't subject to cross-exam

3. Yes, it's a party-opponent stmt

In a case to prove that Ernest Walter Julius Katz had legal status in the United States, a birth certification from 1944 is offered into evidence; if it is objected to as hearsay, is it admissible? 1. Yes, because it is within 803(8). 2. Yes, because it is not hearsay. 3. Yes, because it is an ancient document. 4. All of the above.

4. All of the above.

Widget sues Copy Company for patent infringement. Widget VP gives deposition under oath. Widget and Copy Company settle. VP dies. Widget sues Knock Off Company for infringement. Widget offers VP's deposition testimony under 804(b)(1). Knock Off's best objection is .... 1. Other VPs are available 2. Depositions aren't "hearings" 3. Copy Co asked no questions at the deposition 4. Copy Co had different motives

4. Copy Co had different motives

What evidence will the judge consider to decide if Delia is MJ's agent? 1. Just Delia's words 2. Delia's words plus any other evidence 3. Any evidence BUT Delia's words 4. Delia's words plus any other non-privileged evidence

4. Delia's words plus any other non-privileged evidence Need some external non privileged evidence. The standard imposed for co-conspirator, that you need the words PLUS something more. Judge may consider content of out-of-court statement to decide authorization, agency, or conspiracy. But those words alone cannot establish authorization, agency, or conspiracy. No bootstrapping: We can't offer Delia's out-of-court claim that she was an agent to prove that she was one.

COCONSPIRATOR STATEMENTS Classmates stole jewelry and clothes from stars. They studied fashion magazines, spotted stars, stake out their homes and broke in and stole. Alexis Neiers's public statement: "I did nothing--Nick did all of these burglaries. He did every single burglary, he told me this after the police let him go. Nick is blaming people, trying to get the blame off himself." At Nick's trial, Alexis refuses to testify. Is her public statement admissible? 1. Yes, statement of co-conspirator 2. Yes, public record 3. Yes, statement against interest 4. No

4. No (1) is INCORRECT b/c Nick is arrested, t/f conspiracy had ended. It is not a public record. It is not a statement against interest, b/c it's very much IN her interest. T/f it is inadmissible hearsay.

United States v. Joseph - U.S. charges Joseph for insider trading; wife provides some evidence. She testifies in grand jury, during trial she claims spousal privilege. Admit Wife's Grand Jury Testimony under 804(b)(1)? 1. Yes 2. No, she's still available 3. No, it wasn't a hearing 4. No, Joseph had no chance to cross-examine

4. No. Testimony is unavailable, but cannot use grand jury testimony to let the statement in.

FORFEITURE United States v. Zlatogur Zlatogurs charged with violating immigration laws. Yuri Yezhek, their employee, gave incriminating grand jury testimony. Yezhek left USA before Zlatogurs' trial; refuses to return or be deposed. Yezhek's grand jury testimony is admissible.... 1. As a prior inconsistent statement—801(d)(1)(A) 2. As former testimony—804(b)(1) 3. For impeachment only—613 4. None of these

4. None of these (1) is incorrect b/c Yezhek couldn't take the stand. (2) is incorrect b/c former testimony requires cross examination and there is no cross examination in grand jury. (3) How impeach witness that isn't on the stand?

COCONSPIRATOR STATEMENTS Courtney to the police: "Rachel Lee planned everything. I just drove her and Nick sometimes." Courtney refuses to testify at Rachel's trial. Her statement to the police is admissible as... 1. A public record 2. A statement of a co-conspirator 3. A prior inconsistent statement 4. None of these

4. None of these It is not a public record. It is not a statement of a co-conspirator b/c it was not in furtherance of the conspirancy to tell the police how it all came down.

PARTY OPPONENT STATEMENT Burglary report: "He stole my weed" Can police operator testify that defendant said "he stole my pot"? 1. Only if D was excited 2. Only if D spoke as theft occurred 3. Only if D refuses to testify 4. Yes

4. Yes

COCONSPIRATOR STATEMENTS What if Alexis is on the stand? Can prosecutor offer Alexis's testimony against Nick? 1. No, it's hearsay 2. Only if Nick is unavailable 3. Only with a limiting instruction 4. Yes

4. Yes b/c the out of court declarant is not her but Nick, and she is reporting it as a witness testimony.

Civil action: Home buyer v. Broker for fraud! Defendant broker testifies she is licensed broker. Rebuttal testimony from employee of State Board of Realtors: No record of license issued to D's broker. Is the rebuttal testimony admissible? 1. No, it's hearsay 2. No, it's character evidence 3. Yes, but only to impeach realtor 4. Yes

4. Yes, Public record that proves the void! Note: In CA you cannot appear in court room unless you are licensed doing business in CA.

Can the defendants prove that Chinn had been convicted of assault? 1. No, she's not a witness 2. No, that's character evidence 3. No, it's not a crime of dishonesty 4. Yes, if it was a felony conviction satisfying Rule 609

4. Yes, if it was a felony conviction satisfying Rule 609

In a landlord/tenant dispute, the landlord wishes to admit the lease, written by the landlord and signed by the landlord and the tenant, to prove the amount of rent agreed to by both parties. 1. Admissible. 2. Inadmissible.

Admissible.

Greg or Mark, a college football assistant coach, is suing Youngstown University for age discrimination in federal court, claiming he was fired because the Youngstown AthleticDirector believed he was "too old." Through discovery, Mark discloses that he intends to introduce evidence that Youngstown has fired six assistant coaches over the past five years, and all of them were over fifty years old. Before trial, the attorney for YoungstownU. files a motion in limine, seeking to suppress the evidence of the previous firings on the ground that this evidence is irrelevant. Mark's attorney's response should be

A) "Your honor, the jury decides questions of relevance, not the judge." B) "Your honor, the fact that Youngstown University has fired so many older coaches over the past five years establishes, by a preponderance of the evidence, that the in situation discriminates against older coaches." C) "Your honor, the evidence of these 5 prior firings tends to make the fact that Mark was fired because of his age more likely than this fact would be without this evidence." D) "Your honor, the defendant's objections to my evidence must wait until after I formally offer the evidence at trial." C; Rule 401 (objection, that is irrelevant).

Samantha is charged with stealing jewelry from Theresa's home in Columbus on January 12. During the defense case, Samantha's attorney calls an alibi witness who claims to have been with Samantha on January 12th all day in Miami, where they were vacationing together. In rebuttal, the prosecution wants to introduce evidence that: (1) Samantha was working as a house keeper in Theresa's house during the month of January 2021; (2) Samantha was working there on a work release program from a halfway house (a correctional facility in which inmates are allowed to work outside the facility during the day but must return every night to sleep), and (3) that Samantha was in the halfway house serving a 2-month sentence for petty theft. The court should:

A) Admit the fact that Samantha was working as a housekeeper for Theresa but exclude the fact that she was on a work release program and that she had been convicted of theft. (B) Admit the fact that Samantha was working as a housekeeper, exclude the fact that she had been convicted of theft, and conduct a Rule 403 balancing test to determine whether the fact that Samantha was on a work release program should come in. (C) Admit all the evidence. (D) Exclude all the evidence. B; (1) Allowable, (2) Allowable (nothing prejudicial), & (3) Yes to halfway house, but maybe no to petty theft (Some redaction).

While Annie O'Malley was an Illinois Senator, a group called "Illinois Citizens for HonestGovernment" ran numerous television ads stating that she was "a corrupt politician" and that "her influence was for sale to anyone with enough cash." If this defamation case went to trial, which of the following would be admissible (1) Testimony from one of O'Malley's staffers that he witnessed a land developer givingO'Malley a suitcase filled with cash at a particular meeting. (2) Testimony from one of O'Malley's law school classmates that she often drank too much and sometimes smoked marijuana. (3) Testimony from a land developer (offered by O'Malley) that he once invited O'Malley to lunch, but that O'Malley responded that she "wasn't comfortable taking any favors from constituents, due to the appearance of impropriety, but that they could meet in her office

A) All of the evidence should be prohibited under Rule 404. (B) All of the evidence should be admitted under Rule 405. (C) The court should allow #1, but exclude #2 and #3. (D) The court should allow #1 and #3, but exclude #2 D

COCONSPIRATOR STATEMENTS Same facts as before but now Adam will also testify that Mark told Adam that Gina would be by in a few days to pick up the anthrax. A few days after Mark had asked him for anthrax Gina came by Adam's place to pick up the anthrax, and paid him $1,000 for it. Which of the following are correct? A) The statement is admissible against both Mark and Gina. B) The statement is admissible against Mark only. C) The statement is admissible against Gina only. D) The statement is inadmissible hearsay.

A) The statement is admissible against both Mark and Gina. CORRECT, b/c there is independent evidence showing that Mark and Gina were in a conspiracy together to kill Chuck, therefore the statement is admissible against Mark under 801(d)(2)(A) and against Gina under 801(d)(2)(E).

PARTY OPPONENT STATEMENT Davis Construction built Galt Tower, a twenty-story office building in downtown San Jose. Two years after construction, a moderate earthquake struck the area (measuring 5.2 on the Richter scale), causing minor damage to most buildings. Galt Tower collapsed. Galt Tower's owners sued Davis, claiming the builder's construction was faulty. Davis argued that Galt chose to build the tower right on top of a known fault line, and that the building collapsed because of its location. Which of the following pieces of evidence is admissible at trial? A. Galt Tower offers minutes from a Davis Construction business meeting, in which the Davis CEO told a contractor: "We have to cut corners a bit on the width and depth of the foundation in order to make money off this project." B. Galt also offers a letter written by an independent subcontractor to Davis, which states: "Your plans for the building's foundat

A. Analysis under 801(d)(2)(a) - If Gold offers the evidence that is coming out of Davis's mouth, then it is admissible. B. The document is within the scope of the contract with the independent contractor for Davis. The contractor is Davis's agent. Therefore the statement is adopted as if it was Davis who said it. Because it is offered by party opponent it is admissible. C. - Not admissible b/c not offered by party opponent, Davis is offering his own document!

Harris is arrested after a traffic stop finds 19 kilograms of cocaine in his car. Harris says the cocaine belongs to Williamson, for whom Harris is simply making a delivery. Harris is charged with possession of cocaine, and pleads guilty. Williamson is tried for distribution of cocaine. Harris's statement during the traffic stop is NOT admissible as a statement against interest; why not? A. It is not against his interest. B. He is available at trial. C. It is not hearsay. D. It lacks corroborating evidence.

A. It is not against his interest. It is actually IN his interest making that statement.

PARTY OPPONENT STATEMENT Donna sued Bartlet, McGarry, & Lyman, a major law firm, for sex discrimination. Donna claims that the firm denied her a partnership because of her gender. Donna discovers that the firm's senior partner, Jed Bartlet, had dinner with clients three weeks before she was up for partnership. One of the clients noted: "That lawyer Donna has done some nice work for me, Jed. Do you think she'll make partner?" Another client interjected: "Are you kidding? Jed would never allow a woman to be a partner in his firm!" Which of the following "responses" by Jed are admissible? A. Jed replied: "Of course I wouldn't!" B. Jed laughed but said nothing. C. Jed remained silent. D. All of them

A. Jed replied: "Of course I wouldn't!" - It is hearsay, but admissible under 801(d)(2) C. Jed remained silent - Would a reasonable person have spoken up? If yes, then adoption of statement by silence.

A prosecutor wants to admit a written confession by the defendant into evidence to prove the defendant's guilt. Admissible. Inadmissible.

Admissible.

Tom and Jerry got into a fight at a local bar, and Jerry ended up beating Tom so badly that Tom was taken to a hospital. Jerry is prosecuted for assault. In his defense, Jerry wishes to introduce evidence that on three prior occasions in the past week, Tom had drunk too much in the bar and picked a fight with another patron. The evidence of Tom's three prior fights is:

A: Irrelevant, since Jerry had no knowledge of the fight at the time of the alleged assault. B: Relevant, but only if the judge determined that Jerry does not have similar history of getting into fights when drunk. C: Irrelevant, since the judge may conclude that Tom's supposed propensity for violence would lead the jury to automatically conclude that he was a aggressor D: Relevant, since a person who tends to get violent when he drinks is more likely to start a fight than a person who does not have that tendency. D; Prove tendency.

When Paul was pulled over and ordered out of his car, he began verbally abusing 2 OKC police officers respond by hitting Paul. in the head four times with their nightsticks. At no time did Paul act violently or physically threaten the officers. Paul is now using OKC police dept. for using excessive force. The police argues that it's officers acted in the reasonable belief that such force was necessary at the time. Attorneys for the police want to introduce evidence that on three prior occasions, Paul has physically attacked police who have pulled him over. The evidence is:

A: Relevant, since it tends to prove that Paul has a violent nature. B: Relevant, but only if the police officers on the scene were aware of Paul's previous confrontations with the police. C: Irrelevant, since Paul took no violent action towards the police this occasion. D: Irrelevant, since past actions by Paul are no indication of what may or may not have happened in the circumstance. B; Knowledge of cop is relevant (prove character).

Charles Rogers is accused of robbing a bank by breaking into the banks vault after hours. The prosecution seeks to introduce evidence that blowtorch was found in his garage. The D objects, pointing out that Rogers brother, who shares the home with Rogers, is a professional pipe-fitter and uses the blowtorch every day. the evidence is:

A: relevant, but only if the crime that was committed may have involved the use of a blowtorch. B: relevant, but only if the prosecution can prove that Rogers and not his brother was the actual owner of the blowtorch. C: Irrelevant, assuming the defendant can prove to the court in an offer of proof that his brother does, in fact use the blowtorch for work. D: Irrelevant, since its not information that a person would want know deciding whether the defendant committed the crime. A

COCONSPIRATOR STATEMENTS Chuck dies of anthrax poisoning. Government prosecutes two of Chuck's business competitors, Mark and Gina. Katie testifies: "A few weeks before Chuck died, Mark asked me to get him some anthrax". In the absence of it being a co-conspirator statement, is Katie's testimony admissible in trial of Mark and Gina?

Admissible against Mark: It's his statement NOT admissible against Gina: It's not her statement Court will instruct jury to consider only with respect to Mark

Greg is suing Greyhound Bus Co., alleging that it negligently hired Will as a driver, and that Will subsequently plowed a bus into Greg's car. Greg offers into evidence Will's employment application to Greyhound, in which Will admitted to having received six moving violations in the year preceding the application. Will was killed in the bus crash and is not a party to the action. Admissible?

Admissible for notice AND for its truth- Statement against interest - 804(3) The negligent act of Greyhound is that no reasonable person would ever hire Will. The evidence is that they knew, would show the employment application. Not hearsay, Greg could have been lying. Or Greg actually has 15 but minimize it to six. Not hearsay! Even if offered for its truth it would be statement against interest as to the driver Will unless can prove that it was IN his interest.

During Daniel's murder trial, Terry testifies for the defense that she was with Daniel the entire day of the murder and that he never went near the crime scene. The prosecutor offers Terry's grand jury testimony in which she said she had not seen Daniel at all on the day of the murder. Admissible?

Admissible for the truth of the matter, Rule 801(d)(1)(A) - Prior statement (Also admissible for impeachment)

Marcia Brady is on trial for killing her stepfather Michael. In its case-in-chief, the prosecutor introduces a properly authenticated letter from Jan, Marcia's sister. The letter was found in Marcia's possession when she was arrested, and it is dated the day before the murder. In the letter, Jan wrote that Michael had physically assaulted her multiple times, including breaking her nose, over the past few weeks. The defense objects to this document as hearsay and inadmissible character evidence. The court should rule that the letter is: 1. Admissible for any purpose. 2. Admissible to prove Marcia's motive for committing the crime. 3. Admissible to prove that Michael actually did assault Jan. 4. Inadmissible for any purpose

Admissible to prove Marcia's motive for committing the crime.

Steve Austin, a gold-medal sprinter in the 2008 Olympic Games, is now on trial for illegally possessing performance-enhancing steroids in 2007. To prove the requisite intent, the prosecution must show Austin knew he possessed steroids. The prosecution's star witness is Austin's trainer, Dr. Wells, who testifies that he sold Austin thousands of dollars worth of Detrimin, an illegal steroid, in 2007. Austin took the stand in his own defense and admitted that he bought and used the Detrimin but claimed that he did not know what it was; that he trusted Dr. Wells and that Dr. Wells told him Detrimin was a nutritional supplement. In rebuttal, the prosecution calls Oscar Goldman, an old friend of Austin's who testifies that while the two men were training for the 2004 Olympics together, Austin showed Goldman a pill bottle marked 'Detrimin' and said: 'These are some steroids I've started using. You should try some; they've r

Admissible to prove that Austin had knowledge that he was taking steroids in 2007.

The furnace in Donald's basement exploded, destroying the house and severely burning Donald. Donald sued the manufacturer of the furnace, Steamfast Furnace, for unsafe design. Steamfast's defense is that the contractor who installed the furnace five years ago did so improperly, placing the furnace in a room that was far too small. Steamfast also claims that Donald knew about the improper installation and assumed the risk of any explosion. The contractor's president, Edward, died last year and the company went out of business; neither Edward nor the company is a party to the lawsuit. At trial, Steamfast offers a letter written by Edward to Donald just before the furnace was installed. The letter says: "I have advised you not to install a Steamfast furnace because your basement is too small to handle that product. The furnace won't have adequate space to vent, and the whole thing could explode. We're violating municipa

Admissible to show both knowledge on the part of Donald and that the installation was improper.

Who of the following would be allowed to testify as a witness at trial? (A) A party to the case who has already watched five other witnesses testify. (B) A juror who lives near the scene of the accident being litigated who wishes to testify about physical layout of the intersection (or alleged drug use during jury deliberations). (C) A psychotic woman who cannot distinguish between fantasy and reality. (D) The trial judge in the case, in order to advise the jurors of her opinion about the credibility of the witnesses they have heard.

Answer: A- A party to the case who has already watched five other witnesses testify. (A): A witness who refuses to swear to tell the truth before he testifies, but states that "I will be as truthful and accurate as I possibly can during this testimony, and I understand that I face perjury charges if I do not tell the truth." (Answer for Class Example). (B): Not in the presence of other jurors (Rule 606). (D): Can't do that.

Billy is on trial for assault with a deadly weapon when he allegedly hit Mike in the head with a pipe. At trial the prosecutor wants Mike's friend Sally to testify that shortly after Mike was hit, she saw him lying in a pool of blood screaming for somebody to, "Get Billy, he just hit me in the head with a pipe and I am going to die!" Mike is currently in the hospital in a coma. Which of the following are correct? A) Mike's statement after he was hit in the head is admissible under Rule 803(4). B) Mike's statement after he was hit in the head is admissible under Rule 803(2). C) Mike's statement after he was hit in the head is admissible under Rule 804(b)(2). D) All of the above. E) Answers A and B

B) Mike's statement after he was hit in the head is admissible under Rule 803(2) - Excited utterance! It could be a statement for medical treatment but in this case he is not asking for a doctor but for Mike to catch Billy. Rule 804(b)(2) is incorrect because the trial is for assault.

COCONSPIRATOR STATEMENTS Chuck dies of anthrax poisoning. Government prosecutes two of Chuck's business competitors, Mark and Gina. The prosecutor wants to call Adam to testify to the fact that Mark asked him to get him anthrax a few weeks before Chuck's death. Which of the following are correct? A) The statement is admissible against both Mark and Gina. B) The statement is admissible against Mark only. C) The statement is admissible against Gina only. D) The statement is inadmissible hearsay.

B) The statement is admissible against Mark only. - CORRECT, b/c Mark is a party opponent to the Government under 801(d)(2)(A).

The Demasis have a bank account with their life savings in it. Their daughter empties it of all but $70 when the stock market crashes. The Demasis make a claim against the Bank. The Bank will only release the $70 to Mrs. Demasi if she will sign an affidavit that the daughter had account authority. After Mrs. Demasi dies, Cosimo sues the Bank to recover his "community property" - the balance of the account that was withdrawn (improperly) by the daughter. Is Mrs. Demasi's affidavit admissible as a statement against interest? A. Yes, because she has admitted the invalidity of a claim against the daughter. B. No, because Mrs. Demasi was acting in her interest in getting the $70. C. Yes, but because it is not hearsay. D. No, but it is a dying declaration.

B. No, because Mrs. Demasi was acting in her interest in getting the $70, because it is not against Mrs. Demasi's interest signing that affidavit.

In 1938, Orson Wells broadcast a radio drama that many listeners did not realize was fiction: One family gathered all of its many generations in a home in New Jersey, so they could die together. Unfortunately, they decided that this was an opportunity to "air" all of their buried grievances and secrets. During that three-hour family "reunion," John told his sister Mary that John had always hated her and that was why John had gotten their Mother (who had Alzheimer's) to sign a back-dated will disinheriting Mary. If a year later Mother dies and Mary challenges the will that disinherits her, is John's statement admissible? A. Yes, as a dying declaration. B. Yes, as an excited utterance. C. Yes, as a statement against interest. D. No.

D. No, assume john's testimony is unavailable during trial. Statement made under subjective believe of pending death. It is civil case. BUT it is not about the circumstances of cause of his death. T/f not fitting as exception.

PARTY OPPONENT STATEMENT A plumber makes an installation that is faulty. He says: "I'll come by tomorrow and redo the installation for free." The customer sues the plumber. Is the plumber's statement admissible? A. No, it's an offer in compromise B. No, it's hearsay C. No, it's a subsequent remedial measure D. Yes, as evidence of the plumber's fault

D. Yes, as evidence of the plumber's fault - Statement by party opponent! (C) is INCORRECT b/c not trying to make the world better for next person, the plumber is trying to fix the installation.

Jean Ann Chinn was dying. Chinn told her brother that she witnessed Fossyl's murder. Chinn named two men as murderers. Two months later, Chinn died of cancer. Fossyls filed civil suit wrongful death. 2007, 2 years after death of Jean Ann, the wrongful death case goes to trial. Can Chinn's brother testify about her statement?

Defendants strongly resisted, hearsay! Dying declaration? NO! She knew she was dying, she wanted to unburden her conscience. It is presumed to be relative reliable. But it wasn't about the circumstances about her death. Statement against interest? Probably not! It has certainly burdened her. It doesn't reflect well on her that she never told anyone. But it is not the kind of concern that the code recognizes to find within the interest that qualify for that exception. It is within the spirit but not definition of that rule. Statement of co-conspirator? NO, she WITNESSED the murder, she wasn't a part of the murder. Also, even if she was co-conspirator, the statement wasn't in furtherance of the conspiration. During the trial, the argument was ALL ABOUT the residual exception. Trial judge admitted Chinn statement, relying upon both statement against interest and residual exceptions.

Assume that Delia died in the accident. Eliot suing against Mama Jongs alleging being Delia's employer. Mama Jongs's defense is that Eliot can't even prove she worked for them. Eliot calls Delia's roommate.Testimony from Delia's roommate: "The week before she died, Delia told me that Mama Jong's hired her part-time to deliver pizza." Is Delia's statement a statement of a party-opponent?

Delia isn't a party. She might be an agent/servant of a party (Mama Jong's). But that's what we're trying to prove. The judge will make a preliminary determination.

PARTY OPPONENT STATEMENT Sam is arrested for hitting his wife on the head with a blunt instrument. He asks the police officer why he is being arrested. The officer says: "Because you hit your wife on the head with a broomstick." Which of the following responses by Sam are party-opponent statements at trial, if offered by the Prosecution: A. I didn't hit her! B. I only threatened her. And it wasn't a broom, it was a flashlight. C. I was angry with her because her cell phone bill was so high. D. She hit me first, and I picked up the flashlight to defend myself. E. All of above

E. All of above

Zoe is on trial for shoplifting a digital camera from electronics store. The security camera caught her on film - she picked up a camera, concealed it under her clothing, and left without paying. Zoe's defense is mistaken identity. The prosecution wants to offer evidence that last year Zoe stole cell phone by taking it off the shelf and hiding it under her clothes. The defense objects. The judge should: 1. Admit the evidence with a limiting instruction. 2. Admit the evidence to show notice. 3. Exclude the evidence. 4. Admit the evidence for any purpose.

Exclude the evidence.

Dave is on trial for robbing Victor at gun point. The prosecution wishes to call Whalen during its case-in-chief to testify that Dave had pulled a gun on him just the week before the robbery of Victor. The defense filed a motion in limine to exclude Whalen's testimony. The judge should: A. Deny the motion and permit Whalen to testify for purposes of identity. B. Deny the motion because Whalen's testimony is relevant. C. Grant the motion because the prosecution is not permitted to use this evidence to make a propensity argument, which is the only way the evidence is relevant. D. Grant the motion because excluding the evidence is within the judge's discretion.

Grant the motion because the prosecution is not permitted to use this evidence to make a propensity argument, which is the only way the evidence is relevant.

What about state of mind?

Have to make redaction. Can probably get in "I can no longer live with what I have done." Rest of it is "because".

What if Eliot wants to testify that he heard a witness said "Hey - that woman ran the red light. What standard will the judge apply when deciding if the statement was excited? 1. Preponderance of the evidence 2. Clear and convincing evidence 3. A reasonable jury could find by a preponderance of the evidence 4. Substantial certainty

How is this different from previous question? Previous question was a legal question that has to be determined by judge before admissibility. This is a factual issue on what admissibility will turn. Standard is still preponderance. Argument is still whether a fact is true so that you meet the legal standard of the rule. 3. Is a question about relevance.

Late one night, Officer Reynoso and Officer Girardi noticed a suspicious person loitering outside a convenience store. They approached the individual to ask some questions, and Officer Reynoso heard Girardi yell: "Look out, he's pulled out a gun!" Reynoso then saw Girardi pull out his gun and begin shooting at the individual. Reynoso immediately drew her own gun and shot six rounds at the individual. The individual was struck by a total of eleven bullets and was killed instantly. A firearm was found near the victim's body, but there is some evidence that it might have been planted there after the shooting took place. The two police officers were charged with second-degree murder following the incident. Their cases were severed, and Officer Reynoso is now on trial. Her defense is that she reasonably believed that the victim had a gun and thus the shooting was justified. (Continue . . .)

In her defense, Reynoso wants to testify as to the fact that Girardi drew his own gun and began shooting it. The prosecutor objects to this evidence. What is the proper ruling? (A) Girardi's drawing of his gun is inadmissible for any purpose because it is hearsay. (B) Girardi's drawing of his gun is admissible only to prove Reynoso reasonably believed the victim had a gun. (C) Girardi's drawing of his gun is admissible to prove both that the victim had a gun and to prove Reynoso reasonably believed the victim had a gun. (D) Girardi's drawing of the gun is inadmissible for any purpose because it is irrelevant. C; Both the statement by Girardi and Girardi's drawing of his gun are admissible for any purpose.

Greg is being prosecuted for manslaughter under the theory that he blocked the fire exits to his nightclub, resulting in three deaths when the nightclub caught fire. The prosecutor wishes to introduce the fire marshal's report made the day after the fire which concludes that the fire exits were in fact blocked by furniture at the time of the fire. Admissible?

Inadmissible Hearsay (Not 803(8) since offered against criminal defendant) Public record - Is reporting simply activity or are there facts and conclusions or observations. This one is observations. "I saw this. I looked at this and concluded this and that." First, is it law enforcement personnel? But it isn't turned on that. It is inadmissible hearsay b/c even if public record it is offered by prosecutor. If civil case, would be admissible.

Sam is charged with raping his girlfriend Vicky. In his case in chief, he calls his friend Tom, who testifies that the day after the alleged rape, Sam told him "Vicky and I went all the way last night; I wasn't sure if we were ready, but she wouldn't take no for an answer." Sam offers the statement to prove consent. Admissible. Inadmissible.

Inadmissible.

MaryAnn is suing Ginger, alleging that Ginger stole her black silk dress when they were roommates. At trial, MaryAnn calls Thurston to the stand, who testifies that he saw Ginger wearing the black silk dress in question at a party two weeks after Ginger moved out of MaryAnn's apartment. The trial ends in a mistrial, and the case is re-tried. At the re-trial, Thurston does not testify. MaryAnn seeks to admit a transcript of Thurston's testimony at the first trial. Ginger objects, and the judge overrules the objection. Ginger then calls Thurston's widow Lovey to the stand. Lovey will testify that she had been married to Thurston for forty years and that in her opinion Thurston was a dishonest man who lied about everything. MaryAnn objects to Lovey's testimony, and the judge overrules the objection. Were either of the judge's rulings correct? 1. It depends. Thurston's prior testimony is admissible only if Thurston were

It depends. Thurston's prior testimony is admissible only if Thurston were unavailable. But if the prior testimony comes in, Lovey's live testimony should be admitted

Zenana Shepard died of mercury poisoning. Her symptoms first appeared on May 20. Two days after falling ill, Zenana's "mind had cleared." Her physicians did not consider her dangerously ill. There was no diagnosis, as of that time, of poisoning. She asked a nurse to get her the bottle of liquor she had drank from before collapsing. She said "Dr. Shepard has poisoned me." A week afterwards, she suffered a relapse. She died on June 15. Dr. Shepard was tried for murder. Is Zenana's statement admissible? 1. No, because it is a dying decl. offered in a criminal trial. 2. Yes, as an excited utterance. 3. Yes, as a statement made for medical diagnosis. 4. Yes, as a dying declaration. 5. Yes, because it is not hearsay. 6. Yes, as a statement of state of mind. 7. Yes, as a present sense impression. 8. Yes, as a business record, if it was "charted." 9. No, because it is hearsay and no exception applies.

It is NOT excited utterance, state of mind, medical treatment, business record (medical record) b/c hearsay within hearsay in the medical record. It is NOT dying declaration b/c she believes she is fine, even if she did die later.

Alvarez v. American Export Lloyd work on a ship, the SS Export. Lloyd got into a shipboard fight with Alvarez. Alvarez sued the ship owner, American Export for his injuries, saying Lloyd started the fight and Lloyd was Alvarez' boss. Lloyd disappeared. American Export argued Alvarez started the fight. To prove Alvarez was the attacker, American Export offered the testimony of Lloyd, taken by a Coast Guard examiner in a disciplinary hearing against Lloyd, saying Alvarez started the fight. 580 F. 2d 1179 (3rd Cir. 1978). Can American Export introduce Lloyd's testimony in the civil case?

It was under hearing. Alvarez was there during the disciplinary hearing. Exact same issue, b/c coast guard wants to establish who was at fault. It is very close question.

The federal government has charged Jerrod with securities fraud regarding his work as a financial analyst and accountant for a particular company (Games, Inc.). Jerrod and Kristi were married at the time of the alleged fraudulent acts, but they have since divorced. (And the divorce was quite bitter, since Kristi had found out that Jerrod had been cheating on her with the female vice president of Games, Inc., which is being prosecuted in a separate case.) Kristi has approached the federal prosecutor and offered to provide any help that she can possibly offer regarding prosecuting Jerrod. In particular, Krisit offers to testify that Jerrod once confided in her that that "The feds will never be able to figure out the games that I have played on behalf of Games." Kristi also offers to testify that even after their divorce, Jerrod once told her that she "should just be grateful for the money that he had made through his '

Jerrod has invoked "spousal privilege" regarding both statements. What should the trial court do? (A) Kristi should be allowed to testify about Jerrod's statements after the marriage, but not during. (B) Kristi should be allowed to testify about Jerrod's statements during the marriage, but not after. (C) Kristi should be allowed to testify about Jerrod's statements both during and after the marriage. (D) Kristi should not be allowed to testify about either of these statements, due to spousal privilege. A

If Widget v. Copy Co. had not settled, could the deposition of the now dead Widget V.P. be used by Widget?

NO

Sam is charged with raping his girlfriend Vicky. In his case in chief, he calls his friend Tom, who testifies that the day after the alleged rape, Sam told him "Vicky and I went all the way last night; I wasn't sure if we were ready, but she wouldn't take no for an answer." Sam offers the statement to prove consent. Admissible?

NO, inadmissible Hearsay Would think admissible b/c criminal and Sam taking position on the crime. But it is Sam offering his own statement. If Sam wants to testify he has to take the stand.

Would you admit the note as a statement against interest?

No! Reasonable argument that this statement is not against her interest. The theory of being against her interest is exposing herself to criminal liability. If she is about to die she is not exposing herself to criminal liability. So NO, b/c she is not expecting criminal liability.

Sarah and her brother work for family business. Millions stolen from business; brother charged with crime. Sarah's dead body found with suicide note nearby: "I can no longer live with what I have done. I have stolen millions from the family business, and my brother has been falsely accused. Now the entire family faces financial ruin because of me. The only way out is to kill myself. Sarah" Is the note admissible as a dying declaration?

No, b/c only admissible in criminal homicide trials. This is criminal embezzling trial.

COCONSPIRATOR STATEMENTS Is the following statement by Max admissible against Diane as a co-conspirator admission? Testimony from one of the arresting police officers that after Max was arrested, he said: "It's true I was trying to buy the guns, but Diane was the real ringleader of the operation."

No; the conspiracy has ended and this is not in furtherance of the conspiracy.

COCONSPIRATOR STATEMENTS Is the following statement by against Diane as a co-conspirator admission? Testimony from a friend of Diane that two days before the attempted purchase, Diane said: "I invested my savings in a business arrangement with this guy Max, and I should be able to double my money in just a few days."

No; this is a statement by Dianne herself; but it is admissible as Dianne's own admission.

COCONSPIRATOR STATEMENTS Is the following statement by Max admissible against Diane as a co-conspirator admission? Testimony from a friend of Max that two days before the attempted purchase, Max said: "This lady Diane and I are working on a sweet deal that should help me make some quick money."

No; this is not in furtherance of the conspiracy.

PARTY OPPONENT STATEMENT Jennifer Hyatte helped her husband to escape prison. He shot and killed a prison guard. They took cab to a motel. The cab driver thought was suspicions they took cab from Tennesee to Ohio. Police arrested them and found wife's diary where they find a detailed description of the killing. They claim seizure without reason, but loses. The diary would be admissible against her on trial. Would the diary be admissible against husband?

Notion when somebody else says something attributable to you.

What if defense is that this driver is a different Delia?

Now insurance policy comes in because it is evidence against identity. Comes in for proper purpose.

To prove that Irene was working the entire week of November 8th through the 12th, Irene offers a statement she made to her husband Frank on November 8th in which she says: "I worked all day today, and I'll be working the rest of the week." Admissible?

Only partly admissible (future plan - that she intended to do something), (2nd part- admissible) Existing Mental Condition- Rule 803(3) (SOM), Statement (1st part) about past work inadmissible b/c backward looking. "I worked today" is t/f not admissible. But it is admissible that she intend to work as future plan.

Last year, James purchased a car from Leonard's Bare-Bones Car Shoppe. Two months after the purchase, he discovered the car was not new as had been represented by Christine, one of Leonard's employees. James stopped payment on the car at that point, and Bare-Bones sued James for payment. Bare-Bones calls Leonard as its first witness. PLAINTIFF ATTORNEY: How are you employed? LEONARD: I work for Bare-Bones Car Shoppe. PLAINTIFF ATTORNEY: Are you in fact the owner of Bare- Bones Car Shoppe? DEFENSE ATTORNEY: Objection! The judge should: Sustain the objection, since this is a leading question on direct examination. Overrule the objection, since this is a non- leading question. Overrule the objection, since the witness is an adverse party. Overrule the objection, since leading questions are permissible for this type of question on direct examination.

Overrule the objection, since leading questions are permissible for this type of question on direct examination.

PARTY OPPONENT STATEMENT Summers v. Tice and Simonson Summers, Tice, and Simonson went quail hunting. Tice and Simonson fired simultaneously. Summers is shot in eye. The night after, Tice and Simonson went out drinking. Tice said to Joe : "We went hunting and I got Summers in the eye." Admissible?

Plaintiff Summers can call Joe to testify about Defendant Tice's statement. Defendant Simonson perhaps can also call Joe to testify about Defendant Tice's statement. The 801(d)(2) hearsay exception is built on estoppel, not reliability. T/f it doesn't matter if Tice meant what he said or not.

Wendy, an avid Obama supporter, snuck into a campaign rally held by John McCain and shouted "Down with McCain! Vote for real change!" At that point someone standing next to Wendy punched her in the face and dislocated her jaw. Wendy accused Jack of the assault and sued him for battery in a civil suit. Jack is a loyal McCaim supporter who was attending the campaign rally and standing near Wendy while she was heckling. At trial, Jack's attorney offers (1) a witness who will testify that at a McCain campaign event six months earlier, Jack was standing right next to a heckler from the Romney campaign who screamed obscenities at McCain for five minutes until security escorted her out, and that the whole time Jack simply smiled at the situation, and (2) a witness who would testify that he has known Jack for ten years and that in his opinion Jack is a peaceful man who never loses his temper. The court should: a. Admit both

Preclude both pieces of evidence.

Thirteen-year-old Talia told her mother that their neighbor Sam had sexually assaulted her. "It happened several months ago when I was walking home alone from school. He invited me into the house for cookies and then forced me to have sex with him. I was too ashamed to say anything, but I finally decided to tell you. I want to make sure Sam never does this again." After some discussion, Talia and her mother decided to sue Sam for battery. They hired Clarence Dare, a well known personal injury lawyer, to file the claim. Sam was outraged when the suit was filed; he concluded that Dare had pushed Talia into suing. "The guy is just a lousy ambulance chaser," Sam fumed to himself. Sam decided to end the lawsuit by eliminating Dare. He waited outside Dare's office with a gun, shooting when Dare emerged. Unfortunately, Sam's bullet hit Talia, who was walking next to Dare, and killed her. Dare escaped unscathed. Talia's m

Present sense impression? No, Talia was talking months after that. Excited utterance? No, it was months after! Statement for medical treatment? No, in the statement, she is saying her daughter is telling story because don't want Sam to hurt someone else. State of mind? No, it is backward looking! Statement against interest? No, because shame is not what the code recognize as against interest. Statement of party? No, Talia is now dead, the estate is a party. Forfeiture? No, wasn't intended to cause Talia's unavailability. He was aiming at the lawyer. The only piece of evidence where the case turns. Good reason to believe the evidence but yet no rule to let the evidence in.

PARTY OPPONENT STATEMENT What about a joint trial?

Redact statement Rely on other evidence See whether Bert testifies

Admit wife's testimony under 801(d)(1)(A) - prior inconsistent statement?

Refusal to testify is inconsistent with prior statement. Prior statement was made under oath at a proceeding. BUT the wife is not subject to cross-examination in the current trial. Statement is therefore NOT available.

Police find cocaine hidden in a trunk in Alfred Abrams' home. Government charges Alfred with possession. Alfred takes stand and claims: "I haven't looked in the trunk in years. My son, Ruben, must have put the cocaine there." Admissible?

Ruben has left the country. Alfred offers the testimony of a family friend: "A few months ago, Ruben said, 'My suppliers are letting me down. It's harder and harder to get good cocaine.'" No other evidence of Ruben's cocaine use or dealing. Inadmissible b/c no corroboration!

PARTY OPPONENT STATEMENT How Can the Prosecutor Use Bert's Statement Against Ernie?

Show that it was Ernie's statement too. Show that some other hearsay exception applies, e.g. Statement Against Interest: Bert (declarant) must be unavailable, Statement was against his interest at the time, AND Statement exposed him to liability. BUT the court probably will redact. And will need corroboration!

Harry, a landlord, is being sued by his tenant Kathryn for failing to repair dangerous conditions in the apartment that he leases to her. Kathryn's attorney calls Harry to the stand and asks him: "Isn't it true that Kathryn sent you several letters complaining about conditions in the apartment?" Harry replies that he never received any such letters. Kathryn's attorney then approaches Harry with papers in her hand and asks whether seeing copies of the letters that Kathryn had sent him would refresh his recollection. Harry's attorney objects. How should the judge rule? Overrule the objection and allow Kathryn's attorney to show Harry the letter to refresh his recollection. Sustain the objection, since you cannot refresh a witness' recollection on cross-examination. Sustain the objection, because the letters are not in evidence. Sustain the objection, because Harry never said he had trouble remembering whether he receiv

Sustain the objection, because Harry never said he had trouble remembering whether he received any letters.

COCONSPIRATOR STATEMENTS Is the following statement by Max's boss admissible against Diane as a co-conspirator admission? Testimony from Max's boss that one week before the attempted purchase, Max told him that he needed some extra money. The boss, who is not charged with any crime, said: "I know this woman named Diane. She should be able to get you some money quickly, but you'll have to give her half the profits. I'll call her and give her your number."

The admissibility of the boss's statement, depends on additional facts. The critical question is: Was the boss part of the conspiracy? The fact that he was not charged with any crime suggests he was not, but that fact is not dispositive; the prosecutor might have decided against charging the boss for numerous reasons. If the boss was part of a "joint venture" or "partnership in crime" involving Max and Diane, and if the prosecutor has corroborating evidence of that conspiracy, then the statement is admissible against Diane.

Ari Fleischer, the former White House Spokesman, is testifying for the prosecution against Scooter Libby. On direct, Fleischer testifies that on July 11, 2003, Libby told him about the identity of a CIA agent and told him to give the information to reporters. On cross-examination, Libby's attorney notes that Fleischer had been under investigation by the special prosecutor beginning in June of 2004, but that in December 2004 he was told he was not going to be indicted. Libby's attorney asks Fleischer if he changed his story to implicate Libby in order to avoid being charged with a crime himself. Fleischer denies that he ever changed his story. On re-direct, the prosecutor offers into evidence notes which Fleischer himself had made on July 11, 2003, which stated "Scooter told me about CIA operative today & said I should tell reporters." The defense attorney objects to this statement as hearsay. 1. The statement can be

The statement is admissible under 801(d)(1) as a prior consistent statement for any purpose.

Tara is shot outside her dormitory by an unknown assailant. The next day while in the hospital, she is visited by Officer Snyder, who asks her questions about the shooting. Officer Snyder takes notes on the interview but does not show them to Tara. The officer then shows Tara ten pictures of possible suspects. Tara studies them carefully and then points to picture #4, saying: "He's the one who shot me, I'm sure." Picture #4 is a picture of Warren, who is immediately arrested and charged with attempted murder. At trial, Tara is unable to identify Warren as the assailant. She testifies that she remembers looking through the photographs at the hospital, but is unable to remember which one she chose. The prosecutor then asks Tara if seeing the officer's notes would refresh her recollection, and Tara says yes. Tara looks at the notes and then testifies that she selected picture #4 from the series of photos. (Continue)

The defense attorney objects. What should the judge do? (A) Preclude the testimony because Tara's statement identifying picture #4 is inadmissible hearsay. (B) Preclude the testimony because the police report cannot be used against Warren in this way. (C) Preclude the testimony for both reasons--the prior identification is hearsay AND the police report cannot be used against Warren in this way. (D) Admit the testimony. D; Rule 803(5)- Refresh Memory & Recollection. Prior Statement for identification.

Charles Dawson is on trial for murder. He wishes to testify about his alibi, but he has two prior criminal convictions: (1) a misdemeanor conviction for filing a false police report fifteen years ago; and (2) a felony drug sale conviction from eleven years ago. Dawson spent three years in prison for the drug sale conviction. Which of these (if either) are admissible against him? 1. Both crimes are admissible only if their probative value substantially outweighs their unfair prejudicial effect. 2. The false police report is automatically admissible; the drug sale is admissible only if its probative value substantially outweighs its unfair prejudicial effect. 3. The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect. 4. Both crimes are admissible if their proba

The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect.

Dr. Dee Honest is being prosecuted for fraud. Dr. Honest is a very skilled doctor, and wants to use Rule 404's exception that permits criminal defendants to put on evidence of pertinent traits to call several character witnesses about how skilled she is. Judge Y. Me has to decide whether her skill is a pertinent character trait. The prosecution does not dispute that Dr. Honest is skilled. They argue her skill is not relevant to whether she defrauded the government in relation to Medicaid. How will the determination about whether Honest's attorney can call the character witnesses be made? 1. The judge will kick it to the jury to decide because a factual dispute is involved. 2. The judge will make a prima facie determination of whether a reasonable jury could determine by a preponderance that Dr. Honest's skill is relevant 3. The judge will determine whether the trait is pertinent as a matter of law 4. The judge wi

The judge will determine whether the trait is pertinent as a matter of law

Jason Giambi and Barry Bonds, major league baseball players, are indicted along with Gary Anderson, a professional trainer, for illegal distribution and possession of prescription drugs. Both Bonds and Anderson plead guilty before trial. Anderson refuses to testify against Giambi, but Bonds is called by the prosecution against Giambi. On direct, Bonds testifies that he and Anderson met one day in San Francisco last year and that Anderson told him: "You can only have half of this batch of steroids; the others I'm sending to Giambi in New York so he can hand them out in the Yankee clubhouse." A federal narcotics officer then takes the stand and testifies that when he arrested Anderson, they recovered a letter written by Giambi to Anderson requesting "more deliveries" as soon as possible. (Continue . . . )

The officer further testifies that Anderson gave a full confession, in which Anderson explained that he sent Giambi over twenty shipments of illegal steroids over the past three years. Giambi's attorney objects to (I) Bond's testimony regarding Anderson's statements to him; (II) the letter sent by Giambi to Anderson; and (III) Anderson's confession. Which (if any) of these three statements are admissible? (A) None of them. (B) All of them. (C) I and II, but not III. (D) II, but not I and III. C; (I) Hearsay but exception applies (co-conspirator (Rule 801(d)(2)(E))), (II) Admit, & (III) Not coming in- after arrest (terminates conspiracy), pled guilty and not at trial. State of Mind of Anderson.

PARTY OPPONENT STATEMENT United States v. Todd & Louise Now let's make it a criminal case, with both Todd & Louise as the defendants.

The problem of the "spillover" confession: - Sixth Amendment: Defendant has right to confront witnesses - Confrontation = cross-examination - If declarant is a "witness," defendant must have opportunity to cross-examine. Todd is a witness. Even if he uses 5th to not take the stand, we can still admit his statement against him. Redact the statement: Todd said, "...I stole all of Patsy's jewelry.", or show adoption, agent, or authorization, or identify another hearsay exception. The court cannot instruct the jury to consider the statement only with respect to Todd's guilt. The court can either redact the statement, not use it at all, or split the trial.

PARTY OPPONENT STATEMENT At a Halloween Party someone stole all the host Patsy's jewelry. Todd said "Louise and I stole all of Patsy's jewelry." Patsy calls Todd's friend to testify about his statement. Is the statement admissible against Todd in a civil case? What about Louise?

The statement is admissible against Todd. If want to introduce the statement against Louise must show that Louise adopted the statement, that Todd was her agent in some sense, or that Todd had her authorization. OR identify another hearsay exception. If NOT, then instruct the jury to consider statement only with respect to Todd's guilt, OR redact the statement: Todd said, "...I stole all of Patsy's jewelry."

Gumbel has sued Alvert for breach of contract. Gumbel claims he purchased an order for 1,000 basketballs, and they were never delivered. Alvert claims that he delivered them on time and that Gumbel is fraudulently claiming he never received them. At trial, Alvert testifies that one week before the order was due, he told his partner Costas "I'm going to ship the Gumbel order tomorrow." Gumbel objects to the statement as hearsay. The statement is not hearsay because the declarant is now testifying on the stand and can be cross-examined as to the statement. The statement is hearsay but is admissible under 803(3) as state of mind. The statement is admissible as a party-opponent admission. The statement is inadmissible hearsay.

The statement is hearsay but is admissible under 803(3) as state of mind.

In the prosecution of Banana for bank robbery, a bank customer takes the witness stand and testifies, "I went down to the police station and saw a bunch of guys in, I guess, what they call a lineup, and I told them that it was that guy Banana that robbed the bank." Banana objects claiming a violation of his Sixth Amendment Confrontation Clause rights. What result? 1. The testimony is inadmissible hearsay. 2. The testimony would be admissible as a prior identification, but violates the Confrontation Clause so is inadmissible. 3. The testimony is admissible as a prior identification, and does not violate the Confrontation Clause. 4. The testimony poses no hearsay problem and is admissible.

The testimony is admissible as a prior identification, and does not violate the Confrontation Clause.

United States v. Zapata - Alleged conspiracy to distribute drugs. Londono was conspiracy leader. Londono pled guilty; refused to testify at Zapata's trial. Zapata offers statement from Londono's plea allocution: "I never told Zapata the purpose of our enterprise." Zapata wants to offer Londono's statement in his case. Is statement from plea allocution admissible under 804(b)(1)?

Was prosecutor (even if Zakata not a party in Londone's case) present? YES! At the plea allocution, did the prosecutor have an opportunity to ask Londone questions (prosecutor DOES get to ask questions during plea allocutions)? If yes, did the prosecutor have same motive? NO, the prosecutor had different motive at plea allocution than on Zakata's trial. Therefore, the statement is not admissible.

But isn't Eliot self interested? What if he made up this bystander?

We don't have bystander in court and it is very self serving testimony. Most of the time, rules of evidence are rules of admissibility or inadmissibility. This is a question about credibility.

PARTY OPPONENT STATEMENT Davis Construction built Galt Tower, a twenty-story office building in downtown San Jose. Two years after construction, a moderate earthquake struck the area (measuring 5.2 on the Richter scale), causing minor damage to most buildings. Galt Tower collapsed. Galt Tower's owners sued Davis, claiming the builder's construction was faulty, and Seward Concrete; Seward supplied the concrete that Davis used to build the foundation. Davis and Seward, therefore, are codefendants. Davis wants to introduce a statement that the Seward project manager made to the President of Seward: "Boss, just so you know, cement costs went up so we doubled the sand-cement ratio for the concrete on the Davis order." Increasing the amount of sand would weaken the concrete. Is this admissible?

YES

PARTY OPPONENT STATEMENT Louis Martinez robs a bank, demands cash, teller gives him some cash but also hits the silent alarm. When he leaves bank he sees police. He runs back into the bank and shouts: "You ruined my life! I told you not to call the police!" Admissible?

YES

Ford Motor Company is being sued by the victim of a car accident. In its own defense, Ford offers the report which was filed by the foreman of the factory on the day the car was built to prove that the car that was involved in the accident left the factory with no defects. Admissible?

YES - Business Record 803(6) offered by Ford. Ford inspects EVERY car. This was not being done after knowing being sued by this car. Standard procedure to create this business record.

Peter is suing Doctor Nevins for malpractice, claiming he was not properly warned of the side effects of the drug Nevins prescribed. In his defense, Nevins calls a nurse who was present when Nevins prescribed the medication to Peter, and who will testify word for word as to the detailed warnings that Nevins gave Peter about potential side effects of the drug. Admissible?

YES - Not hearsay since offered to prove notice was given to Peter. These were the words said. The words not offered for the truth asserted, the truth about the side effect. This is not hearsay, only offered to prove notice.

A prosecutor wants to admit a written confession by the defendant into evidence to prove the defendant's guilt. Admissible?

YES - Party Opponent Admission 801(d)(2) Now defendant can decide under 5th amendment whether he should take the stand or not to confront the statement.

Wendy was arriving home when she saw a strange man through one of the windows of her house. She called 911 and described the man as she watched him move about the house. She remained calm and collected throughout the entire phone call. In its case-in-chief, the prosecutor seeks to admit the 911 call to prove the truth of the matter asserted. Admissible?

YES - Present Sense Impression 803(1). Remained calmed and collected is not excited utterance.

In a landlord/tenant dispute, the landlord wishes to admit the lease, written by the landlord and signed by the landlord and the tenant, to prove the amount of rent agreed to by both parties. Admissible?

Yes - Not hearsay because the lease is a legal action by both parties. BUT, if hearsay analysis, it is adopted admission b/c of the signature. Contract ≠ Hearsay.

Chris is on trial for robbing a jewelry store. Three days before his trial is set to begin, an unknown hit-and-run driver kills the jewelry store security guard who would have been a key eyewitness against Chris. The prosecutor wishes to admit the security guard's grand jury testimony against Chris at trial. Is this permissible? 1. Yes, since the grand jury testimony was given under oath at a prior proceeding. 2. Yes, but only if the prosecutor can prove by a preponderance of the evidence that Chris was the hit-and-run driver and that he intended to make the guard unavailable. 3. Yes, but only if the prosecutor can prove by a preponderance of the evidence that (i) Chris either was the driver or acquiesced in the driver's act, and (ii) in doing so, Chris intended to make the guard unavailable for Chris' trial. 4. No, the security guard's former testimony is inadmissible hearsay.

Yes, but only if the prosecutor can prove by a preponderance of the evidence that (i) Chris either was the driver or acquiesced in the driver's act, and (ii) in doing so, Chris intended to make the guard unavailable for Chris' trial.

PARTY OPPONENT STATEMENT Donald Trump's chauffer was racing to pick up Trump from a meeting; the chauffeur ran a red light and killed a pedestrian. Trump was not in the car, but he heard about the incident from a friend. The next day Trump told Carolyn, his trusted advisor: "My chauffer ran a red light and killed a woman yesterday." The pedestrian's husband sues Trump, asserting that Trump is responsible for his chauffeur's negligence under the respondeat superior doctrine. Admissible?

Yes, despite no personal knowledge and double hearsay. Carolyn would testify about the statement.

COCONSPIRATOR STATEMENTS Is the following statement by Max admissible against Diane as a co-conspirator admission? Testimony by the undercover agent that on the day before the attempted purchase, Max said to him: "Meet me at 3:00 tomorrow; we have to get this done quickly because I need to meet up with my partner Diane and the buyers an hour later."

Yes, if there is other corroborating evidence that Diane was Max's coconspirator.

COCONSPIRATOR STATEMENTS Max and Diane are charged with attempting to illegally purchase semi-automatic machine guns with the intent of reselling them to a local street gang. Max was caught red-handed in a sting: He gave $5,000 to an undercover ATF agent after arranging to buy firearms from the agent. Diane was not present at that time. Max pleads guilty, but Diane goes to trial. Is the following statement by Max admissible against Diane as a co-conspirator admission? A recording, made via wiretap, of Max speaking to Diane on the phone. Max says: "I've set up the meeting with the seller at 3:00 Saturday; I'll meet you with the buyer at 4:00 at the warehouse."

Yes, if there is other corroborating evidence that Diane was Max's coconspirator.

COCONSPIRATOR STATEMENTS Assume the Government asserts the statement is a co-conspirator statement, does not charge conspiracy, but offers other evidence that Mark and Gina plotted to kill Chuck. Now is the statement admissible?

Yes, it tends to incriminate Gina

RESIDUAL EXCEPTION Dahlia accuses Sam of sexually assaulting her. She hires a lawyer named Clarence Dare to sue him for battery. Sam, upset because Dare is nothing but a "lousy ambulance chaser," waits for Dare outside of his office with a gun. When Dare leaves his office with Dahlia, Sam shoots at Dare but accidentally kills Dahlia. Are Dahlia's accusations now admissible against Sam under hearsay?

Yes, under Rule 807. Also, if Sam denies being at the scene at the time the crime was committed, the statement might get in to show MOTIVE. In this situation the statements would not even be hearsay b/c not offered to show the truth of the matter asserted. Does the residual exception apply? Maybe. Never a clean yes or no. It is the ONLY piece of evidence on central issue of case. No exception that picks it up. Does it have guarantee of trustworthiness? Court has to conclude that a 13 yo would not have said such thing to her mother if it wasn't true.

While shopping at the Kwik-E-Mart, Homer slipped on a puddle of spilled liquid in the aisle and cracked his tailbone. Homer is now suing Kwik-E-Mart for negligence in not cleaning up the spill before the accident. Apu, the manager of the Kwik-E-Mart, testifies on direct that his employees regularly patrol the store and that "since the accident, we haven't even felt the need to change our policies." On rebuttal, Homer's attorney offers evidence that a week after the accident, Apu ordered store employees to patrol for spills every half an hour instead of every hour. Apu's attorney objects. The evidence is: 1. Inadmissible under Rule 407, since it is evidence of a subsequent remedial measure. 2. Admissible because it impeaches Apu's testimony. 3. Admissible because increasing the rate at which employees patrol for spills would not be considered a "subsequent remedial measure." 4. Admissible to prove Apu had control

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 2. Admissible because it impeaches Apu's testimony.

Ophelia is entering a Get Fit! sporting goods store in a shopping mall when her heel gets caught in a heating grate at the threshold between the mall and the store. She falls, is injured, and sues the store. After the accident, Get Fit! installs signs just inside the threshold, warning customers to watch their step. A few months later, the mall installs new thresholds with the heating grates on the ceiling instead of the floor. At trial, the manager of Get Fit! testifies that he had no control over the location of the heating grates on the threshold, since the threshold was owned by the mall. On rebuttal, the plaintiff wants to bring in evidence of both the sign installation and the re-design of the grate. 1. Preclude both the sign installation and the re- design of the threshold as inadmissible. 2. Preclude evidence about the re-design of the threshold but possibly allow evidence of the sign installation to prove

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 3. Preclude evidence of the sign installation but possibly allow evidence of the re-design of the threshold as a third-party repair.

Viola and Antonio collide while skateboarding at the local Skate Park. Both of their skateboards are totalled, and both parties are injured. The day after the collision, Antonio gives Viola a brand new skateboard. The next week, Viola sues Antonio for negligence, and at trial she seeks to testify that Antonio gave her a new skateboard the day after the event. Antonio objects. The judge should: 1.Preclude the evidence under Rule 401, since it is irrelevant. 2.Preclude the evidence under Rule 403. 3.Preclude the evidence under Rule 408. 4.Admit the evidence.

[Article IV Specialized Rules of Preclusion (Rules 407-411)] 4.Admit the evidence.

Alex is killed on February 21st in New York City. One week later the police arrest Alex's friend and co-worker Derek for the murder. In his defense at trial, Derek calls his boss George, who testifies that George and Derek were together on a business trip in Cuba from February 20th through February 24th. On cross-examination, the prosecutor asks George if it is true that last year George forged some figures in the accounts for his company before submitting the accounts to government auditors. The question is: 1. Permissible. 2. Impermissible, since it is beyond the scope of the direct. 3. Impermissible, since it refers to a prior bad act that is not relevant to the underlying cause of action. 4. Impermissible, since the defendant has not "opened the door" by offering any evidence on George's character.

[Article VI (Rules 601-615)] 1. Permissible.

Charles Dawson is on trial for murder. He wishes to testify about his alibi, but he has two prior criminal convictions: (1) a misdemeanor conviction for filing a false police report fifteen years ago; and (2) a felony drug sale conviction from eleven years ago. Dawson spent three years in prison for the robbery. Which of these (if either) are admissible against him? 1. Both crimes are admissible only if their probative value substantially outweighs their unfair prejudicial effect. 2. The false police report is automatically admissible; the drug sale is admissible only if its probative value substantially outweighs its unfair prejudicial effect. 3. The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect. 4. Both crimes are admissible if their probative val

[Article VI (Rules 601-615)] 3. The false police report is admissible only if its probative value substantially outweighs its unfair prejudicial effect; and the drug sale is admissible if its probative value outweighs its unfair prejudicial effect.

Same lawsuit, Bare-Bones v. James. The plaintiff Bare- Bones has rested and James calls Montgomery, the chief mechanic for Bare-Bones. Direct consists of three questions: "You're the head mechanic for Bare-Bones, is that correct?" "You worked on James' car before it was sold to James, isn't that correct?" "Isn't it true that when you worked on the car you rolled back the odometer on this car to make it appear to seem new?" The plaintiff objects to all three questions. Assume that there are no Fifth Amendment problems with Montgomery's testimony; i.e., no answer that he gives could subject him to criminal liability. What should the judge do? 1. Preclude all three questions. 2. Allow the first question but sustain the objections to the second two. 3. Allow the first two questions but not the third. 4. Allow all three questions.

[Article VI (Rules 601-615)] 4. Allow all three questions.

Frank is on trial for telephone harassment. His victim Harriet is on the stand. The prosecutor asks Harriet to tell the jury in exact words what Frank said to her over the phone. Harriet says: "I'm sorry, I know he said bad words, but I can't remember the exact words he used." This is not sufficient to prove the crime. What are the prosecutor's options? 1. Ask if seeing a transcript of the phone call would help her to remember the exact words; if she says yes, show it to her and have her read the transcript to the jury. 2. Ask if seeing a transcript of the phone call would help her to remember the exact words; if she says yes, show it to her and then take it away from her and then have her testify as to what the exact words were. 3. Ask a leading question by quoting the exact words to her, and then asking if those were the words he used. 4. Either II or III are permissible, but not I.

[Article VI (Rules 601-615)] 4. Either II or III are permissible, but not I.

Last year, James purchased a car from Leonard's Bare-Bones Car Shoppe. Two months after the purchase, he discovered the car was not new as had been represented by Christine, one of Leonard's employees. James stopped payment on the car at that point, and Bare-Bones sued James for payment. Bare-Bones calls Leonard as its first witness. PLAINTIFF ATTORNEY: How are you employed? LEONARD: I work for Bare-Bones Car Shoppe. PLAINTIFF ATTORNEY: Are you in fact the owner of Bare- Bones Car Shoppe? DEFENSE ATTORNEY: Objection! The judge should: 1. Sustain the objection, since this is a leading question on direct examination. 2. Overrule the objection, since this is a non- leading question. 3. Overrule the objection, since the witness is an adverse party. 4. Overrule the objection, since leading questions are permissible for this type of question on direct examination.

[Article VI (Rules 601-615)] 4. Overrule the objection, since leading questions are permissible for this type of question on direct examination.

Harry, a landlord, is being sued by his tenant Kathryn for failing to repair dangerous conditions in the apartment that he leases to her. Kathryn's attorney calls Harry to the stand and asks him: "Isn't it true that Kathryn sent you several letters complaining about conditions in the apartment?" Harry replies that he never received any such letters. Kathryn's attorney then approaches Harry with papers in her hand and asks whether seeing copies of the letters that Kathryn had sent him would refresh his recollection. Harry's attorney objects. How should the judge rule? 1. Overrule the objection and allow Kathryn's attorney to show Harry the letter to refresh his recollection. 2. Sustain the objection, since you cannot refresh a witness' recollection on cross-examination. 3. Sustain the objection, because the letters are not in evidence. 4. Sustain the objection, because Harry never said he had trouble remembering

[Article VI (Rules 601-615)] 4. Sustain the objection, because Harry never said he had trouble remembering whether he received any letters.

Samantha is charged with stealing jewelry from Theresa's home in Denver on January 12th. During the defense case, Samantha's attorney calls an alibi witness who claims to have been with Samantha on January 12th all day in Miami, where they were vacationing together. In rebuttal, the prosecution wants to introduce evidence that (1) Samantha was working as a housekeeper in Theresa's house during the month of January, that (2) she was working there on a work release program from a halfway house (a correctional facility in which inmates are allowed to work outside the facility during the day, but must return every night to sleep), and (3) that Samantha was in the halfway house serving a 2 month sentence for petty theft. The court should: 1. Admit the fact that Samantha was working as a housekeeper, but preclude the fact that she was on a work release program and that she had been convicted of theft. 2. Admit the fact

[Character and Rape Shield (Rules 404-406, 412-415)] 2. Admit the fact that Samantha was working as a housekeeper, preclude the fact that she had been convicted of theft, and conduct a Rule 403 balancing test to determine whether the fact of her being on a work release program should come in.

Tom is suing Eli for battery, claiming that on February 3rd, a few hours after Tom and Eli exchanged tense words inside a bar, Tom was leaving the bar when Eli jumped him from behind in the street, knocking him to the ground. Tom then claims Eli took off both his (Eli's) shoes and beat Tom on his head with the shoes. In his defense, Eli claims that he left the bar immediately after he and Tom had the verbal argument inside the bar and went straight home. At trial, Tom calls Brett to the stand, who will testify that two weeks before the alleged assault on Tom, Eli had a verbal altercation with Brett in the same bar, and that when Brett left the bar a few minutes later, Eli jumped him from behind in the street and then Eli took off both his shoes and beat Brett in the head with the shoes. Eli was arrested for the prior assault, but the criminal case was dismissed a week later, and Brett never filed a civil suit. The co

[Character and Rape Shield (Rules 404-406, 412-415)] 4. Conduct a 403 analysis and if the probative value of the evidence is not substantially outweighed by its unfair prejudicial effect, admit the evidence.

Kobe Bryant is charged with rape. The alleged victim is V, a worker at the hotel where Bryant was staying. At trial V testifies to the incident. On cross-examination, Bryant's attorney asks V if it was true that two days after the alleged rape, her manager Frank learned that she had slept with Bryant and threatened to fire her for fraternizing with hotel guests. Bryant's attorney also asks whether it was true that Frank only agreed not to fire her after she told him the sex was non-consensual. V agrees that all this was true. The prosecutor then calls Melinda, V's best friend, who testifies that V came to her on the night in question and said "Kobe raped me an hour ago." The prosecutor also calls Frank, the hotel manager, who testifies that he did indeed have a conversation with V two days after the incident and during that conversation V broke down crying and said "You don't understand, he forced me to have sex." Th

[Hearsay Exceptions (Rules 803-804)] 2. Allow Melinda's testimony but not Frank's.

Gumbel has sued Alvert for breach of contract. Gumbel claims he purchased an order for 1,000 basketballs, and they were never delivered. Alvert claims that he delivered them on time and that Gumbel is fraudulently claiming he never received them. At trial, Alvert testifies that one week before the order was due, he told his partner Costas "I'm going to ship the Gumbel order tomorrow." Gumbel objects to the statement as hearsay. 1. The statement is not hearsay because the declarant is now testifying on the stand and can be cross-examined as to the statement. 2. The statement is hearsay but is admissible under 803(3). 3. The statement is admissible as a party-opponent admission. 4. The statement is inadmissible hearsay.

[Hearsay Exceptions (Rules 803-804)] 2. The statement is hearsay but is admissible under 803(3).

Michael Jackson is on trial for allegedly molesting C, an eleven-year old child. In the prosecution's case-in-chief, C testifies to being molested by Jackson at his "Neverland" estate. On cross-examination, Jackson's attorney asks C whether or not he remembers telling his mother the day the criminal charges were filed against Michael: "Don't worry, mom, Michael never even touched me." The prosecutor objects to the question and is overruled. C answers by denying having made that statement. Jackson's attorney then seeks to call C's mother to testify as to C's statement to her. The prosecutor objects. What are the proper rulings? 1. The question about the statement on cross- examination was improper, and the mother's testimony about the statement is inadmissible. 2. The question about the statement on cross- examination was proper, but the mother's testimony about the statement is inadmissible. 3. The question about

[Hearsay Exceptions (Rules 803-804)] 3. The question about the statement on cross- examination was proper, and the mother's testimony about the statement is admissible, but it is admissible ONLY for impeachment purposes, not for the truth of the matter asserted.

Ari Fleischer, the former White House Spokesman, is testifying for the prosecution against Scooter Libby. On direct, Fleischer testifies that on July 11, 2003, Libby told him about the identity of a CIA agent and told him to give the information to reporters. On cross-examination, Libby's attorney notes that Fleischer had been under investigation by the special prosecutor beginning in June of 2004, but that in December 2004 he was told he was not going to be indicted. Libby's attorney asks Fleischer if he changed his story to implicate Libby in order to avoid being charged with a crime himself. Fleischer denies that he ever changed his story. On re-direct, the prosecutor offers into evidence notes which Fleischer himself had made on July 11, 2003, which stated "Scooter told me about CIA operative today & said I should tell reporters." The defense attorney objects to this statement as hearsay. 1. The statement can b

[Hearsay Exceptions (Rules 803-804)] 3. The statement is admissible under 801(d)(1) for any purpose.

Gaylor Industries is a small biomedical research firm that uses irradiation to help develop new vaccines. Last year Noah and Hatfield, two of its top researchers, were both diagnosed with cancer, which they claim was the result of being exposed to the high levels of radiation at Gaylor. Noah sued Gaylor Industries as a result. At Noah's trial, Noah called Dr. Green, who testified that in his expert opinion the levels of radiation at Gaylor were so strong that they would likely cause cancer in any employee who worked there full-time. After Noah's case was over, Hatfield also sued Gaylor, with an identical complaint. Horford subpoenaed Dr. Green, but Dr. Green did not appear in court and his whereabouts were unknown. Hatfield sought to admit Dr. Green's testimony as part of his case-in chief. Gator objected to this, and when Gaylor's objection was overruled, Gaylor called Noah's attorney as a witness and asked him if i

[Hearsay Exceptions (Rules 803-804)] 4. Both Dr. Green's prior testimony and the live testimony from Noah's attorney were probably admissible.

Sally is suing the Humboldt Pharmaceutical Company for manufacturing and distributing Docoral, a new drug that was prescribed to Sally to treat her heart disease. After taking Docoral for six months, Sally developed liver cancer, and she claims that Docoral caused the cancer. At trial, she calls Dr. Gregorio, who will testify that he ran a number of tests using lab rats and determined that Docoral does indeed cause liver cancer. At a pre-trial hearing, Dr. Gregorio concedes that he uses a new method of testing potential carcinogens in laboratory rats--it is almost three times as fast as the standard test, but it has not been generally accepted by the biomedical community. However, there is a growing body of literature supporting the technique that has been peer-reviewed, and overall the judge determines that the testing technique seems reliable. What should the judge do? 1. Allow the expert to testify if the jurisdi

[Opinion Testimony (Rules 701-706)] 2. Allow the expert to testify of the jurisdiction has adopted the Daubert rule.

Which of the following opinions is a court LEAST likely to allow a lay witness to give? 1. "The house smelled like gas just before the explosion." 2. "The car that passed through the intersection was driving at least fifty miles per hour." 3. "The damage to the basement was caused by water that seeped through the walls and into the carpet." 4. "The driver seemed drunk when he stepped out of the car."

[Opinion Testimony (Rules 701-706)] 3. "The damage to the basement was caused by water that seeped through the walls and into the carpet."

During Daniel's murder trial, Terry testifies for the defense that she was with Daniel the entire day of the murder and that he never went near the crime scene. The prosecutor offers Terry's grand jury testimony in which she said she had not seen Daniel at all on the day of the murder. The prosecutor wishes not only to impeach Terry, but also to use Terry's grand jury testimony as substantive evidence that she was not with Daniel on the day of the murder. 1. Admissible (for the truth of the matter). 2. Inadmissible (for the truth of the matter).

[Quick Hearsay Review (Rules 801-804)] 1. Admissible (for the truth of the matter).

A prosecutor wants to admit a written confession by the defendant into evidence to prove the defendant's guilt. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Ford Motor Company is being sued by the victim of a car accident. In its own defense, Ford offers the report which was filed by the foreman of the factory on the day the car was built to prove that the car that was involved in the accident left the factory with no defects. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Greg is suing Greyhound Bus Co., alleging that it negligently hired Will as a driver, and that Will subsequently plowed a bus into Greg's car. Greg offers into evidence Will's employment application to Greyhound, in which Will admitted to having received six moving violations in the year preceding the application. Greg offers the application not just to prove Greyhound had notice, but also as proof that Will actually did receive six moving violations. Will was killed in the bus crash and is not a party to the action. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

In a landlord/tenant dispute, the landlord wishes to admit the lease, written by the landlord and signed by the landlord and the tenant, to prove the amount of rent agreed to by both parties. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Peter is suing Doctor Nevins for malpractrice, claiming he was not properly warned of the side effects of the drug Nevins prescribed. In his defense, Nevins calls a nurse who was present when Nevins prescribed the medication to Peter, and who will testify word for word as to the detailed warnings that Nevins gave Peter about potential side effects of the drug. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

Wendy was pulling into her driveway when she saw a strange man through one of the windows of her house. She called 911 and described the man as she watched him move about the house. She remained calm and collected throughout the entire phone call. In its case-in-chief, the prosecutor seeks to admit the 911 call to prove the truth of the matter asserted. Assume Wendy also testifies at trial. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 1. Admissible.

To prove that Irene was working the entire week of November 8th through the 12th, Irene offers a statement she made to her husband Frank on November 8th in which she says: "I worked all day today, and I'll be working the rest of the week." 1. Entire statement is admissible. 2. At least part of the statement is inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. At least part of the statement is inadmissible.

Greg is being prosecuted for manslaughter under the theory that he blocked the fire exits to his nightclub, resulting in three deaths when the nightclub caught fire. The prosecutor wishes to introduce the fire marshal's report made the day after the fire which concludes that the fire exits were in fact blocked by furniture at the time of the fire. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. Inadmissible.

Sam is charged with raping his girlfriend Vicky. In his case in chief, he calls his friend Tom, who testifies that the day after the alleged rape, Sam told him "Vicky and I went all the way last night; I wasn't sure if we were ready, but she wouldn't take no for an answer." Sam offers the statement to prove consent. 1. Admissible. 2. Inadmissible.

[Quick Hearsay Review (Rules 801-804)] 2. Inadmissible.

Plaintiff is suing the defendant for damages suffered in an automobile accident on November 2nd. Defendant has conceded liability in the pleadings and a trial is held on the question of damages. Plaintiff is claiming physical as well as emotional damages as a result of the accident. During the defendant's case, the defense attorney calls the plaintiff's wife to the stand and asks the wife if she is still living with the plaintiff. She explains that she is not; she took the children and moved out on the morning of November 2nd after she discovered the plaintiff was having an affair. Plaintiff's attorney objects. The judge sustains the objection. The defense attorney asks to make an offer of proof. What should the court do? 1. Out of the presence of the jury, allow the defendant to make an offer of proof; admit the evidence if he can show a link between the plaintiff's wife moving out and the plaintiff's emotional tr

[Relevance and Prejudice (Rules 401 & 403)] 1. Out of the presence of the jury, allow the defendant to make an offer of proof; admit the evidence if he can show a link between the plaintiff's wife moving out and the plaintiff's emotional trauma. To cure any Rule 403 problem, the judge can instruct the witness not to testify as to the reason she moved out.

Charles Rogers is accused of robbing a bank by breaking into the bank's vault after hours. The prosecution seeks to introduce evidence that a blowtorch was found in his garage. The defendant objects, pointing out that Rogers' brother, who shares the home with Rogers, is a professional pipe-fitter and uses the blowtorch every day for legitimate work. The evidence is: 1. Relevant, but only if the crime that was committed involved the use of a blowtorch. 2. Relevant, but only if the prosecution can prove that Charles Rogers and not his brother was the actual owner of the blowtorch. 3. Irrelevant, assuming the defendant can prove to the court in an offer of proof that his brother does in fact use the blowtorch for professional purposes. 4. Irrelevant, since it is not information that a person would want to know in deciding whether the defendant committed the crime.

[Relevance and Prejudice (Rules 401 & 403)] 1. Relevant, but only if the crime that was committed involved the use of a blowtorch.

Greg is on trial for murder. The prosecutor produces an eyewitness who identifies the defendant, although on cross examination he admits to being very intoxicated at the time of the crime. The prosecutor then calls an expert witness who testifies that DNA from blood samples found at the scene which belonged to the perpetrator were a "match" with DNA from the defendant's blood, stating that "only one in 500,000 people could have produced the sample found at the scene." After the prosecution's case is over, the defendant makes a motion to dismiss, claiming that based on the evidence presented (the one eyewitness and the DNA expert), no reasonable jury could convict the defendant. The court should: 1. Grant the motion, since complex statistical evidence is not admissible under Rule 403 on the grounds that it is likely to mislead the jury. 2. Deny the motion, since the jury has been presented with more than purely sta

[Relevance and Prejudice (Rules 401 & 403)] 2. Deny the motion, since the jury has been presented with more than purely statistical evidence; in fact, the testimony of the eyewitness alone would be sufficient to bring the case to the jury.

Greg is suing the Ohio State University for age discrimination, claiming he was fired from his position as Assistant Coach because the Athletic Director claimed he was too old. Through discovery, Greg discloses that he intends to introduce evidence that Ohio State has fired ten assistant coaches over the past three years, and all of them have been over fifty years old. Before trial, the attorney for Ohio State files a motion in limine, seeking to suppress the evidence of the previous firings on the grounds that they are irrelevant. Greg's response should be: 1. "Your honor, the jury decides questions of relevance, not the judge." 2. "Your honor, the fact that Ohio State has fired so many older coaches over the past three years proves by a preponderance of the evidence that the institution discriminates against older coaches." 3. "Your honor, the evidence of these prior firings tends to make the fact that Greg was

[Relevance and Prejudice (Rules 401 & 403)] 3. "Your honor, the evidence of these prior firings tends to make the fact that Greg was fired because of his age more likely than the fact would be without this evidence."

On July 1, 2003, two Columbus police officers pulled over Paul's car for speeding. After Paul was pulled over, he got out of his car and began verbally abusing the police officers. Uncontroverted videotaped evidence shows that the officers responded to the verbal abuse by hitting Paul in the head and body thirteen times with their nightsticks. At no time did Paul act violently or physically threaten the officers. Paul is now suing the Columbus police department for using excessive force against him during the incident. The police department argues that its officers acted in the reasonable belief that such force was necessary at the time. In support of this argument, the police wish to introduce evidence that on three prior occasions, Paul has physically attacked police officers who have pulled him over. This evidence is: 1. Relevant, since it tends to prove that Paul has a violent nature. 2. Relevant, but only if th

[Relevance and Prejudice (Rules 401 & 403)] 3. Irrelevant, since Paul took no violent action towards the police officers on this occasion.

George is being prosecuted for breaking into Victor's home in downtown Columbus on the night of December 28th. George takes the stand in his own defense and claims that he was in Florida from Christmas until New Year's Day. On cross- examination, the prosecution wishes to introduce evidence that early in the morning on December 30th, the defendant was arrested in Columbus for drunk driving. This evidence is: 1. Irrelevant, since it does not make the fact that the defendant robbed the house on December 28th any more or less likely. 2. Probably inadmissible, since it will unfairly bias the jury by exposing them to prejudicial information about the defendant and the information, though technically relevant, has very little probative value. 3. Probably admissible, since it tends to prove that the defendant was lying when he claimed to be in Florida. Any issue of unfair prejudice can be cured with a limiting instructi

[Relevance and Prejudice (Rules 401 & 403)] 3. Probably admissible, since it tends to prove that the defendant was lying when he claimed to be in Florida. Any issue of unfair prejudice can be cured with a limiting instruction to the jury.

Same fact pattern as last question. Assume the trial judge denies Ohio State's motion in limine to preclude the evidence of the prior firings. Greg presents the evidence at trial and Ohio State makes no further objection. After Greg wins at trial, Ohio State appeals the case, arguing that the evidence of the prior filings was improperly admitted. The appellate court should: 1. Sustain the lower court because Ohio State did not make a timely objection to the evidence at trial as required by Rule 103(a)(1). 2. Overrule the lower court if and only if the appellate court determines that the trial court was incorrect in ruling that the evidence was admissible. 3. Overrule the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence. 4. Overrule the lower court if and only if the appellate court determines that the trial court abused its

[Relevance and Prejudice (Rules 401 & 403)] 4. Overrule the lower court if and only if the appellate court determines that the trial court abused its discretion by improperly admitting the evidence and the mistake affected a substantial right of Ohio State.

Late on the night of September 5th, Ronald was repeatedly stabbed during a fight outside a bar. He died two hours later. Sammy was arrested three days after the killing. At trial, the prosecution offers an expert witness who testifies that the injuries to the victim show that the murder weapon was not an ordinary knife, but instead a rather unusual dagger called a stiletto, which has a long, thin blade and leaves deep but narrow cuts. The prosecutor shows the expert a stiletto that he brought to the courtroom and asks her if this were the type of weapon that could cause the injury. The expert agrees, and then over the objection of the defense attorney, the expert shows how the distinctive blade of the stiletto caused the wounds found on the victim's body. The prosecution then offers the testimony of an eyewitness, who says that the day before the killing, he saw Sammy brandishing a "wicked-looking knife with a really

[Relevance and Prejudice (Rules 401 & 403)] 4. Overrule the objection, since the prosecutor has laid a sufficient foundation tying the defendant to this type of knife, and the expert has tied this type of knife to the killing.

Tom and Jerry got into a fight at a local bar, and Jerry ended up beating Tom so badly that Tom was taken to a hospital. Jerry is prosecuted for assault. At trial, he admits to the assault but claims he was acting in self- defense and that Tom started the fight after having drunk too many beers. In his defense, Jerry wishes to introduce evidence that on three prior occasions in the past week, Tom had drunk too much in the bar and picked a fight with another patron. The prosecution objects, pointing out that Jerry had not been present for any of these prior occurrences and had no knowledge of Tom's propensity for violence at the time of the alleged assault. The evidence of Tom's three prior fights is: 1. Irrelevant, since Jerry had no knowledge of the fights at the time of the alleged assault. 2. Relevant, but only if the judge determines that Jerry does not have a similar history of getting into fights when drunk.

[Relevance and Prejudice (Rules 401 & 403)] 4. Relevant, since a person who tends to get violent when he drinks is more likely to start a fight than a person who does not.

Among other reasons, the Federal Rules of Evidence restrict the types of evidence admitted to ensure evidence is sufficiently reliable to ensure absolutely no delay is tolerated to protect juries from misleading information all of the above one and three

one and three

Among other reasons, the Federal Rules of Evidence restrict the types of evidence admitted 1. to ensure evidence is sufficiently reliable 2. to ensure absolutely no delay is tolerated 3. to protect juries from misleading information 4. all of the above 5. one and three

one and three

George was driving down Highway 33 when a herd of cattle stampeded across the road in front of him. He struck one of the cows and totaled his car. He then sued the state for maintaining an unsafe road. Two days later, the state erects a number of signs along the road, warning drivers of the cow crossing. Two weeks after that, the landowner (who is a not a party to the case) puts up a fence along the road to prevent the cows from wandering into traffic. At trial, the state expert testifies that although the state has an easement on the land running alongside the road which allows the state to place signs on the property, it has no legal right to erect a barrier of any kind. The state expert concedes on cross-examination that warning signs might make the road slightly safer, but argues that the road is adequately safe without signs and points out that there were no prior accidents involving cars (Continue . . .).

striking cows on the highway. On rebuttal, the plaintiff's attorney seeks to admit evidence of the signs and the fence erected after the accident. The Judge should: (A) Preclude evidence of both. (B) Admit evidence of both. (C) Preclude evidence of signs, but perhaps admit evidence of the fence. (D) Admit evidence of the signs, but preclude evidence of the fence. C; Rule 407 (Subsequent Remedial Measures). Nonparty- always comes in.