Evidence Exam Study Set

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Cindy's Ford Pinto exploded when it was rear-ended, and her estate sued the company for negligent design. After the incident, Ford re-designed the Pinto to place the gas tank in the front of the car instead of the rear. This fact is NOT admissible because it's a subsequent remedial measure. But plaintiff's attorney calls Ford's head engineer to the stand and asks why the company didn't put the Pinto's gas tank in the front of the car. Remember that, at the time Cindy's accident occurred, the tank was in the rear of the car. Here are three possible responses the engineer could give: 1. Given the design of the Pinto's motor, it would be impossible to move the gas tank to the front. 2. It is possible to move the gas tank to the front, but that wouldn't substantially increase safety, because the car would explode if it were hit head-on. 3. It is possible to move the gas tank to the front, but that would actually make the car more dangerous because the gas tank would be too close to the bottom of the chassis and would likely get struck by rocks on the road. Would any of these contest or dispute feasibility? -1, 2, and 3 ALL contest feasibility -ONLY 2 and 3 contest feasibility -1 and 3 contest feasibility -ONLY 3 contests feasibility

1 and 3 contest feasibility This would also apply to impeachment. If the engineer makes any of the above statements, will the judge allow Cindy's lawyer to impeach him with evidence of the subsequent remedial measure? Statements (1) and (3) support impeachment. Statement (2), on the other hand, probably wouldn't allow impeachment with the subsequent remedial measure.

Murder prosecution. Defendant admits killing the victim but claims self-defense. The prosecution calls an officer who saw the scene of the crime and shows her a photograph of the horribly mutilated victim lying in a pool of blood. The officer states that though she did not take the photograph herself, she knows that it accurately depicts the scene of the crime as it was when she arrived. The photograph is: -Inadmissible because it is irrelevant. -Inadmissible because, though relevant, its probative value is substantially outweighed by its prejudicial value. -Inadmissible because it has not been properly authenticated. -Admissible

Admissible The photograph has been properly authenticated, Rule 901(a)(1). Evidence has been introduced sufficient to support a finding by a reasonable jury viewing the evidence most favorably that the photograph fairly and accurately represents the scene of the crime when first observed by the police officer. Photographs of crime scenes are rarely excluded when a Rule 403 objection is raised. Not only can the photograph be highly probative, trial judges believe juries are capable of separating the horrible nature of the crime from whether or not the accused committed the crime.

Bauer agreed to sell his house to his neighbor, Rogers. Bauer reneged on the deal. Rogers allegedly retaliated by taking a chainsaw and making a horizontal cut around the entirety of Bauer's house at chest level. Only gravity holds top on bottom.The state charged Rogers with vandalism. So the court limits our defense witness to a simple statement that, in her opinion Rogers is scared of power equipment. Can the prosecutor ask on cross-exam: "Are you aware that Mr. Rogers uses a power lawn mower?" Admit or exclude? Question 6 options: Admit Exclude

Admit Yes. By offering a character witness, the defendant opens that witness to cross-examination on specifics.

Charlie sues Olivia for breach of contract. Charlie claims that he and Olivia met to negotiate a deal for front row Foo Fighters tickets with backstage passes. Charlie claims that two days after their meeting he received a handwritten letter from Olivia stating she agreed to sell the tickets to Charlie for $100.00 with her signature at the bottom. Charlie insists he knows it is Olivia's handwriting and signature because he has seen her write notes in class and sign her name on the attendance sheet. Olivia denies ever sending the letter and Charlie moves to admit the letter into evidence. Olivia objects. How should the judge rule? -Admit the letter if it finds that Olivia wrote it. -Admit the letter if he believes that a reasonable jury could find that Olivia wrote the letter. -Refuse to admit the letter because the identity of handwriting is a matter about which an expert must testify, and Charlie has not qualified as an expert. -Refuse to admit the letter because of the Best Evidence rule.

Admit the letter if he believes that a reasonable jury could find that Olivia wrote the letter. Rule 901(b)(2) provides that non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation, satisfies the requirement of authentication, i.e., evidence has been introduced sufficient to support a finding by a reasonable jury viewing the evidence most favorably to the proponent that it is more probably true than not that the matter in question is what the proponent claims, here that Olivia signed the letter. Historically, remarkably little prior familiarity with handwriting has been found to be sufficient personal knowledge to permit a lay witness to authenticate a writing.

Who wrote the federal rules of evidence? -Senate judiciary committee -U.S. Supreme Court Justices -Advisory committee and Congress -Judge Judy

Advisory committee and Congress It's important to recognize (and it'll help you appreciate some strange language) in the unusual legislative process that goes with the Federal Rules of Evidence.

Which of these would qualify as a subsequent remedial measure? -Firing an employee -Recalling a product -Changing a policy -All of the above

All of the above Remember that a "measure" is more than just a change in product design

TMZ.com used this headline, with picture of David Beckham. "the worst celeb tippers are two of the richest folks in town—the Beckhams." Suppose David Beckham sued for defamation. Beckham will introduce evidence that his character is generous. This is to prove that TMZ's allegation is false. What Types of Evidence May Beckham Introduce? -Reputation among other celebrities -Opinion of neighbors -Testimony from waitresses -All of the above.

All of the above. Key point of these modules. When character is an element, proof is not limited to reputation/opinion testimony. Can even prove character as an element through specific acts (testimony from waitresses) When character is an element, there are no special evidentiary restrictions. Can use opinion evidence, reputation evidence, or specific acts.

Bauer agreed to sell his house to his neighbor, Rogers. Bauer reneged on the deal. Rogers allegedly retaliated by taking a chainsaw and making a horizontal cut around the entirety of Bauer's house at chest level. Only gravity holds top on bottom.The state charged Rogers with vandalism. Suppose we adopt a different strategy in defending Rogers. Remember that Rogers argues that the home owner (who is named Bauer) reneged on a promise to sell him the house. Can Rogers introduce testimony that Bauer is untrustworthy scoundrel who reneges on promises? Admit Exclude

Answer: Judge probably will exclude this. It's ok for criminal defendant to introduce evidence of victim's character trait. But the trait has to be pertinent; this one is not. Even if Bauer did renege on a promise, that's not a defense to vandalism. Rogers can't destroy property to retaliate.

The police found cocaine hidden in a trunk in Alfred's home. The government charged Alfred with possession of a controlled substance. At trial, Alfred takes the stand and testifies that he hadn't used the trunk in years and had no idea what it contained. He suggests that his son, Ruben, must have stashed the cocaine in the trunk. Ruben, according to Alfred, has left the country and has no plans to return. Alfred then offers the testimony of a family friend, Linda, who will testify that several months before Alfred's arrest, Ruben said to her: "I'm having a hard time with my suppliers—it's hard to find decent cocaine these days." There is no other evidence that Ruben used or sold cocaine. What is the best argument for Alfred's lawyer to admit Linda's testimony? -Argue it's used for something other than the truth of the matter asserted. -Argue it's an opposing party statement -Argue it's a prior consistent statement. -Argue it's a statement against interest

Argue it's used for something other than the truth of the matter asserted. As a statement against interest, the testimony may not be admissible. First, the prosecutor may question Ruben's unavailability: Alfred says that he has left the country, but did Alfred try to secure his return? A greater problem lies in corroboration: Since Alfred offers Linda's testimony to exculpate himself in a criminal case, he must provide corroboration. No other evidence exists of Ruben's connection to cocaine. Alfred can argue that Linda was the type of person (a family friend) that Ruben might have confided in; he can also note that the alleged statement occurred before his arrest. Are these factors enough to make the statement trustworthy? No. Alfred's attorney would be better off arguing that Ruben's statement is not hearsay. Alfred isn't offering the statement to prove the truth of the matter asserted (that Ruben really was having trouble with his suppliers). Instead, the statement is circumstantial evidence that Ruben was involved with cocaine. It is analogous to calls that purchasers make to a dealer's phone, seeking drugs.

What if Beckham has a friend testify that in his opinion Beckham is one of the most generous people in the world. How can TMZ respond? -Cross examine about his acts of cheapness -Introduce evidence of cheap acts -Both -Neither

Both TMZ may cross-examine about cheap acts AND can introduce independent evidence of those bad acts Again, no limits on type of evidence one can produce. As long as relevant and survives Rule 403.

On direct examination, leading questions are allowed.... 1. Never 2. When necessary to develop the witness's testimony 3. For a hostile witness or adverse party 4. Both 2 and 3

Both 2 and 3 The practical reality of leading questions: In practice, a lawyer can use them on direct examination whenever the other side lets her do it. But leading questions usually are bad strategy, because the lawyer seems to be putting words in the witness's mouth.

Under the Federal Rules of Evidence, state law determines competence in: -Federal tax cases -Civil cases, on elements for which state law provides rule -Bankruptcy cases -Civil cases worth less than $25,000

Civil cases, on elements for which state law provides rule Answer: In civil cases, on elements for which state law provides the rule. Why? Competence rules are difficult to separate from substantive doctrine

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

Copy Co had different motives. Remember--this is the BEST objection. Copy Co. had different motives. In civil case, cross-examination by predecessor in interest qualifies, as long as predecessor had similar motives. Doesn't matter if other witnesses are available. Question is if THIS one is. Clearly not, since dead. Depositions specifically covered by rule. Doesn't matter if party asked any questions in previous hearing or dep. Question is whether they had opportunity. There is a chance that court would admit this testimony. Different companies accused of infringing same patent may have similar interests.

A plastic bag of powdered sugar at a cocaine trial probably is ... -Demonstrative evidence -Real evidence -Circumstantial evidence -Eyewitness evidence

Demonstrative evidence This example helps with the distinction between demonstrative and real evidence. The defendant wasn't really selling powdered sugar, so this is not "real" evidence.

Dominic Toretto was new to the practice of law and at his first civil trial, he had terrible problems deciding when to object and when to let it go. He tried to remember the basics about direct and cross-examination that he had learned in his evidence class. But at trial the questions came too fast and too furious; it was hard for him to keep up. Which question below should Toretto have jumped up to object for leading the witness? -During direct examination of his own client, opposing counsel asked his client: "You reside at 221 Racecar Lane in Los Angeles, CA, don't you?" -During direct examination of his own client, opposing counsel asked his client: "Isn't it true you were born on August 23, 1980?" -During cross-examination of Toretto's client, opposing counsel asked Toretto's client: "You used illegal drugs during college, didn't you?" -During direct examination of his own client, opposing counsel asked his client: "Isn't it true that you observed that the defendant never slowed down as he approached the intersection?"

During direct examination of his own client, opposing counsel asked his client: "Isn't it true that you observed that the defendant never slowed down as he approached the intersection?" This is not a hostile witness (at least not yet), so this line of questioning would be improper

Zoe is on trial for shoplifting a digital camera from an electronics store. The prosecutor claims to have a security video that shows Zoe picking the camera off the shelf, concealing it under her clothing, and leaving the store without paying for it. Zoe claims that she was never in the store, and that the person caught on the security camera is someone else. The prosecutor wants to introduce evidence that last year Zoe stole a cell phone from a store by picking the phone off the shelf and hiding it underneath her clothes.Is this evidence admissible? Admit Exclude

Exclude A court almost certainly would preclude this evidence under Rule 404. This is not a very distinctive method of shoplifting; everyone shoplifts by concealing items in their clothing. The evidence has very low probative value to prove identity; instead, the prosecutor undoubtedly hopes that the jury will use the evidence to make a forbidden propensity inference (that since Zoe shoplifted once, she probably shoplifted again).

Exclude The court would exclude this evidence. A witness can't use specifics to back up the opinion/reputation testimony.

Gavin is the Chief Financial Officer of GenTech Inc. In 2018 the SEC filed a civil complaint against Gavin, alleging that he sold shares of GenTech based on inside information. During the SEC's investigation, Gavin admitted making the sales; he paid a fine of $100,000 in exchange for an end to the investigation. In 2019, GenTech stockholders sued Gavin over the same issue. Gavin again admitted wrongdoing; he settled this lawsuit by paying shareholders $4 million. In 2020, the U.S. Attorney filed criminal charges against Gavin for the alleged insider trading. The prosecutor wants to introduce evidence of Gavin's statements and settlements in each of the prior disputes. Are any of the following admissible? -Gavin's admission to the SEC -Gavin's payment of a $100,000 fine to the SEC -Gavin's admission to the shareholders -Gavin's payment of $4 million to the shareholders

Gavin's admission to the SEC Rule 408's provision governing use of compromise negotiations in subsequent criminal prosecutions, raises numerous issues. Be careful to distinguish the nature of the original lawsuit (which produced the settlement statements) and of the second controversy (where a party attempts to admit them). Only (A) is admissible. Rule 408 now shields civil settlements and statements made during those negotiations from admission at a criminal trial, so (B) through (D) are inadmissible. But the rule carves an exception for statements made during compromise negotiations with a regulatory agency. The statements to the SEC fall within that exception, so they are admissible. Note, however, that the fine Gavin paid is not admissible. Rule 408 admits only statements to the regulatory agency and conduct occurring during settlement negotiations, not the settlement itself.

The Federal Rules of Evidence do NOT apply to proceedings? -In the District Court of Guam -In the U.S. Supreme Court -In Bankruptcy Courts -Before Federal Magistrates

In the U.S. Supreme Court Although the Supreme Court's immunity from the Federal Rules is a curiosity, this question reminds you that there are a lot of other courts in which the rules do apply.

Walter ran into and injured Hank, a pedestrian, with his RV while he was speeding down a desert highway. Hank later sues Walter, and Walter's counsel, Jesse, wishes to prove that two months after the accident Walter went to Hank and offered $1,000 to settle Hank's $5,000 claim. The trial judge should rule this evidence: -Inadmissible because even though relevant and an admission, the policy of the law is to encourage settlement negotiations. -Admissible as an admission to show Walter's liability, provided the court gives a cautionary instruction that the statement should not be considered as bearing on the issue of damages. -Inadmissible since it is not relevant either to the question of liability or the question of damages. -Admissible because it's being offered by the party that attempted to settle the dispute and not the other side.

Inadmissible because even though relevant and an admission, the policy of the law is to encourage settlement negotiations. Rule 408(a)(1) provides that evidence of offering to furnish a valuable consideration in attempting to compromise a claim which was disputed as to validity or amount is not admissible to prove liability for the claim or its amount.

Elaine was hit while crossing the street outside Monk's Diner by an automobile driven by Jerry. George is called to testify that Jerry has a reputation for being a safe and prudent driver. The trial judge should rule George's testimony: -Admissible because where there are no unbiased eyewitnesses to an accident, his reputation as a safe driver may be used to prove that Jerry acted in conformity with his reputation at the time in question. -Admissible if George first testifies that he has personal knowledge of Jerry's driving habits. -Inadmissible because evidence of his reputation as a safe and prudent driver cannot be used to prove that Jerry acted in conformity with that reputation at the time in question. -Admissible because Elaine opened the door to receipt of this testimony by filing her action.

Inadmissible because evidence of his reputation as a safe and prudent driver cannot be used to prove that Jerry acted in conformity with that reputation at the time in question. Pursuant to Rule 404(a)(1) and Rule 404(b)(1) neither reputation or opinion testimony as to character nor specific instances of conduct may be introduced to prove character for the purpose of proving action in conformity therewith in a civil case.

Dawn is charged with robbing a bank in New York City at 10:00 am on March 15, 2015. Before the beginning of Dawn's bank robbery trial, a teller who was working at the bank on March 15, 2015 died. At the trial, the prosecution seeks to introduce the teller's grand jury testimony where he stated that Dawn had walked up to his window with a gun and demanded that the teller turn over all the money in his drawer. That testimony is: -Inadmissible hearsay -Not hearsay because it is a prior statement under Rule 801(d)(1) -Hearsay but admissible under present sense impression exception. -Admissible hearsay because the bank teller is dead.

Inadmissible hearsay The correct answer is A. This is an out-of-court statement offered to prove the truth of the matter asserted therein, and so it is hearsay and does not fall within any exception mentioned in these answers. Answer B is incorrect because this statement does not fall under Rule 801(d)(1), as it is not a prior statement by a witness because the declarant teller is not a witness. The defendant had no opportunity to cross-examine the declarant before the grand jury. Answer D is incorrect because this fact is irrelevant. The key issue for prior statement purposes under Rule 801(d)(1) is whether the declarant is a witness and the teller was not a witness. It does not matter why he was not a witness.

O'Byrne calls an expert on behavioral psychiatry to testify about his "late filing syndrome." This would be would be a way of arguing that his unfortunate mental health issue simply caused delay. The American Psychological Association does not recognize the syndrome. Can O'Byrne's expert testify about late filing syndrome? -Yes, parties chose their own witness. -No. the syndrome is not generally accepted. -Maybe, if O'Byrne satisfies Daubert and Rule 403 -No because it's an opinion on the ultimate issue

Maybe, if O'Byrne satisfies Daubert and Rule 403 Answer: Maybe, if O'Byrne satisfies Daubert and Rule 403. While it might verge on an ultimate issue (did O'Byrne have intent to not file returns), there is no evidence that the expert would testify to that particular issue as opposed to the syndrome generally. General acceptance no longer controls; it's just one factor in evaluating expert testimony. But judges do act as gatekeepers, so Daubert looms large

To object to evidence that is already in the record, an attorney makes a.... -Motion in limine -Motion to strike -Interlocutory appeal -A gasping noise

Motion to strike Motions in limine aim to prevent evidence from coming in on the front end. The ruling happens BEFORE trial. A motion to strike is AFTER the evidence has been admitted but something later makes it objectionable. An interlocutory appeal would be a mechanism to appeal a judge's evidentiary ruling (usually before trial).

Suppose your client is a defendant in a personal injury suit. Plaintiff claims your client was driving drunk. Some of the evidence points that way, but it's weak. Your client swears he was sober, and you believe him. Unfortunately, he was alone in the car and there's no conclusive evidence of sobriety. You're afraid the jury will feel sorry for the injured plaintiff and accept the weak evidence of drunk driving. But then your client introduces your to a psychic who he thinks can help. Psychic never met client before the accident and was 100 miles away when the accident occurred. But she claims that she has "examined our client's aura" and determined "that he could not have been drunk at the time the accident occurred." Would you offer the psychic's testimony? -Yes -No

NO Almost certainly not: Most lawyers would fear ridicule if they offered this evidence. But why not offer the evidence? Isn't the relevance threshold very low? Couldn't we argue there is a very small chance that this psychic has the ability to read auras so that this evidence has some tendency to make our client's sobriety more likely? This is meant to cue you to the words "any tendency" imply certain types of knowing or causation. We don't accept evidence that goes beyond those bounds—even though the bounds are set by cultural beliefs and may change over time.

State v. D. to prove that V's assailant was D, testimony by Y that at the police line-up V, separated from the suspect by one-way glass, pointed his index finger at D in response to a question, "Do you see the man who did it?" V is unavailable at trial. YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; NOT admissible Does not qualify under 801(d)(1)(C).

In a criminal fraud case, the defendant may ask a witness whether the witness has an opinion about whether the defendant is a gentle person. Yes No

No Issue is whether the trait is pertinent - remember you can't just ask about anything

No The rules don't allow extrinsic evidence on a character trait.

Fact Pattern for Questions 1 & 2 Gina has a lovely garden, with an abundance of plastic flamingos. But one day the flamingos disappeared. No one saw the thief, and there were no fingerprints or footprints left behind. But Gina strongly suspected Fred. So she sued him for trespass to chattel. Admit testimony of Target manager that Fred tried to shoplift CDs? -No, it's not relevant -No, it is propensity evidence -No, it's speculation -Yes.

No, it is propensity evidence No, it violates rule 404(a)(1), prohibition against character evidence. Evidence is relevant. Someone who steals CDs is somewhat more likely to steal other types of property. But relevance of this evidence depends on propensity reasoning. That's exactly what 404(a)(1) prohibits. Nothing speculative about this evidence. The fact that Fred tried to steal CDs is a fact. There is a type of speculation in reasoning that, because he tried to steal CDs he stole a flamingo. But the witness here isn't testifying to that conclusion, he's offering the basic fact of prior theft.

United States prosecuted Oleg and Albina Zlatogur of violating the immigration laws. According to the government, the Zlatogurs were running an operation to bring immigrants into the country illegally. Yuri Yezhek worked with them. Yuri Yezhek gave incriminating grand jury testimony But then Yezhek left the USA before Zlatogurs' trial; he refused to return or be deposed. Is Yezhek's grand jury testimony admissible as .... -A prior inconsistent statement under 801(d)(1)(A). -Former testimony under 804(b)(1) -statement of an opposing party under 801(d)(2)(A). -none of these.

No, none of these. Prior inconsistent statement: Has to be witness Former testimony: Need chance to cross-examine, which grand jury doesn't give Not opposing party, so that won't work either. Impeachment: Needs to be on stand

#1 (We're prosecuting Jose Rodriguez for conspiracy with intent to distribute cocaine. We believe Rodriguez was part of a drug ring headed by Alex Luna, operating in Danbury Connecticut. Our case-in-chief established that Rodriguez frequently drove John Adams from NY to Connecticut to meet with Luna. They transported cocaine during those trips. During our investigation, we discovered that Rodriguez knowingly wrote bad checks for local Target store. He reimbursed the store, and was never charged. On cross of Rodriguez, can we ask: "You knowingly wrote a bad check at your local Target store, didn't you?") Same facts. We've talked to Rodriguez's girlfriend Linda and she says that he frequently hit her. "Did you hit your girlfriend Linda?" Yes, 608(b) allows this. No, because we lack a good faith belief. No, unless we can establish relevance. Yes, this is a prior bad act under Rule 404(b)

No, unless we can establish relevance. 608(b) doesn't allow: Not related to character for truthfulness. We have a good faith belief based on talking to Linda. But can't admit unless we establish relevance for some purpose other than impeachment under 608(b).

Gina and Fred have another neighbor who likes Gina and dislikes Fred. This neighbor would be willing to testify: "In my opinion, Fred will steal anything he can get his hands on." Is this admissible? Yes, with proper foundation Yes because it's relevant Yes, if Fred can cross-examine the witness No

No. Again, this is propensity evidence. Foundation won't help, neither will chance to cross examine

In grand jury proceedings... -ALL of the FRE apply -NONE of the FRE apply -ONLY the privilege rules apply -Only the privilege AND hearsay rules apply

ONLY the privilege rules apply Grand jury inquiries affect evidentiary rules in several ways; that testimony, for example, is admissible under some hearsay exceptions. Remember who is present during grand jury proceedings, how the prosecutor conducts those proceedings, and what the grand jury does. The Rules of Evidence do not apply to those proceedings.

The stick used to kill the victim is... -Circumstantial evidence -Real Evidence -Character Evidence -Demonstrative evidence

Real Evidence For many evidentiary rules, the category in which a piece of evidence falls doesn't matter. But lawyers and judges use terms like "real evidence" and "character evidence," so it is useful for students to learn these terms. The "stick" in this example is an actual murder weapon

(Pictured: "Danger" + Fingers caught in chain + warning "do not hold the wong end") After an unfortunate run in with a chainsaw, Jamie Lannister sued Littlefinger Power Tools. LPT later added a new label to its product (shown below). In deposition, LPT's chief engineer, Petyr Baelish, testifies that adding the warning was impossible until now because it was not foreseeable that someone would use the chainsaw improperly. LPT wants to keep the warning out of trial. Jamie's best argument to keep it in is: -The engineer's testimony can be used to show negligence -The engineer's testimony can be used to show culpable conduct. -The engineer's testimony can be used to show feasibility of the warning -The engineer's testimony can be used show that holding the wrong end of the chainsaw is in fact dangerous.

The engineer's testimony can be used to show feasibility of the warning This follows Rule 407-feasibility is the only permissible choice out of these options.

Rule 407 bars evidence of remedial measures that occurred after.... -The product was purchased -The injury occurred -The lawsuit was filed -The perpetuities period

The injury occurred This should focus you on the timing constraint of Rule 407. The Rule bars SMRs AFTER the injury occurred (e.g., once company was on notice).

Who is not competent to testify under the Federal Rules of Evidence? -Convicted felons -The judge -Atheists -Children younger than age 6

The judge Common law used to restrict felons, atheists, and children Federal rules removed all of these restrictions Some states still impose age limits on children

FACTS The government charged Eileen Lowe with kidnapping a one-week-old infant. At trial, Lowe admits that she abducted the child at gunpoint. She also testifies that she is unable to bear her own children; she claims that she wanted a child so badly that she was temporarily insane when she kidnapped the infant. The child's mother testifies at length about the kidnapping and identifies Lowe. The government then asks to bring the baby into the courtroom and have the mother identify the child. Lowe objects, offering to stipulate the child's identity. Should the court allow the government to engage in the live identification? -YES -NO

YES The district judge in this case allowed the mother to identify the baby, and the court of appeals affirmed. The appellate court noted that identification of the baby was a brief episode in a trial that lasted five days and involved more than forty witnesses. This both reduced the prejudice and suggested that, even if the trial judge's decision was erroneous, it was not prejudicial. The decision is a good example of how far most courts will go in allowing parties—perhaps especially the prosecution in criminal cases—to introduce relevant evidence that may affect the jury's emotions. United States v. Lowe, 569 F.2d 1113 (10th Cir. 1978).

#1 (In a civil action between P and D, one of the issues is whether X was present in Boston on October 21, 1988. X is available at the trial. P calls W who testifies that on October 20 he visited X at X's home in New York and X showed him an airline ticket with X's name typed on it for a trip from New York to Boston on October 21, 1988.) Same issue as 1 except that P offers a reimbursement voucher signed by X which X submitted to his company-employer covering expenses of "my trip to Boston October 21, 1988." YES Hearsay, YES Admissible YES hearsay, YES admissible NOT hearsay, NOT admissible NOT hearsay, YES admissible

YES Hearsay, YES Admissible Okay under 803(6) if foundation for contemporaneousness met i.e., voucher submitted at or near time he returned from trip.

P v. D. To prove the way in which an industrial accident happened, P offers a motion picture taken by Y of P reenacting the accident. YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

YES hearsay; NOT admissible Nonverbal conduct used to tell a story --- "assertive" and therefore inadmissible hearsay without an exception.

#2 (An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. ) Same facts, but variation on suspect B's record: •Adult conviction for embezzlement •Convicted 15 years ago •Sentenced to 7 years; never paroled •Released 8 years ago •No pardon Can we admit this conviction? Yes Yes, but only if probative value substantially outweighs the prejudicial effect Yes, if Rule 403 is satisfied No

Yes This conviction receives the same treatment as the previous one. Rule 609(b) measures the "age" of a conviction from the date of conviction or release, whichever comes later. This conviction, therefore, is still less than 10 years old and it was for a crime of dishonesty. The court will admit the conviction for impeachment without applying any balancing test.

#2 (An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. ) Same facts. Suspect A's Record: •Adult conviction for second degree assault • Punishable by up to 5 yrs in prison • Convicted 9 yrs ago • Suspended sentence • No pardon Can we admit the assault conviction? -Yes -Yes, if probative value outweighs prejudicial effect to that defendant -Yes, if consistent with Rule 403 -No

Yes, if probative value outweighs prejudicial effect to that defendant Conviction for second degree assault that occurred 7 years ago, when the defendant was an adult. The crime was punishable by imprisonment of up to 5 years, but the defendant received a suspended sentence. There has been no pardon. This conviction is admissible if the judge concludes that the probative value in impeaching the witness outweighs its prejudicial effect. Assault is not a crime that requires proof of a dishonest act or false statement, but this conviction was for a felony. Remember that felony status depends on the available sentence, not on the sentence imposed.

Maria sued her boss and company for sexual harassment. She calls a coworker to testify. Coworker will testify that she repeatedly saw Maria crying and looking stressed or unhappy after meetings with the boss. The boss objects under Rule 602, noting that the coworker never witnessed any harassing interactions between Maria and the boss. Can the coworker testify about Maria testifying? -Yes- this is circumstantial evidence of the harassment -No-the coworker doesn't have personal knowledge of the harassment -No-this is not the best evidence of harassment -Yes-this is relevant under Rule 602.

Yes- this is circumstantial evidence of the harassment Yes. This is circumstantial evidence of the harassment. Perhaps also direct evidence of Maria's distress (related to damages). Coworker doesn't have personal knowledge of the harassment, but she has personal knowledge of the crying. And the crying is relevant to a fact in consequence.

Do FRE 1001-1008 require the executor to introduce the original will? -yes -no

no No! There are lots of exceptions to the requirement of an original. Estate law might require the executor to introduce the signed original, but rules of evidence do not.

Thermodyne v. McDonald's. Thermodyne makes special heating ovens, which allow sellers to cook food slowly and keep it warm for long periods. Thermodyne worked with McDonald's to develop oven for McD's needs, but the deal fell apart. McD's developed own oven, and Thermodyne sued for violation of trade secret. One element: have to prove that approach was secret. To help prove that element, Thermodyne called its CEO to the stand. He testified: "Our technology is not generally known in the field." Is that admissible as lay opinion? -yes. it's a proper lay opinion -no this is the subject of expert testimony -no this is not common knowledge for the witness -yes, the CEO can be a quasi expert

yes. it's a proper lay opinion Court allowed this testimony. It's self-serving, but that's not a problem—other side can point that out. There's a difference between weak evidence and inadmissible evidence. As executive in the field, CEO has knowledge and ability to evaluate. Helpful to jury as way of summarizing specifics. Although, again, a different judge might have excluded this testimony—finding it unhelpful to the jury.

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 assaulted her numerous times 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: -Admissible for any purpose. -Admissible to prove Marcia's motive for committing the crime. -Admissible to prove that Michael actually did assault Jan. -Inadmissible for any purpose.

Admissible to prove Marcia's motive for committing the crime. (B) is the correct answer. Since the letter was found on the defendant's person, the letter is relevant to prove that she had a motive to kill Michael. (A) and (C) are incorrect, since the letter cannot be used to prove the truth of the matter asserted--i.e., that Michael actually did assault Jan--because that purpose would violate the hearsay rule. (D) is incorrect because the letter is relevant for a non-hearsay purpose--whether it is true or not, the fact that Marcia read it would provide her with a motive. And the letter is not barred by Rule 404, since it is not being admitted to prove Michael's propensity to commit an assault--indeed, it is not even being offered to prove that Michael did or did not assault Jan.

Austin Powers, a gold-medal sprinter in the 2008 Olympic Games, is now on trial for illegally possessing performance-enhancing steroids in 2007. 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 really improved my training regimen.' Austin has never been charged nor convicted of using steroids in the year 2004. Goldman's testimony is: -Inadmissible hearsay. -Not barred under the hearsay rule but still inadmissible for any purpose. -Admissible to prove that Austin had knowledge that he was taking steroids in 2007. -Admissible to prove Austin has a propensity to use steroids when training.

Admissible to prove that Austin had knowledge that he was taking steroids in 2007. C) is the correct answer. The statement is not being offered to prove the truth of the matter that Austin asserted; i.e., to prove that Detrimin is a steroid or that Austin was using steroids in 2004--the former statement is not contested, and the latter statement is irrelevant, since Austin is not being accused of any wrongdoing in 2004. Instead, the evidence is offered to prove that Austin has knowledge of the fact that Detrimin is a steroid--this is a contested, relevant fact and the fact that Austin stated it is a steroid tends to prove that he knew that fact. (A) is incorrect because the statement is not offered for a hearsay purpose. (D) is incorrect because the statement is inadmissible both under the hearsay rule and under Rule 404 to prove that Austin used steroids in 2004 in order to prove his propensity. Finally, (B) is incorrect because the statement does have an admissible purpose.

#1 (US charges Joseph with insider trading. Wife provides some of the evidence against him. She testifies before grand jury. But at trial, she gets cold feet. Claims spousal privilege and refuses to testify. Same general facts, but suppose Joseph never married this woman. She's a girlfriend, not a wife. She testifies before grand jury and gets cold feet. But she has no privilege to invoke. So she gets on stand at trial and says "I forget." Can the prosecutor introduce her grand jury statement as a prior inconsistent statement? -Admissible under 804(b)(1) -Admissible under 801(d)(1)(A) -Admissible under both -Admissible under neither

Admissible under 801(d)(1)(A) The statement is NOT admissible as former testimony under 804(b)(1). Why not? Girlfriend is unavailable (memory loss). Former testimony was at a proceeding, But Joseph was not present; had no opportunity to develop testimony (Same problem we saw in the first variation of this problem). But it IS admissible as a prior inconsistent statement. Why? Memory loss is inconsistent with prior detailed statement. Prior statement was made under oath at a proceeding. Girlfriend IS subject to cross-examination in current proceeding. Why this seemingly inconsistent result? Person who claims memory loss is subject to cross-exam. Opponent usually can make that type of witness look like an idiot. Of course, Joseph's attorney will have to do this to his girlfriend. Seems unfair when she's trying to help Joseph out.

Admit Most judges probably would admit, although the answer isn't clearcut. This is an unusual character trait, but it's plausible to argue. You could analogize this trait to technophobia and other more widely recognized traits. The defendant doesn't have to praise himself. He can use a negative trait if that makes commission of crime less likely.

Xander is accused of stealing a digital camera by going to the video game section of the store, peeling off the computer price code from a $20 game, and gluing that tag to a $300 video camera box. When the clerk scanned the item, he failed to notice the discrepancy, and Xander was able to leave the store after paying only $20. The clerk has identified Xander as the shopper who presented the mis-tagged camera box. Xander claims that he was not the one who committed this crime, and that the store clerk misidentified him. The prosecutor wants to admit evidence that last year Xander stole a $150 cell phone by pasting a computer price code from a $10 cell phone holster onto the cell phone package and paying only $10 for the phone. Is this evidence admissible? Admit Exclude

Admit The court is likely to admit evidence of this prior act. This is a more distinctive method of shoplifting, so the probative value in identifying Xander is higher than the probative value in Zoe's case. The prior act also suggests that Xander has the knowledge to commit this crime; it is a technique he has practiced. Although the evidence causes some unfair prejudice (the jury may simply assume that Xander is the type of person who shoplifts), the probative value for proving identity and knowledge probably is sufficient to admit the evidence.

In medical negligence suit a hospital is sued for negligent retention of Dr. Jones, a cardiac surgeon. Plaintiff wants nurse to testify, which of her following statements is admissible: -Everyone in this hospital knows Dr. Jones is one of the most careless surgeons in this town. -Dr. Jones botched 3 other surgeries -Both would be admissible -Neither would be admissible

Both would be admissible Both can come in because character is in issue. You can prove a character trait when in issue so any form of character evidence is ok.

Matthew McConaughey is charged with ramming a Lincoln Navigator into a convenience store to steal an ATM. The prosecution, in its case in chief, offers evidence that when McConaughey was arrested one day after the crime, he had marijuana and rolling papers in his possession. This evidence should be: -Admitted to prove McConaughey's motive to commit the crime. -Admitted to prove McConaughey's propensity to commit crimes. -Excluded because its probative value is substantially outweighed by the danger of unfair prejudice. -Excluded because such evidence may be offered only to rebut evidence of good character offered by defendant.

Excluded because its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Here the unfair prejudice, i.e., the natural dislike of drug users and belief they steal to get money, substantially outweighs the probative value of the evidence that McConaughey attempted to steal the ATM to get money for drugs.

If judge decides there's enough evidence to authenticate, opposing party cannot argue to the jury that the evidence is not authentic? -True -False

False

Defendant Tyrion Lannister is prosecuted for the poisoning and murder of his nephew, Joffrey. In his case in chief, Tyrion called Sansa Stark to testify that Tyrion rescued her by coordinating her escape from King's Landing after Cersei put a price on her head. The testimony is: -Inadmissible because it does not have a tendency to prove or disprove that Tyrion is the type of person who would poison someone. -Inadmissible because this is not the proper way to elicit character testimony. -Admissible because this is a criminal case and Tyrion is entitled to put forward a complete defense. -Admissible as tending to prove Tyrion is innocent.

Inadmissible because this is not the proper way to elicit character testimony. Rules 404(a)(2)(A) and 405 permit the accused to offer evidence of a pertinent character trait in the form of reputation testimony for the purpose of proving action in conformity therewith on a particular occasion.

Dawn is charged with robbing a bank in New York City at 10:00 am on March 15, 2015. At her trial, Dawn invoked her Fifth Amendment right against self incrimination by choosing not to testify. Instead, she seeks to introduce her grand jury testimony in which she denied any participation in the bank robbery. That testimony is: Question 2 options: -Hearsay but admissible under the excited utterance exception -Inadmissible hearsay because Dawn chose not to testify at trial -Not hearsay because it is an admission -Not hearsay because it is a prior statement under Rule 801(d)(1)

Inadmissible hearsay because Dawn chose not to testify at trial The correct answer is B. The grand jury testimony is hearsay. By invoking her Fifth Amendment right against self incrimination, the defendant has made herself unavailable. A party who makes herself unavailable cannot take advantage of that to assert a hearsay exception that requires unavailability. Excited utterance does not fit the facts. Answer C is incorrect because the statement is being offered by the declarant party and is not being offered against her. Answer D is incorrect because a prior statement must be one made by a witness and by taking the Fifth, the defendant chose not to be a witness.

Dawn is charged with robbing a bank in New York City at 10:00 am on March 15, 2015. At trial, in response to the defendant's denial of having committed the offense charged, a bank vice president testified that the reason there was no videotape of the presence of the defendant in the bank on the date in question is that he had ignored reports from his staff that the videotape system was not working and similarly ignored their urgent request to repair or replace it immediately. After Dawn was acquitted, the bank's insurance company refused to reimburse the bank for the loss occasioned by the burglary on the ground that the failure to convict the robber and recover the money was the direct result of the bank's negligent monitoring of its videotaping system. The bank then sued its insurance company for unreasonable failure to pay in break of the insurance contract. In its defense to the suit, the insurance company offered the transcript of the vice president's testimony at Dawn's robbery trial concerning his failure to repair or replace the videotaping system after being warned about its failure by his staff. That evidence is (hint: look to Rule 804): Question 3 options: -Hearsay but admissible under the former testimony exception -Not hearsay because it is a prior statement -Inadmissible hearsay because the insurance company was not a party to the criminal prosecution -Inadmissible hearsay because the bank did not establish that the vice president was unavailable.

Inadmissible hearsay because the bank did not establish that the vice president was unavailable. The correct answer is D. This is an out-of-court statement offered to prove the truth of the matter therein so it is hearsay. The only possible exception here is the former testimony exception of Rule 804(b)(1), but that requires that the declarant be unavailable and that fact must be established by the party asserting the exception. That showing was not made here. Answer A is wrong because to fit within the former testimony exception of 804b1, the declarant, the vice president, must be unavailable. There is not evidence of that here and that must be established by the party asserting the exception. Answer B is incorrect because a prior statement must be a statement made by a witness in this case, and the vice president has not been called as a witness in the civil case. Answer C is incorrect because although the insurance company was not a party to the criminal prosecution, the evidence could come in under 804b1 if the declarant had been unavailable and the prosecution in the criminal case had the same opportunity and motive to cross-examine this testimony, as the insurance company would have in the civil case. So, the fact that the insurance company was not a party to the criminal case is not fatal in and of itself.

In Roger Ailes v. Fox News, the plaintiff filed a suit for breach of contract and wrongful termination. To support his claim of wrongful termination, Ailes wants to introduce an exhibit that contains printouts from the Fox News website. The printouts show that Fox ran supportive stories of Ailes before and after his termination. The exhibit also shows promotional ads from the website that were supportive of Ailes. The exhibit is accompanied by testimony from Todd Muller, verifying that the Internet Archive Company retrieved copies of the website from its electronic archives. Fox objects to the admission into evidence of the printouts of the website. Which of the following is a valid response for Ailes to make? -Muller is a qualified expert on websites. -The website printouts are relevant to a wrongful termination suit. -The website printouts are the best evidence of wrongful termination. -Muller's testimony is sufficient to satisfy authenticity requirements, but Fox remains free to raise authenticity concerns with the jury.

Muller's testimony is sufficient to satisfy authenticity requirements, but Fox remains free to raise authenticity concerns with the jury Remember that authenticity is a low bar and most evidence will clear it. The other side is still free to argue authenticity issues-it just won't exclude the evidence.

Lewis Johnson was charged with knowingly making false statements on his federal tax return. Government showed that he knowingly omitted income from one of his businesses and perjured himself by signing the form. Johnson attempted to introduce evidence that he also neglected to take several deductions, arguing that on balance he overpaid his taxes. Is evidence of omitted deductions relevant? -YES -NO

NO This should help you see how relevancy depends on the underlying claim/charge. If the crime requires proof that the defendant underpaid taxes (which is what the crime of tax evasion requires), then Johnson's omitted deductions would be relevant. He might be able to show that, overall, he didn't underpay. But if the crime focuses simply on whether D misrepresented facts then the omitted deductions are not relevant to the instant case.

P sues for damages arising out of an automobile accident. P calls W, who testifies that X, D's employee, was driving D's truck at the time of the collision and that, the day after the collision, he (W) heard X say to D, "I'm sorry, boss, I just didn't see the light." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible A vicarious admission (Admissions technically are not "hearsay" under 801(d)).

P v. D. To prove that D accepted P's offer, P offers his (P's) testimony that D said in response to the offer, "All right, P, it's a deal." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible Agreeing to contract is a verbal act of legal significance --nonhearsay

State v. D. To prove that D's house is a house of prostitution, testimony of Y that he (Y) saw many women who (D stipulated) were prostitutes entering and leaving the place. YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible Nonassertive conduct of prostitutes is not hearsay and thus admissible

#9 (P v. D. To prove that the accident was caused by a defective tire, D offers the testimony of Y that he (Y) told P just before the trip that "D's tire is about to ready to blow.") Similar facts as #9: P v. D. To prove that P in riding with D assumes the risk, D offers the testimony of Y tat he (Y) told P just before the trip that "D's tire is about ready to blow." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible This is not hearsay if used to prove effect on listener.

To prove that D acted in good faith in foreclosing a mortgage on Z's property, a Dun & Bradstreet report received by D shortly before the foreclosure indicated that Z was having financial troubles. YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible This is not hearsay-can use to demonstrate effect on listener. Not offered for truth of the matter asserted.

P v. D. To prove that P was conscious soon after the wreck, D calls Y, who testifies that P, still pinned in the demolished car, said, "My leg hurts something awful!" Question 9 options: YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

NOT hearsay; YES admissible nonhearsay: Fact that P. able to say something demonstrates fact in question.

In this case the plaintiff claimed his broker churned his commodities futures account. In other words, conducted excessive trading that gave the broker commissions but didn't do much for the plaintiff. To show that the trading was excessive, P needed an expert. He presented a professor from the Wharton School of business. Here are this expert's relevant credentials: PhD in Finance Teaches at Wharton School Teaches one course on commodities futures Not familiar with practices in commodities field Never evaluated pure commodities portfolio, although he had evaluated other portfolios. Is the business professor qualified to testify as an expert? Yes No

No Wilkinson v. Rosenthal & Co., 712 F.Supp. 474 (E.D. Pa. 1989). The court in this case precluded the testimony. Despite qualifications, this witness had insufficient experience with this type of portfolio.

#1 (US charges Joseph with insider trading. Wife provides some of the evidence against him. She testifies before grand jury. But at trial, she gets cold feet. Claims spousal privilege and refuses to testify. Same facts: can we admit her grand jury testimony under 801(d)(1)(A)? -Yes because she is still available. -No because she is not subject to cross examination at the current proceeding. -Yes because silence is inconsistent with her testimony. -No because the grand jury is not a proceeding.

No because she is not subject to cross examination at the current proceeding. No. It doesn't meet the requirements of the exemption. Claim of privilege might be inconsistent with prior detailed statement. And prior statement was at proceeding, under oath. But wife is NOT subject to cross examination in current proceeding. So NOT admissible. Same result.

Tricia broke into Victor's home to steal his valuable gun collection. While Tricia was in the house, Victor returned with a man Tricia recognized as Paul. While Tricia hid behind a curtain, Victor and Paul argued; Tricia then saw Paul shoot and kill Victor. Shocked, she ran from the house without completing her own intended crime. Several days later, Tricia told her friend William what had happened: She confessed breaking into Victor's house and witnessing the murder by Paul. The government prosecuted Paul for murder, but Tricia died before trial. Can the prosecutor offer William's testimony about Tricia's statement? -Yes because she was still in an excited state -Yes because it's a statement against interest -Yes because it's a statement of her present sense impression at the time of the murder. -No it's inadmissible.

No it's inadmissible. Tricia is unavailable and part of her statement was against interest at the time she made it: She admitted to William that she broke into Victor's house, intending to steal his guns. But was Tricia's description of the murder against her own interest? She was simply an eyewitness to that crime. Analyze the portions of Tricia's statement carefully. Will the judge restrict William's testimony to Tricia's description of her own crime (which would not be relevant to the homicide prosecution)? You may think that Tricia's entire statement may be against interest because she had no lawful right to be in Victor's home. By describing a murder in someone else's house, she implicitly admitted that she was in a place where she had no right to be. Is that implicit meaning enough to admit the statement? Others will argue that once she has admitted to breaking into the house, any further statements about the murder she witnessed do not expose her to any further liability, and therefore should be redacted. Even if the statement clears this hurdle, it still needs corroboration, since it is offered in a criminal case and it tends to expose the declarant to criminal liability. Other hearsay exceptions are unlikely to admit Tricia's statement. Since she spoke to William several days after the murder, the statement was too late to constitute an excited utterance or present sense impression.

#2 (An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. ) Still same facts. Suspect B: •Misdemeanor disorderly conduct (public drunkenness) •Suspended sentence •Four years ago •No pardon Can we admit the disorderly conduct conviction? Yes Yes, but only if probative value substantially outweighs the prejudicial effect Yes, if Rule 403 is satisfied No

No, this is a misdemeanor conviction with no relationship to dishonesty. Rule 609 excludes it without application of any balancing test.

US charges Joseph with insider trading. Wife provides some of the evidence against him. She testifies before grand jury. But at trial, she gets cold feet. Claims spousal privilege and refuses to testify. Can we admit her grand jury testimony under 804(b)(1)? Yes No, she's still available No, Joseph had no ability to cross-examine her No, it wasn't a hearing

No, Joseph had no ability to cross-examine her No—there was no chance to cross-examine Privilege makes wife unavailable, and the grand jury counts as a "hearing." But key fact about grand jury: Defendant and attorney not there. No chance to cross-examine. GJ testimony often seems like it should be admissible, but it isn't.

Specialty Products International sells brew tanks used by restaurants to operate micro-breweries. Specialty used Con-Way Freight to ship three of its tanks to a restaurant. Unfortunately, the tanks arrived damaged and the restaurant refused to pay for them. Specialty sued Con-Way for breach of the shipping contract, claiming that it did not exercise adequate care in wrapping and shipping the tanks. At trial, Specialty offered evidence that after the incident with the damaged tanks, Con-Way: (a) started wrapping items in bubble wrap and (b) instituted an intensive training program for employees on how to use bubble wrap effectively. Are these pieces of evidence admissible? -Yes-these are admissible under rule 401 -No-these are not admissible under rule 403 -No-these are not admissible under rule 402 -No-these are not admissible under rule 407

No-these are not admissible under rule 407 Rule 407 bars both pieces of evidence. Changes in practice (using bubble wrap) and training programs qualify as remedial measures; too often, students identify "remedial measures" solely with changes in product design. The problem also reminds students that Rule 407 applies outside tort litigation; it applies to contract cases and any other lawsuit in which a subsequent remedial measure might offer evidence of liability

New case: An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. Which ones are admissible if that defendant takes the stand? First one: Suspect A: Can we admit a juvenile conviction for theft from 9 years ago? -No. -Only if it was a felony. -Only if admission is necessary to fairly determine guilt -Only if it occurred less than 10 years ago.

No. Not admissible. Rule 609(d) excludes all juvenile convictions when the witness is a criminal defendant.

Sherry comes to the police and says: "My boyfriend is a gangster. I can't live with him any more and I can't live with myself if I don't turn him in. He'll kill me if he finds out I've talked, but here's what he has done. He gives detailed account of various crimes. None involved her. Sherry then disappears. Is her police report admissible? -Yes, statement against interest. -Yes, excited utterance -Yes, state of mind -No

No. Not against her penal interest. She was scared for safety, but that doesn't count. Nothing incriminating. Not an excited utterance: Scared, but not responding to sudden event. Ongoing fear doesn't work for this exception. Not state of mind: That exception would admit the fact that she was scared, but not the reasons for her fear.

Bauer agreed to sell his house to his neighbor, Rogers. Bauer reneged on the deal. Rogers allegedly retaliated by taking a chainsaw and making a horizontal cut around the entirety of Bauer's house at chest level. Only gravity holds top on bottom.The state charged Rogers with vandalism. Suppose Rogers denies that he made the cut, and the case goes to trial. In the case-in-chief, the prosecutor calls a neighbor who testifies: "I've known Rogers for 30 years. In my opinion, he has no respect for property." The prosecutor urges that this evidence is admissible because it makes it somewhat more likely that Rogers committed the vandalism. Is the neighbor's testimony admissible? No Yes, as long as he gives no specifics Yes, as long as Rogers was never convicted of a property crime Yes

No. This is exactly the type of character evidence that 404(a)(1) prohibits and defendant has not triggered 404(a)(2) yet

Civil claim for negligence based on reckless driving - plaintiffs want to get in evidence of defendant's prior speeding tickets and reckless driving charge to show that he is the kind of man who is prone to reckless driving- may they do so? -Yes. Character is in issue in a negligence case. -No. This would be precluded under Rule 403. -Yes. This is relevant under Rule 401. -No. This is propensity evidence and is never admissible in a civil case.

No. This is propensity evidence and is never admissible in a civil case. Civil case and character is not in issue in a straight negligence case so this is inadmissible.

Sally is refused employment as an FBI agent. The agency claims she failed a basic entrance exam. Sally is a member of Mensa and has an incredibly high IQ score, so she sues the FBI. In her civil action against the FBI, Sally offers the testimony of a high school teacher, Harry, who reports that he has known Sally his whole adult life and that Sally is, in his opinion, extremely intelligent and could probably pass an entrance exam. That testimony is: -Objectionable because it calls for an expert opinion. -Possibly admissible as character evidence -Both (A) and (B) are correct -None of the above

None of the above The correct answer is D. Rule 404(a) generally precludes the use of character evidence for circumstantial purposes, i.e., to prove that the individual acted consistently with that character trait. It does not, however, preclude the use of character evidence when character is directly in issue. Here, the defense in the civil case maintains that the reason for its action is that Sally failed the programming exam. Consequently, her intelligence is directly in issue BUT it has been held inadmissible by at least one court. and the plaintiff can offer evidence of it in any form, i.e., reputation, opinion, or prior acts. Answer A is also incorrect because that opinion testimony from the lay witness would be proper, even if it might be speculative.

Cynthia is a witness in a kidnapping trial. The prosecutor wants to prove that John, the victim, left his house on at around 8:00 AM on December 19th. The prosecutor call Cynthia to the stand to testify about the morning of December 19, but Cynthia claims the Fifth Amendment and refuses to answer any questions. Which of the following pieces of evidence does Rule 801(d)(1) now allow the prosecutor to introduce? -Bill's testimony that, "After John disappeared, Cynthia told me that she looked out our window at 8:00 a.m. on December 19 and saw John leaving his house." -The police report noting that, during questioning after John's disappearance, Cynthia reported that she saw John leaving his house at 8:00 a.m. on December 19. -The police report, but only if Cynthia signed her statement under penalty of perjury. -Cynthia's testimony to a grand jury, under oath subject to the penalty of perjury, that she saw John leave his house at 8:00 a.m. on December 19. -None of these

None of these The correct answer is (E). Cynthia has claimed the Fifth Amendment privilege, refusing to answer any questions, so she is not subject to cross-examination. Rule 801(d)(1) allows a party to introduce a witness's prior statement only when the witness is subject to cross-examination. The prosecutor, therefore, cannot introduce any of the statements listed in responses (A)-(D).

#1 (In a civil action between P and D, one of the issues is whether X was present in Boston on October 21, 1988. X is available at the trial. P calls W who testifies that on October 20 he visited X at X's home in New York and X showed him an airline ticket with X's name typed on it for a trip from New York to Boston on October 21, 1988.) Same issue as 1 except that P calls W to testify that on October 22, 1988, X told W "Yesterday I was in Boston." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

YES hearsay; NOT admissible This is backward looking, so there is no exception that would apply here.

To prove that T lacked testamentary capacity on January 2, testimony of Y that on several occasions during December and January T had told Y that she (T) was Reggie Jackson. YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

YES hearsay; YES admissible Offered to prove truth of matter impliedly asserted; i.e., that T. believed she was Jackson - but admissible under 803(3)(statement of belief not offered to prove T. of matter believed). NOTE: I don't care if you call this hearsay and state of mind exception or non hearsay b/c it is offered to prove state of mind; I care that you understand that b/c it goes to state of mind, it gets admitted.

In a civil action between P and D, one of the issues is whether X was present in Boston on October 21, 1988. X is available at the trial. P calls W who testifies that on October 20 he visited X at X's home in New York and X showed him an airline ticket with X's name typed on it for a trip from New York to Boston on October 21, 1988. YES hearsay; YES admissible YES hearsay, NOT admissible NOT hearsay, YES admissible NOT hearsay NOT admissible

YES hearsay; YES admissible YES AND YES. A combination of verbal & nonverbal conduct used to assert X's intent to go to NY; admissible under 803(3).

P v. D. To prove that the accident was caused by a defective tire, D offers the testimony of Y that he (Y) told P just before the trip that "D's tire is about to ready to blow." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

YES hearsay; YES admissible Yes and Yes. - Admissible under 803(1) if contemporaneous with Y's observation of tire.

#1 (In a civil action between P and D, one of the issues is whether X was present in Boston on October 21, 1988. X is available at the trial. P calls W who testifies that on October 20 he visited X at X's home in New York and X showed him an airline ticket with X's name typed on it for a trip from New York to Boston on October 21, 1988.) Same issue as 1 except that P calls W to testify that W heard X tell Y on October 20, 1988 that "I plan to go to Boston tomorrow." YES hearsay; YES admissible YES hearsay; NOT admissible NOT hearsay; NOT admissible NOT hearsay; YES admissible

YES hearsay; YES admissible Yes and yes. Rule 803(3).

Defendant in an arson case wanted to call an expert to testify about what cause a house fire. Was it flaw in wiring? Or was there some other cause? Defendant presented an electrician to give expert opinion on this question. Here are the credentials of this proposed expert: Lacked high school degree. But had 15 yrs experience doing residential wiring. Taught classes in residential wiring. Consulted with fire marshall on causes of electrical fires in homes. Is the electrician qualified to testify as an expert? -Yes -No

Yes Court in one case said yes on very similar facts. A degree isn't necessary to qualify as an expert. This is the specialized/technical knowledge at the heart of Kumho.

#2 (An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. ) Same facts. Suspect B's record: •Adult conviction for embezzlement • Convicted 2 years ago • Served 6 months in prison • No pardon Can we admit the embezzlement conviction? Yes Yes if it was a felony Yes if consistent with Rule 403 No

Yes Rule 609 admits this conviction without subjecting it to any balancing test: It is a crime of dishonesty falling within the 10-year time frame.

Kern Wilson was charged with bribing a public official in connection with a post-Katrina construction project. Government presented testimony of Sean Clayton. He reviewed Wilson's email records. Clayton concluded that Wilson had deleted messages from his "sent mail" during the period of the alleged bribery. He based this opinion on observations that no messages appeared in "sent mail" for that period. But there were replies to messages in his inbox for the same period. Not clear from the case who Clayton was. Probably a government investigator. But the government did NOT qualify him as an expert on emails or anything else. Can Clayton offer lay opinion that Wilson detected emails? -No-jury can figure it out on their own -No-email is too complicated for lay witness -No this is testimonial -Yes

Yes The court here said yes. Maybe jury could figure reach the same conclusion from the pattern of email in the different folders. But some people may be unfamiliar with email. On the other hand, email is not terribly complicated; it may not require expert testimony. This may be a good example for a subject that currently lies on the line between lay and expert testimony—enough jurors are unfamiliar with email that they will benefit from a witness's conclusion, but it's not such a specialized area that the government needs to call a witness.

Brooks charged with selling cocaine. Police Officer Christie Hoyle testified she bought cocaine from Brooks. Hung jury. Hoyle is later killed by boyfriend in an unrelated incident and Brooks then has a new trial. Can we admit Hoyle's testimony from first trial under 804(b)(1)? -Yes -Yes, only if Brooks actually cross-examined her. -Yes. Only if probative value outweighs prejudice. -No

Yes Yes. Brooks had opportunity and same motive to cross-examine. Doesn't matter if he didn't actually cross-examine. Rule 403 applies, but that excludes only if unfair prejudice substantially outweighs probative value. Don't have to show that probative value is higher. This is an example of the limited circumstances under which 804(b)(1) will admit former testimony.

You are given the the Last Will and Testament of Bubba Fried. It states: "I have no children, and I dislike all of my nieces and nephews. I leave all my worldly possessions to the Virtual Gnome Museum." There's a probate dispute. Is the will subject to the best evidence rule? -yes -only if it's less than 20 years old -no

Yes This is a writing, so the party offering it has to comply with the rules governing a writing. Here I'm offering a writing, so I have to comply with rules that govern writing. Side note: The 20 years refers to the ancient document exception to the rule against hearsay. But fitting within that exception doesn't satisfy the separate best evidence rule. And the executor can't escape from the best evidence rule, as the party in the previous case could by offering testimony about a telephone call. The law requires written wills, so there's no way around the best evidence rule.

A homeowner called 911 and reported that a burglar stole 150 pounds of marijuana from his home, stating: "he stole my weed!!" Police arrived and found 15 pounds of marijuana still lying on the floor. So they arrested the caller for drug possession. Can the prosecution admit the 911 call? -Yes-but only if he was in an excited state. -Yes but only if D spoke while the theft occurred. -Yes but only if D refuses to testify. -Yes subject to Rule 403.

Yes subject to Rule 403. Answer: Yes, statement of opposing party. Admissible without satisfying any of these other requirements. Excitement might allow admission as excited utterance; contemporaneousness might allow admission as present sense impression; and refusal to testify might allow admission as statement against interest. But none of that matters: The D made this statement, so the prosecutor can admit it against him, but is always subject to rule 403. It would be nearly impossible to keep this out under 403, however.

Defendant, Sweeney Todd, is charged with murder and chopping up his victims to put in meat pies. Police discover a body outside his barber shop and arrest Todd. He allegedly slit the victim's throat and the pathologist has testified that in her expert opinion, based on the nature of the wound and other factors, the perpetrator was probably right-handed. The prosecutor offers to call a witness who knows Sweeney Todd is right-handed. Is the evidence relevant? -No, because the majority of people are right-handed and thus the evidence cannot prove that the defendant was the killer. -No, because the killer might have wielded the knife with his right hand, even if he was left-handed. -Yes, because the testimony shows that the killer had at least one hand. -Yes, because testimony that the defendant is right-handed has a tendency to make it more likely, however slightly, that he is the killer.

Yes, because testimony that the defendant is right-handed has a tendency to make it more likely, however slightly, that he is the killer. It is true, as answer A suggests, that millions of people are right-handed. And it is also true, as B indicates, that the killer may not have used his master hand to attack the victim. But those arguments demonstrate that this evidence alone will not be enough to justify a conviction. Of course the fact that the defendant is right-handed alone does not prove his guilt beyond a reasonable doubt. It does not have to, however, in order to be relevant. Answer C suggests that we can somehow leap to the final question of guilt or innocence without establishing facts that add up to our conclusion. That is not how cases are built. The correct answer is D because knowing whether the defendant is right-handed makes it more likely that he is the killer than if we didn't know that, and if there is enough other evidence of guilt, it may help build a successful case against him. (FRE 401)

In U.S. v. Pinocchio, Pinocchio has been charged with assault with a deadly weapon (he broke his nose off and used it as a shank). At trial, Pinocchio's attorney calls Jiminy Cricket to the stand. Pinocchio's attorney asks Jiminy Cricket: "What is the reputation for peacefulness that Pinocchio has in your community?" But the Government objects before Jiminy Cricket has a chance to answer. Should the trial judge allow Jiminy Cricket to give this testimony? -Yes, because the testimony of reputation evidence is admissible under these circumstances. -Yes, because Pinocchio's character traits are elements of the crime. -No, because Jiminy Cricket is a lay witness, and not qualified to testify on such matters as expert character evidence. -No, because the evidence being offered through Jiminy Cricket's testimony is not relevant to any material issue in the case brought against him.

Yes, because the testimony of reputation evidence is admissible under these circumstances.

#2 (An employee arrived at a Seattle department store and discovered that the store had been robbed. She called the police, who arrived promptly. The police noted that the back door of the store was open and that a trail of cardboard boxes, pillows, and other items led away from the store. They followed the trail and discovered two men, fast asleep and surrounded by stolen goods. The police arrested the men and they stood trial for burglary. The prosecutor discovers the following convictions on the records of the two men. ) Same facts, but variation on suspect B's record: •Adult conviction for embezzlement •Convicted 15 years ago •Sentenced to 7 years; never paroled •Released on parole 11 years ago •Remained free, but no pardon Can we admit this conviction? -Yes -Yes, but only if probative value substantially outweighs the prejudicial effect -Yes, if Rule 403 is satisfied -No

Yes, but only if probative value substantially outweighs the prejudicial effect Under these circumstances, the judge will admit the conviction only if its probative value substantially outweighs its prejudicial effect. The defendant was released from confinement 11 years ago so, even though this was a crime of dishonesty, it falls under Rule 609(b)'s stringent standard.

Denaturalization case involving man who came to the U.S. from Europe in 1950 and gained U.S. citizenship. Authorities believe that he had been a member of the Waffen-SS, working as a guard at a concentration camp. Didn't disclose this information in application to enter U.S. Under law, government may revoke citizenship if applicant concealed association with movement hostile to the U.S. Key question was: Was the Waffen SS a movement hostile to the U.S.? To answer that question, the U.S. introduced expert testimony of respected historian of Nazi Germany. He provided information about the role of the Waffen-SS and the concentration camp where this individual worked, concluding that the Waffen SS was hostile to the U.S. He relied upon: Records of German authorities Interviews with witnesses Works of other scholars NOTE THAT THESE SOURCES ARE ALL HEARSAY SO THEY ARE NOT INDEPENDENTLY ADMISSIBLE. Can the historian offer an opinion based on these sources? -No. Hearsay rule bars them so they cannot be considered. -Yes, if experts in the field reasonably rely on them -Yes, if experts in the field sign affidavits explaining the significance. -No, under Rule 403 these are more likely to confuse or mislead the jury.

Yes, if experts in the field reasonably rely on them Yes, if other experts in field reasonably do. Like the Daubert standard, this one doesn't rely exclusively on what experts do. It's a question of what other experts in the field reasonably do.

#1 (We're prosecuting Jose Rodriguez for conspiracy with intent to distribute cocaine. We believe Rodriguez was part of a drug ring headed by Alex Luna, operating in Danbury Connecticut. Our case-in-chief established that Rodriguez frequently drove John Adams from NY to Connecticut to meet with Luna. They transported cocaine during those trips. During our investigation, we discovered that Rodriguez knowingly wrote bad checks for local Target store. He reimbursed the store, and was never charged. On cross of Rodriguez, can we ask: "You knowingly wrote a bad check at your local Target store, didn't you?") Still same facts. Linda told you that she and Rodriguez regularly used cocaine together. Can we ask Rodriguez about this on cross-exam? Yes, under Rule 608(b) No, it violates Rule 608(b) Yes, if we follow Rule 613 process Yes, if judge does not exclude under Rule 403

Yes, if judge does not exclude under Rule 403 Again, 608(b) doesn't apply. Drug use usually isn't relevant to character for truthfulness. Nor is this an inconsistent statement. It's an action that contradicts what Rodriguez said on the stand. But that is also relevant. Just as we can show that a witness has said different things at different times, we can ask a witness about prior actions that contradict what they say on the stand. So we can ask as long as judge feels that this falls within 403.

#1 (We're prosecuting Jose Rodriguez for conspiracy with intent to distribute cocaine. We believe Rodriguez was part of a drug ring headed by Alex Luna, operating in Danbury Connecticut. Our case-in-chief established that Rodriguez frequently drove John Adams from NY to Connecticut to meet with Luna. They transported cocaine during those trips. During our investigation, we discovered that Rodriguez knowingly wrote bad checks for local Target store. He reimbursed the store, and was never charged. On cross of Rodriguez, can we ask: "You knowingly wrote a bad check at your local Target store, didn't you?") Same facts. Linda also told us that Rodriguez once told her: "I saw Adams give Luna enough snow to bury Danbury." This is different from his trial testimony, which is that he never saw cocaine on these trips. Can we admit this statement? Yes, under Rule 608(b) No, it violates Rule 608(b) Yes, if we follow Rule 613 No, it's irrelevant

Yes, if we follow Rule 613 This isn't a question designed to show untruthful character. So 608(b) doesn't help. On the other hand, 608(b) doesn't hurt in any way. This is a prior inconsistent statement. On the stand, Rodriguez said that he had never seen Adams and Luna with cocaine. In this statement he said he saw one give "snow" to the other. So we can admit this as long as we comply with 613 procedures for prior statement (show to opposing counsel). It's relevant simply because it shows inconsistency. Although this statement also may relate to facts of case. Although not an answer choice, it's also an an opposing party statement and can come in for truth of the matter asserted.

Here are some examples for you to rule on. This is an area in which lines sometimes are fuzzy, subject to advocacy. But I'll let you rule on each of these, then show you what courts decided. Maxine Mehus was head volleyball coach at Emporia State University. (See the Teacher's Manual for more information about this case.) She sued for pay discrimination: paid less than male coaches with similar duties. University defended on ground that Maxine wasn't a very good coach To try to prove this defense, the university some of Mehus's student players to give opinion on her volleyball expertise and coaching skill. Can the players criticize the coach? -Yes, it's a lay opinion -No. it's not helpful -no, it's too technical for student athletes.

Yes, it's a lay opinion Court allowed testimony, although other judges might disagree. Plaintiff could argue: What is the students' basis of knowledge? What experience do they have with other coaches? We allow lay people to identify drunks, but that's because they've seen drunks before. How many coaches have these students seen? Defendant could respond: They students probably had coaches in high school; may have coaches in other college sports. They could also see coaches from other schools at matches and compare notes with players from other schools.

We're prosecuting Jose Rodriguez for conspiracy with intent to distribute cocaine. We believe Rodriguez was part of a drug ring headed by Alex Luna, operating in Danbury Connecticut. Our case-in-chief established that Rodriguez frequently drove John Adams from NY to Connecticut to meet with Luna. They transported cocaine during those trips. During our investigation, we discovered that Rodriguez knowingly wrote bad checks for local Target store. He reimbursed the store, and was never charged. On cross of Rodriguez, can we ask: "You knowingly wrote a bad check at your local Target store, didn't you?" Yes, within the judge's discretion No, it violates Rule 608(b) No, it's leading No, it's collateral

Yes, within the judge's discretion Yes, within judge's discretion. Shows character for untruthfulness, so allowed within 608(b). Judge has discretion, but probably would allow. We have good faith belief. Leading questions are allowed on cross. Even if collateral—i.e., not related to drug conspiracy, 608(b) allows question as related to truthfulness.

Government's witness wants to testify as follows:"On September 25, I received a call from someone I had never met before. He said, 'Hi, this is Jimbo Smith. I want to talk to you about some great cocaine I have for sale.'" Witness turned Jimbo into the police and he's on trial for cocaine distribution. The government has a recording of the call. Can witness authenticate this call if he's never met Jimbo? Yes No

Yes-he can authenticate the call because he was on the other end of the phone and has knowledge of it.

Sam crashed his car into Quincy's antique shop on the way home from a bar. Quincy smelled beer on Sam's breath and sued him for negligence, claiming he was driving drunk. Sam denied any intoxication. While the lawsuit was pending, Sam's attorney met with Quincy's attorney and said:"Listen, I talked to the bartender who was on duty that night and it turns out my client did order quite a few beers before the accident occurred. I concede he might have been a little intoxicated. Given that, I'll offer you $500,000 - I don't think a jury will give you more than that." Quincy rejected the offer and tracked down the bartender. At trial, Quincy calls the bartender to testify about the beers that Sam consumed. Is the testimony admissible? -Yes-this is admissible as impeachment evidence under Rule 407 -Yes-this is admissible because Rule 408 does not bar its introduction -No-this is inadmissible under Rule 403 -No-this is inadmissible under Rule 402

Yes-this is admissible because Rule 408 does not bar its introduction Rule 408 bars Quincy from admitting the statement that Sam's lawyer made, but it does not prevent parties from following up on evidence mentioned during settlement talks. The bartender's testimony is pre-existing evidence and parties may introduce that type of evidence at trial, even if they first learn of it during compromise negotiations.

McCall sold cocaine from his house. Caught by undercover agent. Government claimed his house was within 1000 feet of school, which allowed higher penalty. But to obtain that penalty, the government had to prove the distance from the school. That prosecutor had obtained an aerial photo, but wasn't able to rely upon that at trial: He didn't have the proper authentication for the photo, so the judge excluded it. The prosecutor had to come up with a "plan B," so he asked detective Nayola (one of his witnesses) to give his opinion about the distance. Nayola first testified that he was familiar with the neighborhood, had driven the streets "over 100 times." He then offered his opinion that the house was within 1000 feet of the school. The house here was not adjacent to the school, so this wasn't a fact that would have been readily apparent to any observer. In fact, when the distance was measured later, the house was close to the 1000 foot perimeter. Is the lay opinion admissible? -No-it's unhelpful -No-Distances are too technical -No--insufficient foundation -Yes-this meets the threshold for lay testimony

Yes-this meets the threshold for lay testimony The opinion probably is admissible, although you could challenge on any of these grounds. The court ruled that, in any event, this type of unsupported lay opinion wasn't enough to prove distance beyond a reasonable doubt. Evidence may be admissible, but not sufficient to support jury verdict.

Suppose a man wearing a black bandana robs two banks. Evidence points to Joe Rogers, and the police arrest him. At the time of Rogers' arrest, police find two bandanas stuffed in his pockets. One is the same color as the bandana described by eyewitnesses to the robberies. The other is different. Should the court admit evidence of the two bandanas found in Rogers' pockets? Are they relevant? -No. Do not admit evidence-it's irrelevant. -No. Do not admit the evidence. It's relevant but prejudicial. -Yes. Admit the evidence. It's relevant. -No. Do not admit the evidence. It will confuse the jury.

Yes. Admit the evidence. It's relevant. The evidence is relatively weak, but it's relevant. It has some tendency to make Rogers' participation in the robberies somewhat more probable. [This is a good example to review the precise wording of 401.] What if the eyewitnesses couldn't remember the color or any other details about the robber's bandana? If the witnesses simply remember a bandana, and Rogers had two bandanas in his pocket, are the bandanas relevant? The connection here is even weaker than in the clicker question, but the bandanas probably are still relevant.

Roger is on trial for destruction of property. Defense witness [after proper foundation]: "In my opinion, Roger is a law abiding citizen." Is this permissible? -Yes. This is permissible under Rule 404(a) -No. Prosecution has to go first and question his character. -No. This is impermissible propensity evidence. -Yes. The mercy rule allows this.

Yes. This is permissible under Rule 404(a) YES - Remember Rogers is the defendant in criminal vandalism trial - defendant can introduce own trait for being law abiding, but he opens the door to rebuttal.

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