MBE Evidence

The plaintiff offers evidence that the declarant said, "I intend to go to Hawaii next week," to prove that the declarant went to Hawaii the following week. This falls under which exception to the hearsay rule? A State of mind B Present sense impression C Excited utterance D Declaration of present bodily condition

"I intend to go to Hawaii next week" falls under the state of mind hearsay exception. Declarations of existing state of mind are admissible (i) when declarant's state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to Hawaii. A statement of present sense impression describes an event or condition happening contemporaneously with or immediately prior to the statement. "I intend to go to Hawaii next week" is not a present sense impression because it concerns the declarant's future act. The excited utterance exception applies to statements made by a declarant during or soon after a startling event and while under the stress of the event. Here, there is no indication that the plaintiff made his statement while under the stress of a startling event. The exception for declarations of present bodily condition applies to statements regarding physical symptoms, e.g., pain. The declarant's statement that he intended to go to Hawaii does not fall under this exception.

At a trial in which a pedestrian is suing a driver, a hospital record was admitted into evidence that included the following statement: "The pedestrian's leg was run over by a car driven by a driver who blew through a red light while the pedestrian was crossing in a cross- walk." The driver's attorney now wishes to admit the other portion of the hospital record, which says, "The pedestrian stepped off the curb without first looking both ways for traffic." How should the court rule? (A) Admit the statement on fairness grounds because the plaintiff has the other portion of the record. (B) Admit the statement as a past recollection recorded. (C) Exclude it because it is hearsay not within any exception. (D) Exclude it because it is self-serving.

(A) The court should admit the statement. Federal Rule 106 provides that, when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time. (B) is incorrect because the statement in the hospital record bears none of the required indicia for a past recollection recorded. There is no indication that the pedestrian's memory has failed or that the report was made under his direction to accurately reflect his memory of the incident. Moreover, the statement is admis- sible under Federal Rule 106 because it ought, in fairness, be considered to counterbalance the evidence already improperly admitted, even if it is hearsay. (C) is incorrect because Federal Rule 106 applies even if both statements are inadmissible hearsay. (D) is incorrect. The fact that evidence is self-serving is often just another way of saying that it is hearsay. However, the rule stated in Rule 106 applies even when the remaining part of the document contains inadmissible hearsay.

A plaintiff is suing members of the police department in federal court after receiving a near-fatal beating in jail, alleging a violation of his federal civil rights. Which of the following items of evidence will the court be likely to admit despite timely objec- tions by the opposing attorney? (A) Testimony by a witness for the plaintiff, who was locked up in an adjoining cell, that the plaintiff was in fact beaten by the defendant police officers, objected to on grounds that calling this witness constitutes an unfair surprise. (B) Testimony by an expert witness who will affirm the testimony of a previous expert that the injuries suffered by the plaintiff were inconsistent with injuries likely from the alleged police beating, objected to on grounds that it will unnecessarily present cumulative evidence. (C) Introduction of the bloodstained shirt that the plaintiff wore on the night of the beating, objected to on grounds that it will create a danger of unfair prejudice. (D) Testimony by a police officer that, because the plaintiff was arrested in a bar frequented by gay people, the officers feared that he might have AIDS, and conse- quently would not have beaten him for fear of being infected, objected to on grounds that it may confuse the issues or mislead the jury.

(A) The court will most likely admit the testimony by the witness from the adjoining cell. Under Federal Rule of Evidence 403, a trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, by considerations of undue delay, waste of time, or needless presen- tation of cumulative evidence. Although some states list unfair surprise as an additional basis for exclusion, the Federal Rules do not, reasoning that surprise can be prevented by discovery and pretrial conference, or mitigated by granting a continuance. From the foregoing principles, if the witness in (A) is in fact a surprise witness, this will not suffice as a basis to exclude this otherwise relevant evidence under the Federal Rules, which govern this action. At most, the court should grant a continuance. In all of the other situations, while the evidence is arguably admissible, the circumstances present the judge with a basis under the Federal Rules for exclusion. The testimony in (B) may be excluded because the testimony of the second expert will not add anything to the testimony already given by the first expert. Thus, allowing this testimony will simply waste time and repeat evidence already presented. Pursuant to Rule 403, this constitutes a permissible ground of exclusion. Regarding (C), the bloodstained shirt might be deemed to be inflammatory and capable of producing an unfairly prejudicial effect on the jury. As such, it is within the realm of the judge's discretionary power of exclusion. Regarding (D), the testimony of the police officer is relevant because it tends to render more probably untrue the allegation of a police beating than it would have been without this testimony. However, the plaintiff's sexual orientation and whether he has AIDS are not issues in the case, and the statement referring to them might well cause confusion of the issues or tend to mislead the jury. Thus, the testimony of the police officer is subject to exclusion under the Federal Rules.

A camper sued the manufacturer of thermal underwear, alleging that while he was attempting to stomp out a fire, the camper's underwear caught fire and burned in a melting fashion up to his waist because it was defective, and that, a half hour later, he suffered a heart attack as a result of the burns he suffered. A physician hearing the camper testify to the events that occurred is called by the camper and asked whether the camper's heart attack could have resulted from the burns. Is his opinion admissible? (A) Yes, as a response to a hypothetical ques- tion. (B) Yes, because the physician's expertise enables him to judge the credibility of the camper's testimony. (C) No, because a hypothetical question may not be based on prior testimony. (D) No, because an expert's opinion may not be based solely on information provided by lay persons.

(A) The expert's opinion is admissible. An expert need not have personal knowledge of the facts on which the expert bases an opinion. Under Federal Rule 703, the expert may base an opinion upon facts or data perceived by or made known to the expert at or before the hearing. Federal Rule 705 permits the expert to give the opinion without prior disclosure of the underlying facts or data, although the opposing attorney can inquire into the basis of the opinion on cross-exami- nation. Here, the witness is volunteering the facts on which the opinion is based by answering a hypothetical question. The expert may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence. Since the underlying facts have been introduced in evidence, this opinion is admis- sible. (B) is incorrect because the expert's function is not to judge the credibility of the witness, but rather to assume those facts and use his or her expertise to make a judgment based on those facts. (C) is incorrect because Federal Rule 703 permits an expert to testify concerning facts made known at the hearing. By listening to the plaintiff's testimony, this expert obtained sufficient knowledge of the facts on which to base an opinion. (D) is incorrect because there is no require- ment that the information on which an expert opinion is based be anything other than information supplied by lay persons, as long as the expert can then apply to those facts the expert's expertise in the field to give an opinion on relevant evidence.

An airline passenger nearly killed in a crash is suing the airline for personal injuries. To prove the extent of his injuries, the passenger offers a videotape taken by a local news station immediately after the crash that shows serious burns covering much of the passenger's face. The airline moves to exclude the videotape on grounds that its probative value is substantially outweighed by the danger of unfair prejudice. In making his ruling, which of the following is NOT appropriate for the judge to consider? (A) The videotape will make it more likely that the passenger will win the suit. (B) There are other methods of proving the passenger's damages. (C) The videotape can be restricted to its proper purpose by instructing the jury to disregard any possible emotional appeal. (D) The videotape will encourage the jury to decide the suit on an emotional basis.

(A) The judge may not consider whether the videotape will make it more likely that the passenger will win. This question involves the use of the probative value/prejudicial impact balancing test contained in Federal Rule of Evidence 403. Under this test, relevant evidence is admissible unless its prejudicial impact substantially outweighs its probative value. Since the question asks which argument is least appropriate for the trial judge to consider, turn the question around and ask which of the choices are appropriate to consider when balancing the probative value and preju- dicial impact of an item of evidence. The key to answering this question is to recognize that the only kind of prejudice that can properly be balanced under this test is unfair prejudice. The fact that evidence, if admitted, will help one party and hurt another party could be considered preju- dicial in the most general sense, but it does not make the evidence unfairly prejudicial within the meaning of the balancing test. Thus, (A) is the correct answer. In determining whether the videotape, which shows serious burns over the passenger's face, should be excluded, it would be inappropriate for the trial judge to consider the argument that the videotape will make it more likely that the passenger will win the suit. That would not render the evidence unfairly prejudi- cial. Unlike (A), all the other choices contain arguments that would be appropriate to consider when applying the probative value/prejudicial impact balancing test. It is appropriate to consider whether the videotape would cause jurors to decide the suit on an emotional basis; that is the essence of unfair prejudice. Thus, (D) is incorrect. (C) is incorrect because it is likewise appro- priate to consider whether an instruction to the jury to disregard any possible emotional appeal would be effective. (B) is incorrect because it is also appropriate to consider whether there are other means available to the passenger to prove damages that would bear on how necessary (i.e., how probative) the videotape would be to prove damages. If other evidence is available to prove damages, especially evidence less emotionally charged than the videotape, a judge should consider that fact in determining whether the prejudicial impact of the videotape substantially outweighs its probative value.

A pedestrian is suing a driver after being run over by the driver. At trial, a copy of a hospital record is offered into evidence. The record indicates that hospital personnel took the pedes- trian's statement 30 minutes after the accident, and includes the following statement: "The pedestrian's leg was run over by a car." The driver's counsel objects to the admission of the pedestrian's statement in the hospital record. Should the court admit the pedestrian's state- ment in the record? (A) Yes, even though hearsay within hearsay, because there is an applicable exception to each level of hearsay. (B) Yes, as an admission by a party. (C) No, as hearsay not within any exception. (D) No, because of the physician-patient privi- lege.

(A) The statement in the record is admissible. Hearsay within hearsay is admissible if each level of the hearsay—here (i) the pedestrian's statement to the admitting officer, and (ii) the admitting officer's statement in the record—comes within a hearsay exception. The business records exception to the hearsay rule, under Federal Rule 803(6), admits into evidence those records kept in the course of the regular conduct of any business, organization, occupation, or calling. Therefore, the statement about the pedestrian's medical condition would be admissible. The record itself (level (ii)) is kept in the ordinary course of the hospital's business of treating patients, and the pedestrian's statement about his medical condition (level (i)), while not made by someone with a duty to keep a record, is admissible both as a statement of present physical condition under Federal Rule 803(3), and as a statement made for purposes of medical treatment under Federal Rule 803(4). Thus, (C) is incor- rect. (B) is incorrect because a party cannot introduce his own statement as an admission; it only qualifies as an admission when it is offered by an opposing party. (D) is incorrect because the physician-patient privilege is waived by the patient when he introduces his medical record at trial.

A passenger injured in a car accident is suing the owner of a bar for allegedly allowing the driver to become intoxicated. The passenger wants to show that, after the accident, the bar owner visited him in the hospital and offered to pay all of the passenger's medical expenses, stating, "That's the least I can do after letting your driver leave the bar so drunk last night." Is the statement that the driver was drunk when he left the bar on the night of the accident admissible? (A) Yes, as an admission by the bar owner that the driver was drunk when he left the bar. (B) Yes, as a factual admission made in connec- tion with an offer of compromise. (C) No, as hearsay not within any exception. (D) No, as a statement made in connection with an offer to pay medical expenses.

(A) The statement is admissible as an admission (i.e., a statement by a party-opponent). This question involves an offer to pay medical expenses [Federal Rule 409], not an offer to settle a dispute [Federal Rule 408]. Although the line between these two types of offers is sometimes fuzzy, the facts in this case clearly indicate that no settlement offer was made. The defendant/ bar owner offered to pay all of the passenger's medical expenses, but there is no indication of an offer to settle the entire claim that the passenger ultimately brought against him. The timing of the offer (the day after the accident, before any demand has been communicated to the defen- dant) and its informality (being made orally by a nonattorney to a hospitalized victim) bolster the conclusion that this case involves an offer to pay medical expenses, not an offer to settle the case. Thus, (B), which states that an offer of compromise has been made, is wrong. Moreover, even if this case were misinterpreted as involving a settlement offer, (B) would still be wrong because statements made in connection with settlement offers are inadmissible for reasons of public policy. (D) is wrong because statements made in connection with an offer to pay medical expenses, unlike statements made in connection with a settlement offer, are admissible. An offer to pay medical expenses is essentially a unilateral and unconditional humanitarian gesture. Thus, negotiation and discussion are tangential to the offer itself. Consequently, there is little reason to protect from disclosure such statements as the defendant's careless admission ("letting your driver leave the bar drunk last night") even though it was accompanied by an offer to pay the passenger's medical expenses. (C) is wrong because the defendant's statement is an out-of-court statement by a party being offered against that party (commonly called an admission), and an admission is not a hearsay statement. [Fed. R. Evid. 801(d)(2)] Moreover, even if an admission were incorrectly identified as a hearsay statement, it would nonetheless be treated as an excep- tion to the hearsay rule and would be admissible. Thus, (A) is the correct answer. The defen- dant's statement is an admission. Because it is highly probative and not unfairly prejudicial, it would be admissible.

Which of the following is character evidence, rather than habit evidence? A "Ben is always in a hurry." B "Ben always wears his seatbelt." C "Ben goes to church every Sunday." D "Ben goes to the pub every Friday night at 7 p.m."

"Ben is always in a hurry" is an example of character evidence because it describes a general character trait of Ben, rather than his regular response to a specific set of circumstances. "Ben always wears his seatbelt," "Ben goes to church every Sunday," and "Ben goes to the pub every Friday night at 7 p.m." are all examples of habit evidence. Habit evidence concerns a person's regular response to a specific set of circumstances. Character evidence describes one's disposition with respect to general traits.

Under what circumstances is evidence of a defendant's prior acts of sexual assault or child molestation admissible? A Only in a civil case where the defendant is accused of committing an act of sexual assault or child molestation. B Only in a criminal case where the defendant is accused of sexual assault or child molestation. C In a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation and only if the prior act involved the same victim. D In any civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation.

Evidence of a defendant's prior acts of sexual assault or child molestation is admissible in a civil OR criminal case where the defendant is accused of committing an act of sexual assault or child molestation. The prior act need not have involved the same victim.

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness's prior act of misconduct only where the act: A is probative of truthfulness B affects the witness's character in some way C is corroborated by extrinsic evidence D resulted in a criminal conviction

Federal Rule of Evidence 608 permits inquiry into a witness's act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Extrinsic evidence of "bad acts" is not permitted. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness.

Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness. Which of the following is NOT a requirement of the former testimony exception to the hearsay rule? A The former testimony must have been given under oath or sworn affirmation. B The subject matter in the current case and the prior case are the same. C The parties in the current case must be the same as in the prior case. D Defendant (or her predecessor in interest) must have had the opportunity to question the declarant about this statement in the prior case.

For the former testimony exception to apply there must be a sufficient "identity of parties." The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party's predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the "subject matter" of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case.

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the declarant is unavailable; and (ii) defendant had an opportunity to cross-examine the declarant at the time the statement was made. Which of the following is considered "nontestimonial" evidence for purposes of the Confrontation Clause? A Affidavits that summarize the results of a fingerprint test. B Statements made by a robbery victim to a police officer about the details of the robbery. C Statements made about the identity of the perpetrators during a 911 call in the course of a home invasion. D Statements made by a victim of a theft to a police officer about the physical features of the suspect.

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators in the course of a home invasion). It has been held that affidavits that summarize the findings of forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be admitted into evidence unless the technician is unavailable and the defendant previously had an opportunity to cross-examine him. (Note, however, that such affidavits do not raise a Confrontation Clause issue when they are not offered to prove the truth of the matter asserted.) When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Such statements would include those made to the police by a robbery victim about the details of the robbery, or by a victim of a theft regarding the physical features of the suspect.

In a criminal case, the prosecution can call witnesses to testify about the defendant's character for a particular trait to establish the defendant acted in conformity with that trait: A Whenever the evidence makes it more likely that the defendant committed the crime in question B Only if the defendant has already put that particular character trait in issue C During its rebuttal case, as long as the defendant testified during her case-in-chief D Only if the testimony concerns specific bad acts by the defendant

In a criminal case, if the defendant puts her character in issue by calling a witness to provide reputation or opinion testimony regarding that trait of the defendant, the prosecution can then call witnesses to testify about the defendant's character for that particular trait. This can be in the form of reputation or opinion testimony; testimony concerning the defendant's specific bad acts is not allowed. The prosecution cannot initiate evidence of the bad character of the defendant merely to show that she is more likely to have committed the crime of which she is accused. However, if the accused introduces evidence of her good character to show her innocence of the alleged crime, the prosecution may rebut that evidence. If the defendant puts her character in issue, the prosecution can rebut that evidence regardless of whether the defendant testified.

When determining whether evidence is relevant, __________ concerns whether the disputed fact is at issue in the case, and __________ concerns whether the evidence makes the existence of the fact more or less probable than it would be without the evidence. A Materiality; probativeness B Probativeness; materiality C Probativeness; proximity D Materiality; proximity

Materiality concerns whether the disputed fact is at issue in the case. Probativeness concerns whether the evidence makes the existence of the fact more probable or less probable than it would be without the evidence. Proximity refers to how close in time the evidence is to the events at issue in the case. When testimony or exhibit evidence that relates to a time, event, or person other than the time, event, or person directly involved in the controversy being litigated is offered, courts often consider the evidence's proximity in time to the events in question when determining its relevance.

When a defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with any of the following except: A reputation evidence of the victim's good character for the same trait B opinion evidence of the victim's good character for any trait C opinion evidence of the defendant's bad character for the same trait D reputation evidence of the defendant's bad character for the same trait

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of (i) the victim's good character for any pertinent trait, or (ii) the defendant's bad character for the same trait. It is not permissible for the prosecution to introduce evidence regarding any trait; it must be on a trait that counters the defendant's evidence.

The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner's lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened. Whose testimony is necessary to introduce the photograph into evidence? A The employee's testimony is necessary and the witness's is unnecessary. B The witness's testimony is necessary and the employee's is unnecessary. C The testimonies of both the employee and the witness are necessary. D The picture is inadmissible.

Only the witness's testimony is necessary to introduce the photograph. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible. (A) incorrectly categorizes the employee's testimony as necessary. Generally, a photographer's testimony is not necessary to authenticate a photo. In this case, it is particularly unhelpful because the employee is not familiar with the scene as it was when the accident occurred. Also, the testimony of the witness is necessary as a verification by one who is familiar with the scene. (C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.

Which of the following is a permissible purpose for introducing evidence of subsequent repair following an injury? A To prove that the party who made the repair was negligent. B To prove a defect in a product or its design. C To rebut a claim that the repair was not feasible. D To rebut a claim that no warning or instruction was needed.

Subsequent remedial measures are admissible for certain purposes, such as to rebut a claim that the repair or precautionary measure was not feasible . Because the public policy behind the federal rule is to encourage people to make repairs, subsequent remedial measures are inadmissible to prove: (i) negligence or other culpable conduct, (ii) a defect in a product or its design, or (iii) the need for a warning or instruction.

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim's car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, "I don't think I'm going to make it. I tried to slow down, but my brakes didn't work. My former partner must have tampered with them to get back at me." With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant. At trial, can the motorist testify as to the statement made by the victim? A No, because the victim did not know that the defendant tampered with the brakes. B No, because the victim is still alive. C Yes, because the victim thought he was about to die. D Yes, because this is a civil case.

Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be "unavailable" when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court's subpoena and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim's statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception. Thus, (A) is the correct answer and (C) is incorrect. (B) is incorrect because the declarant's death is no longer required; unavailability is sufficient. Thus, if the victim's statement otherwise qualified under the dying declarations exception, the fact that he is not dead would not render the motorist's testimony inadmissible. (D) is incorrect for the reasons stated above and also because it incorrectly implies that the dying declarations hearsay exception applies only in civil cases. As noted above, the exception also applies to homicide cases. (Note that the traditional view, still followed by some states, would only allow the declaration in a homicide prosecution.)

A general statement of the hearsay rule under the Federal Rules of Evidence is: A an out-of-court statement offered in evidence to prove the truth of the matter asserted B an out-of-court statement by someone other than the declarant to prove the truth of the matter asserted C an out-of-court statement by a party-opponent offered in evidence to prove the truth of the matter asserted D a statement offered in evidence to prove the truth of the matter asserted

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to provide the truth of the matter asserted. However, most people remember the rule more succinctly as an out-of-court statement offered in evidence to prove the truth of the matter asserted. The key elements are: (i) A statement (ii) Made not while testifying at the trial (out-of-court) (iii) To prove the truth of the matter and not some other purpose. An out-of-court statement by someone other than the declarant is incorrect because the declarant can also be the testifying witness, in which case his out-of-court statement can be hearsay. An statement by an opposing party (also called an "admission by a party-opponent) is not considered to be hearsay under the Federal Rules. A statement offered to prove the truth of the matter asserted does not include the fact that the statement was not made while testifying at the trial. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant. If the statement was made while testifying at the trial, then there was an opportunity to cross-examine the declarant.

A defendant is on trial for the murder of the victim, who was found beaten to death in his home. Evidence already presented has shown that the victim was killed when no one was at home except for the victim and his dog. The prosecution wishes to call a neighbor to the stand who is prepared to testify that she went to the victim's home the day after his murder and that when the defendant came by, the dog ran to a corner, where he cringed and whimpered. The neighbor is also prepared to testify that the dog is normally a very friendly dog, usually greeting visitors to the house, including the defendant, by approaching them with his tail wagging. The defense objects to the neighbor's proposed testimony. How should the court rule on the neighbor's testimony regarding the dog's behavior? A Admissible, because the dog could be brought into court for a demonstration of his reaction to the defendant. B Admissible, as circumstantial evidence against the defendant. C Inadmissible, because the dog may have been reacting as he did for reasons other than those implied by the neighbor's testimony. D Inadmissible, because even though the testimony has probative value, such value is outweighed by its prejudicial nature.

The court should admit the neighbor's testimony because it is relevant circumstantial evidence. The Federal Rules of Evidence define relevant evidence as evidence having any tendency to prove or disprove a fact that is of consequence to the action. [Fed. R. Evid. 401] Generally, all relevant evidence is admissible unless it is barred by a specific exclusionary rule or by the general balancing test of Rule 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc. The neighbor's testimony is relevant because the dog's behavior when the defendant came by tends to prove circumstantially (i.e., indirectly) the prosecution's contention that the defendant beat the victim to death (in the dog's presence). The neighbor is competent to testify as to the dog's behavior toward the defendant both before and after the murder, and no other competency rule warrants excluding the testimony; hence, it should be admitted. (A) is incorrect because the availability of other evidence that might demonstrate the dog's reaction more clearly does not preclude the neighbor's testimony on that issue. As long as she is competent to testify regarding the dog's behavior, the dog's availability is irrelevant. (C) is incorrect because it is up to the trier of fact to evaluate the inference for which the circumstantial evidence is being offered. The defense may attack the neighbor's testimony on cross-examination by suggesting other reasons for the dog's reaction, but it cannot exclude the neighbor's testimony on this basis. (D) is incorrect because the balancing test of Rule 403 provides only that a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. While all evidence is prejudicial to the opposing party, "unfair" prejudice refers to suggesting a decision on an emotional or otherwise improper basis. There is nothing in the neighbor's testimony to justify excluding it on unfair prejudice grounds.

In an accountant's trial for filing fraudulent tax reports, the prosecution calls a former colleague of the accountant, who testifies that the accountant's reputation in the community is for frequently participating in very questionable reporting, often resulting in unnecessary risk for his clients. She testifies further that she thinks the accountant is dishonest. Should the trial court admit this evidence over the accountant's objection? A No, because the prosecution cannot initiate evidence of the defendant's character. B No, because use of the colleague's opinion is improper. C Yes, because it is evidence of the defendant's character for dishonesty. D Yes, because it is evidence of habit.

The court should not admit this evidence because the prosecution cannot initiate evidence of the defendant's bad character. The prosecution may offer such evidence only after the accused has put his character in issue by either taking the stand (thus placing his credibility in issue) or offering evidence of his good character. Thus, (C) is incorrect. (B) is incorrect because, under the Federal Rules, character may be proven by opinion evidence. (D) is incorrect because this does not constitute a regular response to a specific set of circumstances; it is merely reputation and opinion evidence.

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant's fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence. How should the court rule? A Admissible, because the affidavit satisfies the best evidence rule. B Admissible, because the affidavit is a business record. C Admissible, because the affidavit was prepared pursuant to statute. D Inadmissible, because the defendant's rights under the Confrontation Clause are violated.

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible—the lab technician must be brought in to testify as to the findings of the fingerprint test. (A) is incorrect because the fact that the affidavit is an original does not, by itself, make it admissible. Admissibility still violates the defendant's rights under the Confrontation Clause. (B) is incorrect because, even if the affidavit qualifies as a business record, it is inadmissible in this case under the Confrontation Clause. (C) is incorrect because the report, even if prepared pursuant to statute, is still inadmissible because it violates the Confrontation Clause.

A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion threatening to "end it all." The judge should rule the testimony: A Admissible, because the statement was made in "contemplation" of death. B Admissible, because it tends to show that the husband intended to commit suicide. C Inadmissible, because it violates the psychiatrist-patient privilege. D Inadmissible, because no phone calls were made to the clinic by the husband on the day he died.

The court should rule that the testimony is admissible, because it tends to show that the husband intended to commit suicide. Under the Federal Rules of Evidence, the testimony is admissible under the state of mind hearsay exception, as circumstantial evidence that the declarant acted in accordance with his intention. (A) is incorrect because a "dying declaration" must be made while in fear of "impending" death, which is not supported by the facts here. (C) is incorrect because the operator is not a psychiatrist, and there is no evidence that the husband assumed her to be one. (D) is wrong because the state of mind need not be as of the time of the incident to be relevant.

During the trial of her personal injury action against a chemical company, the plaintiff testifies in response to a question by her own counsel that, shortly after she and her family were forced to leave their home because of fumes from its plant, the president of the chemical company telephoned her motel room and said, "If you or any member of your family requires medical treatment, our company will pay all medical expenses in full. We will not have it said that our company's negligence resulted in the illness of a local family." The company's counsel makes a motion to strike all of the plaintiff's testimony, and the court does so. Was the court's action correct? A Yes, because the testimony relates to inadmissible hearsay. B Yes, because the statement was made in connection with an offer to pay medical expenses. C No, because the statement includes an admission by a party-opponent that it was negligent. D No, because the statement is a factual admission made in connection with an offer to compromise.

The court's action was not correct. Federal Rule 409 excludes offers to pay medical expenses, but not statements made in connection with such offers. The president of the company, obviously authorized to speak for that entity, has made an admission of negligence, and that admission is admissible against the company as a vicarious admission. Thus, (B) is wrong. (A) is wrong because the statement is an admission, which is nonhearsay under the Federal Rules. (D) is wrong because there was no offer to compromise--the company merely said that it would pay medical expenses, without bargaining for anything in return. In addition, if it were an offer to compromise, a statement made in connection with the offer would not be admissible.

A defendant is charged with trafficking in firearms, in violation of federal firearms control laws, as well as receiving stolen property. The charges arise from the defendant's having attempted to sell a semi-automatic weapon identified as one of dozens that were stolen from a warehouse a year ago. The defendant denies intending to sell the gun or knowing that it had been stolen. At trial, which of the following would the court be LEAST likely to allow the prosecution to introduce as evidence against the defendant? A Evidence that the defendant was once convicted of armed robbery with a semi-automatic weapon. B The testimony of a witness that, the day before the defendant's arrest, he asked the witness how much she would be willing to pay for a semi-automatic weapon. C The testimony of a member of a secret paramilitary group that the defendant had been supplying the group with weapons for several months. D Evidence that the defendant had been previously convicted of receipt of stolen weapons.

The defendant's armed robbery conviction is least likely to be admitted. In a criminal case, evidence of the defendant's other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged. Such evidence may be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Here, (A) is least likely to be admitted because evidence of the defendant's previous conviction for armed robbery does not come within any permissible use of evidence of other crimes or bad acts. Because the defendant apparently is not contesting the issue of whether he possessed the semi-automatic weapon, it is irrelevant that the robbery conviction shows possession of such a weapon at some earlier time. The only use to which evidence of this conviction can be put is to show the defendant's bad character and disposition to commit the crimes with which he is presently charged. (B) is likely to be admitted because testimony that the defendant apparently tried to interest the witness in buying a semi-automatic weapon tends to show that the defendant had the intent to engage in selling the weapon. For the same reason, (C) is also likely to be admitted. Supplying guns to a paramilitary group is certainly evidence of involvement in a plan of firearms trafficking. (D) is likely to be admitted as evidence of intent or knowledge. Because the defendant has denied knowing that the weapon was stolen, evidence of his prior convictions for receipt of stolen weapons can be introduced to show the likelihood that he knew the weapon was stolen in the present case, negating his claim of good faith.

A well-known actor sued a resort hotel for damages to his new limited edition sports car caused by the hotel's parking valet while the actor was a guest at the hotel. His lawsuit, based on theories of respondeat superior and negligent hiring, alleged that after he gave the valet the keys, the valet, who had been working for the hotel for nine months, took the car for a drive without permission and negligently drove it into a tree, causing extensive damage to the car. At trial, the actor's counsel offers evidence that six months before the accident, but three months after the valet was hired, the hotel instituted new hiring procedures for all potential employees, including parking valets. Included in the new rules was a requirement that all persons must pass a thorough background check before being hired. The valet had been required only to have a valid driver's license when he was hired. In fact, he had an extensive record of traffic offenses at the time he was hired. Is the evidence regarding the new employment requirements admissible? A No, because it is irrelevant. B No, because it is evidence of remedial measures. C Yes, because it is evidence of the hotel's negligence. D Yes, because it is evidence that the valet was incompetent.

The evidence is admissible because it tends to show that the hotel was not acting prudently when it hired the valet, an employee who damaged a guest's car; thus (C) is correct and (A) is incorrect. (B) is not a good answer because only subsequent remedial measures (i.e., those taken after the injury to the plaintiff occurred) may not be proven as evidence of negligence; here the change in hiring procedures took place before the car was damaged, and so would be allowed. (D) is not accurate—the evidence does not show that the valet was incompetent, but rather that the hotel did not investigate his competence when he was hired, an issue related to the actor's negligent hiring claim.

A resident being interviewed live by a television reporter stated that, "The biggest problem in this city is corruption in city government, particularly the mayor." The mayor has now brought an action for defamation against the resident. At trial, the mayor has produced testimony as to his honesty and good character. As part of his defense, the defendant seeks to offer into evidence the fact that the mayor was convicted two years ago of taking a bribe to award a city contract for solid waste disposal. Is the evidence admissible? A No, because character evidence is not admissible in civil cases. B No, because character can be proved only by opinion or reputation testimony. C Yes, because the mayor's character is directly in issue. D Yes, because there was an actual conviction for the crime.

The evidence is admissible because the mayor's character is directly in issue. The general rule is that evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when a person's character itself is one of the issues in the case, character evidence is not only admissible, but in fact is the best method of proving the issue. Where the plaintiff brings a defamation action for injury to reputation and the defendant pleads as an affirmative defense that his statements were true, the plaintiff's character is directly at issue in the case. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue. [Fed. R. Evid. 405(b)] Here, the mayor's character is at issue and the resident is offering character evidence to show that his assertion that the mayor is corrupt is a true statement. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because, as stated above, any of the types of evidence can be used to prove character when it is directly in issue. (D) is incorrect because an actual conviction is required for impeachment purposes, but not for the purpose of establishing character—evidence of an arrest or indictment would have been equally admissible.

A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate. Is the foreman's proposed testimony hearsay? A No, because the declarant is testifying as a witness at the hearing. B No, because the statement is not offered for its truth. C Yes, but it should be admitted under the hearsay exception for present sense impressions. D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement's effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay) regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no opportunity for cross-examination at the time the statement was made. The key in this case is not that the declarant is testifying, but that the statement is not being offered for its truth. (C) characterizes the testimony as hearsay, which is incorrect because it is not being offered for its truth. Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception for present sense impressions, which are statements made contemporaneously with perceiving some event. The testimony of the foreman would not come within this exception. (D) incorrectly characterizes the testimony as hearsay. In addition, this statement, even if hearsay, would not come within the present state of mind exception. A statement of a declarant's then-existing state of mind is admissible when the declarant's state of mind is directly in issue and material to the controversy, or as a basis for a circumstantial inference that a particular declaration of intent was carried out. The declarant here is the foreman. There is no indication that his state of mind is at all relevant to this litigation, nor is the statement offered indicative of any particular intent on the part of the foreman. Thus, the present state of mind exception is inapplicable.

A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years' imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident. Upon proper objection, the court should rule the witness's statement before the grand jury: A Admissible for impeachment only. B Admissible as substantive evidence only. C Admissible for impeachment and as substantive evidence. D Inadmissible, because it is hearsay not within any exception.

The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness's sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness's credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident. (C) is the only answer that reflects the fact that the grand jury statement may be used both for impeachment and for substantive purposes. (A) reflects the view of prior law, which was that prior inconsistent statements were limited to impeachment regardless of the circumstances under which they were made. As noted above, Federal Rule 801(d)(1)(A) deems such statements made under penalty of perjury at a prior trial or other proceeding to be nonhearsay, and as such, to be admissible as substantive evidence. (B) is incorrect because it precludes use of the witness's grand jury testimony for impeachment purposes. A prior inconsistent statement may always be used to impeach the credibility of a witness. (D) is incorrect for two reasons. First, even if deemed to be hearsay, a prior inconsistent statement would be admissible to impeach the witness. Second, because the prior inconsistent statement of the witness was made under oath at a grand jury proceeding, it is admissible nonhearsay.

A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff's attorney calls a witness who testifies that, at the time of the incident, the defendant stated, "It was my fault." The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest. Are the grounds for the judge's decision correct? A Yes, because the statement subjected the defendant to tort liability. B Yes, because the defendant is a party to the litigation. C No, because the statement is not against an important interest. D No, because the defendant is available to testify.

The ground for the judge's decision is incorrect because the defendant is available to testify. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means. [Fed. R. Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defendant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incorrect in basing his decision on this exception. (A) is incorrect because the fact that the statement subjected the defendant to tort liability, and thus was against her interest, is not enough; she must also be unavailable.

In a claim for damages in a personal injury action, a plaintiff's attorney sought to introduce evidence of the plaintiff's testimony made to her boyfriend several days after her accident that "I must have sprained my neck when it happened because it hurts so much." The plaintiff is also planning to offer medical evidence that her neck was sprained. The judge should rule the testimony: A Inadmissible, because it is hearsay not within any exception. B Inadmissible, because the plaintiff is not qualified to give testimony as to her medical condition. C Admissible, because the plaintiff is also going to present medical evidence that her neck was sprained. D Admissible, to show that the plaintiff had suffered physical pain.

The judge should rule that the plaintiff's testimony is admissible. Although it was hearsay, the plaintiff's testimony was to show she was suffering pain, and is an exception to the hearsay rule as a declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff's testimony is not to establish that she suffered a "sprained" neck, which would require an expert witness, but just to establish that her neck was in pain. (C) is wrong because the plaintiff's statement would be admissible to show her current physical condition even if she had not planned to introduce medical evidence.

In a will contest action, the decedent's children, who were not provided for in his will, claim that the decedent was not of sound mind at the time of executing the will. The plaintiffs' attorney calls as a witness the neighbor of the decedent, who was present when the will was executed but did not attest to the will. The attorney asks the neighbor to describe the decedent's mental state at the time of the will's execution. The neighbor states that the decedent appeared to be senile. The defense objects. How should the court rule? A Sustained, because this is an opinion. B Sustained, because the neighbor has not been qualified as an expert. C Overruled, because this is proper opinion testimony. D Overruled, because this is a present sense impression.

The objection should be overruled because the neighbor's testimony is proper opinion testimony. Although opinions by lay witnesses are generally inadmissible, they may be admitted when an event is likely to be perceived as a whole impression rather than as more specific components. Under the Federal Rules, lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] The witness must have had the opportunity to observe the event that forms the basis of her opinion. A witness who has seen a person and is able to describe that person's actions, words, or conduct may express an opinion as to whether that person was lucid or senile. Here, the neighbor had an opportunity to personally observe the decedent and his words and conduct at the time of the will's execution. Her opinion that the decedent appeared senile is helpful to an understanding of her testimony because it is easier and clearer to simply state that the decedent appeared senile than to describe his actions. Also, the neighbor's opinion is helpful to the determination of a fact in issue—i.e., the decedent's mental state at the time of executing his will. Thus, the neighbor's opinion as to the decedent's mental state is proper lay opinion testimony, and the objection by the defense should be overruled. (A) is incorrect because, as has been explained, lay opinion testimony as to whether or not a person who has been observed by the witness was senile is admissible. (B) is incorrect because expert testimony is appropriate and necessary only when the subject matter of testimony is such that scientific, technical, or other specialized knowledge would assist the finder of fact in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] A determination as to whether a person was senile can easily be based on observation of that person by a layperson and does not require any technical or specialized knowledge. Therefore, the neighbor's status as an expert or nonexpert has no bearing on the admissibility of her testimony. (D) is incorrect because it states an exception to the hearsay rule, and there is no hearsay problem here. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. The neighbor is not testifying to an out-of-court statement made by herself or anyone else, but rather is testifying as to what she observed concerning the decedent's mental state.

At the defendant's trial for rape, he calls a witness who testifies that she was on her patio barbecuing some hamburgers at the time of the charged rape and saw the assailant run from the victim's apartment. She further testifies that the person who ran from the victim's apartment was not the defendant. On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained? A "Weren't you convicted of perjury 11 years ago?" B "Weren't you under the influence of heroin at the time you were barbecuing those hamburgers?" C "Haven't you and the defendant known each other since grammar school?" D "Didn't you embezzle funds from your most recent employer?"

The objection to the perjury question is most likely to be sustained. Federal Rule 609 permits the prosecution to inquire into prior convictions of crimes requiring proof or admission of dishonesty or false statement unless over 10 years have passed since the date of conviction or date of release from confinement (whichever is later). While the facts do not indicate the latter date (or even whether a confinement occurred), (A) remains the best of the four choices. The conviction in (A) is more than 10 years old, so it probably would be subject to objection as being too remote. (B) relates to the witness's ability to perceive and would be a legitimate question on cross-examination. (C) shows a possible bias on the part of the witness, which is an acceptable method of impeachment. (D) relates to a prior bad act that shows dishonesty. Such acts may be asked about on cross-examination of the witness.

A defendant was on trial for burglary, and he took the stand in his own defense. On direct examination, the defendant vigorously denied having committed the burglary. Also on direct examination, the defense attorney asked the defendant questions about his employment history in an attempt to portray him to the jury as a "solid citizen" who would not commit a burglary. The defendant stated that his last regular employment was as a bookkeeper for a corporation. On cross-examination, the prosecutor asked the defendant if he had embezzled funds from the corporation. The defendant denied that he had embezzled from the corporation or from anyone else. The prosecutor then wanted to call a police officer to the stand to testify that when she arrested the defendant for embezzlement, the defendant admitted to the officer that he had embezzled money from the corporation. Assuming that the defendant has not yet been tried on the embezzlement charges, may the prosecutor call the officer to the stand? A Yes, but only for purposes of impeachment. B Yes, both for impeachment of the defendant and as substantive evidence. C No, because the defendant has not yet been convicted of embezzlement. D No, because the evidence would be extrinsic.

The officer may not testify about the embezzlement because it constitutes impeachment by extrinsic evidence of a specific instance of misconduct. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Because the alleged embezzlement is admissible, if at all, only as impeachment evidence, when the defendant denied it the prosecutor could not call the officer to testify. (A) is wrong because extrinsic evidence, such as the officer's testimony, of an instance of misconduct is not admissible. (B) is wrong because when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible to establish criminal disposition. Because nothing in the facts indicates that such evidence is being offered to prove something other than disposition (e.g., motive, identity, common plan or scheme), the officer's testimony is not admissible as substantive evidence. As discussed above, for impeachment, the prosecutor is limited to inquiry on cross-examination regarding the embezzlement. (C) is wrong because, even if the defendant had been convicted of the embezzlement, the officer's testimony would not be the proper way to introduce it. The fact that a witness has been convicted of a crime usually is proved by eliciting an admission on direct or cross-examination or by the record of conviction. A judge is less likely to allow proof of conviction by testimony because it may be too timeconsuming and more prejudicial than other means of proof.

A driver was driving north on a local road when his car went out of control, crossed the center line, and struck the vehicle of another driver who was driving south on the same road. Immediately after the accident, an off-duty officer came by and photographed the accident scene for the police report. In a suit between the drivers, the plaintiff seeks to introduce the photograph taken by the officer. The officer is present in court but has not been called as a witness. Is the photograph of the scene of the accident admissible? A Yes, because the photograph was taken by a police officer who took the photo for an official report. B Yes, because the officer is available to testify at trial. C No, because a proper foundation has not been laid. D No, because of the best evidence rule.

The photograph is not admissible because a proper foundation has not been laid. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted. Here, the photograph taken by the officer must be verified by a witness who is familiar with the accident scene as an accurate representation of that scene. Absent such verification and identification (i.e., a proper foundation), the photograph is not admissible. (A) is incorrect because a photograph's admissibility does not require that the photographer be a police officer or that the photograph be taken for an official report. The identity of the photographer and the purpose for which the photograph was taken are irrelevant to the issue of admissibility of the photograph. (B) is incorrect because the photographer need not be available to testify at trial. To authenticate a photograph, any person familiar with the scene may authenticate the photograph. (D) is incorrect because the best evidence rule (also known as the original documents rule) is inapplicable to these facts. The best evidence rule states that in proving the terms of a writing (including a photograph), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent. [Fed. R. Evid. 1002] Here, the admissibility of the original photograph is in issue. A copy of the photograph is not being offered. Thus, no problem arises under the best evidence rule.

A defendant is on trial in federal court for the armed robbery of a casino. The defendant claims that he was out of town at the time of the robbery. The defendant calls an alibi witness to the stand to testify that she was with him on the trip. When asked where she was and who she was with on the date in question, the witness stated that she could not recall. She said she recalls spending a weekend at a bed and breakfast this spring, but she does not recall the date or her traveling companion. The defendant's attorney then showed the witness a letter written by her on stationery from the bed and breakfast, and asks her to look at it and try to answer the question again. The prosecution objects. The objection should be: A Overruled, because this is a past recollection recorded. B Overruled, but the witness cannot depend on the terms of the letter when answering. C Sustained, because the letter is hearsay. D Sustained, because the letter has not been properly authenticated.

The prosecution's objection should be overruled. If a witness's memory is incomplete, the examiner may seek to refresh her memory by allowing her to refer to a writing or anything else--provided she then testifies from present recollection and does not rely on the writing. (A) is incorrect because past recollection recorded is a hearsay exception that applies when a party is seeking to introduce a particular kind of writing. Here, the defendant is not seeking to introduce the writing; he merely wants the witness to look at it. Thus, (A) is incorrect. (C) and (D) are incorrect because the letter is not being offered into evidence. Hence, the letter is not hearsay and does not need to be authenticated.

In federal courts, spousal immunity: A can be invoked by both the witness-spouse and the party-spouse B can be asserted as to matters that took place before the marriage C is not terminated upon divorce D may be invoked in both civil and criminal cases

The spousal immunity privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage. Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states (e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege. The privilege lasts only during the marriage and terminates upon divorce or annulment. Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.

The defendant was on trial for driving while intoxicated and injuring a pedestrian. The pedestrian claimed that the defendant was driving the car; however, the defendant's spouse testified at trial that she had been driving the car at the time of the accident and had not consumed any alcohol that evening. In response, the prosecution calls a friend of the defendant's spouse to testify that the spouse told the friend that she and the defendant had changed seats in the car after the incident and that she remained in the driver's seat until the police arrived. The testimony is: A Admissible for impeachment purposes only. B Admissible to show bias. C Inadmissible, because a witness who is available to testify can be impeached only through cross-examination. D Inadmissible, because the witness must be given an opportunity to explain or deny the statement.

The testimony is admissible to impeach the testimony of the defendant's spouse. The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony. Here, the friend is prepared to testify that the defendant's spouse stated that she had not been driving the car at the time of the incident, a fact that would be material to the allegations in the lawsuit and inconsistent with the spouse's trial testimony. Thus, the friend's testimony is admissible for impeachment purposes. (B) is incorrect. Extrinsic evidence of bias is not admissible unless a foundation has been laid--the witness must first be questioned about the facts that show bias on cross-examination. If the witness, on cross-examination, admits to the facts claimed to show bias, then the trial judge may allow the extrinsic evidence to be introduced. Here, nothing suggests that the spouse was cross-examined as to the facts tending to show bias; thus, this is an incorrect ground for admitting the testimony. (C) is incorrect because a witness ordinarily may be impeached by either cross-examination or extrinsic evidence. Here, the prosecution is seeking to impeach the defendant's spouse by extrinsic evidence of her prior inconsistent statement, and the evidence will be admissible for that purpose. (D) is incorrect because the opportunity to explain or deny the statement can be given subsequent to the friend's testimony; it does not need to be given prior to her testimony.

The plaintiff sued the defendant in a contract dispute. At trial, the plaintiff's sister testifies as a witness on behalf of the plaintiff, stating that the defendant agreed to sell a computer to the plaintiff for $250. To prove that the sister is telling the truth, plaintiff's counsel asks the sister on direct examination about a conversation she had with her mother, in which she told her mother that the defendant agreed to sell a computer to the plaintiff for $250. The defendant objects to the testimony. How should the court rule? A Admissible, because it is a prior consistent statement. B Admissible, because it is not hearsay. C Inadmissible, because leading questions cannot be asked on direct examination. D Inadmissible, because the sister has not been impeached.

The testimony is inadmissible. A party cannot bolster the testimony of a witness until the witness has been impeached. Here, plaintiff's counsel is seeking to introduce the sister's prior statement, which is consistent with her in-court testimony, to prove she is telling the truth. The testimony is inadmissible for this purpose because the sister has not been impeached. Therefore, (D) is correct. (A) is incorrect. A prior consistent statement is admissible if offered to rebut a charge that a witness is lying or is stating the facts incorrectly. Here, the credibility of the sister has not been attacked; therefore, there is no justification for bolstering her credibility. (B) is incorrect. While the statement would not be hearsay if it is not being offered to prove the truth of the matter asserted, it is nevertheless inadmissible because it is improperly offered to bolster the credibility of the witness. (C) is incorrect. There is no indication that plaintiff's counsel asked any leading questions. Furthermore, leading questions are sometimes permitted on direct examination (e.g., when the witness is hostile).

During the course of their marriage, a husband told his wife that he stole a famous painting from a federal museum. Six months after the admission, the couple divorced. Shortly after the divorce, the husband was killed in an automobile accident. Later, the wife read in the paper that a man had been charged with the theft of the painting her husband admitted to stealing and was about to be tried in federal district court. She told her friend that the man was probably innocent because the husband told her that he had stolen the painting himself. The friend told several other people what the wife had told her, and eventually the story got back to the defense attorney. The attorney now wants the wife to testify in court to the husband's statement. Can the wife be compelled to testify? A Yes, but only because the husband is dead and cannot invoke his privilege. B Yes, because there is no privilege when the defendant is not a spouse. C No, because the couple was still married at the time of the disclosure. D No, because her testimony is not essential to prevent a fraud on the court.

The wife can be compelled to testify because her husband is dead and cannot invoke the privilege. There are two separate privileges related to marriage. There is spousal immunity, under which: (i) a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and (ii) a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, this privilege belongs to the witness-spouse so that she may not be compelled to testify, but neither may she be foreclosed from testifying. This privilege terminates upon divorce. There is also a privilege for confidential marital communications, under which either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Both spouses jointly hold this privilege. Divorce does not terminate this privilege retroactively. Because the communication must be made in reliance upon the intimacy of the marital relationship, if the communication is made in the known presence of a stranger, it is not privileged. Similarly, if one spouse voluntarily reveals the contents of the communication to a stranger, that spouse waives the protection of the privilege as to herself (i.e., she cannot use the privilege to refuse to disclose, or to prevent another from disclosing, the communication), but the other spouse (i.e., the one who did not reveal the communication) retains this privilege. Here, the spousal immunity between the husband and the wife terminated upon their divorce. Thus, the only consideration is the applicability of the privilege for confidential marital communications. The husband's statement to the wife came during their marriage and was made in reliance upon the intimacy of their relationship (marital communications are presumed to be confidential). Thus, the statement was covered by the privilege for confidential marital communications. Their subsequent divorce did not terminate this privilege. However, when the wife revealed to her friend what her husband had told her concerning the theft of the painting, the wife lost her privilege to refuse to disclose the matter. If the husband were alive, he would retain the privilege despite the wife's disclosure and could prevent her from testifying to his statement concerning the theft of the painting. Because the husband is dead, he cannot invoke his privilege. Because the wife has waived her privilege and the husband is unable to foreclose her testimony, she can be compelled to testify. (B) is incorrect because the privilege for confidential marital communications applies to the disclosure of matters communicated during and in reliance on the intimacy of the marital relationship regardless of whether one of the spouses is a defendant in a criminal case. Even spousal immunity is deemed to preclude the compelled testimony of one spouse against the other in any criminal proceeding, regardless of whether the other spouse is a defendant. The difference when a spouse is a criminal defendant is that the other spouse may not even be compelled to take the stand. (C) is incorrect because it does not take into account the fact that the wife waived her privilege when she communicated her husband's admission to her friend, as explained above. (D) incorrectly concludes that the wife cannot be compelled to testify. Due to her knowing and voluntary revelation of the husband's statement to her friend, the wife has waived her privilege and may be compelled to testify. Note that, if the privilege were still applicable (i.e., if the wife had not waived it), she could not be compelled to testify as to the contents of the privileged communication simply on the ground that such testimony would be essential to prevent a fraud on the court.

A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm's pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a "proposed witness list" from his case file at the firm. After the name of the doctor is the notation, "the plaintiff wants us to check this guy out before trial." The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff's case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation. The proposed witness list and notation are: A Admissible, as past recollection recorded. B Admissible, as a record of a regularly conducted activity. C Inadmissible, as hearsay not within any recognized exception. D Inadmissible, as hearsay within hearsay, and one level is not within an exception.

The witness list should be admitted as a record of a regularly conducted activity (business record). A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction. The list of proposed witnesses and the notation constitute a statement that the law firm was alerted to the existence of the doctor as a potential expert witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e., that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay problem. Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of the paralegal responsible for updating case files to enter the handwritten notation regarding the doctor at the direction of one of the firm's attorneys. The matters contained in the list and notation would be within the personal knowledge of the attorney, who was under a business duty to report the information accurately to the paralegal, who was under a business duty to properly record the information. Thus, all the requirements for a business record are present, and the list and notation, made as records of the firm's having been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is incorrect because past recollection recorded comes into play when a witness's memory cannot be refreshed by looking at something. At that point, there may be an attempt to introduce a writing made by the witness or under his direction at or near the time of the event. The writing is characterized as past recollection recorded. Here, there is no indication that a witness who has an insufficient memory is testifying, and the list of proposed witnesses and notation are not being offered as a record of anyone's past recollection. Rather, the evidence is offered as a record of the firm's being informed of the doctor as a potential expert witness. Therefore, the evidence will not be admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered evidence does come within a recognized hearsay exception. (D) is incorrect because the facts do not present any problem of "levels" of hearsay. The list and notation are considered to be an out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and are being offered as proof of that fact. If the notation had simply repeated an assertion made by one outside of the business (e.g., "the doctor says that he will be available to testify on the date of the trial") and been offered to prove the truth of the assertion (that the doctor was available as a witness), a hearsay within hearsay problem would exist. Because the statement within the notation would be hearsay not within any exception, the notation itself, despite the fact that it is a business record, would not be admissible to prove the doctor's availability.

A defendant was charged with the murder of a victim. During the course of the criminal trial, a witness testified on behalf of the defense that, at the time the murder took place, he saw someone who looked like the defendant dancing at a local nightclub. The defendant is eventually acquitted of the charge. Following the acquittal, the appropriate survivors of the victim bring a wrongful death action against the defendant. As part of her defense, the defendant wishes to introduce the testimony given at the criminal trial by the witness, who the defendant shows is now incarcerated in a prison in another state. The testimony of the witness is: A Admissible, because the witness testified under oath at another hearing related to the same subject matter. B Admissible, because the defendant is a party to both proceedings. C Inadmissible, because the plaintiffs were not parties to the criminal proceeding. D Inadmissible, because the witness can be subpoenaed to testify.

The witness's testimony is inadmissible. Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs. Consequently, the testimony of the witness does not come within the former testimony exception to the hearsay rule, and the testimony is inadmissible hearsay. (A) and (B) incorrectly conclude that the testimony is admissible. Although it is true that the witness testified at an earlier hearing related to the same subject matter, and that the defendant is a party to both proceedings, what is missing is the requisite identity of parties against whom the testimony is being offered. (D) is incorrect because a witness incarcerated in another state is "unavailable" for purposes of civil proceedings. Under the Federal Rules, a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure the declarant's attendance by process or other reasonable means. The Supreme Court has held that the Confrontation Clause requires a greater showing of "unavailability" in criminal cases than in civil cases. Because all states permit extradition of witnesses against the accused in criminal cases, a mere showing that a witness is incarcerated in a prison outside the state is insufficient to establish "unavailability." In contrast, the reach of process in civil cases is more limited and the Confrontation Clause does not apply. A mere showing that the witness is incarcerated in a prison out of state will suffice to show unavailability in a civil case.

Which of the following is NOT a requirement of the business records exception to the hearsay rule? A The entrant must have had some duty to make the entry as part of her employment. B The entrant must be unavailable. C Either the entrant or someone with a business duty to the entrant must have had personal knowledge of the matters in the record. D The entry must have been made at or near the time of the transaction.

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The record must also have been made at or near the time or the transaction. For the business record to be admissible, the person who made the entry need not be unavailable as a witness. The record must have been made in the course of a regularly conducted business activity. For a record to have been made in the course of a regularly conducted business activity, the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction while the entrant's knowledge of the facts was still fresh.

n certain instances, a party may prove a witness's prior inconsistent statement by use of extrinsic evidence. Which statement regarding the permissibility of extrinsic evidence is FALSE? A The prior inconsistent statement must be relevant to the case. B Generally, a witness must be given an opportunity to explain or deny her inconsistent statement. C A hearsay declarant's inconsistent statements may be used to impeach her despite the lack of a foundation. D The prior inconsistent statement may concern any matter that casts doubt on the witness's credibility, whether or not it is related to the case.

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.

Statements by a an opposing party (also known as "admissions by a party-opponent") are considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an opposing party's statement, it must: A have been within the party's personal knowledge at the time B be attributable to a party and offered against that party C go against that party's interest at the time it was made D not be in the form of an opinion

To qualify as a "statement by an opposing party," a party's statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.) Lack of personal knowledge does not necessarily exclude an opposing party's statement. An opposing party's statement may even be predicated on hearsay. An opposing party's statement need not have been against the party's interest at the time it was made. An opposing party's statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.

Which statement is true regarding a memorandum used at trial to refresh a witness's present recollection? A It must be authenticated before it is shown to the witness. B The party using it is entitled to offer it into evidence. C The memorandum must have been signed by the testifying witness when made. D It may be offered into evidence by the adverse party.

Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence. Unlike the adverse party, the party using a memorandum to refresh the witness's recollection has no right to offer it into evidence. When a memorandum is used at trial to refresh a witness's recollection, it may be used solely to refresh her recollection and need not be authenticated. There is no signature requirement for a memorandum used to refresh the witness's recollection.

Which of the following statements regarding the basis of expert testimony is NOT true? A An expert's opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence. B An expert's opinion may be based on his previous examination of a person about whom he is testifying. C An expert may give opinion testimony on direct examination without disclosing the basis of the opinion. D An expert's opinion may be based on evidence introduced at the trial and communicated to the expert by counsel.

Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. An expert's opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. An expert's opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.

Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial? A An unavailable hearsay declarant may not be impeached by any method because she is not present at trial. B An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement. C An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness. D An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant's credibility is impeached, it may also be rehabilitated.

Under the "past recollection recorded" exception to the hearsay rule, certain writings made by a declarant at or near the time of the event in question may be admissible. Which of the following statements regarding this exception to the hearsay rule is true? A The declarant must be unavailable for trial. B The witness need not have known about the writing prior to trial, as long as it concerns the event in question. C The exception applies where the witness's memory of the event cannot be revived by looking at the writing. D The writing may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury.

Under the "past recollection recorded" exception to the hearsay rule, where a witness's memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the writing. There are several foundational requirements for the admission of a writing under this exception. One is that the writing must have been made by the witness, made at the witness's direction, or adopted by the witness. Thus, the witness must have known about the writing before trial. If admitted under this exception, a writing may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to "present recollection revived," which allows a party to use a writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence.

Under the Federal Rules, which statement concerning the hearsay exception for dying declarations is correct? A The exception is available only in homicide prosecutions. B The exception is available only where the declarant actually died. C The declarant's statement may concern any subject as long as the declarant believed his death was imminent. D The exception is available only in homicide prosecutions and civil actions.

Under the Federal Rules, the exception for dying declarations is available only in homicide prosecutions and civil actions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.) The Federal Rules (unlike the traditional view) do not require that the declarant actually died, only that he be unavailable. For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death.

Which hearsay exception is applicable only if the declarant is unavailable to testify at trial? A present sense impressions B statements against interest C excited utterances D business records

Under the Federal Rules, there are two groups of hearsay exceptions—those that require the declarant be unavailable, and those under which the declarant's availability is immaterial. The five important exceptions requiring the declarant's unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against party procuring declarant's unavailability. Other hearsay exceptions (including the exceptions for present sense impressions, excited utterances, and business records) are applicable whether or not the declarant is unavailable.

Which of the following is correct under the best evidence rule? A Secondary evidence of a writing is permitted only if the original was destroyed by the proponent. B The best evidence rule applies to writings that are collateral to the matter in controversy. C Contents of voluminous writings that cannot conveniently be examined in court may be presented in the form of a summary. D If a document has been recorded and filed, that original must be offered into evidence.

When it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation. However, the originals or duplicates must be made available for examination and copying, and the judge may order them to be produced in court. Secondary evidence of a writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent (e.g., if the proponent destroyed the writing). Any narration by a witness is likely to include references to transactions consisting partly of written communications. The best evidence rule does not apply to writings that are collateral (i.e., ones of minor importance) to the matter in controversy. The best evidence rule is modified so that a proponent may offer into evidence a copy of an official record or a copy of a document that has been recorded and filed. Such a copy must be certified as correct by the custodian of the document or other person authorized to do so, or testified to be correct by a person who compared it to the original. The purpose of this exception is to prevent the loss or absence of public documents due to litigation.

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of: A Reputation and opinion only B Opinion only C Reputation, opinion, or specific acts D Specific acts only

When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is "directly in issue." Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances (e.g., defamation actions). Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue

Character evidence is admissible in a civil case if: A character is directly in issue B the defendant "opens the door" by introducing evidence of his good character C the evidence is in the form of reputation or opinion only D it is offered to show a good character trait only

Where character is directly in issue in a civil case, character evidence is admissible. A defendant in a criminal case may "open the door" by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character trait.

Evidence of a party's liability insurance may be admissible to prove: A that the party acted negligently B that the party had ownership or control over the insured property or item, where such ownership or control is disputed C that the party acted with intent D that the party is able to pay a substantial judgment

Where ownership or control over a property or item is in dispute, evidence that a party had liability insurance on the property or item may be admissible. A party's liability insurance is not admissible to prove that a party acted negligently or otherwise wrongfully. Nor is liability insurance admissible to show that the party is able to pay a substantial judgment. Having liability insurance is not relevant to show intent to act.

The son of a famous author who has not been seen in two years brings an action against an insurance company to compel payment of the proceeds of the author's insurance policy, for which the son is the sole beneficiary. The son introduced evidence that, on the day the author disappeared, a plane left from the city where she lived and was lost while traveling over the ocean. The manifest of the airline was introduced showing that a passenger with a name similar to hers was aboard the airliner. The son wants to testify that his mother told him that she was going to be on that plane and, to preserve her privacy, was going to travel under the name that matches the name in the manifest. Is the son's testimony admissible? (A) Yes, because it is a relevant indication of state of mind. (B) Yes, provided that there is corroborative evidence in addition to the son's mere state- ment. (C) No, because it is hearsay not within any exception. (D) No, because it is not relevant.

(A) The testimony is admissible as evidence of state of mind. A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. This falls under the "present mental state" exception to the hearsay rule, and so (C) is incor- rect. (B) is incorrect because at issue is the admissibility of the testimony, not its sufficiency to support a finding that the author perished on the plane. Thus, corroborative evidence is not needed. (D) is incorrect because the testimony of the author's son is relevant; it tends to make more probable the fact that the author was on the ill-fated plane and, consequently, that she is dead. Thus, the testimony of the son is admissible as circumstantial evidence that the author carried out her declared intent to travel on the plane under an assumed name.

A husband and wife were charged with trans- porting stolen goods over state lines, a federal offense. At the husband's trial, the wife volun- tarily took the stand for the prosecution. She is prepared to testify that they consulted a lawyer after the charges were filed and, in the presence of the lawyer and his secretary, the husband said to his wife, "Dear, we really did know those TVs were hot. After all, we bought them for $10 each!" On objection by the husband's attorney, how should the trial judge rule? (A) Exclude the testimony because of the attorney-client privilege. (B) Exclude the testimony because of the marital privilege. (C) Exclude the testimony because of both the attorney-client privilege and the marital privilege. (D) Allow the testimony.

(A) The testimony is inadmissible because of the attorney-client privilege. The husband's commu- nication was made to a lawyer for the purpose of legal advice at a time when he was in need of such advice. The other parties present were his wife and the lawyer's secretary, neither of whom destroys the expectation of confidentiality which is necessary to the attorney-client privilege. Therefore, the attorney-client privilege applies, and the evidence will be excluded. On the other hand, the testimony will not be excluded because of the marital privilege. The marital privilege at issue here requires a private conversation between spouses. The presence of two other parties destroys that necessary privacy. Therefore, the marital privilege does not apply and (B) is incor- rect. (C) is incorrect because the testimony will not be excluded because of the marital privilege. It will be excluded only because of the attorney-client privilege. (D) is incorrect; the testimony is inadmissible because of the attorney-client privilege.

The defendant, a used car seller, is on trial for criminal fraud, charged with selling used cars with major mechanical problems while repre- senting to buyers that the cars were mechanically sound. The defendant claims that she had no knowledge the cars were not fit for sale. At trial, the prosecution offers evidence to show that, eight months prior, the defendant was fired from a different used car lot for knowingly selling defective automobiles with major mechanical problems. What is the best basis for admitting this evidence? (A) As evidence tending to show the defen- dant's criminal character. (B) As evidence of the defendant's criminal intent. (C) To impeach the defendant's credibility. (D) As evidence that the defendant is not a competent used car seller.

(B) The best basis for admitting this evidence is as evidence of intent. Evidence of past crimes or misconduct may not be admitted to show the accused's criminal character or her disposition to commit the present crime. However, such evidence is admissible to show the accused's knowledge or to show lack of mistake. This evidence, then, may be admitted to show the defendant's intent to commit criminal fraud. (A) is wrong because, as stated, the evidence cannot be admitted to show her criminal character. (C) is wrong because, even if the defendant had testified as to her lack of knowledge, she cannot be impeached by extrinsic evidence of prior bad acts. (D) is wrong because the prosecution is not alleging that the defendant is an incompetent used car seller but rather a dishonest one. Hence, the prosecution is offering the evidence to show criminal intent.

A town's public works director was being sued by a resident for directing the dumping of hazardous waste in a vacant parcel of land owned by the town that was adjacent to the resident's property. The resident is prepared to testify that she encountered a public works employee in a town dump truck dumping some debris on the parcel of land. When she asked him what he was doing, he said that he was just following his boss's orders but that she should not go anywhere near the debris. Should the court admit this testimony? (A) Yes, as a statement of a co-conspirator. (B) Yes, as a statement of an employee of the party-opponent. (C) No, because there is no showing that the employee was authorized to speak for the party. (D) No, because it is hearsay not within any exception.

(B) The court should rule that the statement is admissible as a statement attributable to the party- opponent (i.e., a vicarious admission). Statements by an agent concerning any matter within the scope of his agency, made during the existence of the employment relationship, are admis- sible against the principal. Here, the employee's statement was made during his employment and pertained to what he was doing on the property. Therefore, the statement can be admitted against the employee's boss as a vicarious admission. (A) is incorrect. An admission of one conspirator is admissible against co-conspirators if made while participating in the conspiracy and in furtherance of a conspiracy to commit a crime or civil wrong. Here, there is no showing that the employee was part of a conspiracy to commit illegal dumping, and even if so, his statement was not made in furtherance of the conspiracy. (C) is incorrect. Even though his boss may not have authorized him to say anything about what he was dumping, the statement is admissible on account of the employment relationship. (D) is incorrect because, as discussed above, the state- ment is not hearsay but rather a vicarious admission.

A defendant on trial for robbery took the stand in his own defense and testified that the robber was his neighbor. The jury acquitted the defen- dant based on this testimony. The neighbor was then indicted and brought to trial for the robbery. At that trial the prosecution called the defendant from the first trial to the stand, expecting him to incriminate the neighbor. Surprisingly, the defendant testified: "My neighbor didn't have anything to do with that robbery, but I know who did! I committed the robbery myself." When asked about the testimony he gave at his own trial, the defendant refused to answer, invoking his privilege against self-incrimination. Finding her case in shambles, the prosecutor calls a juror from the first trial to the stand as a witness, who is prepared to testify that the defendant said at the first trial that the neighbor committed the robbery. On objection by the defense, should the court admit the juror's testimony? (A) Yes, to impeach the first defendant's cred- ibility as a witness, but not as substantive evidence of the neighbor's guilt. (B) Yes, to impeach the first defendant's credibility as a witness, and as substantive evidence of the neighbor's guilt. (C) No, because former jurors are not compe- tent to testify concerning cases upon which they sat as jurors. (D) No, because a transcript of the first defen- dant's testimony at his robbery trial is the best evidence.

(B) The juror's testimony is admissible to impeach the first defendant's credibility and as substan- tive evidence of the neighbor's guilt. As long as the witness is given an opportunity to explain or deny the statement, extrinsic proof of a prior inconsistent statement is admissible to impeach the witness's testimony. If the prior inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a deposition, it is admissible nonhearsay; i.e., it is admis- sible as substantive evidence. In this case, the prior inconsistent statement was made under oath at the first defendant's trial and thus is admissible for its substance as well as for impeachment. (A) is incorrect because, as discussed above, the juror's testimony is admissible as substantive evidence of the neighbor's guilt. (C) is incorrect because jurors are incompetent to testify only (i) before the jury on which they are sitting, and (ii) in post-verdict proceedings as to certain matters occurring during jury deliberations. Since the juror is not testifying before the jury on which she was sitting and is not testifying about jury deliberations, she is a competent witness. (D) is incor- rect because the best evidence rule does not apply to this situation. The juror is not being called to prove the terms of a writing or to testify about knowledge she gained from reading a writing. The facts she is testifying to exist independently of any writing; thus, the best evidence rule does not apply.

A wife is on trial for murdering her husband. At trial, the prosecution entered into evidence the fact that the wife fired the gun which killed her husband. The wife testified in her defense that her husband was threatening her with a knife when she picked up the gun and shot him. In rebuttal, the prosecution calls one of the officers who responded to the wife's 911 call right after the shooting. The officer will testify that the wife said, "I accidentally dropped my gun on the floor and it went off, killing my husband." Is the officer's testimony admissible? (A) Yes, as an excited utterance. (B) Yes, to impeach the wife and as evidence that she did not act in self-defense. (C) No, because of the wife's privilege against self-incrimination. (D) No, for the purpose of impeaching the wife, because the prosecutor did not call her attention to her statement to the officer on cross-examination.

(B) The officer's testimony is admissible. Because the wife is a party, any statement she makes can be offered against her as an admission. Admissions are not hearsay and therefore need not qualify for an exception to the hearsay rule. The statement is admissible substantively because it contradicts, and therefore tends to disprove, the self-defense theory. It is likewise a prior inconsistent state- ment which can be used to impeach the wife's credibility as a witness. (A) is incorrect because the statement made in this case was made to a police officer when he arrived at the house some time after the shooting. Moreover, the form of the statement shows it to be the product of reflec- tion, rather than an unthinking response to an exciting event. (C) is incorrect because as a general rule the privilege against self-incrimination only permits an individual to refuse to give an answer to a question because it might tend to incriminate her; it does not require that an answer already given be held inadmissible later when offered in evidence. The exception is when an individual is held in custody and interrogated by the police without being given Miranda warnings and without waiving Miranda rights. However, Miranda warnings are not required when a statement is volun- teered and not the product of interrogation, as here. (D) is incorrect because the wife is available to be recalled. Federal Rule 613(b) only requires that an impeached witness have the opportunity to explain a prior inconsistent statement. While this opportunity most often occurs during cross- examination, before extrinsic evidence of the prior inconsistent statement has been given, the opportunity may be given by recalling the witness after the prior inconsistent statement has been admitted into evidence.

At the defendant's trial for a brutal assault, in which the victim identified the defendant as her assailant, the defense calls a witness who will testify that he has worked with the defendant for 20 years and that all of his business associates regard the defendant as an honest person. If the prosecution objects to the witness's testimony, for which party should the court rule? (A) The defendant, because the testimony is relevant to show the defendant's character for truth and veracity. (B) The defendant, because the testimony demonstrates the defendant's good character, which is inconsistent with the particular crime charged. (C) The prosecution, because the testimony presents no evidence of any relevant character trait. (D) The prosecution, because the testimony is hearsay not within any exception.

(C) The court should rule for the prosecution on relevancy grounds. This question involves the admis- sibility of "propensity" evidence—evidence that a person has a propensity to act in a certain way because of a character trait the person possesses. Although this type of character evidence is generally inadmissible, an exception to the rule is that a criminal defendant is permitted to introduce evidence that he possesses a character that is inconsistent with the crime charged. [Fed. R. Evid. 404(a)(1)] For example, a criminal defendant accused of murder is allowed to present evidence that he is a nonviolent person; a criminal defendant accused of fraud is allowed to present evidence that he is an honest person. The defendant is charged with two crimes of violence (rape and felonious assault). The defendant's witness is prepared to testify to the defen- dant's reputation for honesty. However, possession of the character trait of honesty is not incon- sistent with the commission of a violent crime. Honest people can and do commit violent crimes. Thus, the witness's testimony does not pertain to a relevant character trait, and so it is inadmis- sible. For this reason, (C) is correct and (A) and (B) are incorrect. Although phrased slightly differently, both (A) and (B) assert that the character trait of honesty is inconsistent with the commission of a violent crime, and is thus relevant, but as stated, that assertion is incorrect. Note that (A) would be correct if the defendant had testified and his character as to veracity had been attacked. In that case, the witness's testimony would be admissible to rehabilitate a witness (the defendant) whose testimony had been impeached. [Fed. R. Evid. 608(a)] But there is no indication that the defendant has testified as a witness or that, if he has, his character for truth and veracity has been attacked. Thus, (A) is a tempting answer but clearly wrong. (D) is incorrect because reputation evidence to prove character is admissible under a hearsay exception. [Fed. R. Evid. 803(21)] If the witness's proposed testimony pertained to a relevant character trait, the hearsay rule would pose no barrier to its admission.

In a property dispute, a granddaughter claims that her grandfather gave her a deed to his home just before he died. The grandfather's son claims that the property is rightfully his by a previously executed will. At issue is the authenticity and content of the deed. The granddaughter begins to testify as to the content of the deed, but the son's attorney objects. Should the court sustain the objection? (A) Yes, because only the original deed itself is admissible to prove its contents. (B) Yes, unless the court is satisfied that the granddaughter is accurately testifying as to its contents. (C) No, if the judge is satisfied that the deed could not be found after a reasonable search. (D) No, if the deed is recorded, because the court can take judicial notice of the recorded deed.

(C) The court should rule that the testimony is admissible if the deed could not be found after a reasonable search. When a proponent is attempting to prove the contents of a document, the best evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents. A proper foundation for the admissibility of secondary evidence may be laid by a showing that the original has been lost and cannot be found despite diligent search. Hence, (A) is incorrect. (D) is incorrect because the court may take judicial notice of court records, but the proponent of a recorded document must produce the document or record she desires introduced into evidence. A court has no power to take judicial notice of public records. (B) makes no sense because the court has no way of making such a determination.

A disgruntled student was charged with murder for poisoning his professor by allegedly sending her a box of chocolates laced with rat poison immediately after he received a failing grade in the professor's class. At trial, he denied sending her anything. The prosecutor seeks to have a witness testify that, four years earlier, the student poisoned his girlfriend on Valen- tine's Day by lacing a box of chocolates with rat poison after he discovered she was unfaithful. Is this evidence likely to be admitted? (A) No, because it is improper character evi- dence. (B) Yes, but only to impeach the student's credibility. (C) Yes, as relevant evidence of the student's identity, plan, or motive. (D) Yes, as evidence of defendant's propensity towards violence.

(C) The evidence of the prior act of poisoning his girlfriend four years earlier was sufficiently similar to be relevant to show defendant's identity, plan, or motive. Although, the basic rule is that when a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmis- sible if such evidence is offered solely to establish a criminal disposition, evidence of other crimes or misconduct may be admissible for other purposes that are independently relevant to some other issue, such as to show identity, plan, or motive whenever these issues are relevant in either a criminal or a civil case. [Fed. R. Evid. 404(b)] Here, the defendant's prior act of poisoning his girlfriend was done in the exact same manner (e.g., poisoned chocolates) and for a similar reason. Thus, under these circumstances, the prior act would be admissible, not to show criminal disposi- tion, but to show the student's identity, plan, or motive. (A) is wrong because it is not being used to show criminal disposition, which would make it improper character evidence. Instead, there is an independent relevant purpose of using it to show identity, plan, or motive. (B) is wrong because evidence of prior bad acts cannot be used for impeachment unless probative of truthfulness. While Federal Rule 608(b) permits a witness to be interrogated upon cross-examination with respect to specific instances of misconduct that may affect his character, it is limited to miscon- duct that is probative of truthfulness (i.e., is an act of deceit or lying). [Fed. R. Evid. 608(b)] Here, poisoning someone is not probative of truthfulness, and therefore it could not be inquired about even on cross-examination of the defendant. In addition, although under certain circumstances, a witness may be impeached by proof of a conviction of certain types of crime, an actual convic- tion is required. [Fed. R. Evid. 609(b)] Here, the facts do not indicate that there was a conviction for the prior bad act. (D) is wrong because the general rule is that the prosecution cannot initiate evidence of the bad character of the defendant by any means (i.e., specific acts, opinion, or reputa- tion) merely to show that the defendant is more likely to have committed the crime of which he is accused unless the accused first opens the door by introducing evidence of his good character. [Fed. R. Evid. 404(a)(1)]

A defendant charged with auto theft under a theory of accomplice liability testified at trial on his own behalf that although he was in the car when the police apprehended the driver, he was unaware that the car was stolen. On cross-examination, the prosecutor asks the defendant whether he lied on an employ- ment application three years ago when he falsely claimed to hold a college degree. If the judge allows the question, what is the most likely reason? (A) The evidence may tend to establish that the defendant is a dishonest person and therefore may have committed the crime charged. (B) The prosecutor has a right to inquire about prior bad acts during cross-examination. (C) The evidence is relevant to the issue of the credibility of the witness and the court determines that its value is not outweighed by other considerations. (D) The evidence may tend to establish the intent of the defendant to commit auto theft.

(C) The judge will allow the evidence if it is relevant and its value is not outweighed by other considerations. Under Federal Rule 608, the trial court is given the discretion to allow counsel to inquire, during cross-examination, about specific instances of bad conduct on the part of the witness which show a lack of credibility. Therefore, (C) is a more accurate answer than (B). (A) is wrong; specific instances of previous bad conduct on the part of the accused are not admissible to prove the accused is the type of person who may have committed the crime. (D) is wrong; it is true that the prosecutor can prove previous bad acts to establish intent, but the prior behavior must show more about the defendant's intent at the time of the crime than this behavior does, because not all prior bad acts can be inquired about during cross-examination.

A defendant is on trial for first degree murder and the prosecution wants to introduce a recorded telephone call by the victim to the police just before she was killed. Distraught, the victim failed to identify herself during the call. A witness is called to testify that the voice recorded was that of the victim's. Under which of the following circumstances would the trial court most likely sustain an appropriate objection by the defense counsel to admission of the tape recording into evidence? (A) The witness had spoken with the victim numerous times, but had never heard her speak over the telephone. (B) The witness had spoken with the victim over the telephone many times, but had never met her in person. (C) The witness had heard the victim's voice in several recorded telephone conversations between the victim and the victim's father, and the victim's father had told the witness that it was the victim with whom he was speaking. (D) The witness had been present with the victim when she made the call to the police, but had heard only the victim's half of the conversation.

(C) The objection would likely be sustained where the witness was relying on the father's identifica- tion of the victim's voice. This is the only answer where the witness's knowledge of the victim's voice is based upon hearsay and not personal experience. (A) and (B) are wrong because whether the witness had heard the victim in person or over the phone goes to the weight rather than the admissibility of the evidence. (D) is wrong because if the witness heard the conversation recorded, even if only the victim's half, she would obviously authenticate it.

A defendant charged with murder admitted to the killing but claimed that he shot the victim in self-defense as she attacked him with a knife. At trial, the investigating officer testified about the scene of the crime and the condition of the victim at the time of death. The prosecutor showed the officer a photograph of the scene of the crime taken by the police photographer and asked the officer whether the photograph accurately depicted what he had observed at the scene. The officer testified that it did. The photograph showed the deceased lying in a pool of blood with both her hands cut off. Should the court admit the photograph? (A) No, because it does not tend to prove or disprove that the defendant acted in self- defense. (B) No, because it has not been properly authenticated. (C) Yes, unless the court determines that its probative value is substantially outweighed by the danger of unfair prejudice. (D) Yes, because it is relevant to the issue of self-defense.

(C) The photograph should be admissible unless unfairly prejudicial under Rule 403. This question raises basic issues pertaining to the definition of relevance and the admissibility of relevant evidence. Federal Rule 401 defines relevant evidence as evidence having any tendency to make the existence of a consequential fact more probable or less probable than it would be without the evidence. Whether the defendant acted in self-defense is a consequential fact; he admitted killing the victim but claims he shot her in self-defense as she was attacking him. The photo- graph, showing the victim in a pool of blood with her hands cut off, makes the fact of self-defense less probable than it would be without the evidence. For this reason (A) is clearly incorrect. At first glance, (D) appears correct. (D) asserts that the photograph is admissible because it is relevant. Relevant evidence, however, is not necessarily admissible. If the probative value of evidence is substantially outweighed by its prejudicial impact, the evidence is inadmissible even though relevant. [Fed. R. Evid. 403] A gruesome photograph, such as is involved here, is the kind of evidence that is sometimes excluded, notwithstanding its relevance, because of its poten- tially prejudicial impact. Thus, (C) is the correct answer; the photograph is admissible unless the court determines that its probative value is substantially outweighed by potential prejudice. (B) is incorrect because the photograph was properly authenticated. The photograph is demon- strative evidence, used to illustrate the police officer's testimony. The basic requirement for the authentication of demonstrative evidence is to establish that the evidence is a fair representa- tion of what it purports to show. Here, the evidence is properly authenticated by the investigating officer's testimony that the photograph was an accurate representation of what he had observed at the murder scene.

The plaintiff is suing the defendant for serious, life-threatening injuries she suffered when the defendant's car collided with the plaintiff's at a busy intersection. At trial, the plaintiff testified that the light was green when she entered the intersection. She was not cross-examined. She also testified that she lost consciousness after the collision but awoke to find a witness comforting her as she lay on the ground. The plaintiff calls the witness to testify that, when she awoke, she said, "Help, I'm dying! Why did [the defendant] enter the inter- section when the light was green for me?" Is the witness's testimony concerning the plaintiff's statement admissible? (A) No, because it is hearsay not within any exception. (B) No, because a party is not permitted to introduce her own out-of-court statement that is consistent with her testimony on the witness stand. (C) Yes, as an excited utterance. (D) Yes, as a statement under belief of impending death.

(C) The witness's testimony is admissible as an excited utterance. For a statement to be admissible as an excited utterance, it must relate to a startling event and be made while the declarant was under the stress of excitement caused by that event. These conditions are met in this fact pattern. The statement was made immediately after the plaintiff regained consciousness after the accident, and appears to have been made while the plaintiff was under the excitement caused by the accident. Moreover, the other choices can clearly be eliminated. (A) is incorrect because, while the state- ment is clearly hearsay, it reasonably could come within the excited utterance exception under Federal Rule 803(2). For a statement to be admissible as an excited utterance, it must relate to a startling event and be made while the declarant was under the stress of excitement caused by that event. These conditions are fulfilled in this fact pattern. The statement was made immedi- ately after the plaintiff gained consciousness after the accident, and appears to be made while the plaintiff was under the excitement caused by the accident. (B) is incorrect because the state- ment is too broad. A party is permitted to introduce her own consistent out-of-court statement as long as that statement is relevant and is not inadmissible hearsay. In this case, the statement is clearly relevant and could reasonably come within the excited utterance exception to the hearsay rule under Federal Rule 803(2). (D) is incorrect. The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be unavailable to testify before the dying declaration is admissible on those grounds. Although the statement of the plaintiff was made at a time when she believed that her death was imminent and related to what would have been the cause of death, her statement is not admissible under Federal Rule 804(b) (4). That exception, while not requiring that the declarant actually die of the cause described in the statement, does require that the declarant be unavailable. In this case, the declarant is actually testifying and therefore not unavailable.

A music fan sued a well-known groupie of a rock band, alleging that she was assaulted by the groupie during a melee at a concert. The fan's attorney calls the custodian of records for the hospital that treated her. He wishes to introduce a portion of the record by the emergency room physician, who is now deceased, reporting that the fan said she was assaulted by the groupie. Assuming the custodian testifies that the record is an original, kept in the ordinary course of hospital business, is that portion of the hospital record admissible? (A) Yes, as hearsay within the exception for records of regularly conducted activity. (B) Yes, as a statement made for the purpose of medical diagnosis or treatment. (C) No, because the physician who made the record is not available for cross-examina- tion. (D) No, as hearsay not within any exception.

(D) That portion of the record is inadmissible. The statement is an assertive out-of-court statement by the music fan which does not qualify under any exception to the hearsay rule. For a business record to be admissible as an exception to the hearsay rule, the declarant must either have personal knowledge of the fact stated or must have received the information from someone with personal knowledge who transmitted it in the ordinary course of business. In this case, the music fan's statement does not qualify for the business record exception because the emergency room physi- cian had no personal knowledge of the attack and the fan did not transmit it in the ordinary course of business. It likewise does not qualify as a statement made for the purpose of medical diagnosis or treatment. The statement is not offered to describe the injuries which the music fan suffered so that she could be treated for them, but rather to identify the assailant. The exception for statements made for the purpose of medical treatment under Federal Rule 803(4) is inapplicable here. There- fore, (A) and (B) are incorrect. (C) is incorrect because the presence of the physician is irrelevant under the business record exception. That exception does not require the presence of the author of the record, only a custodian of the record.

A defendant is being prosecuted in federal court for illegally transporting persons across state lines for immoral purposes. The prosecutor alleges that her route was from New York to Tampa. The court takes judicial notice of the fact that it is impossible to get from New York to Tampa without crossing a state line. What is the effect of the court's action? (A) The fact judicially noticed is conclusively established. (B) The burden of persuasion is shifted to the defendant. (C) The burden of proof is shifted to the defen- dant. (D) Theprosecutor'sburdenofproducing evidence on this point is satisfied.

(D) The court's action satisfies the prosecutor's burden of producing evidence on this point. This question involves the effect of taking judicial notice of a fact. Judicial notice allows a party to "prove" a fact by the court's recognizing that the fact is a matter of common knowledge within the jurisdiction or is able to be quickly determined by resorting to sources whose accuracy cannot reasonably be questioned. [Fed. R. Evid. 20l(b)] Since judicial notice functions are a substitute for more formal evidence (i.e., testimonial evidence), it has the same effect as more formal evidence. If the prosecutor had presented competent testimonial evidence to establish that it is impossible to get from New York to Tampa without crossing a state line, the prosecutor's burden of producing evidence on that point would have been satisfied. Thus, the prosecutor's burden of production is likewise satisfied if the point is established through judicial notice. (A) is incorrect because this is a criminal case. (A) would be correct if this were a civil case because, in civil cases, a fact judicially noticed is conclusively established, and thus binding on the jury. However, in criminal cases, a judicially noticed fact is not binding on the jury; the jury is permitted to find facts that have been judicially noticed, but never is required to do so. [Fed. R. Evid. 20l(g)] If a jury were required to find specific facts in a criminal case, even facts that had been judicially noticed, the defendant's right to trial by jury would be undermined. (B) and (C) are also incorrect. Since this is a criminal case, the burden of establishing the defendant's guilt always stays with the prosecu- tion. If the interstate nature of the New York-Tampa route were established through more formal evidence, the burden of establishing the defendant's guilt would stay with the prosecution. The prosecution would not be relieved of this burden if judicial notice, rather than more formal evidence, were used to establish the interstate nature of the route. (These choices were question- able from the outset because they draw a distinction between "burden of persuasion" and "burden of proof," two concepts that are often treated as interchangeable.)

The issue at trial is whether the sun was shining in a particular city on a particular day at 11 a.m. A witness testified that he was lying beside his wife on the beach in that city at 11 a.m. that day and she said to him, "Now that the sun is out, I'll be able to get my great tan!" Is the statement admissible? (A) No, as hearsay not within any exception. (B) No, because the witness does not have first- hand knowledge. (C) Yes, but only if the witness's wife is unavailable. (D) Yes, whether or not the witness's wife is unavailable.

(D) The statement is admissible whether or not the witness's wife is unavailable. The statement by the witness's wife is hearsay, an out-of-court statement offered to prove the truth of the matter stated, that the sun was out at a specific time. However, it is admissible as a present sense impression under Federal Rule 803(1) because she was observing the condition of the sun at the time that she made the statement. Unavailability is not required for this exception. Therefore, (A) and (C) are incorrect. (B) is incorrect on the law and the facts. The present sense impression exception to the hearsay rule, which is applicable in this case, only requires that the witness actually hear the declarant make the statement at the time that the declarant is observing the event. It does not require that the witness also observe the event. Moreover, as a factual matter, although it is not legally relevant, the witness would have first-hand knowledge of the event described because he was on the beach, too.

Which of the following is NOT a requirement of the hearsay exception for statements against interest? A The statement must have been against the declarant's interest when made. B The declarant must have been aware that the statement was against her interest when made. C The declarant must have had no motive to misrepresent when she made the statement. D The declarant must be a party to the action.

A "statement against interest" differs from an opposing party's statement in that the declarant does not have to be a party to the action. To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: (i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true; (ii) The declarant must have had personal knowledge of the facts; (iii) The declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) The declarant must be unavailable as a witness.

Which of the following are protected under the attorney-client privilege? A Statements made to the attorney by a corporate employee who was authorized by the corporation to make the statements. B Communications relevant to an issue between parties, all of whom are claiming through the same deceased client. C Documents prepared by an attorney for his own use in prosecuting his client's case. D Communications relevant to an issue of breach of duty by the client to her attorney.

A corporation can be a "client" within the meaning of the attorney-client privilege. The statements of any corporate official or employee made to the attorney are protected if they were authorized or directed by the corporation. There is no privilege regarding a communication relevant to an issue between parties, all of whom claim through the same deceased client —regardless of whether the claims are by testate or intestate succession or by inter vivos transaction. Documents prepared by an attorney for his own use in prosecuting his client's case are not protected by the attorney-client privilege. However, they may be protected by the attorney's "work product" rule. There is no privilege for a communication that is relevant to an issue of breach of duty by the attorney to his client (malpractice) or by the client to her attorney (e.g., client's failure to pay her attorney's fee for professional services).

A witness's character for truthfulness may be impeached by certain prior criminal convictions. Which of the following convictions is most likely to be found admissible? A Misdemeanor not involving dishonesty where six months have passed since conviction and release from confinement. B Felony involving dishonesty where 18 years have passed since conviction and release from prison. C Misdemeanor involving dishonesty where 12 years have passed since conviction and release from confinement. D Felony not involving dishonesty where eight years have passed since conviction and release from prison.

A felony not involving dishonesty where eight years have passed since conviction and release from prison will likely be admissible. A witness's character for truthfulness may be attacked by any felony, whether or not it involves dishonesty or a false statement. A conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, only eight years have passed. Therefore, the prior conviction is not too remote. A misdemeanor not involving dishonesty where six months have passed since conviction and release from prison is inadmissible, because a misdemeanor conviction may be used to impeach the witness only if it involved dishonesty or a false statement. A felony involving dishonesty where 18 years have passed since conviction and release from prison will likely be inadmissible. Generally, a witness may be impeached with any prior felony conviction. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote. A misdemeanor involving dishonesty where 12 years have passed since conviction and release from prison will likely be inadmissible. A witness's character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. However, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date. Here, the conviction is too remote.

Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious admission (i.e., a statement attributable to the opposing party). Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission? A Partners B Joint tenants C Co-parties D Spouses

A principal-agent relationship, which includes every partner with every other partner in a partnership, is a relationship that may give rise to a vicarious admission. Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. Although in most state courts, admissions of each joint tenant are admissible against the other, this is not true under the Federal Rules. Statements of a party are not receivable against her co-party merely because they happen to be joined as parties to the action. (These statements may be admissible under a hearsay exception such as a statement against interest.) A person's statement will not be held against his spouse as a vicarious admission simply because they are married. Of course, the spouses may have a separate relationship (e.g., partners, principal-agent, authorized spokesperson) that may allow for vicarious admissions.

Prior statements by a witness that are consistent with the witness's testimony at trial are sometimes used to rehabilitate a witness who has been impeached. A party may rehabilitate his witness by introducing a prior consistent statement EXCEPT when: A the witness has been impeached by evidence of her prior inconsistent statement on the same subject B the witness has been impeached with evidence of a prior criminal conviction C the witness's sensory deficiencies have been impeached D the witness has been impeached by a charge that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed

A prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. On the other hand, prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some non-character ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness's credibility.

n certain circumstances, a judge may allow leading questions on direct examination if no objection is made. Which of the following is NOT a typical circumstance where a judge will allow leading questions? A The questions are used to elicit preliminary or introductory matter. B The witness needs aid to respond because of loss of memory. C The witness is cooperative. D The witness is a person identified with an adverse party.

A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Although there are certain instances where a judge will allow leading questions if no objection is made, a judge will not allow leading questions when a witness is cooperative. A witness's hostility, however, is a permissible reason for a judge to allow leading questions. Trial judges will usually allow leading questions on direct examination in noncrucial areas if no objection is made: (i) If used to elicit preliminary or introductory matter; (ii) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (iii) When the witness is hostile and improperly uncooperative, an adverse party, or a person identified with an adverse party.

Certain statements by a person testifying at trial, who is thus subject to cross-examination, are not hearsay under the Federal Rules. Which of the following would be hearsay if offered as proof of the matter asserted? A A witness's prior inconsistent statement made at a deposition. B A witness's prior consistent statement offered to rebut a charge that the witness is now lying to provide an alibi for his wife. C A witness's prior statement identifying a person in a police lineup. D A witness's prior inconsistent statement made to a news reporter.

A witness's prior inconsistent statement made to a news reporter would be hearsay if offered to prove the truth of the matter asserted. It is an out-of-court statement offered to prove the truth of the matter asserted. Note that it could be used to impeach the witness's credibility, but not as substantive proof of the matter. A witness's prior inconsistent statement made at a deposition is not hearsay because the statement was made under oath. Prior inconsistent statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules. A witness's prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury. The prior statement must be made before the alleged motive to lie came into being. So if the witness's statement was made before his wife was a suspect, it would be admissible. A witness's prior statement identifying a person in a lineup is not hearsay. A prior identification after perceiving a person or even after seeing his picture in a photo identification is not hearsay under the Federal Rules.

Which of the following statements regarding authentication is true? A Authentication of real evidence requires that the proponent establish its genuineness by a preponderance of the evidence. B A writing may be authenticated by evidence that the party against whom the writing is offered has acted upon the writing as authentic. C A writing may not be authenticated by circumstantial evidence. D A photograph is admissible only if it is authenticated by the photographer.

A writing may be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon the writing as authentic. Authentication of real evidence requires only enough evidence to support a finding that the matter is what its proponent claims it is. It is not required that the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility. All that is necessary under the Federal Rules of Evidence is proof sufficient to support a jury finding of genuineness. A writing may be authenticated by circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient. In general, it is not necessary to call the photographer to authenticate a photograph. As a general rule, photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. It suffices if the witness who identifies the photograph is familiar with the scene or object that is depicted.

Which statement concerning impeachment by evidence of bias is true? A A witness's bias may be shown only by cross-examination, not by extrinsic evidence. B The evidence of bias must be substantively admissible in the case (not just offered for impeachment purposes). C A party is not permitted to show that a witness's bias is justified. D A party may introduce extrinsic evidence of a witness's bias prior to the witness's testimony.

Although a party is permitted to show a witness's bias or interest, another party may not subsequently show that the witness's bias is justified. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness's bias prior to the witness's testimony would not be allowed because of foundational requirements. The party must ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.

Which of the following statements about offers to settle or pay medical expenses is false? A Evidence that a party offered to pay the injured party's medical expenses is inadmissible to prove liability for the injury. B An admission of fact made during compromise negotiations is generally inadmissible to prove or disprove the validity or amount of a disputed claim. C In compromise negotiations, if a party admits liability and the amount of liability, every statement made in connection with that offer is admissible. D Any admission of fact accompanying an offer to pay medical expenses is inadmissible.

An admission of fact accompanying an offer to pay medical expenses is admissible. This differs from the rule regarding compromise negotiations, where such admissions are inadmissible if certain requirements are met. Evidence that a party offered to pay (or paid) the injured party's medical expenses is not admissible to prove liability for the injury. When there is a claim disputed as to validity or amount, an admission of fact made during compromise negotiations is inadmissible. If a party admits liability and the amount of liability in compromise negotiations, the claim is not disputed as to validity or amount. Thus, admissions of fact in such compromise negotiations are admissible.

A defendant is on trial for stealing jewelry from his co-worker. The defendant claims that the co-worker sold the jewelry to him because she needed money to buy medicine for her sick mother. The defense witness is asked to testify as to the co-worker's reputation in the community. The witness testifies that the co-worker is known as a dishonest person who makes her living as a "con artist." Assuming appropriate objections by defense counsel, which of the following questions would NOT be proper on cross-examination of the witness by the prosecutor? A "Isn't it true that you're maligning the defendant's co-worker because she and your wife have been enemies since childhood?" B "Isn't it true that you were charged last year with assault for striking your wife?" C "Have you heard that the defendant's co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?" D "Do you know that the defendant's co-worker teaches Sunday School classes on morality and has received an award from her church based on her outstanding moral character?"

Asking the witness about the assault charge is an improper method of impeachment. A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness. An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the conviction would have been admissible, provided it was a felony. (A) is incorrect because it is an example of proper impeachment by showing bias. Evidence that a witness is biased tends to show that he has a motive to lie. The witness's close relationship to his wife gives rise to an inference that he would be hostile toward the co-worker if she and his wife had a long-standing personal enmity. Consequently, the question posed in (A) represents a proper method of impeaching the witness's credibility by probing into a possible bias against the co-worker. (C) and (D) are incorrect because these questions represent proper means of rebutting the evidence of the co-worker's character for dishonesty, as well as trying to impeach the witness's credibility based on lack of knowledge. Once the defendant has introduced evidence of the alleged victim's bad character for a pertinent trait, the prosecution may counter with reputation or opinion evidence of the victim's good character for the same trait. [Fed. R. Evid. 404] On cross-examination, the prosecution may inquire into relevant specific instances of conduct. [Fed. R. Evid. 405(a)] Traditionally, asking a witness if he has heard of a particular instance of conduct represents a means of testing the accuracy of the hearing and reporting of a reputation witness, who relates what he has heard. Asking a witness if he knows of a particular instance of conduct is a means of testing the basis of an opinion expressed by the witness. Here, the witness's testimony indicates both that he has heard that the co-worker has a bad reputation for honesty and that his own opinion is that she is a dishonest person. Thus, in attempting to rebut this testimony, the prosecution may test the accuracy of what the witness has heard concerning the co-worker's character by asking him if he has heard of specific instances of her teaching Sunday School and receiving a church award. Also, the prosecution may test the basis for the witness's opinion as to the co-worker's dishonesty by asking if he knows of these specific instances that are indicative of her good character.

A defendant is on trial for a murder that occurred during a robbery at the victim's home. A witness helped the police artist compose an accurate depiction of the defendant. The witness was unavailable at the time of trial and the prosecutor offers the sketch into evidence. Is the sketch admissible? (A) No, under the best evidence rule. (B) No, as hearsay not within any exception. (C) Yes, as a record by a public employee. (D) Yes, as prior identification.

(B) The sketch is inadmissible on hearsay grounds. Under Rule 801 of the Federal Rules, prior identi- fication can be admissible, and the sketch could be deemed a prior identification. However, to be admissible, the witness must be there to testify at trial and be subject to cross-examination. The witness in this case is unavailable; hence, this exception does not apply. (D) is therefore incor- rect. (A) applies to documentary evidence and has no relevance to this question. (C) is likewise not applicable, because this exception applies only to information within the personal knowledge of the public employee. In this case, the public employee gained the knowledge from the hearsay statements of an absent witness.

A defendant charged with criminal battery testified on his own behalf at trial and asserted that he acted in self-defense. Which of the following offered for impeaching the defendant's credibility is most likely to be barred, if objected to by the defen- dant? (A) A public record showing that the defendant had been convicted of the felony of aggra- vated battery two years ago. (B) A public record showing that the defendant had been convicted of the misdemeanor of filing a false police report eight years ago. (C) Testimony from a competent witness that the defendant regularly cheats at cards. (D) Testimony from a competent witness that, in the opinion of the witness, the defendant is a habitual liar.

(C) The defendant's cheating at card games is most likely to be barred. This question involves the use of three different forms of evidence (reputation or opinion testimony, evidence of specific conduct, and prior criminal record) to impeach the testimony of a witness by showing that the witness has a propensity to be dishonest. Because the question asks which item of evidence is least likely to be admissible to impeach the defendant's testimony, turn the question around and ask which of the items of evidence would be admissible to impeach the defendant's testimony. The evidence in (B) is a public record of the defendant's misdemeanor conviction for filing a false police report eight years ago. Although only a misdemeanor, this conviction is admissible under Federal Rule 609(a)(2) because it is for a crime involving dishonesty. It does not matter that the conviction is eight years old, because Rule 609(b)'s limitation on the admissibility of criminal convictions applies only if 10 years have passed since the conviction or the end of the convict's incarceration. Nor does it matter that the prejudicial impact of the criminal offense involving dishonesty is offered to impeach a witness's testimony. Thus, the evidence in (B) would be admissible and so (B) is wrong. The evidence in (D) is testimony from a competent witness that, in the opinion of the witness, the defendant is a habitual liar. Federal Rule 608(a) allows such testimony, as long as the witness is competent (i.e., able to base the opinion on personal knowledge). The testimony clearly relates to the defendant's character for truthfulness or lack of truthfulness. Thus, the evidence in (D) is wrong. The evidence in (A), a public record of the defendant's felony conviction for aggravated battery two years ago, is possibly admissible. Federal Rule 609(a)(1) permits evidence of a witness's past conviction for a serious crime (one punishable by death or imprisonment of more than one year) to be used to impeach the witness's testimony. Such evidence, however, is subject to a probative value/prejudicial impact balancing test. It is possible that evidence of the defendant's felony conviction would not be admis- sible because of the prejudicial impact it might have on his defense, particularly since the crime for which he was convicted (aggravated battery) is virtually identical to the crime with which he is now charged. However, evidence of a criminal conviction for committing a felony, particularly a recent conviction, has traditionally been freely admitted to impeach the testimony of a witness. Thus, the evidence in (A) might be admitted. The evidence in (C), testimony from a competent witness that the defendant regularly cheats at cards, is almost certainly inadmissible. This is evidence (here, the testimony from the witness) to prove specific conduct of another witness (the defendant) bearing on his character for dishonesty. Specific acts of the defendant's dishonesty may be brought out on cross- examination, but not through the use of extrinsic evidence. Thus, (C) is correct because it is a better answer than (A); it is the least likely to be admissible for the purpose of impeaching the defendant's credibility.

In a wrongful death action after a car accident involving a drunk driver, the family of the decedent sued the driver's employer for allowing its employee to drink too much at a company party. When the company's attorney asked the driver-employee on the stand how many drinks she had, she testified that she had four drinks. The company's attorney now wants to question her about her deposition testimony, in which she said that she had two drinks. Is this permissible? (A) No, because it is hearsay not within any exception. (B) No, because the company cannot impeach its own witness. (C) Yes, but only if it is being offered to help the driver refresh her memory. (D) Yes, because it can be offered as substantive evidence, even if it results in impeaching the driver's testimony at trial.

(D) The deposition testimony is admissible. This question raises important issues concerning hearsay evidence and impeachment evidence. The driver has made an out-of-court statement (at her deposition) that she had had two drinks on the night of the accident. At trial, she testifies that she had had four drinks that night. Is her prior inconsistent statement admissible? (A) says no, because it is hearsay not within any exception. This answer is incorrect for two reasons: (i) If the deposi- tion testimony is being offered merely to impeach the driver's credibility, then, by definition, it is not hearsay evidence. To constitute hearsay, an out-of-court statement must be offered into evidence to prove the truth of the matter asserted in the statement. [Fed. R. Evid. 801(c)] When a prior inconsistent statement is used to impeach, the truth or falsity of the statement is immaterial; what is important is that the witness has spoken inconsistently. (ii) Even if the deposition testi- mony is being offered for the purpose of establishing its truth, it still would not constitute hearsay evidence. Rule 801(d)(1)(A) excludes certain prior inconsistent statements altogether from the definition of hearsay evidence. If the declarant (the driver) testifies and is subject to cross-exami- nation concerning her prior inconsistent statement, the prior statement is considered nonhearsay if it was given under penalty of perjury at a deposition. The driver's statement was made under oath at a deposition, subject to the penalty of perjury, and thus qualifies as a nonhearsay statement. (B) incorrectly states that the driver's deposition testimony cannot be used because the company (the driver's employer) cannot impeach its own witness. Rule 607 explicitly allows any party to attack the credibility of any witness, even if the witness has been called by the party now attempting to impeach her. This reflects the modern view that often a party must call as witnesses persons who are hostile, or who at least have no allegiance to that party. The older view, that a party cannot impeach its own witness because of a perceived shared identity between party and witness, has been discarded. (C) incorrectly states that the driver's deposition testimony is admissible only if it is being offered to help the driver refresh her memory. As previously discussed, the driver's deposition testimony is admissible either to impeach her in-court testimony or to establish the truth of her deposition testimony (that she had only two drinks on the night of the accident). (D) correctly states these two purposes that can be served by admitting the evidence.