Evidence
FRE 408
Compromise and offers to compromise
In a theft case in which the defendant is charged with stealing a new Mini Cooper car, a Car & Driver magazine with a cover story about the Mini Cooper found in the defendant's house is relevant
True
In a theft case in which the defendant is charged with stealing a new Mini Cooper car, a National Geographic magazine found in the defendant's house is relevant
True
Pursuant to Rule 403 - a judge should exclude a Car & Driver magazine found in a defendant's house when the defendant has been charged with stealing a new Mini Cooper
False - need to know more about the facts of the case, depends on the motive
A grocery store customer sues the store for injuries she sustained when she slipped on a broken bottle of olive oil that someone had dropped in the aisle. The defendant store calls a checkout clerk who will testify that he heard the store manager cry out, "Lady don't step on the spilled olive oil in the aisle." The clerk's testimony, which is being admitted to prove that the customer's behavior was not reasonable, is hearsay.
False - not being admitted to show that there was a spill on the floor, it is being admitted to show the effect on the auditor (she had notice)
Roberto, a 19 year old male, is indicted on charges of violating his state's statutory rape law in connection with a sexual encounter that he is alleged to have had with Anne, a 15 year old female, on the evening of December 11, 2017. The statute makes it a crime for a person over the age of 18 to engage in sexual intercourse with someone under the age of 16, but includes an affirmative defense for the defendant's reasonable belief that the victim was above the statutory age. At trial, Roberto invokes the AD, contending that he reasonably believed that Anne was in fact 18. In support of his defense, Roberto seeks to call, over a prosecution objection, Marie Jones as a witness. Marie, a high school classmate of Anne's, would testify that when she and Anne were walking through a shopping mall on the afternoon of December 1, 2017, they walked near a table at which people were being registered to vote. The person working at the table said to Anne, "Ma'am, are you registered to vote?" and when Anne replied "No," the person responded "There is no excuse for that! Come here and I'll get you registered in a snap." Marie Jones's testimony is hearsay
False - not trying to prove that Anne was registered to vote
Prosecutor (P) convenes a grand jury that returns an indictment charging Defendant (D) with armed robbery. Subsequently, P and D enter into plea bargaining discussions. At the conclusion of these talks, P offers to reduce the charge to grand theft if D agrees to plead guilty to this lesser charge. D refuses. At D's trial for armed robbery, defense counsel offers evidence that P offered to reduce the charge against D from armed robbery to grand theft. P objects. FRE 410 requires that the judge exclude the evidence of P's plea offer.
False - prejudicial value is very low but judges do not want to waste time
Steve is on trial for second degree murder in connection with the death of Sally. At trial, the prosecution seeks to offer testimony by Bob who would testify that shortly after Sally's death, Steve said to him "I killed Sally so that I could get the insurance money." The Judge should exclude Bob's testimony that Steve confessed because the prejudicial effect of that testimony substantially outweighs its probative value
False - remember there is a difference between hurting someone's case and unfairly prejudicial
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. Morgan wants to introduce the report prepared by the Walmart investigator because it includes a statement by the investigator that the horn in the truck was not operational when he inspected the truck after the accident. Walmart raises a hearsay objection. The report is hearsay.
False - she is trying to prove they caused the accident, and an employee is a party opponent (exclusion)
Suppose that in 2010 a car manufacturer made and sold a SUV to a customer Claire. In 2011, the car manufacturer learns that under certain unusual conditions, the brakes can fail. To eliminate this hazard, the car manufacturer makes changes the way in which the brakes are made and all new cars are sold with the newly designed brakes. The car manufacturer does not recall prior years' cars. In 2012, Claire has a traffic accident in which the brakes on her car failed. She sues the car manufacturer and wants to introduce evidence of the changes made by the manufacturer in 2011. Pursuant to FRE 407, the judge must exclude evidence of the changes made to the brakes in 2011.
False - the change was subsequent to the date of purchase but not the incident so it is not a secondary remedial measure
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. If the judge believes that Ellen is lying about having seen the robber's hat, the judge must exclude Lisa's testimony as being relevant.
False - the judge must decide if a reasonable jury, relying on admissible evidence, could conclude by 51% that Ellen did see the hat
Shortly after eating at a restaurant, Lisa became extremely ill. She went to her doctor, who after performing tests, informed her that she tested positive for staphylococcus. Believing that her exposure resulted from improper health precautions at the restaurant, Lisa brought suit against its owner. In its defense, the restaurant's owner called the manager as a witness, who would testify that "No other customers who ate at the restaurant during the week that Lisa ate there ever complained that the got sick." The testimony of the manager of the restaurant "No other customers complained that they got sick" is hearsay.
False - the silence was not intended as an assertion
Pursuant to Rule 403, the trial judge should exclude a videotape of a child playing catch with his father in a wrongful death suit because it is likely to invoke the emotions of the jury
False - the undue prejudice does not substantially outweigh
In a custody battle over their three-year old child, Oliver, Mrs. Sowerberry seeks sole custody on the ground that Mr. Sowerberry is an "unfit parent." She wants to testify that Mr. Sowerberry physically abused Oliver three months ago. Does Rule 404(a) require the exclusion of this evidence?
No
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." When Paula takes the stand to impeach William's testimony, opposing counsel objects, claiming that Paula's testimony is irrelevant. Which, if any, of the following are correct responses by Paula's attorney? (1) Paula's testimony is relevant because, in keeping with Rules 401 and 402, it has some tendency to make more likely the fact that the Blue car caused the accident by running the red light. (2) Paula's testimony is relevant because, in keeping with Rule 104(a), it shows by a preponderance of the evidence, that the Blue car caused the accident by running the red light. (3) Paula's testimony is relevant because, in keeping with Rule 104(b), there is sufficient evidence to allow a jury to reasonably find that the Blue car caused the accident by running the red light.
Neither 1, 2, or 3
Marie, Tom, and Robert are indicted and jointly tried on charges of possession and distribution of marijuana and conspiracy to do the same. At trial, the government seeks to offer into evidence the following: 1) Testimony by Paula that Marie said to her "Why don't you get involved in our business? Tom, Robert, and I are each netting about $20K per week selling weed, and the sky is really the limit." As it turns out, Paula is an undercover government informant. 2) Testimony by William that when Tom was out at a bar with him and with their other friend Charles, Charles asked Tom, "How is it that you have so much money all of a sudden? Are you and those friends of yours, Marie and Robert, selling drugs?" and Tom just smiled and said nothing. 3) Testimony by Donna, a DEA agent who arrested Robert after he made a controlled sale of drugs to her, that Robert said to her, "Look, I'm just a cog in all of this; Marie is the mastermind." Which, if any, of the following is true with regard to Donna's testimony that Robert said to her "Look, I'm just a cog in all of this; Marie is the mastermind"? A. If Robert wants to offer Donna's testimony to show that he is just a small player in the conspiracy, Donna's testimony would satisfy the 801(d)(2)(A) hearsay exclusion. B. If offered against Marie, Donna's testimony satisfies the 801(d)(2)(E) hearsay exclusion. C. If the judge determines that Donna's testimony would not satisfy the 801(d)(2)(E) hearsay exclusion if offered against Marie, the prosecutor can still use Donna's testimony against Robert under the 801(d)(2)(A) hearsay exclusion as long as the jury is given a limiting instruction that it can use the statement only against Robert and not against Marie.
Neither A B, nor C (it does not matter who the auditor is) A - you cannot use on your own behalf B - not in furtherance of the conspiracy (subjective standard - did they intend it that way?) (think about the bilateral theory of conspiracies) C - Joint trial Bruton issue
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If this case was being litigated under state law in Connecticut, in which of the following situations would testimony about what John said meet Connecticut's Dying Declarations hearsay exception? (A) John died and his survivors have brought a civil action for wrongful death. (B) John survived and Patrick is being tried for attempted murder with respect to John. (C) John survived and Patrick is being tried for the murder of Mary.
Neither A, B, or C
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. If the defense offers evidence of Rebecca's violent character during its casein-reply, FRE 404 (a)(2) permits the prosecution in its case-in-rebuttal to introduce evidence of Mary's violent character.
True
Pursuant to Rule 403, the judge should exclude the testimony about voting if the jury is drawn from a region where holding conservative political views is unpopular
False
Pursuant to Rule 403, the trial judge should exclude magazines depicting heterosexual rape scenes found in a defendant's house when they have been charged with sexual assault
False - the prejudicial value is very high but so is the probative value
Gregory is charged with bribery and alleges that he was entrapped by the police. In response, the prosecutor wants to introduce evidence that Gregory previously engaged in fraudulent acts and cheated his business partners. Does Rule 404(a) require the exclusion of this evidence?
No
In a case alleging knowing possession of child pornography, pursuant to Rule 403, the trial judge should exclude the photographs depicting child pornography because the defendant is stipulating that the photographs are of that nature
True - very explosive evidence
Reliability based categorical exclusions
FRE 404-406, 412-415 (Character evidence), 801-807 (hearsay)
FRE 101 and 1101
Jurisdiction of the rules
FRE 411
Liability insurance
FRE 410
Pleas, plea discussion, and related statements
In a case involving employment discrimination, testimony about how the supervisor voted on two public ballot initiatives is relevant
True
Pursuant to Rule 403, the judge should exclude white supremacist literature found at the defendant's house because it will inflame the jury
True
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of cocaine with intent to distribute. The defense objects to the evidence on the ground that it is improper character evidence. FRE 404(b) requires that this evidence be excluded.
False
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of marijuana. The defense objects to the evidence on the ground that it is improper character evidence. FRE 404(b) requires that this evidence be excluded.
False
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. If the defense offers evidence of Rebecca's violent charater during its case-in-reply, FRE 404(a)(2) permits the prosecution in its case-in-rebuttal to introduce evidence of Rebecca's non-violent character.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. In a civil action for battery brought by Rebecca against Mary in connection with these same facts, FRE 404 (a)(1) prohibits the defense (Mary), during its case-in-reply, from offering evidence of Mary's peaceful character.
True
Conceptual Structure of the FRE
1) Article I. General Provisions 2) Article II. Judicial Notice 3) Article III. Presumptions in Civil Cases 4) Article IV. Relevance and Its Limits 5) Article V. Privileges 6) Article VI. Witnesses 7) Article VII. Opinions and Expert Testimony 8) Article VIII. Hearsay 9) Article IX. Authentication and Identification 10) Article X. Contents of Writings, Recordings, and Photographs 11) Article XI. Miscellaneous Rules
FRE 104(b)
1) When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. 2) The court may admit the proposed evidence on the condition that the proof be introduced later.
Conditional Relevance
- The relevance of one item of evidence (Item A) sometimes depends upon another connected item of evidence (Item B) - The other evidence must be sufficient to permit the trier to conclude by a preponderance of the evidence that the connected fact exists
Compromise Offers and Negotiations
- both parties together can elect to waive this rule, but not unilaterally - valuable consideration is not just money, it is formal apologies, giving someone their job back, anything of value
Subsequent Remedial Measures
- can still admit evidence of these for impeachment, or (if disputed): ownership, control, or feasibility of precautionary measures - measures include firing someone, changing a procedure, installing protective devices - the action must be taken by the person charged with the liability in order to exclude it
Factors to consider when deciding if something is "another proceeding" for 801(d)(1)(A)
- recorded/transcripts - investigatory, ex parte, inquisative, sworng - basically prosecutorial - not the arresting officer - held in circumstances of some legal formality
David Burns is on trial on charges related to threats he allegedly made to Lisa Golden. At trial, the government seeks to offer into evidence a telephone call that Lisa received. The caller stated: "This is David Burns. If you value your life, you will put your rare coins and diamond brooch in the trash bin at the end of your driveway tonight." Although the people from whom Lisa bought the rare coins and the brooch are aware of the fact that she is in possession of those items, she bough the coins and diamond brooch from two different people, and according to her, the only persons to whom she has disclosed these joint purchases are her mother and David. In addition, the note did not have a clean tear on the top, and a notepad found in David's house has a remnant of a page that appears to be a match for the tear at the top of the note. In addition to authentication by a witness with knowledge under FRE 901(b)(1), the telephone call can be authenticated by which, if any, of the following Rules: (1). FRE 901(b)(4) (2). FRE 901(B)(5) (3). FRE 901 (B)(6)
1 and 2 901(B)(5) - familiar voice 901(B)(6) - only works for recipient
Darnell is indicted and tried in federal court on charges of knowingly transporting stolen merchandise with a value of $5K in interstate commerce. An element of that offense is that the merchandise stolen in fact has a value of $5K or more. Because the merchandise originated in Mexico, evidence of its value in Mexican pesos was introduced, and that evidence showed that the merchandise was worth 275,000 pesos. No evidence was introduced as to the US Mexican exchange rate. Darnell was convicted, and on appeal, argued that his conviction should be set aside because of the failure to introduce sufficient evidence that the stolen merchandise had a value of $5K or more. The government argues that the appeals court can take judicial notice of the official exchange rate. Assume that the exchange rate is an adjudicative fact, and assume that the government did not request that judicial notice be taken of the exchange rate. Which, if any, of the following is true? (1). The trial judge can take judicial notice on its own initiative. (2). The appellate court can take judicial notice of this fact for the first time on appeal. (3). If the trial was a bench trial (that is, not a jury trial), the appellate court can take judicial notice of this fact for the first time on appeal.
1 and 3
David Burns is on trial on charges related to threats he allegedly made to Lisa Golden. At trial, the government seeks to offer into evidence an email that Lisa received. The email stated: "If you value your life, you will put your rare coins and diamond brooch in the trash bin at the end of your driveway tonight." It was sent from David's email and signed "-David." Although the people from whom Lisa bought the rare coins and the brooch are aware of the fact that she is in possession of those items, she bough the coins and diamond brooch from two different people, and according to her, the only persons to whom she has disclosed these joint purchases are her mother and David. In addition, the note did not have a clean tear on the top, and a notepad found in David's house has a remnant of a page that appears to be a match for the tear at the top of the note. The email can be authenticated by offline activity that confirms authorship. It can also be authenticated by modern forensic techniques that allow an email message to be traced to a particular computer based on its IP address. In addition, the email can be authenticated by which, if any, of the following Rules: (1). FRE 901(b)(1) (2). FRE 901(B)(3) (3). FRE 901 (B)(4)
1 and 3
Richard is on trial on charges of murder. At trial, among other things, the prosecution calls as a witness Detective Jones, who stopped and questioned Richard near the vicinity of the murder shortly after it took place. Detective Jones testifies as to what Richard said to him, and also testified that when he questioned Richard he noticed that Richard's hands were shaking and that he was sweating profusely. Based on these observations, Detective Jones opines that Richard seemed nervous. After establishing that Richard drank several cups of coffee just before encountering Detective Jones, Richard's attorney asks the trial court to take judicial notice of the following: 1) the temperature at the time when and in the area where Richard was stopped was approximately 101 degrees 2) excessive caffeine consumption can cause a person to have tremors in his hands 3) the high temperature was the cause of Richard's sweating 4) Richard's consumption of coffee was the cause of his hands shaking during his interview with Detective Jones In support of his request, Richard's attorney directs the court to the Farmer's Almanac for the claim regarding the weather and to a Wikipedia entry for the claim regarding the effect on hand tremors. Assume that the judge can take judicial notice under FRE 201(b) of the temperature in the area at the relevant time, and about the effect of caffeine. Which, if any, of the following is true? (1). The prosecutor has a right to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. (2). The judge must take judicial notice pursuant to 201(c)(2) that the high temperature was the cause of Richard's sweating. (3). The judge must take judicial notice pursuant to 201(c)(2) that caffeine was the cause of the shaking of Richard's hands.
1 only
Relevance Analyssi
1) Is it relevant? a) Should also decide why the evidence is relevant b) If you know why it is relevant it will help you to identify how probative it is when doing a 403 analysis (but you need to rely on the totality of the evidence presented) 2) If it is relevant, is it categorically excluded due to public policy or some related concern? 3) If it is relevant, and if it is not categorically excluded, should the judge exercise discretion to exclude the evidence?
David is on trial on charges of unlawful distribution of cocaine. The government seeks to offer into evidence a tape recording of a conversation between Robert, an undercover agent of the DEA, and David in which David offered to sell Robert cocaine. David objects on the ground that the tape has not been authenticated. The tape recording can be authenticated by which, if any, of the following Rules: (1). FRE 901(b)(1) (2). FRE 901(B)(5) (3). FRE 901 (B)(9)
1, 2, and 3
Mark is indicted on charges that he sexually assaulted Tom. Mark admits that he had sexual intercourse with Tom, but defends on the ground that it was consensual. The incident at issue took place after the two began speaking to one another online in a chat room and decided to meet in person at Mark's house. During its case-in-reply, the defense seeks to offer, over a prosecution objection, testimony by Steve, a close friend of Tom. If permitted, Steve would testify that on the evening in question, he was in the same chat room as Tom and Mark, and that he received an IM from a user named Tom25 that read: "As I type, I am chatting with this guy named Mark. I'm going to meet him at his house tonight, and I plan to have sex with him before leaving!" Steve would further testify that shortly thereafter, he received a phone call, and when he answered, the person on the other end said, "Did you get my IM about Mark? I'm heading over there right now!" The instant message can be authenticated by which, if any, of the following method: (1). Offline activity that confirms authorship (i.e. that a person called immediately after the instant message was received and Steve recognized the person calling as Tom) (2). Modern forensic techniques that allow an instant message to be traced to a particular computer based on its IP address. (3). Evidence that the chat room does not allow anonymous participants, but rather is password-protected, and tied to a particular individual whose identity has been confirmed in some way (such as through the use of their credit card).
1, 2, and 3
Michael is on trial on charges of robbing two different banks, First National and Federal Savings and Loan. The First National robbery, which took place during business hours, was witnessed by a number of bank customers and employees. Moreover, an automatic camera took a photograph that depicted Michael pointing a gun at a teller. The Federal Savings and Loan robbery, which took place in the middle of the night, was not witnessed by anyone, but a bank camera took a photograph depicting Michael attaching an explosive device to the bank's safe. The prosecution seeks to offer into evidence the photographs from both of the banks cameras. The defense objects on the ground that the photographs have not been authenticated. The photograph can be authenticated by which, if any, of the following Rules: (1). FRE 901(b)(1) (2). FRE 901(B)(4) (3). FRE 901 (B)(9)
1, 2, and 3 901(b)(1) - personal knowledge (could use witnesses from the first one but there are none for the second one) 901(B)(9) - need someone familiar with the recording system at the bank 901(B)(4) - unique about the recording or situation
David Burns is on trial on charges related to threats he allegedly made to Lisa Golden. At trial, the government seeks to offer into evidence a hand-written note that Lisa received. The note reads: "If you value your life, you will put your rare coins and diamond brooch in the trash bin at the end of your driveway tonight." Although the people from whom Lisa bought the rare coins and the brooch are aware of the fact that she is in possession of those items, she bough the coins and diamond brooch from two different people, and according to her, the only persons to whom she has disclosed these joint purchases are her mother and David. In addition, the note did not have a clean tear on the top, and a notepad found in David's house has a remnant of a page that appears to be a match for the tear at the top of the note. In addition to authentication by an expert under FRE 901(b)(3), the note can be authenticated by which, if any, of the following Rules: (1). FRE 901(b)(1) (2). FRE 901(B)(2) (3). FRE 901 (B)(4)
1, 2, and 3 901(b)(1) - someone who has personal knowledge of David's writing the note (saw him write it) 901(b)(2) - someone familiar with David's handwriting - jury has to decide whether they actually think the person was familiar with it 901(b)(3) - expert 901(b)(4) - distinctive - the tear on the paper (also consider if there is any language that is unique that David would have used - and not many people know about the brooch (distinctive content))
Richard is on trial on charges of murder. At trial, among other things, the prosecution calls as a witness Detective Jones, who stopped and questioned Richard near the vicinity of the murder shortly after it took place. Detective Jones testifies as to what Richard said to him, and also testified that when he questioned Richard he noticed that Richard's hands were shaking and that he was sweating profusely. Based on these observations, Detective Jones opines that Richard seemed nervous. After establishing that Richard drank several cups of coffee just before encountering Detective Jones, Richard's attorney asks the trial court to take judicial notice of the following: 1) the temperature at the time when and in the area where Richard was stopped was approximately 101 degrees 2) excessive caffeine consumption can cause a person to have tremors in his hands 3) the high temperature was the cause of Richard's sweating 4) Richard's consumption of coffee was the cause of his hands shaking during his interview with Detective Jones In support of his request, Richard's attorney directs the court to the Farmer's Almanac for the claim regarding the weather and to a Wikipedia entry for the claim regarding the effect on hand tremors. Assume that the official temperature at the time when, and in the area where, Richard was stopped is an adjudicative fact. Which, if any, of the following is true? (1). The judge can take judicial notice pursuant to 201(b)(1) because temperature in an area is a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction. (2). The judge can take judicial notice pursuant to 201(b)(2) because temperature in an area is a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (3). The judge should take judicial notice of the temperature pursuant to 201(c)(2).
2 and 3
David is walking on the sidewalk along Elm St when he is struct by a car exiting the garage, a privately owned underground parking facility. David's attorney files a negligence acton against the owner of the garage. Under the governing law, a property owner's awareness of the existence of a dangerous condition on his property bears on his liability for negligence. David's attorney wishes to call as a witness Theresa, who if permitted, would testify that three weeks before the incident involving David, she was walking past the exit of the garage and was nearly hit by a car that was leaving and that she said something to the manager. Theresa is which, if any, of the below: A. the declarant B. the auditor C. the witness
A and C
Richard is on trial on charges of murder. At trial, among other things, the prosecution calls as a witness Detective Jones, who stopped and questioned Richard near the vicinity of the murder shortly after it took place. Detective Jones testifies as to what Richard said to him, and also testified that when he questioned Richard he noticed that Richard's hands were shaking and that he was sweating profusely. Based on these observations, Detective Jones opines that Richard seemed nervous. After establishing that Richard drank several cups of coffee just before encountering Detective Jones, Richard's attorney asks the trial court to take judicial notice of the following: 1) the temperature at the time when and in the area where Richard was stopped was approximately 101 degrees 2) excessive caffeine consumption can cause a person to have tremors in his hands 3) the high temperature was the cause of Richard's sweating 4) Richard's consumption of coffee was the cause of his hands shaking during his interview with Detective Jones In support of his request, Richard's attorney directs the court to the Farmer's Almanac for the claim regarding the weather and to a Wikipedia entry for the claim regarding the effect on hand tremors. Assume that it is an adjudicative fact that excessive caffeine consumption can cause a person to have tremors in their hands. Which, if any, of the following is true? (1). The judge can take judicial notice pursuant to 201(b)(1) because the effect of caffeine is a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction. (2). The judge can take judicial notice pursuant to 201(b)(2) because the effect of caffeine is a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (3). The judge should take judicial notice of the effect of caffeine pursuant to 201(c)(2).
2 only
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. At trial, the Note can be admitted into evidence under the 803(5) exception under which, if any, of the following circumstances? A. David testifies that he called Nancy while the matter was fresh in his mind and that he accurately told her the license number of the car, and Nancy testifies that she wrote the note while the matter was fresh in her mind and that it accurately reflected what she had been told by David. B. David does not testify, but Nancy testifies that she wrote the note while the matter was fresh in her mind and that it accurately reflected what she had been told by David. C. Nancy does not testify, but David testifies that he called Nancy while the matter was fresh in his mind and that he accurately told her the license number of the car.
A and B
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. What David said to Nancy (ie the middle layer) satisfies which, if any, of the following hearsay exceptions? A. 803(1) (Present Sense Impression) B. 803(2) (Excited Utterance) C. 803(5) (Recorded Recollection)
A and B (if he calls as soon as he witnessed the accident
Materiality
A fact is consequential only if it helps to prove or disprove an element of charge, claim, or defense (depends on the substantive law)
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of cocaine with intent to distrbute. The defense objects to the evidence on the grounds that its probative value is substantially outweighed by its prejudicial effect. The trial judge should exclude this evidence pursuant to FRE 403.
Discretionary decision, need more information
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of marijuana. The defense objects to the evidence on the grounds that its probative value is substantially outweighed by its prejudicial effect. The trial judge should exclude this evidence pursuant to FRE 403.
Discretionary decision, need more information
Stacey files a defamation suit against Anthony. In the complaint, she alleges that Anthony, in the presence of third persons, referred to her as a untrustworthy cheat. In his answer, Anthony asserts the defense of truth and at trial he offers a witness who will testify that Stacey has a reputation as a businesswoman who cheats uninformed borrowers by making misleading and false statements. Does Rule 404(a) require the exclusion of this evidence?
No
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. At trial, the prosecution calls Wanda as a witness who, to its surprise, testifies that "Tom struck the first blow." Assume that the case is being tried in state court in Montana. Which of the following statements satisfies the Montana version of the 801(d)(1)(A) hearsay exclusion? A. Testimony by the initial police officer that Wanda pointed to Bob when she was asked who started the fight. B. Testimony by the police officer who took Wanda's statement that she said to "Bob struck the first blow." C. Testimony by a member of the prosecutor's office that Wanda testified before the grand jury that "Bob struck the first blow."
A, B, and C
Marie, Tom, and Robert are indicted and jointly tried on charges of possession and distribution of marijuana and conspiracy to do the same. At trial, the government seeks to offer into evidence the following: 1) Testimony by Paula that Marie said to her "Why don't you get involved in our business? Tom, Robert, and I are each netting about $20K per week selling weed, and the sky is really the limit." As it turns out, Paula is an undercover government informant. 2) Testimony by William that when Tom was out at a bar with him and with their other friend Charles, Charles asked Tom, "How is it that you have so much money all of a sudden? Are you and those friends of yours, Marie and Robert, selling drugs?" and Tom just smiled and said nothing. 3) Testimony by Donna, a DEA agent who arrested Robert after he made a controlled sale of drugs to her, that Robert said to her, "Look, I'm just a cog in all of this; Marie is the mastermind." Assuming there is other proof of a conspiracy between Marie, Tom and Robert, which, if any, of the following is true with regard to Paula's testimony that Marie told her "Why don't you get involved in our business? Tom, Robert, and I are each netting about $20,000 per week selling weed, and the sky is really the limit" if offered against Tom? A. Paula's testimony satisfies the 801(d)(2)(E) hearsay exclusion. B. Paula's testimony would not satisfy the 801(d)(2)(E) hearsay exclusion if Tom is not charged with conspiracy to possess and distribute the drugs. C. Paula's testimony would not satisfy the 801(d)(2)(E) hearsay exclusion if Tom did not join the conspiracy until after the conversation between Paula and Marie.
A only
Denny is being prosecuted for distributing drugs. His former associate Fred testified for the prosecution. On cross, Denny's attorney asked questions designed to show that Fred decided to frame Denny in order to minimize his own punishment. In rebuttal, the prosecutor can present which, if any of the following, pursuant to 801(d)(1)(B). A. Testimony that, before there was any investigation into the drug distribution, Fred made a statement to his priest that is consistent with his trial testimony. B. Testimony that, after Fred was arrested, Fred made a statement to the police that is consistent with his trial testimony. C. Testimony from a police detective that, after Fred was arrested, Fred made a statement under penalty of perjury during the preliminary hearing that was consistent with his trial testimony.
A only (must be before the time you had a motive)
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If this case was being litigated under state law in Utah, in which of the following situations would testimony about what John said meet Utah's Dying Declarations hearsay exception? (A) John died and Patrick is being tried for bank robbery. (B) John died and Patrick is being tried for Mary's murder. (C) John died and Mary's survivors have brought a civil action for wrongful death.
A, B, and C
Marie, Tom, and Robert are indicted and jointly tried on charges of possession and distribution of marijuana and conspiracy to do the same. At trial, the government seeks to offer into evidence the following: 1) Testimony by Paula that Marie said to her "Why don't you get involved in our business? Tom, Robert, and I are each netting about $20K per week selling weed, and the sky is really the limit." As it turns out, Paula is an undercover government informant. 2) Testimony by William that when Tom was out at a bar with him and with their other friend Charles, Charles asked Tom, "How is it that you have so much money all of a sudden? Are you and those friends of yours, Marie and Robert, selling drugs?" and Tom just smiled and said nothing. 3) Testimony by Donna, a DEA agent who arrested Robert after he made a controlled sale of drugs to her, that Robert said to her, "Look, I'm just a cog in all of this; Marie is the mastermind." Which, if any, of the following is true with regard to William's testimony that when Tom was out at a bar with him and with their other friend Charles, Charles asked Tom, "How is it that you have so much money all of a sudden? Are you and those friends of yours, Marie and Robert, selling drugs?" and that Tom just smiled and said nothing? A. If offered against Tom, William's testimony would satisfy the 801(d)(2)(B) hearsay exclusion if it is determined that Tom heard and understood the statement and that a reasonable person would have spoken if he disagreed with that statement. B. If offered against Marie, William's testimony satisfies the 801(d)(2)(E) hearsay exclusion. C. If the judge determines that William's testimony would satisfy the 801(d)(2)(B) hearsay exclusion if offered against Tom, then that adopted statement satisfies the 801(d)(2)(E) hearsay exclusion if offered against Marie.
A only, you cannot bootstrap exceptions B - William is not a co-conspirator C - no bootstrapping
In which, if any, of the following situations is the 801(d)(2)(B) hearsay exclusion satisfied. A. A customer, allergic to MSG, fell ill when eating a dish prepared at China Cafe restaurant. The restaurant denied using MSG in its food. The customer sues the restaurant. At trial, the customer seeks to introduce a review of the restaurant that had been posted on the w all of the restaurant when the customer ate there. In that review, a newspaper dining critic gave the restaurant 5 stars, noting that the restaurant's use of MSG added a special taste to its dishes. B. Betty hired Orcun to rid her apartment of roaches. Orcun treats the apartment with pesticides but it does not kill the roaches. Betty is upset and tell Orcun that "your insect control device wouldn't work and you knew it." Orcun hears Betty, understands what she is saying, and has an opportunity to say something in response. Indeed, he wants to disagree. However, while a reasonable person would have said something, Orcun chooses to remain silent in order to not escalate the situation. Betty sues Orcun and seeks to testify about his silence. Orcun argues that his silence was not intended to be an assertion. C. Donnie is in custody and has been given Miranda warnings. He voluntarily, knowingly and intentionally waives his right to remain silent. Thereafter he denies certain statements by the interrogating police officers, but remains silent as to others even though he heard and understood those statements. A reasonable person would have denied these statements if they were untrue. At trial, the prosecutor wants to introduce the statements made by the interrogating police officers to which Donnie had remained silent.
A, B, and C A - when you display the review on your wall, you have adopted everything in the review B - reasonable person would have said something C - waived Miranda rights
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank What kind of fact is the shortest driving distance between the Salut Saloon and First National Bank?
An adjudicative fact (Trying to resolve the issues)
United States v. Ward @ 522. Which, if any, of the following is true? A. If the prosecutor seeks to use the statement against Mr. Ward, and if Mr. Ward claims that he never heard his sister's statement, this issue should be resolved pursuant to 104(b). B. If the prosecutor seeks to use the statement against Mr. Ward, and if Mr. Ward claims that no reasonable person would have responded to such a statement, this issue should be resolved pursuant to 104(a). C. If the prosecutor seeks to use the statement against Mrs. Ward, the statement would satisfy one of the 801(d)(2) hearsay exclusions.
B
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If this case was being litigated under state law in Pennsylvania, in which of the following situations would testimony about what John said meet Pennsylvania's Dying Declarations hearsay exception? (A) John died and Patrick is being tried for bank robbery. (B) John died and Patrick is being tried for Mary's murder. (C) John died and Mary's survivors have brought a civil action for wrongful death.
B and C
On the afternoon of January 15, 2018, police officer Debbie Perkins was dispatched to the corner of 5th and Main in response to a 911 call indicating that gunshots were heard. When she arrived at the scene, she found Valerie Albertson, dead of an apparent gunshot wound. Beside her body, Perkins found a black baseball cap and a driver's license with the name "Robert Barrone" on it. Perkins radioed for assistance, and shortly thereafter, Officer David French arrived with William Smith. French introduced Smith to Perkins as the department's new trailing person, an individual with an acute sense of smell akin to a bloodhound who, like a trailing dog, can lead officers to a person by smelling an article of clothing left behind by that person. Smith then sniffed the baseball cap and started running, with French in tow. As Smith approached a man later identified as Robert Barrone, he alerted by barking. Barrone was arrested and taken to the station. Barrone is indicted on charges of murder. The prosecution seeks to have French, an exert on trailing people, testify as to Smith's training and to the fact that he led him to Barrone. The prosecution also seeks to offer into evidence the driver's license, as well as Perkin's testimony that she found it next to Albertson's body. Barrone's attorney objects, contending that the evidence is hearsay. Which, if any, of the below testimony is hearsay? A. Officer Perkin's testimony that she found Robert Barrone's driver's license at the scene of the crime. B. Officer French's testimony that William Smith, the 'human bloodhound', led him to Robert Barrone. C. Officer French's testimony that William Smith, the 'human bloodhound', barked when he came to Robert Barrone.
B and C
On the afternoon of January 15, 2018, police officer Debbie Perkins was dispatched to the corner of 5th and Main in response to a 911 call indicating that gunshots were heard. When she arrived at the scene, she found Valerie Albertson, dead of an apparent gunshot wound. Beside her body, Perkins found a black baseball cap. Perkins radioed for assistance, and shortly thereafter, Officer David French of the K-9 unit arrived with his bloodhound, Sophie. Perkins recognized Sophie as the unit's trailing dog, a type of dog that is trained to lead officers to a person by smelling an article of clothing left behind by that person. Sophie then sniffed the baseball cap and started running, with French in tow. As Sophie approached a man later identified as Robert Barrone, she alerted by barking. Barrone was arrested and taken to the station. Barrone is indicted on charges of murder. The prosecution seeks to have French, an exert on trailing dogs, testify as to Sophie's training and to the fact that she led him to Barrone. Barrone's attorney objects, contending that French's testimony that Sophie barked when she approached Barrone is hearsay. Officer David French is which, if any, of the below: A. the declarant B. the auditor C. the witness
B and C
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. Which, if any, of the following are hearsay? A. The letters expressed by the license plate (ie innermost layer) B. What David said to Nancy (ie the middle layer) C. What Nancy wrote in the note (ie the outermost layer)
B and C A does not count because it is about a unique identifying feature
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. The report prepared by the Walmart employee includes the Investigator's interview of the driver of the truck the day after the accident. The report states that the Truck Driver told the Investigator that he honked twice before the truck reached the intersection where the collision occurred. If offered to prove that the Truck Driver honked twice before the truck reached the intersection where the collision occurred, which is any of the following is true? A. The statement by the Truck Driver is hearsay, but is admissible as a present sense impression. B. The report is a business record. C. The report should be admitted pursuant to the 803(6) business records exception.
B only A - it is a day later so it doesn't count C - courts are suspicious, "should" is bad language
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. Since Ellen's testimony about what the robber was wearing is necessary to determine whether Lisa's testimony is relevant, Ellen must testify before Lisa.
False
Allie, Betty, and Claire enter into a conspiracy to extort money from local store owners by threatening injury to the owners or their family. Subsequently, Allie says to a shop owner that "If you don't pay weekly protection money your son will have an unfortunate accident." Allie, Betty, and Claire also conspire to engage in insurance fraud by setting fire to a building and thereafter collecting the fire insurance proceeds. Claire, the coconspirator who actually sets the fire, fears a long prison term and so turns herself in to the police and tells them about the conspiracy. Meanwhile, Allie and Betty, who are not aware of Claire's actions, continue with their plan. Betty contacts the insurance agent and makes incriminating statements. Which, if any, of the following is true? A. Allie, Betty, and Claire are charged with extortion, which requires that the prosecutor prove that each of them made a threatening statement. If the prosecutor offers Allie's statement against Betty and Betty's attorney raises a hearsay objection, then the statement can only be admitted into evidence if prosecutor shows that the 801(d)(2)(E) hearsay exclusion is satisfied. B. If the prosecutor offers Betty's statements to the insurance agent against Allie, the 801(d)(2)(E) hearsay exclusion would be satisfied. C. If the prosecutor offers Betty's statements to the insurance agent against Claire, the 801(d)(2) (E) hearsay exclusion would be satisfied.
B only A is wrong, ask if there is another way to get hearsay excluded even if it falls under an exclusion (403, and step 1 - does this actually meet the definition of hearsay (out of court statement admitted for the truth of the matter) and a threat is an independent legal act) C - Claire renounced
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. Assuming Lisa's testimony at trial is hearsay, would it satisfy the 804(b)(1) exception?
No - she wasn't subject to cross examination (a defendant does not have that right at grand jury)
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. Assume that David calls Nancy three days after seeing the accident and calmly tells her the color of the car, Nancy's testimony about what David told her would satisfy a hearsay exception
False
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. If the defense, while offering no character evidence, calls a witness who testifies that Rebecca started the fight, FRE 404 (a)(2) permits the prosecution in its case-inrebuttal to introduce evidence of Rebecca's non-violent character.
False
Leon is on trial on charges of sexually assaulting Lucinda, who died just before trial began. At trial, the government seeks to offer into evidence testimony by Reggie that he heard Leon say that he forced Lucinda to have sex with him against her will, contending that it is admissible under Rule 801(d)(2)(A). Leon, through his attorney, denies that he ever made such a statement and objects to the admission of Reggie's testimony. Later in the trial, Leon seeks to offer into evidence testimony by Rhonda that Lucinda said to her, "I willingly had sex with Leon," contending that ti is admissible under Rule 801(d)(2)(A). Which of the following, if any, is true? A. The judge must determine by a preponderance of the evidence that Leon did in fact make the statement that he (Leon) forced Lucinda to have sex with him (Leon) against her will. B. If the judge finds that there is sufficient evidence to allow a reasonable jury to find by a preponderance of the evidence that Leon did in fact make the statement that he (Leon) forced Lucinda to have sex with him (Leon) against her will then the judge must overrule the hearsay objection. C. Assuming Leon made the statement, Reggie's testimony that Leon said he (Leon) forced Lucinda to have sex with him (Leon) against her will satisfies the 801(d)(2)(A) hearsay exclusion.
C only A - would only work if he denies making the statement at all (he did but he challenged based on hearsay) B - same as above, the challenge he raised was based on hearsay, not denying the statement as the challenge
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. At trial, the prosecution calls Wanda as a witness who, to its surprise, testifies that "Tom struck the first blow." Which of the following statements satisfies the 801(d)(1)(A) hearsay exclusion? A. Testimony by the initial police officer that Wanda pointed to Bob when she was asked who started the fight. B. Testimony by the police officer who took Wanda's statement that she said to "Bob struck the first blow." C. Testimony by a member of the prosecutor's office that Wanda testified before the grand jury that "Bob struck the first blow." Pick one of the following.
C only, to use for substantive evidence, it must have been during a proceeding (grand jury, trial, immigration) - statements during a police interrogation do not count
Kevin is seriously injured when he slips and falls on the sidewalk in front of Treetop Apartments. His friend, Tanya, who lives across the street from the building and who was walking with him when he fell, took him back to her apartment and called an ambulance for him. After Kevin was taken to the hospital, Tanya called Treetop Apartments to tell them to salt and shovel the icy sidewalk. About 20 minutes later, a man showed up in front of the building with a shovel and a bucket of salt. His shirt had a logo on it that red Treetop Apartments. Tanya went across the street to speak with him about the sidewalk. The man said to Tanya, "I've been doing grounds maintenance here for 10 years, and we've constantly had problems with keeping this sidewalk clean. Our gutters discharge onto the sidewalk, and although we have known about he problem for some time, we have not been able to cover the costs of re-directing the gutters or paying someone on our maintenance staff to regularly remove ice from the sidewalk." Kevin brings a negligence suit against Treetop. To support his claim, he seeks to call Tanya to testify to what the man told her. Which, if any, of the following are true? A. In deciding whether Tanya's testimony satisfies the 801(d)(2)(D) hearsay exclusion, the judge must determine whether the man was an employee of Treetop Apartments. In making this determination, the judge must not make any credibility determinations because that is the jury's role. B. The man's statement to Tanya "I've been doing grounds maintenance for Treetop Apartments for 10 years" is sufficient to prove that he was an employee of Treetop Apartments. C. The man's statement to Tanya "we've constantly had problems with keeping this sidewalk free of ice. Our gutters discharge onto the sidewalk, and although we have known about the problem for some time, we have not been able to cover the costs of redirecting the gutters or paying someone on our maintenance staff to regularly remove ice from the sidewalk." satisfies the 801(d)(2)(D) hearsay exclusion
C, A is wrong because you can make credibility determinations under 104(a), B is wrong because the statement does not establish by itself (you can consider it but you need more evidence)
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. The Court rules that pursuant to Rule 404, the defense, during its case-in-reply, may offer evidence of Mary's peaceful character and of Rebecca's violent character. FRE 405(a) permits the defense to introduce testimony by Tom that he once saw Rebecca punch another person in the face.
False
Paul is on trial on charges of armed bank robbery. The robber wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. At trial, the government seeks to offer the testimony of a former acquaintance of Paul's, who would testify that he robbed a different bank with Paul eight years earlier, and that during that robbery, Paul wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. Paul was never charged or convicted for that prior robbery. Pursuant to FRE 403, the judge should exclude the testimony that Paul robbed a different bank eight years earlier, and that during that robbery, he wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller.
Discretionary decision, need more information
Defendant is on trial on charges of murdering her third child, who drowned in the family's swimming pool. The prosecution wishes to introduce evidence that on previous occasions, two of the defendant's other children also drowned in the swimming pool. Pursuant to Rule 403, the judge should exclude evidence that on previous occasions two of the defendant's other children also drowned in the swimming pool.
Discretionary decision, need more information.
James Wallingford and Robert Mills, police officers patrolling together, notice a car drive by with a partially obstructed license plate (A violation of state law), and pull the car over. While speaking with the driver, Tom Braun, they see that the passenger, Kate Kline, has an open purse at her feet wit what appears to be a gun in it. They force the two out of the car and question them separately. Under questioning, Kate says to Wallingford that Tom shoved the gun into her purse when he heard the police car's siren. After further investigation, Tom - who has a prior criminal record - is indicted in federal court on charges of being a felon in possession of a firearm. The prosecution does not call Kate or Officer Wallingford as witnesses, instead, it seeks to offer into evidence a copy of a police report written out by the scene of the arrest as well as what Kate said to him. Tom's attorney raises a hearsay objection. The prosecution responds that it is admissible under 803(6) and 803(8). If Tom introduces the police report, it would satisfy the 803(8) hearsay exception
Depends what he would use it for because he cannot use it against himself because it would violate the rule (and why would you)
US v. Dietrich
Defendant allegedly tried to get someone to take counter-fit bills Husband and wife went to the police, but later claimed that they did not know the man
Lisa, a 19 year old female, is indicted on charges of violating her state's statutory rape law in connection with a sexual encounter she is alleged to have had with Tom, a 15 year old male. The statute provides that a person is guilty of statutory rape in the 1st degree if he or she is over the age of 18 and engages in sexual penetration with a person under the age of 16. Lisa wishes to introduce evidence that: a) she believed that Tom was 16 b) that in any event, Tom consented. Specifically she would like to testify that when she asked him how old he was, he told her that he was sixteen, and also that she believed him to be 16 because he drove a car, and under state law, only those 16 or older can have a driver's license. It is relevant that when Lisa asked Tom how old he was, he told her that he was sixteen.
Depends if the state allows you to argue a defense to statutory rape or if you are guilty just because the person is underage
Robert is on trial on charges of sexually assaulting John. At Robert's trial the prosecution seeks to introduce evidence that Robert owns non-pornographic gay-oriented publications such as Out and The advocate that depict and discuss relationships among adult males. In a child molestation case, it is relevant that Robert (the defendant) owned non-pornographic gay-oriented publications.
Depends on the state statute.
FRE 401
Evidence is relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (has probative value) b) the fact is of consequence in determining the action (is material)
FRE 102
Explains the function of the rules Primary function - to the end of ascertaining the truth and securing a just determination
Public Policy Based Categorical Exclusions of Evidence
FRE 407, 408, 409, 410, 411
An issue at trial is whether D spoke words that defamed a corporate vicepresident, P. W, a witness for P, testifies that at a meeting of the Board of Directors, D appeared before the Board and said, "You should all know I have completed my investigation of P's activities; he has been defrauding the company." D's statement is hearsay.
False
An issue in an adverse possession case is whether D, who claims adverse possession of Greenacre, held the property adversely and notoriously. W testifies that on several occasions D appeared before the local zoning board. On each occasion D identified himself as the owner of Greenacre. D's statements are hearsay.
False
Assume a defendant is sued by the Securities and Exchange Commission (SEC)) consumers for fraud. He settles the civil case for $100,000 and, as part of the settlement, he signs a statement accepting the wrongfulness of his conduct. Subsequently, the U.S. Attorney for the Southern District of New York criminally charges the defendant for the same fraud and seeks to use the defendant's statement of guilt made in the civil settlement. FRE 408 requires that the judge exclude the statements made during the settlement.
False
Benedict, who is charged with kidnapping, testifies that he is innocent and that he is being framed by Iago. If the prosecutor offers evidence that Benedict has previously been convicted of fraud, FRE 404 requires that the trial judge exclude this evidence.
False
David is walking on the sidewalk along Elm St when he is struct by a car exiting the garage, a privately owned underground parking facility. David's attorney files a negligence acton against the owner of the garage. Under the governing law, a property owner's awareness of the existence of a dangerous condition on his property bears on his liability for negligence. David's attorney wishes to call as a witness Theresa, who if permitted, would testify that three weeks before the incident involving David, she was walking past the exit of the garage and was nearly hit by a car that was leaving and that she said something to the manager. Theresa's statement to the manager of the Elm Street Garage "I was almost hit by a car exiting your garage the other day" is hearsay.
False
During a raid on Martin's apartment pursuant to a search warrant, police officers Torres and Smith seized a number of plastic bags containing a white, powdery substance and a semi-automatic gun that Martin had on his person. Upon seizing the gun, Officer Smith noticed that the serial number on it had been scratched off and noticed another set of scratches on one side of the gun that appeared to be a "figure 8" pattern. After Martin was arrested, Officer Torres delivered both the gun and the plastic bags to an evidence locker at the police station. Officer Richardson later checked out the items and delivered them to the state crime lab for ballistics and chemical testing, and after the testing was completed, Officer Peters delivered them back to the evidence locker. Martin was indicted on charges of possessing cocaine with intent to distribute and with unlawful possession of a firearm. At trial, the government sought to offer both the plastic bags and the gun into evidence. The defense objected, contended that the evidence was not admissible because the government had not introduced any evidence to prove that these were the items seized from Martin's apartment. If the judge dismisses the challenge to the authentication of the plastic bags containing the white, powdery substance , the jury is bound by that judicial determination and the defense attorney may not later raise authentication issues when presenting the case to the jury.
False
During a raid on Martin's apartment pursuant to a search warrant, police officers Torres and Smith seized a number of plastic bags containing a white, powdery substance and a semi-automatic gun that Martin had on his person. Upon seizing the gun, Officer Smith noticed that the serial number on it had been scratched off and noticed another set of scratches on one side of the gun that appeared to be a "figure 8" pattern. After Martin was arrested, Officer Torres delivered both the gun and the plastic bags to an evidence locker at the police station. Officer Richardson later checked out the items and delivered them to the state crime lab for ballistics and chemical testing, and after the testing was completed, Officer Peters delivered them back to the evidence locker. Martin was indicted on charges of possessing cocaine with intent to distribute and with unlawful possession of a firearm. At trial, the government sought to offer both the plastic bags and the gun into evidence. The defense objected, contended that the evidence was not admissible because the government had not introduced any evidence to prove that these were the items seized from Martin's apartment. If there are any breaks in the chain of custody with respect to the plastic bags containing the white, powdery substance, the judge must exclude the evidence.
False
George and Mary are both killed in a car accident. George's will provided that if Mary survived him, his entire estate would go to her, otherwise it would go to his brother. Mary's will provided that if George survived her, her entire estate would go to him; otherwise it would go to her sister. In consolidated proceedings, Mary's sister seeks to call Donna, an eyewitness to the accident. Donna would testify that as she approached the car, she heard a female voice cry out "Help me, I'm alive," and that she heard nothing after that. In the probate proceeding, testimony by Donna, an eyewitness to the accident, that she heard a female voice cry out, "Help me, I'm alive," is hearsay.
False
Hewitt is charged with using an explosive to commit a felony. At trial, he offers a character witness who testifies that in his opinion Hewitt is a non-violent person. If the prosecutor wants to cross-examine the witness as to whether that witness knows that Hewitt has committed an assault in a different jurisdiction, FRE 404 requires that the trial judge prohibit this line of questioning.
False
In a case alleging knowing possession of child pornography, photographs depicting child pornography are not relevant because the defendant is stipulating to the fact that the photographs are of that nature
False
In a personal injury case, it is not relevant that the plaintiff Lucero is a Mexican citizen who is in the US without proper documentation
False
In a wrongful death action against a car driver, a videotape of the child playing catch with his father is not relevant
False
Kevin is indicted on charges of driving a motor vehicle while intoxicated. The prosecution wishes to offer into evidence the testimony of the arresting officers who, if permitted, would testify that: a) they pulled Kevin over after they noticed his car swerving back and forth over the yellow line b) when they approached Kevin, he smelled of alcohol c) they found a bottle of vodka in Kevin's car that was about half-empty d) he could not walk a straight line when asked to do so Kevin's attorney argues that none of the proffered evidence is relevant, contending that there are explanations for each event. If the defendant's alternate explanations for the evidence are more believable than the prosecution's explanation, the judge should grant the defense's objection that the evidence is irrelevant.
False
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404(a)(1) prohibits the defense, during its case-in-reply from offering evidence of Mary's character for law-abidingness.
False
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404(a)(1) prohibits the defense, during its case-in-reply from offering evidence of Mary's peaceful character.
False
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404(a)(1) prohibits the defense, during its case-in-reply, from offering evidence of Rebecca's violent character.
False
Paul is on trial on charges of armed bank robbery. The robber wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. At trial, the government seeks to offer the testimony of a former acquaintance of Paul's, who would testify that he robbed a different bank with Paul eight years earlier, and that during that robbery, Paul wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. Paul was never charged or convicted for that prior robbery. FRE 404(b) requires exclusion of evidence that Paul robbed a different bank eight years earlier, and that during that robbery, he wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller.
False
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, pursuant to Rule 407, the judge must exclude the report by the company's risk manager suggesting that the emergency shut off switches be added to the machinery
False
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the manufacturer of the machinery, pursuant to FRE 407, the judge must exclude evidence of the construction company's firing of the employee and the installation of the emergency shut-off switches
False
Plaintiff, a truck driver, sues both the owner and the lessee of a truck stop for injuries incurred when the plaintiff fell into a grease pit on the premises. At trial, there is conflicting evidence as to whether the owner, the lessee, or both were responsible for maintaining the premises. The owner testifies that the lessee had sole responsibility for maintenance. Plaintiff thereupon starts to cross-examine the owner concerning whether the latter had liability insurance that protected against damages for injuries sustained on the truck stop premises. FRE 411 requires exclusion of the evidence of liability insurance.
False
Pursuant to FRE 404(b), in a prosecution of D for arson of building A, the trial judge must exclude evidence that D previously had wrongfully burned a different building covered by similar fire insurance.
False
Pursuant to FRE 404(b), in a prosecution of D for reckless driving that resulted in the death of a pedestrian, the trial judge must exclude evidence that just before the accident, D was leaving a nearby store when the alarm buzzer sounded, indicating that he was carrying "unpaid for" goods, and that D ran when the security guard approached.
False
Pursuant to FRE 404(b), in a prosecution of D for robbery of Bank of America, the judge must exclude evidence offered by D that the victim of a similar robbery of Chase Bank identified X as the robber of that bank.
False
Pursuant to FRE 404(b), in an employment discrimination case where the plaintiff claims that she was fired because she is a woman and where the defendant contends that the plaintiff was fired for insubordination, the trial judge must exclude evidence offered by the plaintiff fired other similarly situated women and each time gave the same reason, namely that the employee had been insubordinate.
False
Pursuant to Rule 403, the trial judge should exclude non-pornographic gay oriented publications that depict adults when a defendant has been charged with sexually assaulting another male
False
Tanya is riding her bike to work when she is hit by a car driven by David. David gets out of his car, runs up to Tanya, and says "I'm so sorry, I was on my phone and didn't notice the stop sign. Are you OK? Let me call my personal physician and have him come out and take a look at you, and don't worry, I'll pay his fees." Tanya groans and says "My bike is trashed and my arm hurts like crazy! And I just paid a fortune for this bike!" David calls his doctor and then says to Tanya "Say, do you think we can work this out between the two of us without getting lawyers involved? Between you and me, I know I'm to blame, but I can't imagine that your harm is more than $500. What do you think?" In a suit brought by Tanya against David, FRE 408 requires that the judge exclude David's statement to Tanya immediately after the accident that "I'm so sorry, I was on my cell phone and didn't notice the stop sign."
False
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that David has blue eyes and blonde hair
False
Wanda saw a fight between Tom and Bob, she told the police that Bob struck the first blow. Assume that Wanda does appear as a witness, but tot he prosecution's surprise, she testifies that "Tom struck the first blow." The prosecution seeks to call the police officer as a witness to testify what Wanda previously said to him. Pursuant to FRE 403, the trial judge should exclude the police officer's testimony that previously Wanda said to him "Bob struck the first blow."
False
While riding her bike, Susan is struck by a car driven by Louis. Susan brings a negligence suit against him. Susan testifies that as a result of the accident, she sustained injuries to both her arms and her right leg. During cross-examination of Susan, Louis's attorney asks Susan "Isn't it true that the injuries to your arms were caused by an accident two months earlier with Jim." Susan's attorney seeks to call Ellen as a witness. If permitted Ellen would testify that she witness the accident Susan had with Jim, called for an ambulance, rushed to Susan's side, pressure checked each of Susan's arms but that she did not say that any spots hurt. Ellen's testimony that Susan "did not say anything when she pressed on spots along her arms" is hearsay.
False
On the evening of January 2, 2018, Arthur Reed opened the door of his apartment and began to walk in As he entered, he was shoved into the apartment by a man wearing a mask and holding a gun, who said "I won't hurt you if you do as I say. All I want is that rare stamp collection of yours." Arthur complied with the masked man's instructions, and the man quickly left, leaving Arthur unharmed. Arthur called the police to report the crime. Shortly thereafter, Officer Joan Smith arrived at the scene of the crime to take a report from Arthur. Arthur told Smith exactly what the masked man said, and then told her, "As soon as he spoke, I knew it was Pete Rivers. He and I have known each other for some time, and he has a very distinctive voice." Rivers is eventually indicted on charges of armed robbery. The prosecution calls Arthur to testify, but to its surprise, he claims an inability to remember anything about the incident. The prosecution seeks to call Smith as a witness to testify about what Arthur told her. Officer Smith's testimony that Arthur identified Pete Rivers as the robber does not satisfy the 801(d)(1)(C) hearsay exclusion because Arthur's failure to remember the event at trial prevents him from being subject to crossexamination.
False - Arthur takes the stand and says "I do not remember" - still counts as cross-examination
In a diversity case, the District Court must use Rhode Island's version of Rule 407 and admit the evidence of subsequent remedial measures taken by the supermarket.
False - Erie Doctrine
After a car accident caused when the tire in the car came apart on the highway, the driver Pete sues the tire manufacturing company. Pete alleges that the tire manufacturer was negligent in not using stronger rubber to make the tire treads. The CEO of the tire manufacturer has testified that although the stronger material was available when Pete's tire was made, using it would have required more complex manufacturing. The CEO further testifies that the risk posed by the materials used in Pete's tire were not significant enough to offset the costs and complexity of using the safer material. In response, Pete wants to introduce evidence that two years after the tire in his car was made, the tire manufacturer started making all tires with the stronger material. The trial judge must not exclude this evidence under FRE 407 because it goes to feasibility
False - Feasibility is not in doubt, the CEO admits that the product was available and possible, but they decided it was not worth it (feasibility is not the same as deciding against it)
MasterCard and Chase Bank had an exclusive marketing agreement, pursuant to which Chase Bank would only promote MasterCard in its bank locations. After a few years, a dispute arose over this agreement and MasterCard sued Chase Bank. During the settlement talks, MasterCard agreed that in return for getting a five year extension in its contract with Chase Bank, Chase could also promote Visa cards at its bank locations. Before this settltement agreement was finalized, ChaseBank started promoting Visa cards at its bank locations. MasterCard immediately backed out of the settlement talks and amended its complaint and claimed that ChaseBank's recent Visa card promotions were a breach of the original exclusive marketing agreement. Pursuant to FRE 408, the trial judge must exclude statements made by MasterCard during the settlement talks
False - Master Card is attempting to trick them so it seems unfair, but could still only admit this with an exception, say it goes to motive?
On the evening of January 2, 2018, Arthur Reed opened the door of his apartment and began to walk in As he entered, he was shoved into the apartment by a man wearing a mask and holding a gun, who said "I won't hurt you if you do as I say. All I want is that rare stamp collection of yours." Arthur complied with the masked man's instructions, and the man quickly left, leaving Arthur unharmed. Arthur called the police to report the crime. Shortly thereafter, Officer Joan Smith arrived at the scene of the crime to take a report from Arthur. Arthur told Smith exactly what the masked man said, and then told her, "As soon as he spoke, I knew it was Pete Rivers. He and I have known each other for some time, and he has a very distinctive voice." Rivers is eventually indicted on charges of armed robbery. The prosecution calls Arthur to testify, but to its surprise, he claims an inability to remember anything about the incident. The prosecution seeks to call Smith as a witness to testify about what Arthur told her. Officer Smith's testimony that Arthur identified Pete Rivers as the robber does not satisfy the 801(d)(1)(C) hearsay exclusion because Arthur's identification was not based on an intentional "perception" of Pete Rivers.
False - No requirement to identify the person, can identify any quality about the person
James Wallingford and Robert Mills, police officers patrolling together, notice a car drive by with a partially obstructed license plate (A violation of state law), and pull the car over. While speaking with the driver, Tom Braun, they see that the passenger, Kate Kline, has an open purse at her feet wit what appears to be a gun in it. They force the two out of the car and question them separately. Under questioning, Kate says to Wallingford that Tom shoved the gun into her purse when he heard the police car's siren. After further investigation, Tom - who has a prior criminal record - is indicted in federal court on charges of being a felon in possession of a firearm. The prosecution does not call Kate or Officer Wallingford as witnesses, instead, it seeks to offer into evidence a copy of a police report written out by the scene of the arrest as well as what Kate said to him. Tom's attorney raises a hearsay objection. The prosecution responds that it is admissible under 803(6) and 803(8). Officer Wallingford's police report satisfies the 803(6) Business Records exception
False - Oates
Leon is on trial on charges of sexually assaulting Lucinda, who died just before trial began. At trial, the government seeks to offer into evidence testimony by Reggie that he heard Leon say that he forced Lucinda to have sex with him against her will, contending that it is admissible under Rule 801(d)(2)(A). Leon, through his attorney, denies that he ever made such a statement and objects to the admission of Reggie's testimony. Later in the trial, Leon seeks to offer into evidence testimony by Rhonda that Lucinda said to her, "I willingly had sex with Leon," contending that ti is admissible under Rule 801(d)(2)(A). Rhonda's testimony that Lucinda said she had consensual sex with Leon satisfies the 801(d)(2)(A) hearsay exclusion.
False - The victim is not the party, the state is
Shortly after eating at a restaurant, Lisa became extremely ill. She went to her doctor, who after performing tests, informed her that she tested positive for staphylococcus. Believing that her exposure resulted from improper health precautions at the restaurant, Lisa brought suit against its owner. In its defense, the restaurant's owner called the manager as a witness, who would testify that "No other customers who ate at the restaurant during the week that Lisa ate there ever complained that the got sick." The manager of the restaurant is the declarant in this problem.
False - he is the auditor of the silent restaurant goers
James Wallingford and Robert Mills, police officers patrolling together, notice a car drive by with a partially obstructed license plate (A violation of state law), and pull the car over. While speaking with the driver, Tom Braun, they see that the passenger, Kate Kline, has an open purse at her feet wit what appears to be a gun in it. They force the two out of the car and question them separately. Under questioning, Kate says to Wallingford that Tom shoved the gun into her purse when he heard the police car's siren. After further investigation, Tom - who has a prior criminal record - is indicted in federal court on charges of being a felon in possession of a firearm. The prosecution does not call Kate or Officer Wallingford as witnesses, instead, it seeks to offer into evidence a copy of a police report written out by the scene of the arrest as well as what Kate said to him. Tom's attorney raises a hearsay objection. The prosecution responds that it is admissible under 803(6) and 803(8). Officer Wallingford's police report satisfies the Public Records 803(8) exception.
False - being used against a criminal defendant
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. The investigative report will likely be found to satisfy the 803(6) business records exception..
False - courts are suspicious of this kind of evidence
Shortly before she died, Tabatha drafted a will in which she left her entire estate to a religious organization. Her children challenged the will, claiming that Tabatha lacked testamentary capacity at the time. At trial, her children wished to testify that, on several occasions, shortly before she drafted the will, Tabatha would introduce herself as the Queen of England. At trial, the children's testimony that Tabatha would introduce herself as the Queen of England is hearsay.
False - declarant's state of mind
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, pursuant to Rule 407, the judge must exclude evidence of the installation of the emergency shut-off switches on the day after the incident if the shut-off switches were added by the construction company after the State Department of Occupational Safety & Hazards issued regulations requiring that they be installed
False - do not have to exclude because they are under government compulsion
An issue at trial is whether Smith illegally impersonated a United States ambassador named Bruce. Witness wants to testify that when Smith met a representative of the Immigration and Naturalization Service, he overheard Smith said, "I am Ambassador Bruce." Smith raises a hearsay objection to Witness' testimony. The objection should be granted.
False - effect on the auditor
Bowe, a soldier, has been accussed of abandoning his post and joining the enemy. Bowe claims the duress defense. He claims that he had been captured by the enemy and forced to take up arms against American soldiers. To establish his defense, he wants to offer his testimony about his captors' orders and threats. His testimony is hearsay.
False - effect on the auditor
In the case at hand, the court needs to decide whether D was justified in revoking a trust that he had established (for his former wife) because he anticipated needing the trust proceeds to cover his medical expenses. If the following is offered to show that D was anxious and worried about his health a statement to D by his physician (declarant) that "You have had a series of small heart attacks and strokes; one heart artery is closed and the others are badly congested" the statement is hearsay.
False - effect on the auditor
The issue at trial is whether D was negligent when he drove a car that had defective tires. D's opponent wants to use a statement made to D by X, a service station attendant, who looked at the front tires and said, "Both of these front tires are bad and the one on the left front already has a tear." This statement is hearsay if it is being used to prove that the D had notice about the condition of the tires.
False - effect on the auditor
Prosecutor (P) convenes a grand jury that returns an indictment charging Defendant (D) with armed robbery. Subsequently, P and D enter into plea bargaining discussions. During these talks, D tells P where the robbery materials are hidden. P sends police investigators to that place and recover the robbery materials. Subsequently, the plea discussions fail and D's trial starts. At the trial, when P introduces evidence of the robbery materials collected from the place disclosed by D during plea negotiations, D objects. FRE 410 requires that the judge exclude the evidence of the robbery materials.
False - evidence that led from the statement is not excluded
Chad is driving on a highway where construction is taking place. After Chad has an accident, the contractor doing the construction work installs warning signs. Chad sues the contractor for negligence and wants to introduce evidence about the installation of the warning signs. In defense, the contractor alleges that it did not control the portion of the road where an accident occurred. Pursuant to FRE 407, the trial judge must exclude evidence of the installation of the warning signs
False - exception - can admit evidence for ownership or control
Christina, who is driving eastbound, collides at an intersection with Rob, who is driving southbound. Lisa is a passenger in Rob's car, and she, along with Rob, is injured in the accident. Lisa settles he claims with Christina out of court, but Rob brings suit against Christina for his injuries. In Rob's suit against Christina, Christina calls Lisa as a witness. Lisa testifies that "Rob ran the red light." Rob wants to offer Lisa's settlement with Christina to impeach her testimony by showing she is biased. FRE 408 requires that the judge exclude evidence of the settlement.
False - exception to prove bias/prejudice
An issue at trial is whether A, an Army Officer, gave to B a Rolex watch or whether A simply put the watch in B's care during the time A was engaged in a dangerous combat mission. W testifies that when A handed the watch to B he (A) said, "We have been friends through thick and thin; whatever happens, I want to give you this Rolex." This is hearsay.
False - giving of a gift
John borrowed $100K from Bank of American to finance his internet start-up company. Shortly after the NASDAQ collapsed, so did John's company. In a telephone discussion with a Bank of America representative shortly after he stopped making payments on his loan, John said "I realize that I still owe you nearly $100K, but would you take $3K as I am almost bankrupt?" In a suit brought by Bank of America against John for breach of contract, pursuant to FRE 408, the judge must exclude evidence of that when John spoke to the Bank's representative on the phone, he said "I realize that I still owe you nearly $100,000, but would you take $3,000 as I am almost bankrupt?"
False - there is no dispute here as to liability or amount of damages, it is not a problem that he is unilaterally engaging in settlement talks
Randy Jones is on trial on charges that he hit a pedestrian with is car and fled the scene. The prosecution seeks to offer testimony during its case-in-chief by Wilma, a witness to the accident, that the car that struck the pedestrian was a silver 2008 Honda Civic, with a missing taillight and a bumper sticker that read "Property of Randy Jones." At trial, Wilma's testimony that the car had a bumper sticker that said "Property of Randy Jones" is hearsay.
False - unique mark/inscription
Alfred is suing Bank for conversion of his crops. Alfred was a landlord and Blue was his tenant. Blue grew corn on the land. One portion of the land was Alfred's and the other was rented to Blue. To satisfy a past debt owned by Blue, the Bank seized corn. However, Alfred claims that corn that was seized came from his portion of the land, not Blue's portion of the land. To prove which portion of the land was his, Alfred wants to testify that, after the corn was harvested, he went to the farm to inspect the yield; he asked Blue "Which corn is mine?" and Blue responded by pointing to certain portions and told Alfred that those portions contained the corn that belonged to Alfred. The Bank objects to Alfred's testimony about what Blue told him as being hearsay. The judge should grant the Bank's objection.
False - verbal act
Alfred is suing Blue for breach of contract. To prove acceptance of the contract by Blue, Alfred wants to present a witness who will testify that she heard Blue say to Alfred: "I accept your offer to paint my porch for $500." Blue raises a hearsay objection. The judge should grant Blue's objection.
False - verbal act
Alfred plays a prank by running into an opera house and excitedly yelling, "fire, fire— there's a fire in the basement!" Later, he is prosecuted for giving a false alarm and the prosecution calls to the stand a witness who was in the opera house. This witness will testify as to what Alfred yelled. Alfred raises a hearsay objection. The judge should grant Alfred's objection.
False - verbal act
An issue at trial is whether Father put a deposit in trust for Daughter or for Son. Bank Teller testifies that when Father handed him a check for $50,000, Father said, "I want the entire amount of this check put in trust for Daughter." This is hearsay.
False - verbal act
Lisa, an art dealer, finds out that Debbie has been telling people tha tLisa knowingly sells forged work. Outraged, Lisa brings a lawsuit against Debbie for slander. At trial, Lisa calls as witnesses a number of people who, if permitted, would testify that Debbie told them that Lisa knowingly sells forged work. In a suit by Lisa against Debbie for slander, testimony by a witness that she heard Debbie say that Lisa knowingly sells forged artwork is hearsay
False - verbal act
Pursuant to Rule 403, a judge should exclude Playboy magazines found in the defendant's house where the defendant was charged with sexual assault
False, depends on the juror community, will this make the jury so emotionally upset that it will prevent them from logically or rationally weighing the evidence?
Kevin Demming is on trial of having committed arson. the prosecution claims that on the evening of January 1, 2018, Kevin intentionally set on fire a commercial building that he owned. The prosecution's theory is that Kevin wanted to collect on an insurance policy that he had taken out on the property. At trial, the prosecution seeks to offer evidence that Kevin had an insurance policy that would reimburse him for the value of the property in the event it was destroyed in a fire. With regard to Kevin's prosecution on arson charges, pursuant to FRE 411, the judge must exclude evidence that Kevin had an insurance policy that would reimburse him for the value of the property in the event it was destroyed in a fire.
False, this is property insurance, the rule only addresses liability insurance
Lisa, a 19 year old female, is indicted on charges of violating her state's statutory rape law in connection with a sexual encounter she is alleged to have had with Tom, a 15 year old male. The statute provides that a person is guilty of statutory rape in the 1st degree if he or she is over the age of 18 and engages in sexual penetration with a person under the age of 16. Lisa wishes to introduce evidence that: a) she believed that Tom was 16 b) that in any event, Tom consented. Specifically she would like to testify that when she asked him how old he was, he told her that he was sixteen, and also that she believed him to be 16 because he drove a car, and under state law, only those 16 or older can have a driver's license. It is relevant that Tom consented to having sex with Lisa
Fase
FRE 104(a)
In General - the court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege (The judge can rely on any evidence to make a relevancy determination)
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. IF being admitted in the bank robbery case, does testimony about what John said meet the 804(b)(2) excption?
No
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If John had survived and Patrick was charged with attempted murder with respect to John, does testimony about what John said meet the 804(b)(2) exception?
No
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda is found dead in her apartment with a gunshot wound to the head. The prosecution has some evidence suggesting that Daniel hired someone to kill Wanda, although not enough to prove it beyond a reasonable doubt. The prosecution seeks to offer into evidence the transcript, created by the stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assume that Daniel is facing murder charges in connection with Wanda's death. Is Wanda's prior testimony hearsay?
No
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda is found dead in her apartment with a gunshot wound to the head. The prosecution has some evidence suggesting that Daniel hired someone to kill Wanda, although not enough to prove it beyond a reasonable doubt. The prosecution seeks to offer into evidence the transcript, created by the stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assuming the transcript itself meets the Public Record's (803(8) (A)(ii) hearsay exception, would Wanda's prior testimony meet the 801(d)(1)(A) hearsay exclusion?
No
David Smith is indicted on charges of stabbing his wife, Lisa, to death. The prosecution's theory is that David killed Lisa on the evening of January 1, 2018, when Lisa told him that she was planning on leaving him. At David's preliminary hearing, William - the next-door neighbor - testified that on the evening in question, he saw through an open window David stabbing Lisa. Several weeks later, William dies of a heart attack. At David's trial, the prosecution seeks to offer into evidence a transcript of William's testimony at the preliminary hearing. David's attorney objects on hearsay grounds, but the objection is overruled. David's attorney then seeks to offer, over the prosecution's objection, the following: 1) Testimony by Marie, a bartender at a bar one block away from the Smith's house. Marie would testify that about one hour before Lisa was killed, William staggered out of the bar after having imbibed a dozen glasses of beer. 2) Testimony by Robert, one of William's closest friends. Robert would testify that two days after William testified at David's preliminary hearing, William said "when I looked into the window, I saw Tom (Lisa's boyfriend) stabbing Lisa alone." 3) Testimony by John, William's former employer. John would testify that during his job interview William falsely stated that he had a law degree. Assuming that the trial court allows the prosecutor to offer into evidence a transcript of William's preliminary hearing testimony, should the judge sustain the prosecutor's objection to John's testimony? (John, William's former employer, would testify that during his job interview, William falsely stated that he had a law degree.)
No
David Smith is indicted on charges of stabbing his wife, Lisa, to death. The prosecution's theory is that David killed Lisa on the evening of January 1, 2018, when Lisa told him that she was planning on leaving him. At David's preliminary hearing, William - the next-door neighbor - testified that on the evening in question, he saw through an open window David stabbing Lisa. Several weeks later, William dies of a heart attack. At David's trial, the prosecution seeks to offer into evidence a transcript of William's testimony at the preliminary hearing. David's attorney objects on hearsay grounds, but the objection is overruled. David's attorney then seeks to offer, over the prosecution's objection, the following: 1) Testimony by Marie, a bartender at a bar one block away from the Smith's house. Marie would testify that about one hour before Lisa was killed, William staggered out of the bar after having imbibed a dozen glasses of beer. 2) Testimony by Robert, one of William's closest friends. Robert would testify that two days after William testified at David's preliminary hearing, William said "when I looked into the window, I saw Tom (Lisa's boyfriend) stabbing Lisa alone." 3) Testimony by John, William's former employer. John would testify that during his job interview William falsely stated that he had a law degree. Assuming that the trial court allows the prosecutor to offer into evidence a transcript of William's preliminary hearing testimony, should the judge sustain the prosecutor's objection to Marie's testimony? (Marie, a bartender at a bar one block away from the Smiths' house, would testify that about one hour before Lisa was killed, William staggered out of the bar after having imbibed a dozen glasses of beer.)
No
David is on trial on charges of murder. David raises an alibi defense, and calls Molly as a witness, who testifies that David was at her house helping her rearrange furniture at the time the murder took place. On cross-examination, the prosecution seeks, over David's objection, to ask Molly the following questions: 1) Isn't it true that when you applied for a job three years ago, you submitted a resume that falsely stated that you had graduated from college with honors? 2) Isn't it true that in college, you used a false ID to purchase alcohol when you were underage? If Molly says she did not use a false ID in college, can the prosecutor offer evidence to prove that she used a false ID?
No
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 412: Dennis' testimony that he has engaged in sexual intercourse with Nancy several times in the past year
No
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 412: testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but later retracted those accusations after being confronted with inconsistencies in her story.
No
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. Assuming it is hearsay, could the government offer Donald's grand jury testimony into evidence through the 804(b)(1) hearsay exception?
No
Donna is on trial on charges of murdering Victor. Donna seeks to call Wallace as a witness. If permitted, he would testify that on a recent trip to Mexico, about two weeks after Donna's arrest, one Richard said to him in a very calm voice, "It's funny that they arrested that Donna woman; I'm the one who killed that s.o.b. victor, and I did it all by myself." If Richard were Donna's father, would Wallace's testimony about Richard's statement to him satisfy the 804(b)(3) hearsay exception?
No
Donna is on trial on charges of murdering Victor. Donna seeks to call Wallace as a witness. If permitted, he would testify that on a recent trip to Mexico, about two weeks after Donna's arrest, one Richard said to him in a very calm voice, "It's funny that they arrested that Donna woman; I'm the one who killed that s.o.b. victor, and I did it all by myself." If Richard were already serving a life sentence for some other crime, would Wallace's testimony about Richard's statement to him satisfy the 804(b)(3) hearsay exception?
No
Henry is injured while riding a roller coaster at the state fair. He sues the Carnival Inc., the owner of the ride. The complaint alleges that Carnival was negligent in hiring Jack Hyde, the person who was in charge of operating the ride at the fair. At trial, Henry offers testimony from Molly, who works with Jack Hyde. Molly will testify that in her opinion Hyde is an alcoholic and is addicted to drugs. Does Rule 404(a) require the exclusion of this evidence?
No
In a civil action against the defendant for the wrongful death of a person, evidence that he had previously been acquitted of manslaughter of that person, an offense punishable by a maximum of ten years in prison, offered by the defendant to prove that he did not cause the person's death. Does the evidence of the defendant's prior manslaughter acquittal satisfy the 803(22) hearsay exception?
No
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." Assuming that the judge finds Paula's testimony to be relevant and finds it to meet the definition of hearsay in 801(a)-(c), should Paula's testimony about William's prior statement be excluded from the definition of hearsay under Rule 801(d)?
No
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." Assuming that the judge finds Paula's testimony to be relevant, should the trial court sustain Donald's attorney's objection that Paula's testimony is hearsay?
No
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." Under Ohio law, would Paula be allowed to impeach William's testimony using his prior statement under its equivalent to Rule 607?
No
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to John constitute a PSI under 803(1)?
No
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to John constitute an excited utterance under 803(2)?
No
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to Lisa constitute an excited utterance under 803(2)?
No
Pete is on trial on charges of committing arson. Wallace, an eyewitness, testifies on behalf of the prosecution. Subsequently, Pete sues his insurance company to recover for losses sustained in the fire. By this time, Wallace has died. The insurance company offers evidence of Wallace's death and a transcript of his testimony in the arson prosecution. Pete raises a hearsay objection. Assuming the transcript itself meets the Public Record's (803(8) (A)(ii) hearsay exception, would Wallace's civil case testimony meet the 804(b)(1) hearsay exception in the criminal case?
No
Robert Fox is on trial on charges of murdering his girlfriend, Deborah Riley. The murder is alleged to have taken place on January 5, 2018, at 11:30 p.m. As proof that Fox was with Riley at the time of the murder, the prosecution seeks to offer testimony by David Smith. Smith would testify that he and Riley were chatting with one another in an online "chat room" operated by Compu-Surf. According to Smith, at around the time of the alleged murder, he received an instant message from Riley that read "David, I'll have to talk to you a little bit later. Robert just walked into the room." Does this constitute an excited utterance under 803(2)?
No
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Assume that it was the prosecutor who asked the trial judge to take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank. If the trial judge takes judicial notice of this fact, is the jury required to find that the shortest driving distance between the two banks is 15 miles?
No
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Should the trial judge take judicial notice of the fact that Tom could not have been the person who robbed the bank?
No
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Assuming Janet's testimony is hearsay, does Don's statement to Janet constitute an excited utterance satisfying 803(2)?
No
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Assuming that Janet's testimony about Don's statement is hearsay, does Don's statement constitute a present sense impression under 803(1)?
No
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Does Francine's statement to Don constitute a present sense impression satisfying 803(1)?
No
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017, the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) May the prosecutor ask Paul "Isn't it true that on July 15, 2005, you were convicted for possession of cocaine with intent to distribute (a crime punishable by up to five years' imprisonment for which Paul received and served a two-year sentence, with a release date of July 15, 2007)"?
No - 609(a)(1)(B)
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Assume that it was the defendant who asked the trial judge to take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank. If the trial judge takes judicial notice of this fact, is the jury required to find that the shortest distance between the two banks is 15 miles?
No - Criminal case 207(f)
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Does Veronica's statement to Anita "The last time I threatened to leave, he went nutso on me and beat me up real bad" satisfy the 803(3) hearsay exception?
No - Shepard backward looking fact, BUT theory of relevance also makes this bad character evidence
Late one evening, David and Pau crashed into one another at the intersection of 5th and Main. Given the time of night, there were no other witnesses to the accident, and each driver maintains that the light was green in his favor. Paul has sued David for damages arising out of the accident and David has counterclaimed for the same. At trial, Paul seeks to introduce evidence that in the past 10 years, David has received three tickets for running red lights, two tickets for speeding, and one ticket for reckless driving. David in turn seeks to introduce evidence that in the past 10 years, Paul has received eight tickets for running red lights. Is the following admissible under Rule 406: evidence that in the past 10 years, David has received three tickets for running red lights, two tickets for speeding, and one ticket for reckless driving?
No - all different behavior
David is on trial on charges of murder. David raises an alibi defense, and calls Molly as a witness, who testifies that David was at her house helping her rearrange furniture at the time the murder took place. On cross-examination, the prosecution seeks, over David's objection, to ask Molly the following questions: 1) Isn't it true that when you applied for a job three years ago, you submitted a resume that falsely stated that you had graduated from college with honors? 2) Isn't it true that in college, you used a false ID to purchase alcohol when you were underage? May the prosecutor ask Molly "Isn't it true that in college, you used a false ID card to purchase alcohol when you were underage"?
No - can ask about prior instances of lying, but is this too broad/too long ago
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. The prosecution seeks to offer the following: 1) Testimony by Wendy that Dennis sexually assaulted her two years ago after he brought her home from a dinner date. Wendy never reported the incident to the authorities. 2) Testimony by Danielle that Dennis has a reputation for being "rough with the ladies" The trial judge may admit the following pursuant to FRE 413: testimony by Danielle that Dennis has a reputation for being "rough with the ladies."
No - conduct only
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge may admit the following under FRE 413: evidence offered by the prosecution in the form of testimony by Anna that Bill has a reputation as being rough with the ladies.
No - conduct only, not reputation or opinion
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 412: testimony by Anne, an acquaintance of Nancy's, that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!"
No - consent
While shopping at the Piggy-Wiggy Market, Marie slips and falls on what she later discovers ic cottage cheese. Upon falling, Marie hears another customer yell, "Oh my God! Are you okay? I told them to clean that up two hours ago!" Marie is eventually taken to a hospital, where she is treated for a broken wrist. Marie begins suit against Piggy-Wiggy for negligence. She has not been able to locate the unidentified customer who made the statement, but she and several other witnesses are prepared to testify to what that person said, contending that it is relevant to show that the defendant had notice of the dangerous condition. The defendant objects, contending that the proffered testimony is "double hearsay" Does Marie's testimony about what the unidentified customer told her constitute a present sense impression satisfying 803(1)?
No - describing or explaining what she did but it was two hours ago, not right now
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017, the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) May the prosecutor ask Paul "Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to twenty years' imprisonment for which Paul received and served a four-year sentence)"?
No - does the probative value actually outweigh the prejudicial value under 609?
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Is Francine's statement that she told Janet two weeks ago to replace the brakes hearsay?
No - effect on the auditor
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Is Don's statement that he told his employer to fix the brakes two weeks ago hearsay?
No - establishing notice - effect on the auditor
In a prosecution under a statute that makes it a criminal offense for a person convicted of any crime to possess a firearm, evidence that the defendant had, before being found in possession of the firearm, been previously convicted for a crime punishable by a maximum of six months in prison, offered by the prosecution to prove the prior conviction element of the charged offense. Is the evidence of the defendant's prior conviction hearsay?
No - fact of prior conviction is not hearsay (verbal act - independent legal significance)
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 412: testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then walked into the apartment with him.
No - goes to source of the injury
While driving a car manufactured by Specific Motors, William Farmington is killed on December 5, 2017, when the car skids off the road and crashes into a tree. William's spouse, Tina, brings a wrongful death action against SM in federal court. The evidence is undisputed that William's seat belt was not fastened around him when his body was discovered at the accident scene. The plaintiff's theory, however, is that the belt buckle had a defect known as "false latching" that caused it to appear to the person wearing it as though it was latched, but that would result in unbuckling a soon as pressure was exerted on it, such as would occur in an accident. SM defends on the ground that there is no evidence that William was wearing his seat belt at the time of the accident. Tina seeks to offer: 1) Her own testimony that she drove with William at least 3 times per week for the last 10 years, and that he always put his seat belt on before the car was started, regardless of the length of the trip and regardless of whether he was the driver or the passenger. 2) Testimony by a co-worker that in his opinion, William was an "extremely cautious" driver Is the following admissible under Rule 406: testimony by one of William's coworkers that in his opinion, William was an "extremely cautious" driver?
No - habit is behavior only, not reputation or opinion
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda is found dead in her apartment with a gunshot wound to the head. The prosecution has some evidence suggesting that Daniel hired someone to kill Wanda, although not enough to prove it beyond a reasonable doubt. The prosecution seeks to offer into evidence the transcript, created by the stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assuming the transcript itself meets the Public Record's (803(8) (A)(ii) hearsay exception, would Wanda's prior testimony meet the 804(b)(1) hearsay exception?
No - he did not have the chance to cross examine her (and even if he did, did the prosecution have a similar motive to develop testimony
In a civil action against the defendant for the wrongful death of a person, evidence that he had previously been acquitted of manslaughter of that person, an offense punishable by a maximum of ten years in prison, offered by the defendant to prove that he did not cause the person's death. Is the evidence of the defendant's prior manslaughter acquittal hearsay?
No - judgement of acquittal is still a legal act but is defendant trying to show that they didn't do it by showing this evidence? When a jury sys the defendant is not guilty it is just saying that they do not believe he did more than 51% so defendant is not admitting the evidence for the truth of the matter.
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. The prosecution seeks to offer the following: 1) Testimony by Wendy that Dennis sexually assaulted her two years ago after he brought her home from a dinner date. Wendy never reported the incident to the authorities. 2) Testimony by Danielle that Dennis has a reputation for being "rough with the ladies" The trial judge should exclude the following pursuant to FRE 403: testimony by Wendy that Dennis sexually assaulted her two years ago after he brought her home from a dinner date (Wendy never reported the incident to the authorities).
No - judges usually interpret the rule narrowly - preference to conviction/indictment, not just reports
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Is Janet's testimony about Don's statement that he told his employer to fix the brakes two weeks ago hearsay?
No - need more information, this may be an opposing party statement exclusion or an agent exclusion
David is on trial on charges of murder. David raises an alibi defense, and calls Molly as a witness, who testifies that David was at her house helping her rearrange furniture at the time the murder took place. On cross-examination, the prosecution seeks, over David's objection, to ask Molly the following questions: 1) Isn't it true that when you applied for a job three years ago, you submitted a resume that falsely stated that you had graduated from college with honors? 2) Isn't it true that in college, you used a false ID to purchase alcohol when you were underage? If Molly says she did not lie on her resume, can the prosecutor offer evidence to prove that she lied on her resume?
No - no extrinsic evidence allowed
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to Lisa constitute a PSI under 803(1)?
No - not describing it and it is the next day
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to Lisa constitute a statement made for medical diagnosis or treatment under 803(4)?
No - not making it to get treatment
Late one evening, David and Pau crashed into one another at the intersection of 5th and Main. Given the time of night, there were no other witnesses to the accident, and each driver maintains that the light was green in his favor. Paul has sued David for damages arising out of the accident and David has counterclaimed for the same. At trial, Paul seeks to introduce evidence that in the past 10 years, David has received three tickets for running red lights, two tickets for speeding, and one ticket for reckless driving. David in turn seeks to introduce evidence that in the past 10 years, Paul has received eight tickets for running red lights. Is the following admissible under Rule 406: evidence that in the past 10 years, Paul has received eight tickets for running red lights?
No - probably, but you do not get a ticket every time, you may just not be getting caught
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 404: evidence offered by Bill in the form of testimony by Tom that, before Bill went on a date with Linda, Tom told Bill that Linda had sex with Tom when he took her home from dinner on their first date.
No - propensity evidence applies to everyone, not just the defendant, but can consider MIMICKOP - reasonable belief of consent? (still likely exclude under 403)
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 404: evidence offered by the prosecution in the form of testimony by Marie and Dawn that Bill tried to sexually assault them after they went out to dinner together
No - propensity evidence but consider MIMICKOP - method of behavior/identity (mens rea)
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. A police officer prepared a report 10 minutes after the accident. The report states that when the officer arrived at the scene of the accident, he interviewed a Bystander. According to the report: "Bystander calmly reports that he had just finished a jogging workout. He says that he heard the horn twice, then saw the limousine in question. The limousine was going about sixtyfive or seventy miles an hour. When the driver saw the Walmart truck, he jammed on his brakes and the limousine began to skid. Because the driver apparently couldn't stop before reaching the intersection, he accelerated, but hit the Walmart truck." Does the police report satisfy the 803(6) business record exception?
No - public record? likely should argue PSI instead
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. A police officer prepared a report 10 minutes after the accident. The report states that when the officer arrived at the scene of the accident, he interviewed a Bystander. According to the report: "Bystander calmly reports that he had just finished a jogging workout. He says that he heard the horn twice, then saw the limousine in question. The limousine was going about sixtyfive or seventy miles an hour. When the driver saw the Walmart truck, he jammed on his brakes and the limousine began to skid. Because the driver apparently couldn't stop before reaching the intersection, he accelerated, but hit the Walmart truck." Should the report be excluded as hearsay?
No - rely on 807
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 404: evidence offered by Bill in the form of testimony by Megan that Linda has a reputation for promiscuity.
No - the defendant can attack the victims character but they open themselves up to attack
While shopping at the Piggy-Wiggy Market, Marie slips and falls on what she later discovers ic cottage cheese. Upon falling, Marie hears another customer yell, "Oh my God! Are you okay? I told them to clean that up two hours ago!" Marie is eventually taken to a hospital, where she is treated for a broken wrist. Marie begins suit against Piggy-Wiggy for negligence. She has not been able to locate the unidentified customer who made the statement, but she and several other witnesses are prepared to testify to what that person said, contending that it is relevant to show that the defendant had notice of the dangerous condition. The defendant objects, contending that the proffered testimony is "double hearsay" Is the unidentified customer's statement to store personnel that there was a mess on the floor that they need to clean up hearsay?
No - we are not admitting this for the truth of the statement that that the customer said that to Marie, we are asserting it for notice on behalf of the store. The statement suffers from double hearsay - (1) statement to the store and (2) statement to Marie. Marie wants to admit the statement to show that the customer did say something to the store and this satisfies the exception for the auditor's state of mind (effect on the auditor - notice)
On the afternoon of January 15, 2018, police officer Debbie Perkins was dispatched to the corner of 5th and Main Streets in response to a 911 call indicating that gunshots were heard. When she arrived at the scene, she found Valerie Albertson, dead of an apparent gunshot wound. Beside her body, Perkins found a black baseball cap. When Perkins arrived, she also found a woman crying nearby, one Wanda Brown, who told her that she witnessed the shooting. Perkins radioed for assistance, and shortly thereafter, Officer David French of the K-9 unit arrived with his bloodhound, Sophie. Perkins recognized Sophie as the department's trailing dog, a type of dog that is trained to lead officers to a person by smelling an article left behind by that person. Sophie then sniffed the baseball cap and started running, with French in tow. As Sophie approached a man later identified as Robert Barrone, she alerted by barking. Barrone was arrested and taken to police headquarters. Wanda later identified Barrone as the man who shot Albertson. Barrone is indicted on charges of murder. The prosecution is unable to procure Wanda's attendance at trial. However, it seeks to offer into evidence Perkins's testimony that Wanda identified Barrone as the shooter. Officer Perkins' testimony that Wanda Brown identified Barrone as the shooter meets the 801(d)(1)(C) hearsay exclusion.
No because Wanda cannot attend
While shopping at the Piggy-Wiggy Market, Marie slips and falls on what she later discovers ic cottage cheese. Upon falling, Marie hears another customer yell, "Oh my God! Are you okay? I told them to clean that up two hours ago!" Marie is eventually taken to a hospital, where she is treated for a broken wrist. Marie begins suit against Piggy-Wiggy for negligence. She has not been able to locate the unidentified customer who made the statement, but she and several other witnesses are prepared to testify to what that person said, contending that it is relevant to show that the defendant had notice of the dangerous condition. The defendant objects, contending that the proffered testimony is "double hearsay" Would Marie's testimony about what the unidentified customer told her constitute a present sense impression satisfying 803(1) if that person had said two minutes ago instead of two hours ago
No because she is not describing or explaining the fall
On the afternoon of January 15, 2018, police officer Debbie Perkins was dispatched to the corner of 5th and Main in response to a 911 call indicating that gunshots were heard. When she arrived at the scene, she found Valerie Albertson, dead of an apparent gunshot wound. Beside her body, Perkins found a black baseball cap. Perkins radioed for assistance, and shortly thereafter, Officer David French of the K-9 unit arrived with his bloodhound, Sophie. Perkins recognized Sophie as the unit's trailing dog, a type of dog that is trained to lead officers to a person by smelling an article of clothing left behind by that person. Sophie then sniffed the baseball cap and started running, with French in tow. As Sophie approached a man later identified as Robert Barrone, she alerted by barking. Barrone was arrested and taken to the station. Barrone is indicted on charges of murder. The prosecution seeks to have French, an exert on trailing dogs, testify as to Sophie's training and to the fact that she led him to Barrone. Barrone's attorney objects, contending that French's testimony that Sophie barked when she approached Barrone is hearsay. Which of the following is hearsay: A. Officer French's testimony about what Sophie did in her training B. Officer French's testimony that Sophie led him towards Robert Barrone after sniffing the baseball cap C. Officer French's testimony that Sophie barked when she came to Robert Barrone
None
FRE 409
Payment of medical and similar expenses
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda dies, and there is no reason to believe that she died as a result of foul play. The prosecution seeks to offer into evidence the transcript, created by a stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assuming the transcript itself meets the Public Record's (803(8)(A)(ii) hearsay exception, would Wanda's prior testimony meet the 807 residual hearsay exception?
Probably yes
Bruton v. US
Questions of joint trials - if A has a separate trial, a confession can be admitted against him with an exception, but with a joint trial you cannot use A's admission against A, it is too persuasive, cannot even use an instruction to the jury saying not to apply the confession to B
FRE 403
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: a) Unfair prejudice b) Confusing the issues c) Misleading the jury d) Undue delay e) Wasting time f) Needlessly presenting cumulative evidence
Phil and Drew collide while playing baseball. Phil sustains serious head injuries. Drew, who is clearly upset, declares ''I'm so sorry. It was all my fault and I want to pay your medical bills.'' Phil later sues Drew, alleging negligence. Drew denies negligence and asserts Phil's contributory negligence. At trial, Phil wants to offer testimony that reveals what Drew said after the two collided. FRE 409 requires the exclusion of Drew's statement.
The first part of the statement is admissible, the second part is inadmissible, but you could try to exclude it all as a settlement offer if there is actually a dispute here
Mahlandt v. Wild Canid Survival
The note from Poos on the door and Poors's message for the supervisor count against the employer. The minutes from the meeting count against the employer but not against Poos, respondeat superior does not work both ways
Probative value
The proffered evidence must be logically probative of the proposition toward which it is directed by having any tendency to make the material fact more or less true (The possibility that an inconsistent or contradictory inference may reasonably be drawn from the offered item of evidence does not destroy that item's relevancy so long as the inference desired by the proponent is also a reasonable one)
Christina, who is driving eastbound, collides at an intersection with Rob, who is driving southbound. Lisa is a passenger in Rob's car, and she, along with Rob, is injured in the accident. Lisa settles he claims with Christina out of court, but Rob brings suit against Christina for his injuries. In Rob's suit against Christina, FRE 408 requires that the judge exclude evidence of the settlement between Lisa and Christina
True
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. Ellen's testimony that the robber was wearing a green baseball cap is relevant.
True
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. Given Ellen's testimony, Lisa's testimony that David owns a green cap is relevant.
True
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. If Ellen admits on cross-examination that she is color-blind and could not see the color green, and if Ellen's testimony is the only evidence about the color of the hat, the judge must grant David's motion for a directed verdict.
True
David is on trial on charges of robing a magazine store at gunpoint. Ellen, an eyewitness to the crime, testifies for the prosecution that the person who committed the robbery was wearing a green baseball cap. On cross-examination, David's attorney tries to establish that Ellen was too far away to accurately make out the color of the baseball cap, but Ellen stands by her testimony. The judge thinks that Ellen is lying. The prosecution then calls Lisa, David's housekeeper, who would testify that David owns a green baseball cap David's attorney objects. If Ellen admits on cross-examination that she is color-blind and could not see the color green, the judge must exclude Lisa's testimony as being irrelevant.
True
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. David calls Nancy three days after the car accident and tells her the color of the car. A few days later Nancy writes a note with the color of the color. At trial, David is unable to fully and accurately remember the color of the car. The 803(5) exception allows the prosecutor to have the Note read into evidence as substantive proof of the color of the car that caused the accident if (1) David testifies that he called Nancy while the matter was fresh in his mind and that he accurately told her the color of the car, and (2) Nancy testifies that she wrote the note while the matter was fresh in her mind and that it accurately reflected what she had been told by David.
True
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. David writes a note indicating the color of the car three days after seeing the accident. At trial, David is unable to fully and accurately remember the color of the car. As long as he testifies that he made the note when the matter was fresh in his mind and that it accurately reflected his knowledge at that time, the 803(5) exception allows the prosecutor to have the Note read into evidence as substantive proof of the color of the car that caused the accident.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. The Court rules that pursuant to Rule 404, the defense, during its case-in-reply, may offer evidence of Mary's peaceful character and of Rebecca's violent character. FRE 405(a) permits the defense to introduce testimony by Donald (a long-time neighbor of Rebecca's) that Rebecca has a reputation in the neighborhood for being a violent person.
True
David is walking on the sidewalk along Elm St when he is struct by a car exiting the garage, a privately owned underground parking facility. David's attorney files a negligence acton against the owner of the garage. Under the governing law, a property owner's awareness of the existence of a dangerous condition on his property bears on his liability for negligence. David's attorney wishes to call as a witness Theresa, who if permitted, would testify that three weeks before the incident involving David, she was walking past the exit of the garage and was nearly hit by a car that was leaving and that she said something to the manager. Theresa's statement to the manager of the Elm Street Garage "I was almost hit by a car exiting your garage the other day" is relevant.
True
George and Mary are both killed in a car accident. George's will provided that if Mary survived him, his entire estate would go to her, otherwise it would go to his brother. Mary's will provided that if George survived her, her entire estate would go to him; otherwise it would go to her sister. In consolidated proceedings, Mary's sister seeks to call Donna, an eyewitness to the accident. Donna would testify that as she approached the car, she heard a female voice cry out "Help me, I'm alive," and that she heard nothing after that. In the probate proceeding, testimony by Donna, an eyewitness to the accident, that she heard a female voice cry out, "Help me, I'm alive," is relevant.
True
In a breach of contract suit, plaintiff testified that his claim is worth $100,000. To impeach this testimony, the defendant wants to introduce evidence of settlement discussions during which the plaintiff offered to settle the case for only $50,000. FRE 408 requires that the trial judge exclude this testimony.
True
In a case involving interference with other people's federally protected rights on account of their race, white supremacist literature found at the defendant's house is relevant
True
In a sexual assault case involving a bus driver (an adult male) and a young boy, pornographic gay-oriented publications that depict adults are relevant
True
In a sexual assault case involving a bus driver (an adult male) and a young boy, pursuant to Rule 403, the trial judge should exclude evidence of pornographic gay-oriented publications that depict adults
True
In a sexual assault case involving an adult male defendant and an adult female victim, Playboy magazines found in the defendant's house are relevant
True
In a sexual assault case involving an adult male defendant and an adult female victim, magazines depicting heterosexual rape scenes found in the defendant's house are relevant
True
In a sexual assault case involving an adult male defendant and an adult male victim, non-pornography gay-oriented publications that depict adults are relevant?
True
Laila is on trial on charges of robbing a bank. Wilma, an eyewitness to the bank robbery, is called by the prosecution as a witness. It is Ash Wednesday, and Wilma attended Roman Catholic Church services prior to arriving in court, and has a small cross on her forehead. The defense objects to Wilma testifying with the ash on her forehead. Subsequently, Laila calls Nadeah as an alibi witness. Nadeah testifies that she was with Laila at a restaurant at the time the bank robbery took place. The prosecution seeks, over a defense objection, to offer evidence that Laila and Nadeah attend the same mosque together. The defense objection to Wilma appearing in court with the ash on her forehead should be sustained.
True
Lisa, a 19 year old female, is indicted on charges of violating her state's statutory rape law in connection with a sexual encounter she is alleged to have had with Tom, a 15 year old male. The statute provides that a person is guilty of statutory rape in the 1st degree if he or she is over the age of 18 and engages in sexual penetration with a person under the age of 16. Lisa wishes to introduce evidence that: a) she believed that Tom was 16 b) that in any event, Tom consented. Specifically she would like to testify that when she asked him how old he was, he told her that he was sixteen, and also that she believed him to be 16 because he drove a car, and under state law, only those 16 or older can have a driver's license. In federal court, it is relevant that when Lisa asked Tom how old he was, he told her that he was 16.
True
Lisa, an art dealer, finds out that Debbie has been telling people tha tLisa knowingly sells forged work. Outraged, Lisa brings a lawsuit against Debbie for slander. At trial, Lisa calls as witnesses a number of people who, if permitted, would testify that Debbie told them that Lisa knowingly sells forged work. In a suit by Lisa against Debbie for slander, testimony by a witness that she heard Debbie say that Lisa knowingly sells forged artwork is relevant.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404 (a)(1) prohibits the prosecutor, during her case-in-chief, from offering evidence of Mary's violent character.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404 (a)(1) prohibits the prosecutor, during her case-in-chief, from offering evidence of Rebecca's non-violent character?
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404(a)(1) prohibits the defense, during its case-in-reply from offering evidence of Mary's character for temperance.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. FRE 404(a)(1)prohibits the defense, during its case-in-reply from offering evidence of Mary's character for honesty.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. If Rebecca dies and Mary is prosecuted for murder, if the defense (Mary), while offering no character evidence, calls an eyewitness who testifies that Rebecca started the fight, FRE 404(a) permits the prosecution in its case-in-rebuttal to offer evidence of Rebecca's nonviolent character.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. The Court rules that pursuant to Rule 404, the defense, during its case-in-reply, may offer evidence of Mary's peaceful character and of Rebecca's violent character. FRE 405(a) permits the defense to introduce testimony by Rhonda (Mary's friend) that in her opinion, Mary is a peaceful person.
True
Mary is on trial on charges that she assaulted Rebecca using a deadly weapon. Mary claims that she acted in self-defense. Assume that Mary does not testify at trial. The Court rules that pursuant to Rule 404, the defense, during its case-in-reply, may offer evidence of Mary's peaceful character and of Rebecca's violent character. FRE 405(a) permits the prosecution to ask Rhonda on cross-examination, "Did you know that Mary broke another woman's nose in a bar fight two years ago?"
True
Paul is on trial on charges of violating a federal statute making it a crime to possess certain types of firearms that have not been registered with a national firearms registry. At trial, as proof that the firearm was not registered, the prosecution offers into evidence a written statement, signed by Tom Rogers, an employee of the ATF. The statement, certified in accordance with the requirements of Rule 902, states that Tom did a diligent search of the ATF's records but found no evidence that Paul had registered his firearm. Paul's attorney raises a hearsay objection to the admission of the statement. Assume Tom Rogers does not testify. His written certification - that he did a diligent search of the ATF's records but found no evidence that Paul had registered his firearm - would satisfy the FRE 803(10) hearsay exception.
True
Paul is on trial on charges of violating a federal statute making it a crime to possess certain types of firearms that have not been registered with a national firearms registry. At trial, as proof that the firearm was not registered, the prosecution offers into evidence a written statement, signed by Tom Rogers, an employee of the ATF. The statement, certified in accordance with the requirements of Rule 902, states that Tom did a diligent search of the ATF's records but found no evidence that Paul had registered his firearm. Paul's attorney raises a hearsay objection to the admission of the statement. Assume Tom Rogers testifies. His testimony - that he did a diligent search of the ATF's records but found no evidence that Paul had registered his firearm - would satisfy the 801(10) exception.
True
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, it is relevant that the construction company fired the employee on the day after the incident
True
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, it is relevant that the construction company installed emergency shut-off switches on the outside of the machinery on the day after the incident
True
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, pursuant to Rule 407, the judge must exclude evidence of the firing
True
Pete, a laborer on a road construction crew, is injured when his leg is crushed by a piece of machinery operated by one of his fellow employees. The day after the incident, the construction company fires the employee who was operating the machinery and installs emergency shut-off switches on the outside of the machinery. In a suit by Pete against the construction company for negligence on a theory of respondeat superior, pursuant to Rule 407, the judge must exclude evidence of the installation of the emergency shut-off switches on the day after the incident
True
Randy Jones is on trial on charges that he hit a pedestrian with is car and fled the scene. The prosecution seeks to offer testimony during its case-in-chief by Wilma, a witness to the accident, that the car that struck the pedestrian was a silver 2008 Honda Civic, with a missing taillight and a bumper sticker that read "Property of Randy Jones." At trial, Wilma's testimony that the car had a bumper sticker that said "Property of Randy Jones" is relevant.
True
Robert is on trial on charges of sexually assaulting John. At Robert's trial the prosecution seeks to introduce evidence that Robert owns non-pornographic gay-oriented publications such as Out and The advocate that depict and discuss relationships among adult males. In a same-sex adult sexual assault case, it is relevant that John (the alleged victim) owned non-pornographic gay-oriented publications.
True
Robert is on trial on charges of sexually assaulting John. At Robert's trial the prosecution seeks to introduce evidence that Robert owns non-pornographic gay-oriented publications such as Out and The advocate that depict and discuss relationships among adult males. In a same-sex adult sexual assault case, it is relevant that Robert (the defendant) owned non-pornographic gay-oriented publications.
True
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that the last time this happened, it turned out that David was the culprit
True
Roberto, a 19 year old male, is indicted on charges of violating his state's statutory rape law in connection with a sexual encounter that he is alleged to have had with Anne, a 15 year old female, on the evening of December 11, 2017. The statute makes it a crime for a person over the age of 18 to engage in sexual intercourse with someone under the age of 16, but includes an affirmative defense for the defendant's reasonable belief that the victim was above the statutory age. At trial, Roberto invokes the AD, contending that he reasonably believed that Anne was in fact 18. In support of his defense, Roberto seeks to call, over a prosecution objection, Marie Jones as a witness. Marie, a high school classmate of Anne's, would testify that when she and Anne were walking through a shopping mall on the afternoon of December 1, 2017, they walked near a table at which people were being registered to vote. The person working at the table said to Anne, "Ma'am, are you registered to vote?" and when Anne replied "No," the person responded "There is no excuse for that! Come here and I'll get you registered in a snap." Marie Jones' testimony is relevant.
True
Shortly before she died, Tabatha drafted a will in which she left her entire estate to a religious organization. Her children challenged the will, claiming that Tabatha lacked testamentary capacity at the time. At trial, her children wished to testify that, on several occasions, shortly before she drafted the will, Tabatha would introduce herself as the Queen of England. At trial, the children's testimony that Tabatha would introduce herself as the Queen of England is relevant.
True
Steve is on trial for second degree murder in connection with the death of Sally. At trial, the prosecution seeks to offer testimony by Bob who would testify that shortly after Sally's death, Steve said to him "I killed Sally so that I could get the insurance money." At Steve's trial for 2d degree murder, Bob's testimony that Steve Confessed to him is relevant
True
Tanya is riding her bike to work when she is hit by a car driven by David. David gets out of his car, runs up to Tanya, and says "I'm so sorry, I was on my phone and didn't notice the stop sign. Are you OK? Let me call my personal physician and have him come out and take a look at you, and don't worry, I'll pay his fees." Tanya groans and says "My bike is trashed and my arm hurts like crazy! And I just paid a fortune for this bike!" David calls his doctor and then says to Tanya "Say, do you think we can work this out between the two of us without getting lawyers involved? Between you and me, I know I'm to blame, but I can't imagine that your harm is more than $500. What do you think?" In a suit brought by Tanya against David, FRE 409 requires that the judge exclude David's statement that "Are you OK? Let me call my personal physician and have him come out and take a look at you, and don't worry, I'll pay his fees."
True
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that Lisa despises Robert
True
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that Lisa is lactose intolerant
True
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that Lisa tells you she saw Robert eat the last piece
True
The inhabitants of the Smith household - Tom, Susan, Lisa, David, and Robert - have insatiable appetites for sweets. Accordingly, on the kitchen table there is always some sort of cake or pie. It is considered taboo to eat the last slice without replacing the cake. Early on Wednesday morning, Tom ate the last slice of cherry pie, which he promptly replaced with a cheesecake. Yet later that afternoon, when Tom returned to the kitchen, he say that every slice of the cheesecake was gone but there was no replacement. Outraged, he has raised the following facts: 1) Susan was out of town from Tuesday morning through Wednesday night 2) Lisa is lactose intolerant 3) David has blue eyes and blonde hair 4) Lisa tells you that she saw Robert eat the last slice of cheesecake 5) The last time this happened, it turned out that David was the culprit 6) Lisa despises Robert 7) It was raining all day on Wednesday It is relevant that Susan was out of town from Tuesday morning through Wednesday night.
True
The issue at trial is whether D was negligent when he drove a car that had defective tires. D's opponent wants to use a statement made to D by X, a service station attendant, who looked at the front tires and said, "Both of these front tires are bad and the one on the left front already has a tear." This statement is hearsay if it is being used to prove that the tires were defective.
True
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. If offered to prove that the brakes were in perfect working condition after the accident, the report is hearsay.
True
Tom, a 2L, is studying in the library. He walks away from his desk momentarily, leaving behind his textbooks and his laptop. When he returns, the laptop is gone. His friend, Jennifer, says to him, "Hey, did you know that Larry took your laptop?" Tom subsequently brings a suit against Larry for conversion, and at trial, Tom wishes to testify to what Jennifer said to him. Jennifer's question to Tom, "Hey, did you know that Larry took your laptop?" is hearsay.
True
Tom, an attorney at a law firm, is on trial on charges of murdering his coworker, Diego. A great deal of evidence tends to show that Diego had learned that Tom was over-billing his clients and had confronted him about it. The evidence includes e-mail messages that Diego sent to Tom as well as a face-to-face confrontation that another coworker, Marie, overheard. There is also evidence that as the police investigation began to focus on Tom, Tom attempted to delete the email messages from his computer and he approached Marie and urged her not to tell the police about what she heard. It is relevant that Diego was threatening to expose Tom's billing practices
True
Tom, an attorney at a law firm, is on trial on charges of murdering his coworker, Diego. A great deal of evidence tends to show that Diego had learned that Tom was over-billing his clients and had confronted him about it. The evidence includes e-mail messages that Diego sent to Tom as well as a face-to-face confrontation that another coworker, Marie, overheard. There is also evidence that as the police investigation began to focus on Tom, Tom attempted to delete the email messages from his computer and he approached Marie and urged her not to tell the police about what she heard. It is relevant that Tom tried to delete the email messages and pressure Marie from speaking.
True
Wanda saw a fight between Tom and Bob, she told the police that Bob struck the first blow. Assume that Wanda does appear as a witness, but tot he prosecution's surprise, she testifies that "Tom struck the first blow." The prosecution seeks to call the police officer as a witness to testify what Wanda previously said to him. The police officer's testimony that previously Wanda said to him "Bob struck the first blow" is hearsay.
True
Wanda saw a fight between Tom and Bob, she told the police that Bob struck the first blow. Assume that Wanda does appear as a witness, but tot he prosecution's surprise, she testifies that "Tom struck the first blow." The prosecution seeks to call the police officer as a witness to testify what Wanda previously said to him. The police officer's testimony that previously Wanda said to him "Bob struck the first blow" is relevant.
True
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. Assume that Wanda had testified under penalty of perjury at an administrative immigration hearing that "Bob struck the first blow." At a later criminal trial against Bob for assault charges, an Immigration and Customs Enforcement (ICE) agent's testimony about Wanda statement at the immigration hearing would satisfy the 801(d)(1)(A) hearsay exclusion.
True
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. At trial Wanda testifies that she cannot remember who started the fight. This testimony would be treated as inconsistent with her pretrial statements and those could be admitted under the 801(d)(1)(A) hearsay exclusion.
True
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. At trial Wanda testifies that she cannot remember who started the fight. Under Hawaii's version of 801(d)(1), Wanda's current inability to remember who started the fight would make her not subject to cross examination as required by 801(d)(1) and therefore her prior pretrial statements would not be admissible under 801(d)(1)(A).
True
Pursuant to Rule 403, the trial judge should exclude evidence of Lucero's undocumented status
True (but also consider an instruction saying only to consider the citizenship for damages purposes, or to not tell the jury about the citizenship until they get to the question of damages
During a raid on Martin's apartment pursuant to a search warrant, police officers Torres and Smith seized a number of plastic bags containing a white, powdery substance and a semi-automatic gun that Martin had on his person. Upon seizing the gun, Officer Smith noticed that the serial number on it had been scratched off and noticed another set of scratches on one side of the gun that appeared to be a "figure 8" pattern. After Martin was arrested, Officer Torres delivered both the gun and the plastic bags to an evidence locker at the police station. Officer Richardson later checked out the items and delivered them to the state crime lab for ballistics and chemical testing, and after the testing was completed, Officer Peters delivered them back to the evidence locker. Martin was indicted on charges of possessing cocaine with intent to distribute and with unlawful possession of a firearm. At trial, the government sought to offer both the plastic bags and the gun into evidence. The defense objected, contended that the evidence was not admissible because the government had not introduced any evidence to prove that these were the items seized from Martin's apartment. With respect to authenticating the gun, the prosecutor is not required to introduce chain of custody evidence. Instead, the prosecution need only call Officer Smith as a witness to testify that he recognizes the gun as the one seized at the scene of the crime based on identifying information he personally observed at the time the gun was seized.
True - 901(b)(1) personal knowledge that this is the gun he pulled at the scene 901(b)(4) - distinctive characteristic
William is on trial on charges of bank fraud related to activities that took place between 2008 and 2017. The FBI had been investigating the activities since 2015, and began questioning William and a variety of people who worked with William, including Tom. In 2017, both William and Tom were indicted, but before the case went to trial, Tom entered into a plea agreement with the government. Tom is called as a witness on the government's behalf, and on cross-examination, William's attorney asks Tom "Isn't it true that you have entered into a plea agreement with the government?" and "Isn't it true that the government will recommend a sentence for you to the court after you testify in this case?" Tom answers both questions in the affirmative. The government then seeks to call the FBI agents who interviewed Tom in 2015 and have them testify to what he said at the time (which corroborated what Tom had testified to on the stand). The FBI agent's testimony about Tom's statements satisfies the 801(d)(1)(B) hearsay exception.
True - Attorney implied isn't it true that you are making something up because you got a plea bargain
David is walking down the street, talking on his cellular telephone with Nancy when he sees a car skid, run into a pedestrian, and drive off. David reads the license plate number to Nancy over the phone. About an hour later, Nancy jots down the license plate number on a piece of paper. The driver is eventually arrested and indicted. David testifies at the trial, but when asked, he is unable to remember the license plate number of the car that he saw. The prosecution seeks to offer into evidence the piece of paper contending that it is triple hearsay. Assume that David sees a blue car cause an accident and he immediately calls Nancy and excitedly tells her the color of the car. At trial, in order to prove that the blue car caused the accident, the prosecutor calls Nancy to the stand and asks her to testify. (David is available to testify, but the prosecutor believes that Nancy is a more compelling witness.) Nancy's testimony about what David told her would satisfy a hearsay exception.
True - PSI 803(1)
During a raid on Martin's apartment pursuant to a search warrant, police officers Torres and Smith seized a number of plastic bags containing a white, powdery substance and a semi-automatic gun that Martin had on his person. Upon seizing the gun, Officer Smith noticed that the serial number on it had been scratched off and noticed another set of scratches on one side of the gun that appeared to be a "figure 8" pattern. After Martin was arrested, Officer Torres delivered both the gun and the plastic bags to an evidence locker at the police station. Officer Richardson later checked out the items and delivered them to the state crime lab for ballistics and chemical testing, and after the testing was completed, Officer Peters delivered them back to the evidence locker. Martin was indicted on charges of possessing cocaine with intent to distribute and with unlawful possession of a firearm. At trial, the government sought to offer both the plastic bags and the gun into evidence. The defense objected, contended that the evidence was not admissible because the government had not introduced any evidence to prove that these were the items seized from Martin's apartment. With respect to authenticating the plastic bags containing the white, powdery substance, the prosecutor will have to introduce chain of custody testimony.
True - maybe 901(b)(4), if the cocaine is unique and distinctive (ex. "blue magic") Go outside the 901(b) list - chain of custody (a break in the chain goes to the evidence's weight, not its admissibility)
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. The investigative report prepared by the Walmart employee is considered a business record even though it was prepared in anticipation of litigation
True - not every report prepared in anticipation of litigation is untrustworthy, there has to be other evidence establishing that it is reliable
Laila is on trial on charges of robbing a bank. Wilma, an eyewitness to the bank robbery, is called by the prosecution as a witness. It is Ash Wednesday, and Wilma attended Roman Catholic Church services prior to arriving in court, and has a small cross on her forehead. The defense objects to Wilma testifying with the ash on her forehead. Subsequently, Laila calls Nadeah as an alibi witness. Nadeah testifies that she was with Laila at a restaurant at the time the bank robbery took place. The prosecution seeks, over a defense objection, to offer evidence that Laila and Nadeah attend the same mosque together. The defense objection to admitting evidence that Laila and Nadeah attend the same mosque together should be sustained.
True - say "same religious org."
Tanya is riding her bike to work when she is hit by a car driven by David. David gets out of his car, runs up to Tanya, and says "I'm so sorry, I was on my phone and didn't notice the stop sign. Are you OK? Let me call my personal physician and have him come out and take a look at you, and don't worry, I'll pay his fees." Tanya groans and says "My bike is trashed and my arm hurts like crazy! And I just paid a fortune for this bike!" David calls his doctor and then says to Tanya "Say, do you think we can work this out between the two of us without getting lawyers involved? Between you and me, I know I'm to blame, but I can't imagine that your harm is more than $500. What do you think?" FRE 408 requires that the judge exclude David's statement to Tanya that "Say, do you think we can work this out between the two of us without getting lawyers involved? Between you and me I know I'm to blame, but I can't imagine that your harm is more than $500. What do you think?"
True - there is a dispute as to damages
Stella owns and operates a motel in a small town. When she opened the motel, she did not install peep holes and chain locks on the doors to each guest room. A month after the hotel opened, a thief broke into a guest's room and stole all his belongings. The guest later sues Stella, alleging negligence. At trial, Stella testifies that she did absolutely everything possible to make the motel safe. The guest wants to introduce evidence that the day after the break in, Stella has peep holes and chain locks installed on each door. The trial judge must not exclude this evidence under FRE 407 because it is being used to impeach Stella's testimony.
True - you can use this for impeachment
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If John survived and Mary's survivors brought a civil action for wrongful death, would testimony about what John said meet the 804(b)(2) hearsay exception?
Yes
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If being admitted in the case of John's murder, does testimony about what John said meet 804(b)(2) hearsay exception?
Yes
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If being admitted in the civil action for wrongful death brought by John's survivors, does testimony about what John said meet the 804(b)(2) hearsay exception?
Yes
Benjamin is on trial on charges of murdering Thomas. At his trial, the prosecution seeks to call Tanya, a close friend of Thomas, who, if permitted would testify that on the day of the alleged murder, Thomas said to her "I am meeting Benjamin tonight to discuss my dating his ex-girlfriend." Benjamin's attorney raises a hearsay objection. Assume that there is no other evidence showing that Thomas and Ben met that night. Is Thomas's statement to Tanya "I am meeting with Ben tonight to discuss my dating his ex" relevant?
Yes
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of cocaine with intent to distribute. Is the evidence relevant?
Yes
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of marijuana with intent to distribute. Is the evidence relevant?
Yes
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge may admit the following under FRE 413: evidence offered by the prosecution in the form of testimony by Marie and Dawn that Bill tried to sexually assault them after they went out to dinner together.
Yes
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 412: evidence offered by Bill in the form of testimony by Megan that Linda has a reputation for promiscuity
Yes
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 412: evidence offered by Bill in the form of testimony by Tom that before Bill went on a date with Linda, Tom told Bill that Linda had sex with him when he took her home from dinner on their first date.
Yes
David Smith is indicted on charges of stabbing his wife, Lisa, to death. The prosecution's theory is that David killed Lisa on the evening of January 1, 2018, when Lisa told him that she was planning on leaving him. At David's preliminary hearing, William - the next-door neighbor - testified that on the evening in question, he saw through an open window David stabbing Lisa. Several weeks later, William dies of a heart attack. At David's trial, the prosecution seeks to offer into evidence a transcript of William's testimony at the preliminary hearing. David's attorney objects on hearsay grounds, but the objection is overruled. David's attorney then seeks to offer, over the prosecution's objection, the following: 1) Testimony by Marie, a bartender at a bar one block away from the Smith's house. Marie would testify that about one hour before Lisa was killed, William staggered out of the bar after having imbibed a dozen glasses of beer. 2) Testimony by Robert, one of William's closest friends. Robert would testify that two days after William testified at David's preliminary hearing, William said "when I looked into the window, I saw Tom (Lisa's boyfriend) stabbing Lisa alone." 3) Testimony by John, William's former employer. John would testify that during his job interview William falsely stated that he had a law degree. Assuming that the trial court allows the prosecutor to offer into evidence a transcript of William's preliminary hearing testimony, should the judge sustain the prosecutor's objection to Robert's testimony? (Robert, one of William's close friends, would testify that two days after William testified at David's preliminary hearing, William said "when I looked into the window, I saw Tom (Lisa's boyfriend) stabbing Lisa alone.")
Yes
David Smith is indicted on charges of stabbing his wife, Lisa, to death. The prosecution's theory is that David killed Lisa on the evening of January 1, 2018, when Lisa told him that she was planning on leaving him. At David's preliminary hearing, William - the next-door neighbor - testified that on the evening in question, he saw through an open window David stabbing Lisa. Several weeks later, William dies of a heart attack. At David's trial, the prosecution seeks to offer into evidence a transcript of William's testimony at the preliminary hearing. David's attorney objects on hearsay grounds, but the objection is overruled. David's attorney then seeks to offer, over the prosecution's objection, the following: 1) Testimony by Marie, a bartender at a bar one block away from the Smith's house. Marie would testify that about one hour before Lisa was killed, William staggered out of the bar after having imbibed a dozen glasses of beer. 2) Testimony by Robert, one of William's closest friends. Robert would testify that two days after William testified at David's preliminary hearing, William said "when I looked into the window, I saw Tom (Lisa's boyfriend) stabbing Lisa alone." 3) Testimony by John, William's former employer. John would testify that during his job interview William falsely stated that he had a law degree. Was the trial court correct in overruling the hearsay objection when the prosecutor offered into evidence a transcript of William's testimony at the preliminary hearing?
Yes
Defendant is on trial on charges of murdering her third child, who drowned in the family's swimming pool. The prosecution wishes to introduce evidence that on previous occasions, two of the defendant's other children also drowned in the swimming pool. Is the evidence relevant?
Yes
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 412: testimony by Lisa, who hangs out at the same bar that Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with the guy.
Yes
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. Is Lisa's testimony at trial hearsay?
Yes
Donna is on trial on charges of murdering Victor. Donna seeks to call Wallace as a witness. If permitted, he would testify that on a recent trip to Mexico, about two weeks after Donna's arrest, one Richard said to him in a very calm voice, "It's funny that they arrested that Donna woman; I'm the one who killed that s.o.b. victor, and I did it all by myself." Is Richard's statement to Wallace hearsay?
Yes
In a civil action against the defendant for the wrongful death of a person, evidence that he had previously been convicted of manslaughter of that person, an offense punishable by a maximum of ten years in prison, offered by the plaintiff to prove that the defendant caused the person's death. Does the evidence of the defendant's prior manslaughter conviction satisfy the 803(22) exception?
Yes
James Wallingford and Robert Mills, police officers patrolling together, notice a car drive by with a partially obstructed license plate (A violation of state law), and pull the car over. While speaking with the driver, Tom Braun, they see that the passenger, Kate Kline, has an open purse at her feet wit what appears to be a gun in it. They force the two out of the car and question them separately. Under questioning, Kate says to Wallingford that Tom shoved the gun into her purse when he heard the police car's siren. After further investigation, Tom - who has a prior criminal record - is indicted in federal court on charges of being a felon in possession of a firearm. The prosecution does not call Kate or Officer Wallingford as witnesses, instead, it seeks to offer into evidence a copy of a police report written out by the scene of the arrest as well as what Kate said to him. Tom's attorney raises a hearsay objection. The prosecution responds that it is admissible under 803(6) and 803(8). If Officer Wallingford appears on the stand, testifies that he cannot remember what happened and is available for cross-examination, the report can be read into evidence under 803(5) Recorded Recollections
Yes
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronica's statement to Anita "I sure am scared to tell him, though" relevant?
Yes
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronica's statement to Anita "I'm going to tell him tonight that I'm divorcing him" hearsay?
Yes
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronica's statement to Anita "I'm going to tell him tonight that I'm divorcing him" relevant?
Yes
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronica's statement to Anita "The last time I threatened to leave, he went nutso on me and beat me up real bad" hearsay?
Yes
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronica's statement to Anita "The last time I threatened to leave, he went nutso on me and beat me up real bad" relevant?
Yes
Pam is riding as a passenger in a car driven by Anna. Dave's car collides with Anna's car, causing personal injuries to all three of them. Pam sues Dave for damages, claiming that Dave ran the red light. Dave defends asserting that it was Anna who ran the red light. At trial, Dave calls Anna to the stand, but she refuses to testify, even after the judge holds her in contempt of court. Dave then seeks to call Wilma, a friend of Anna's, who would testify that two weeks after the accident, Anna told her that the accident with Dave was all her fault because she (Anna) "ran the red light." Pam raises a hearsay objection. Is Anna's statement to Wilma hearsay?
Yes
Paul is on trial on charges of armed bank robbery. The robber wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. At trial, the government seeks to offer the testimony of a former acquaintance of Paul's, who would testify that he robbed a different bank with Paul eight years earlier, and that during that robbery, Paul wore a clown suit, forced the tellers to strip naked and lie face down, and left a rose on the back of each teller. Paul was never charged or convicted for that prior robbery. Is evidence of the prior robbery relevant?
Yes
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." Assuming Paula is allowed to impeach William's testimony using his prior statement, should the trial court grant Donald's motion for a directed verdict?
Yes
Paula and Donald collide at a busy intersection. As a result of the accident, Paula loses consciousness. Paula was driving a yellow VW Beetle, and Donald was driving a blue Mini Cooper. At the scene of the accident, William, who witnessed the accident, says to John, an ambulance driver, "I saw the accident, and the blue car ran the red light." When Paula regains consciousness, she can remember nothing about the accident. Upon speaking with John, however, she learns about what William said. Paula later speaks with William, who says to her, "I saw the accident, and the blue car ran the red light." Paula sues Donald for negligence. At trial, Paula calls William as a witness and asks him if he saw what happened. William testifies, "My head was turned away and I don't know who ran the light." Paula, surprised by this response, asks William about his prior statement in which he said that "the blue car ran the red light." William denies having made the prior statement. Paula then takes the stand, and over Donald's objection, testifies that William had previously said to her "the blue car ran the light." Assuming that the judge finds Paula's testimony to be relevant and finds that there is no hearsay problem, should the judge exclude Paula's testimony about William's prior statement pursuant to Rule 403?
Yes
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Is Pen's statement to John hearsay?
Yes
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Is Pen's statement to William hearsay?
Yes
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Is Penelope's statement to Lisa hearsay?
Yes
Robert Fox is on trial on charges of murdering his girlfriend, Deborah Riley. The murder is alleged to have taken place on January 5, 2018, at 11:30 p.m. As proof that Fox was with Riley at the time of the murder, the prosecution seeks to offer testimony by David Smith. Smith would testify that he and Riley were chatting with one another in an online "chat room" operated by Compu-Surf. According to Smith, at around the time of the alleged murder, he received an instant message from Riley that read "David, I'll have to talk to you a little bit later. Robert just walked into the room." Does this statement constitute a present sense impression under 803(1)?
Yes
Robert Fox is on trial on charges of murdering his girlfriend, Deborah Riley. The murder is alleged to have taken place on January 5, 2018, at 11:30 p.m. As proof that Fox was with Riley at the time of the murder, the prosecution seeks to offer testimony by David Smith. Smith would testify that he and Riley were chatting with one another in an online "chat room" operated by Compu-Surf. According to Smith, at around the time of the alleged murder, he received an instant message from Riley that read "David, I'll have to talk to you a little bit later. Robert just walked into the room." Fox's attorney objects on hearsay grounds. Is Deborah Riley's statement "Robert just walked into the room" hearsay?
Yes
Sally brings a tort action against Roger, claiming that she contracted herpes from him, and that he negligently failed to inform her that he was infected with herpes when they had sex. Roger defends, contending that Sally probably contracted herpes from David, with whom she had sexual relationship prior to meeting Roger. David is "unavailable" within the meaning of FRE 804(a), and thus is unable to testify at the trial. Roger seeks to call Wendy as a witness, who would testify that at the time Sally and David's relationship was ongoing, David said to her: "I've got herpes, but it doesn't bother me. They have drugs for it now." Sally raises a hearsay objection. Is David's statement to Wendy hearsay?
Yes
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Assume that it was the prosecutor who asked the trial judge to take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank. If the trial judge takes judicial notice of this fact, can the defendant introduce evidence that the driving distance is actually 3 miles shorter?
Yes
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Assume that it was the prosecutor who asked the trial judge to take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank. If the trial judge takes judicial notice of this fact, may the jury choose to find that the shortest driving distance between the two banks is 15 miles?
Yes
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank. Is the fact that Tom could not have been the person who robbed the bank an adjudicative fact?
Yes
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" At trial, Janet offers into evidence several of her damaged Royal Doulton figurines. To prove the value of the damaged figurines, she seeks to offer into evidence copies of three price guides issued by the Charlton Press that lists the values of the figurines. Are the price guides hearsay?
Yes
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank Assume that it was the defendant who asked the trial judge to take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank. If the trial judge takes judicial notice of this fact, can the prosecutor introduce evidence that the driving distance is actually 3 miles shorter?
Yes - 201(f) - this is a criminal case so the jury can consider the noticed fact to be conclusive or not
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" At trial, Janet offers into evidence several of her damaged Royal Doulton figurines. To prove the value of the damaged figurines, she seeks to offer into evidence copies of three price guides issued by the Charlton Press that lists the values of the figurines. Do the price guides satisfy the 803(17) hearsay exception?
Yes
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Does Francine's statement constitute an excited utterance under 803(2)?
Yes
Wanda witnessed a fight between Bob and Tom. When asked by the police at the scene who started the fight, Wanda pointed her finger at Bob. She also later said to an officer that "Bob struck the first blow" and she subsequently signed a statement to the same effect. Wanda later testified to this before a grand jury. At trial Wanda testifies that she cannot remember who started the fight. Is Wanda considered to be subject to cross-examination as required by 801(d)(1)?
Yes
While driving a car manufactured by Specific Motors, William Farmington is killed on December 5, 2017, when the car skids off the road and crashes into a tree. William's spouse, Tina, brings a wrongful death action against SM in federal court. The evidence is undisputed that William's seat belt was not fastened around him when his body was discovered at the accident scene. The plaintiff's theory, however, is that the belt buckle had a defect known as "false latching" that caused it to appear to the person wearing it as though it was latched, but that would result in unbuckling a soon as pressure was exerted on it, such as would occur in an accident. SM defends on the ground that there is no evidence that William was wearing his seat belt at the time of the accident. Tina seeks to offer: 1) Her own testimony that she drove with William at least 3 times per week for the last 10 years, and that he always put his seat belt on before the car was started, regardless of the length of the trip and regardless of whether he was the driver or the passenger. 2) Testimony by a co-worker that in his opinion, William was an "extremely cautious" driver Is the following admissible under Rule 406: Tina's testimony that she drove with William at least 3 times per week for the last 10 years, and that he always put his seat belt on before the car was started, regardless of the length of the trip and regardless of whether he was the driver or the passenger?
Yes
While shopping at the Piggy-Wiggy Market, Marie slips and falls on what she later discovers ic cottage cheese. Upon falling, Marie hears another customer yell, "Oh my God! Are you okay? I told them to clean that up two hours ago!" Marie is eventually taken to a hospital, where she is treated for a broken wrist. Marie begins suit against Piggy-Wiggy for negligence. She has not been able to locate the unidentified customer who made the statement, but she and several other witnesses are prepared to testify to what that person said, contending that it is relevant to show that the defendant had notice of the dangerous condition. The defendant objects, contending that the proffered testimony is "double hearsay" Does Marie's testimony about what the customer told her constitute an excited utterance satisfying 803(2)?
Yes
While shopping at the Piggy-Wiggy Market, Marie slips and falls on what she later discovers ic cottage cheese. Upon falling, Marie hears another customer yell, "Oh my God! Are you okay? I told them to clean that up two hours ago!" Marie is eventually taken to a hospital, where she is treated for a broken wrist. Marie begins suit against Piggy-Wiggy for negligence. She has not been able to locate the unidentified customer who made the statement, but she and several other witnesses are prepared to testify to what that person said, contending that it is relevant to show that the defendant had notice of the dangerous condition. The defendant objects, contending that the proffered testimony is "double hearsay" Is the unidentified customer's statement to Marie (and the other witnesses) that two hours ago she told the store personnel that there was a mess on the floor that they needed to clean up hearsay?
Yes
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda is found dead in her apartment with a gunshot wound to the head. The prosecution has some evidence suggesting that Daniel hired someone to kill Wanda, although not enough to prove it beyond a reasonable doubt. The prosecution seeks to offer into evidence the transcript, created by the stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assuming the transcript itself meets the Public Record's (803(8) (A)(ii) hearsay exception, would Wanda's prior testimony meet the 804(b)(6) hearsay exception?
Yes (assuming that it can be proved that he did actually get her killed so she couldn't testify)
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to John constitute a statement made for medical diagnosis/treatment under 803(4)?
Yes (but the "David driving" does not count)
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017m the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) May the prosecutor ask Paul "Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable by up to 2 years' imprisonment for which Paul received and served a three-month sentence)"?
Yes (courts are split on larceny)
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017m the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) If Paul denies the conviction, can the prosecutor offer evidence to prove the conviction?
Yes (judgement of conviction - independent legal act)
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. Assuming Lisa's testimony at trial is hearsay and that her prior testimony had been given in a preliminary hearing, would the trial testimony satisfy the 804(b)(1) hearsay exception?
Yes (maybe)
Benjamin is on trial on charges of murdering Thomas. At his trial, the prosecution seeks to call Tanya, a close friend of Thomas, who, if permitted would testify that on the day of the alleged murder, Thomas said to her "I am meeting Benjamin tonight to discuss my dating his ex-girlfriend." Benjamin's attorney raises a hearsay objection. Assume that there is no other evidence showing that Thomas and Ben met that night. Does Thomas's statement to Tanya "I am meeting with Ben tonight to discuss my dating his ex" satisfy the 803(3) hearsay exception?
Yes (only in the 9th circuit)
There is a collision between a Walmart truck and a limousine in which comedian Tracy Morgan is a passenger. Morgan files a civil suit against Walmart. At trial, Walmart's attorneys seek to introduce an investigative report prepared by a Walmart employee. Walmart's bylaws require that such a report must be prepared as a matter of routine practice after any accident involving personal injury, death, or property damage. The report states that when the Investigator tested the brakes of the truck after the accident, they were in perfect working condition. Walmart offers a portion of a police report prepared by a police officer 10 minutes after the accident. The report states that when the officer arrived at the scene of the accident, another officer reported that she had measured the tire (skid) marks, the marks were made by the truck's wheels, and that the skid marks were 45 feet in length and formed an undulant pattern indicating that the limoine was out of control. Does the police report satisfy the 803(6) business record exception?
Yes (probably should rely on the public records exception instead, from Oats - when there is a more specific exception you cannot by pass it with a broader exception just because you may not have all of the elements
Walter witnesses an accident in which David's car crashes into Pam's car. Pam brings suits against David, and Walter testifies on Pam's behalf. George, a passenger in Pam's car, brings his own, subsequent suit against David. By that time, Walter has died, and George offers into evidence a transcript of Walter's testimony at Pam's trial. David raises a hearsay objection. Assuming the transcript itself meets the Public Record's (803(8)(A)(ii) hearsay exception, would Walter's prior testimony meet the 804(b)(1) hearsay exception?
Yes - 2 lawsuits with 2 different defendants but each has the same motive to develop testimony
David is on trial on charges of murder. David raises an alibi defense, and calls Molly as a witness, who testifies that David was at her house helping her rearrange furniture at the time the murder took place. On cross-examination, the prosecution seeks, over David's objection, to ask Molly the following questions: 1) Isn't it true that when you applied for a job three years ago, you submitted a resume that falsely stated that you had graduated from college with honors? 2) Isn't it true that in college, you used a false ID to purchase alcohol when you were underage? May the prosecutor ask Molly "Isn't it true that when you applied for a job three years ago, you submitted a résumé that falsely stated that you had graduated from college with honors"?
Yes - 608(b)(1) - specific instance of untruthful conduct
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017, the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) May the prosecutor ask Paul "Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months' imprisonment for which Paul received and served a six-month sentence)"?
Yes - 609(a)(2)
Two vehicles, a red Saturn driven by Janet and a UPS delivery truck driven by Don, collide with one another at the intersection of 5th and Main. Janet and her passenger, Francine, get out of their car, and as they approach the truck, they are met partway by Don. As they approach one another, Francine cries out, "My God! I told her weeks ago that the brakes were shot and needed to be repaired!" Don very calmly responds, "Funny, about two weeks ago, I told my boss that the brakes on this truck needed to be replaced." While none of them are physically injured, Janet had in the truck of her car several valuable figurines from her Royal Doulton figurine collection, all of which were damaged in the crash. Janet brings a diversity action agianst Don and UPS in federal district court. Don and US counterclaim against Janet and raise a contributory negligence defense. At trial, Janet wishes to testify as to what Don said, while Don and UPS wish to have Don testify as to what Francine said. Each side objects to the evidence proffered by the other side, contending that it is "double hearsay" Is Don's testimony about what Francine told him hearsay?
Yes - Francine is not a party and we are introducing her statement for the truth of the matter that Fran did say something to Janet
Tom is on trial on charges of armed robbery of several banks, including First National Bank. The evidence at trial shows that the robbery of First National Bank took place at 4:30pm on January 10, 2017. Tom offers into evidence Joe's testimony that he was at the Salut Saloon with Tom until 4:20pm on January 10, 2017. Directing the trial court to online mapping program Google Maps, Tom asks the court to take judicial notice of the following: 1) the shortest driving distance between the Salut Saloon and First National Bank is 15 miles; 2) the shortest driving time between the Salut Saloon and First National Bank is 22 minutes; 3) Tom could not have been the person who robbed the bank Can the trial judge take judicial notice of the shortest driving distance between the Salut Saloon and First National Bank?
Yes - If: 1) known in the jurisdiction; or 2) accuracy and corroborating evidence (is Google a source whose accuracy cannot be reasonably questioned?) (the driving time does not count, only the distance in miles)
Daniel is on trial in federal court on charges of murdering Valerie. Before the grand jury that indicted Daniel, Wanda testified that she saw Daniel shoot Valerie. Between Daniel's indictment and his trial, Wanda is found dead in her apartment with a gunshot wound to the head. The prosecution has some evidence suggesting that Daniel hired someone to kill Wanda, although not enough to prove it beyond a reasonable doubt. The prosecution seeks to offer into evidence the transcript, created by the stenographer employed by the government, of Wanda's testimony before the grand jury, but Daniel's attorney objects on hearsay grounds. Assume that Daniel is facing murder charges in connection with Wanda's death. Assuming that Wanda's prior testimony is hearsay and that the transcript itself meets the Public Record's (803(8)(A)(ii) hearsay exception, would Wanda's prior testimony meet the 804(b)(6) hearsay exception?
Yes - as long as there is evidence that can prove that he had her killed
Richard Turpin is on trial, charged with several counts of selling cocaine in a drug-free zone. An essential element of the offense is that the drugs are sold within 1000 feet of a public school. At trial, the prosecution calls several witnesses who testify that Turpin sold them cocaine at various locations within the City of Danger Bay. Specifically, the witnesses testify that Turpin sold them cocaine at the intersection of North Royal Ave and Doulton Street West, Zanoo Street West and North Moosh Avenue, and Kangaroo Court West and North Stockholm Avenue. To prove that these locations fall within 1000 feet of a public school, the government seeks to offer into evidence a map created by Mr. OK Cole, who is employed in the Geographic Information Systems (GIS) Division of the City of Danger Bay. The map depicts Sairey Gamp Elementary School and the surrounding area. Drawn onto the map is a circle marking the area within 1000 feet of Sairey Gamp Elementary. Turnip's attorney objects to the introduction of the map into evidence, contending that it is hearsay and possibly double hearsay. Would the map satisfy the 803(10) exception?
Yes - cartography does not count as a statement made by law enforcement personnel
In a civil action against the defendant for the wrongful death of a person, evidence that he had previously been convicted of manslaughter of that person, an offense punishable by a maximum of ten years in prison, offered by the plaintiff to prove that the defendant caused the person's death. Is the evidence of the defendant's prior manslaughter conviction hearsay?
Yes - civil suit trying to prove the underlying facts, not the act of conviction
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. To support his defense, Dennis seeks to offer the following: 1) His own testimony that he has engaged in sexual intercourse with Nancy several times in the past. 2) testimony by Nancy's neighbor that, shortly after she saw Dennis leave Nancy's apartment, she saw another man knock on her door, saw Nancy open the door and start "making out" with him, and then saw Nancy walk into the apartment with him. 3) Testimony by Lisa, who hangs out at the same bar as Nancy does, that Nancy regularly leaves the bar each night with a different guy and regularly reports the next day that she had sexual intercourse with him 4) Testimony by Anne, an acquaintance of Nancy's, who would testify that earlier that evening, when they were at a bar and Dennis walked by, Nancy said to her "I want that man in my bed tonight!" 5) Testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but alter retracted those accusations after being confronted with inconsistencies in her story. The trial judge must exclude the following under FRE 404: testimony that on two previous occasions, Nancy has accused men of sexually assaulting her but later retracted those accusations after being confronted with inconsistencies in her story.
Yes - could only admit this for MIMICKOP - maybe she was confused before and still is
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Does Veronica's statement to Anita "I'm going to tell him tonight that I'm divorcing him satisfy the 803(3) exception?
Yes - current intention to tell him
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to William constitute a PSI under 803(1)?
Yes - hit by a car, saying it soon after the accident describing the event,
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement to William constitute a Statement made for medical diagnosis or treatment under 803(4)?
Yes - hit by a car, the auditor does not need to be a doctor, she is trying to get help/treatment (but the "by David" does not count)
Dennis is on trial on charges that the sexually assaulted Nancy. The evidence presented by the prosecution at trial showed that Nancy was examined at a sexual assault trauma center on the night in question and that she had lacerations and heavy bruising on her body. Dennis concedes that they had sexual intercourse earlier that evening, but claims that it was consensual and that he is not responsible for her physical injuries. The prosecution seeks to offer the following: 1) Testimony by Wendy that Dennis sexually assaulted her two years ago after he brought her home from a dinner date. Wendy never reported the incident to the authorities. 2) Testimony by Danielle that Dennis has a reputation for being "rough with the ladies" The trial judge may admit the following pursuant to FRE 413: testimony by Wendy that Dennis sexually assaulted her two years ago after he brought her home from a dinner date (Wendy never reported the incident to the authorities).
Yes - is there sufficient evidence that a jury could conclude this happened by 51%
Paula slips and falls in a supermarket and brings suit against its owner alleging that she slipped on maple syrup that was on the floor. Wendy, who witnessed the fall, testifies at trial that she discovered Paula on the floor and noticed that there was maple syrup on the bottom of her shoes. But a mistrial is declared because the jury deadlocks. At retrial, Paula introduces evidence that Wendy has died, and she offers into evidence a transcript of Wendy's testimony in the first trial. The owner of the supermarket raises a hearsay objection. Does the transcript of Wendy's prior trial testimony satisfy the 804(b) (1) hearsay exception?
Yes - the former trial is the same, only grand jury v. trial that raises the issue for Di Napoli
Paul is on trial on charges that he murdered Tom on the evening of May 4, 2017. Paul is indicted on July 1, 2017, the trial begins August 15, 2017, and he testifies on August 20, 2017. On cross-examination, over objection, the government seeks to ask Paul: 1) Isn't it true that on January 15, 2016, you were convicted of petit larceny (a crime punishable y up to 2 years imprisonment for which Pau received and served a 3 months sentence) 2) Isn't it true that on March 3, 2011, you were convicted of first-degree manslaughter (a crime punishable by up to 20 years imprisonment for which Pal received and served a 4 year sentence) 3) Isn't it true that on February 3, 2010, you were convicted of fraudulent passing of a bad check (a crime punishable by up to 10 months imprisonment for which Paul received and served a 6 month sentence) 4) Isn't it true that on July 15, 2005, you were convicted of possession of cocaine with intent to distribute (a crime punishable by up to 5 years imprisonment for which Paul received and served a 2 year sentence with a release date of July 15, 2007) If Paul denies the conviction, can the prosecutor offer evidence to prove the conviction?
Yes - judgement of conviction, BUT no extrinsic evidence (would need another reason to admit the conviction besides this impeachment theory)
After receiving a 911 call indicating that a gunshot was heard near the corner of 5th and Main, officers Lisa Carr and Tom Parker drive to that location, where they discover John Allen and Marie Carlson lying on the sidewalk. Marie is dead, but John is still alive. John motions the officers close to him and struggles to say "It wont be long before I join Marie, Patrick Miller did this to us, Patrick also is the one who robbed First National Bank last month." Shortly thereafter, John dies. Patrick Miller is eventually indicted in federal court on charges of murdering John and Marie, and separately indicted on charges of robbing the bank. The government, over a hearsay objection, seeks to offer in both proceedings testimony by officers Carr and Parker as to what John said to them before he died. If John survived and Patrick was charged with Mary's murder, does testimony about what John said meet the 804(b)(2) hearsay exception?
Yes - maybe for FRE, not at CL
Richard Turpin is on trial, charged with several counts of selling cocaine in a drug-free zone. An essential element of the offense is that the drugs are sold within 1000 feet of a public school. At trial, the prosecution calls several witnesses who testify that Turpin sold them cocaine at various locations within the City of Danger Bay. Specifically, the witnesses testify that Turpin sold them cocaine at the intersection of North Royal Ave and Doulton Street West, Zanoo Street West and North Moosh Avenue, and Kangaroo Court West and North Stockholm Avenue. To prove that these locations fall within 1000 feet of a public school, the government seeks to offer into evidence a map created by Mr. OK Cole, who is employed in the Geographic Information Systems (GIS) Division of the City of Danger Bay. The map depicts Sairey Gamp Elementary School and the surrounding area. Drawn onto the map is a circle marking the area within 1000 feet of Sairey Gamp Elementary. Turnip's attorney objects to the introduction of the map into evidence, contending that it is hearsay and possibly double hearsay. Is the map hearsay and possibly double hearsay?
Yes - possibly double hearsay because they had to observe the lay out and then observe their drawing to make the map and now someone is observing the map
Penelope is walking down the street when she is struck by a car driven by David, who drives off. William, who hears the crash, immediately runs out of his house and goes up to Penelope, who says to him "David just ran me over with his car!" William drives Pen to the hospital, where she is checked in and admitted overnight for testing. When she wakes up the next morning, she sees that she has a roommate, Lisa. Lisa asks her why she ended up in the hospital, and Pen says to her, "I was run over yesterday by this guy I know named David." Later, Pen repeats this statement to John, a physician at the hospital. Shortly after John leaves, Pen starts to experience severe discomfort and Lisa calls for help. Medical personnel arrive and try to help Pen, but she dies. An autopsy reveals that she died of internal bleeding that was likely caused by the car accident. Pen's survivors bring suit against David for wrongful death. To prove that David was responsible for causing her injuries, the plaintiffs seek to call William, Lisa, and John as witnesses to testify to what Pen told them. Does Pen's statement constitute an excited utterance under 803(2)?
Yes - related to s very broad
Pam is riding as a passenger in a car driven by Anna. Dave's car collides with Anna's car, causing personal injuries to all three of them. Pam sues Dave for damages, claiming that Dave ran the red light. Dave defends asserting that it was Anna who ran the red light. At trial, Dave calls Anna to the stand, but she refuses to testify, even after the judge holds her in contempt of court. Dave then seeks to call Wilma, a friend of Anna's, who would testify that two weeks after the accident, Anna told her that the accident with Dave was all her fault because she (Anna) "ran the red light." Pam raises a hearsay objection. Does Wilma's testimony about Anna's statement to her satisfy the 804(b)(3) hearsay exception?
Yes - she is unavailable because she is refusing to testify and it is against her financial interests
Pete is on trial on charges of committing arson. Wallace, an eyewitness, testifies on behalf of the prosecution. Subsequently, Pete sues his insurance company to recover for losses sustained in the fire. By this time, Wallace has died. The insurance company offers evidence of Wallace's death and a transcript of his testimony in the arson prosecution. Pete raises a hearsay objection. Assuming the transcript itself meets the Public Record's (803(8)(A) (ii) hearsay exception, would Wallace's criminal case testimony meet the 804(b)(1) hearsay exception in the civil case?
Yes - similar motive for cross (if its stronger at a criminal trial, then it is enough to encompass a civil trial)
Sally brings a tort action against Roger, claiming that she contracted herpes from him, and that he negligently failed to inform her that he was infected with herpes when they had sex. Roger defends, contending that Sally probably contracted herpes from David, with whom she had sexual relationship prior to meeting Roger. David is "unavailable" within the meaning of FRE 804(a), and thus is unable to testify at the trial. Roger seeks to call Wendy as a witness, who would testify that at the time Sally and David's relationship was ongoing, David said to her: "I've got herpes, but it doesn't bother me. They have drugs for it now." Sally raises a hearsay objection. Does Wendy's testimony about David's statement to her satisfy the 804(b)(3) hearsay exception?
Yes - statement against penal/pecuniary interest
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. Assuming Lisa's testimony at trial is hearsay and that her prior testimony had been favorable toward Donald, would Donald be able to bring in the testimony through the 804(b)(1) hearsay exception?
Yes - the government did have an opportunity to cross examine her, issue comes up with DiNapoli (probable cause v. beyond a reasonable doubt - NY is an outlier)
Bill is on trial on charges that he sexually assaulted Linda. The incident at issue took place when Bill took Linda home after having taken her out to dinner on what was their first date. Bill does not dispute the fact that he had sexual intercourse with Linda, but claims that the act was consensual. At trial, Bill wishes to offer testimony by Megan that Linda has a reputation for being promiscuous and testimony by Tom that before Bill went on a date with Linda, he told Bill that Linda had sex with him when he took her home from dinner on their first date. The prosecution wishes to introduce evidence by Marie and Dawn, who would testify that Bill tried to sexually assault them after they went out to dinner together, as well as testimony by Anna that Bill has a reputation as being rough with the ladies. The trial judge must exclude the following under FRE 404: evidence offered by the prosecution in the form of testimony by Anna that Bill has a reputation as being rough with the ladies.
Yes - the prosecutor cannot open the door and there is not enough evidence that the defendant opened the door
Benjamin is on trial on charges of murdering Thomas. At his trial, the prosecution seeks to call Tanya, a close friend of Thomas, who, if permitted would testify that on the day of the alleged murder, Thomas said to her "I am meeting Benjamin tonight to discuss my dating his ex-girlfriend." Benjamin's attorney raises a hearsay objection. Assume that there is no other evidence showing that Thomas and Ben met that night. Is Thomas's statement to Tanya "I am meeting with Ben tonight to discuss my dating his ex" hearsay?
Yes - truth of the matter that he did meet with him
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Is Veronicas statement to Anita "I sure am scared to tell him, though" hearsay?
Yes - truth of the matter that she is scared
Donna is on trial on charges of murdering Victor. Donna seeks to call Wallace as a witness. If permitted, he would testify that on a recent trip to Mexico, about two weeks after Donna's arrest, one Richard said to him in a very calm voice, "It's funny that they arrested that Donna woman; I'm the one who killed that s.o.b. victor, and I did it all by myself." Does Wallace's testimony about Richard's statement to him satisfy the 804(b)(3) hearsay exception?
Yes - unavailable? he is in Mexico (jurisdiction) statement against penal interest cannot admit "I did it all by myself"
Donald is indicted on charges of conspiracy to commit wire fraud. The prosecution calls Lisa to testify to the details of Donald's participation in the wire fraud scheme. On the stand, Lisa claims that she cannot remember the details, although the prosecution attempts to refresh her memory. The prosecution then seeks to introduce Lisa's testimony before the grand jury, where she set forth the details of the scheme. Donald objects on hearsay grounds. If Donald had testified before the grand jury, but at trial invoked his privilege against self-incrimination, would the government's use of Donald's grand jury testimony constitute hearsay?
Yes - use 801(d)(2)(A) raising the privilege makes you unavailable to the prosecution but not to himself (motive - Donald himself does not have the motive to develop testimony at a grand jury proceeding
On February 1, 2018, Donald Jones is indicted on charges of murder for stabbing his wife, Veronica, to death.e The prosecution's theory is that Donald killed Veronica on the evening of December 15, 2017, when Veronica told Donald that she was planning to leave him. During its case-in-chief, the prosecution calls Anita, a close friend of Veronica, to the stand. Anita would testify that on the morning of December 15, 2017, Veronica stopped by Anita's house and told her: "I'm going to tell him tonight that I'm divorcing him. I sure am scared to tell him, though. The last time I threatened to leave, he went nutso on me and beat me real bad." Donald's attorney raises a hearsay objection. Assume that there is a great deal of other evidence showing that Donald and Veronica were together alone on the evening of December 15, 2017. Assuming it is hearsay, does Veronica's statement to Anita "I sure am scared to tell him, though" satisfy the 803(3) hearsay exception?
Yes, implies that he did something in the past that would make her scared now but she is not making that statement for the purpose of saying what he did in the past
Betty is on trial on charges of possession of cocaine with intent to distribute. At trial, the government seeks to offer into evidence Betty's prior conviction for possession of marijuana. Is the evidence relevant?
Ys
Unfair Prejudice
an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one
FRE 402
rebuttable presumption of admissibility (we want as much information to the jury as possible, so any other things must be proven before we will keep it out)
FRE 407
subsequent remedial measures
