Evidence Law

While shopping at House Depot, Shannon Burke noticed a display of Greencut brand gas-powered trimmers piled in a stack. When she approached the display, the stack of trimmers toppled on top of her, causing her serious injury. Shannon sued House Depot for her injuries. During the defense case, House Depot presented evidence that a Greencut sales representative had placed the display there only a few minutes before the accident and had done so without House Depot's consent. In rebuttal, Shannon's lawyer attempted to enter evidence that, following the collapse, House Depot gave one of its employees a written warning for not properly securing the trimmer display. House Depot raised a Rule 407 objection. What is the proper ruling? A. Overruled, but House Depot gets a limiting instruction when the evidence is admitted. B. Overruled, and there need not be any limiting instruction when the evidence is admitted. C. Sustained, because a written warning does not qualify as a "remedial measure." D. Sustained, because the evidence is only relevant to prove that House Depot was at fault.

(A) is the correct answer. The evidence is admissible to prove ownership or control, because House Depot controverted ownership and control during their case. (B) is incorrect because House Depot is entitled to a limiting instruction telling the jury to only consider the evidence for the purposes of proving ownership or control and not to prove liability. (C) is incorrect because a written warning is considered a remedial measure, and (D) is incorrect because the evidence is relevant to prove something other than fault.

Stanley Mancero is 18 years old and is currently on trial for arson. He testified in his own defense at trial, and the prosecution attempted to impeach him with evidence that he had been convicted of burglary two years ago. Mancero's attorney objected to admission of the evidence, and noted that there was a pending appeal from the prior conviction. The judge should: A. Sustain the objection, because evidence that the accused committed a crime as a juvenile is never admissible. B. Overrule the objection if the evidence would be admissible against an adult and the court finds that admission is necessary for a fair determination of the issue of guilt or innocence. C. Sustain the objection because an appeal of the conviction is still pending. D. Overrule the objection, since burglary is not a crime of falsity.

(A) is the correct answer. Under Rule 609(d), evidence that the accused committed a crime as a juvenile is never admissible. Answer (B) sets out the correct test for juvenile witnesses if the witness is not the accused, but Mancero is the accused in this case. (C) is incorrect because Rule 609(e) states that the pendency of an appeal does not render evidence of conviction inadmissible. Answer (D) is also incorrect in this case, because it ignores the fact that this conviction occurred when the accused was a juvenile (a burglary conviction could still be admissible under 609(a)(1), even though it was not a crime of falsity, if it had been an adult conviction).

David was working as an employee at McGraw Manufacturing when he his arm got caught in a machine on the assembly line. The foreman on the floor ran over to David, shutting down the machine and wrapping the mangled arm in a tourniquet. The foreman yelled for another employee to call 911, and told David: "We'll get you to a hospital right away. We'll get that arm fixed up." David shook his head, saying: "That arm's a goner, Ted—I don't have any insurance, so who's gonna pay to fix it up?" The foreman replied: "Don't you worry about that; McGraw will pay for everything. That's our policy, especially if one of our machines malfunctions like that." David ended up losing his arm. He sued McGraw, claiming that the injury was a result of their machine malfunctioning. McGraw claimed that their machine worked just fine, and that David negligently put his arm too close to it. David wants to admit the foreman's statement: "Don't you worry about that; McGraw will pay for everything. That's our policy, especially if one of our machines malfunctions like that." McGraw objects, citing Rule 409. How should the judge rule? A. The entire statement is inadmissible B. Part of the statement is admissible, but part of it is inadmissible. C. The entire statement is admissible. D. The entire statement is inadmissible only if McGraw did in fact pay for David's medical care.

(B) is correct. Rule 409 bars any offer or promise to pay medical expenses to treat an injury when offered to prove liability for the injury. Thus, the statement: "Don't you worry about that; McGraw will pay for everything" in response to David's concern about medical expenses is clearly covered by Rule 409. It's only relevance would be to prove liability, and that purpose is barred by Rule 409. Thus, (C) is incorrect. Rule 409 applies whether or not medical care is actually furnished—it covers all offers and promises to furnish medical care—so (D) is incorrect. However, Rule 409 (unlike Rule 408) does not cover any statements made before or after the offer or promise to furnish medical care. Thus, the statement "...especially if one of our machines malfunctions"—which implies that the machine actually did malfunction—is not an offer or promise to furnish medical care and is therefore not covered by Rule 409. Therefore, (A) is incorrect.

Louie De Palma is accused of killing Latka, one of his employees, by hitting him on the head with a blunt heavy object. No murder weapon is ever recovered, so the prosecutor seeks to introduce into evidence a tire iron that was found in the garage where De Palma works. There is no evidence that DePalma ever possessed this tire iron, and no evidence that a tire iron was the murder weapon (though it might have been). The prosecution's tire iron is: A. Irrelevant and therefore inadmissible. B. Relevant but probably barred under Rule 403. C. Relevant but probably barred because it is circumstantial evidence. D. Definitely admissible.

(B) is correct. The tire iron has some slight probative value, since it (along with hundreds of other items) might have been the murder weapon. Therefore, (A) is incorrect. But courts are very careful with demonstrative evidence, and in this case the slight probative value of admitting a possible murder weapon is outweighed by the substantial prejudice of having the prosecutor show the jury an item found in the defendant's garage as a "potential murder weapon" when there is no evidence to show that it actually WAS the murder weapon. Thus, Rule 403 will likely bar the evidence, and (D) is incorrect. (C) is incorrect because evidence is no more or less likely to be admissible simply because it is circumstantial.

Dr. Gordon was the anesthesiologist during a routine tonsillectomy when the patient suddenly went into cardiac arrest and died. As it turns out, the patient suffered from an unusual heart condition, which made him susceptible to cardiac arrest if a certain kind of anesthetic was used. Dr.Gordon claimed that she had no way of knowing about this unusual heart condition, since the patient had not told her about it and it did not appear anywhere in the patient's chart. The patient's family sued Dr. Gordon, claiming that the patient had in fact informed Gordon of the heart problem, and that the information had been on the chart, but that Dr. Gordon had gone back and altered the chart after the patient's death in order to protect herself. During the trial, Dr. Gordon offered to admit that she is fully insured for medical malpractice, and that if she was indeed responsible for the death, the insurance company will pay for any and all damages. What is the proper ruling? A. The evidence is probably barred by Rule 411. B. The evidence is probably not barred by Rule 411 because it shows that Dr. Gordon had less of an incentive to alter the chart after the death. C. The evidence probably not barred by Rule 411 because it is being offered to show ownership or control. D. The evidence is probably not barred by Rule 411 because it is relevant to show bias on the part of Dr. Gordon.

(B) is the best answer. (D) is incorrect because the evidence does not show that Dr. Gordon is biased (this exception applies when there is evidence that the insurance company is paying a witness to testify). (C) is incorrect because control is not being contested by Dr. Gordon, and the existence of malpractice insurance would not serve as evidence of that control. Some judges would choose (A) and bar the evidence, since the plain language of the Rule states that insurance evidence is not admissible "upon the issue whether the person acted negligently or otherwise wrongfully." Arguably, this evidence is being offered by Gordon to prove that she was not acting wrongfully—i.e., that she did not alter the chart. However, the policy reasons behind Rule 411 strongly support (B) as an answer—Dr. Gordon is not using the existence of the insurance to prove that she was or was not negligent, but for an entirely different purpose—to rebut a claim that she falsified the chart by proving that she had less of an incentive for doing so. Furthermore, the only unfair prejudice that could come from this evidence would negatively impact Gordon (who is offering the evidence), since a jury may be tempted to increase the damages against Gordon if it knows that an insurance company is paying for it. Thus, most judges would admit this evidence and (B) is the best answer.

Jenny, a school principal in Chicago, has been sued for employment discrimination. The plaintiffs claim that she has promoted white teachers ahead of more qualified non-white teachers. The plaintiffs' attorney wants to admit evidence that Jenny's husband is active in a white supremacist group. Is this evidence admissible? A. Definitely not. Her husband's involvement has no bearing on her actions at the workplace and this evidence will unfairly portray her as a racist. B. Perhaps, but only if the trial judge concludes that the probative value of the evidence as to proving Jenny's racial bias is not substantially outweighed by its unfair prejudice to Jenny. C. Perhaps, but only if the trial judge concludes that the evidence does not unfairly prejudice Jenny. D. Yes, because her husband's involvement in a racist organization makes it at least a little more likely that she is biased against non-white teachers and would base her promotion decisions based on that bias.

(B) is the correct answer Because it sets out the legal test for admissibility under Rule 403. The evidence is relevant, but because it concerns her husband, it has a low probative value. It also carries a very high risk of unfair prejudice, so the judge will have to determine whether the unfair prejudice substantially outweighs the probative value. Answer (A) is incorrect because the evidence does have some probative value, which must be weighed against its potential for unfair prejudice. Answer (C) is incorrect because the judge need not determine that the proffered evidence has no unfair prejudice; only that the level of unfair prejudice does not substantially outweigh the probative value of the evidence. Answer (D) is incorrect because it simply sets out the test for relevance; although this evidence is almost certainly relevant under Rule 401, its probative value is very low, so it may not be admissible under Rule 403.

Brian Lindemann, a member of the city council of Summerfield, was charged with possession of cocaine with intent to distribute. The news shocked the small town, as Lindemann had a reputation in the community as an honest and moral citizen. Despite this, Lindemann refused to take the stand and testify about any of the allegations. The prosecutor, who was concerned about what prejudicial effect Lindemann's reputation in the community might have on the jury, called Liz to the stand, who will testify that she works closely with Lindemann and believes "he isn't a man you can trust." Lindemann's attorney objects to the testimony. The objection will be: A. Overruled; while evidence of a truthful character is admissible only after the character of the witness has been attacked, evidence of an untruthful character has no similar restriction. B. Sustained; Rule 608(a) applies only to witnesses, and Lindemann has not taken the stand. C. Overruled; Liz's testimony does not constitute character evidence, since she is speaking from personal experience. D. Sustained; Liz can only testify about specific instances where she has seen Lindemann say or do dishonest things; broad statements about whether he can be trusted are inadmissible.

(B) is the correct answer. 608(a) applies only to witnesses, and Lindemann was not a witness at the trial. Therefore, he has not placed his credibility at issue in this case, and any testimony about his dishonest character is not relevant. (A) is a correct statement of Rule 608(a)(2), but Rule 608 only applies to witnesses, so answer (A) is incorrect. Liz's testimony does constitute character evidence, so (C) is incorrect. (D) is a completely backwards statement of the law; Rule 608 allows general opinion or reputation testimony, but not evidence of specific conduct.

Steve Houston owned a national chain of art galleries specializing in high-end original paintings. Customers became concerned about the authenticity of Houston's merchandise when pieces entitled The Shriek, The Arnold Feeney Marriage, and Lunch Out On the Grass did not appear to be painted by artists they were attributed to. The Federal Trade Commission brought a civil suit against Houston, and after it was discovered that all of his paintings were fraudulent, Houston entered into a settlement agreement with the FTC. As part of the agreement, Houston had to pay fines, agree to stop selling forgeries, and sign a stipulation admitting to fraud. During the negotiations with the FTC, Houston stated, 'I knew the paintings were fake, but I figured the buyers knew also'they were getting them so cheaply.' As soon as his trouble with the FTC was over, however, Houston sold an 'original' painting, Cloudy Night, to a college student looking to add class to his dorm room. After discovering this, the government initiated criminal proceedings against Houston. While attempting to prove Houston's criminal intent, the government moved to introduce the statement made by Houston during the settlement negotiations with the FTC to prove that Houston knew his paintings were forgeries. Houston's lawyer raised a Rule 408 objection to the evidence. Houston's objection will likely be: A. Overruled, because the prior settlement agreement occurred before the current claim had arisen. B. Overruled, because the FTC is a public agency and was exercising its regulatory authority. C. Sustained, because the government is attempting to introduce evidence from a civil settlement into a criminal trial. D. Sustained, because the evidence is being offered for a prohibited use under Rule 408(a).

(B) is the correct answer. Rule 408 does not apply, because the FTC is a public agency and was exercising its regulatory authority. This is a criminal trial, and the compromise negotiations related to the claim of a public agency (the FTC) that was exercising regulatory authority. Therefore, since the statement being offered is not an offer, acceptance, or promise, Rule 408 does not apply. If the statement the government was attempting to introduce was an offer, promise, or acceptance, then answer (C) would be correct, even though the compromise negotiations related to the claim of a public agency exercising its regulatory authority. Because the information is an 'other statement,' however, it is admissible. Answer (A) is incorrect because Rule 408 protects all settlement negotiations, not just the ones concerning the present claim. (D) is incorrect because Rule 408 does not apply if the statement was made to a public agency and is then used in a subsequent criminal case, as happened here.

Phineas Patrick, the chief financial officer of Drugs-n-Stuff pharmacies, is on trial for embezzlement. The prosecution calls Michael Fahrmore, an employee of the company, as a witness in order to testify about fraudulent financial documents he had uncovered. Later, Patrick testifies in his own defense and denies any wrongdoing; however, he does not specifically mention Fahrmore or the allegedly fraudulent document. On cross-examination the prosecutor asked Patrick, "Were you aware that Michael Fahrmore is so honest, he was once cited in the Oldstown Weekly for returning an elderly gentleman's wallet that he found?" The defense attorney objected to the question. Most likely, the objection will be: A. Overruled; the defense is not attempting to introduce extrinsic evidence, they are merely inquiring about such evidence, and this is permissible under Rule 608. B. Sustained; under Rule 608, specific instances of a fact witness's conduct (such as the returning of a wallet), cannot be inquired into on cross-examination of a fact witness. C. Overruled; Rule 608 permits a party to inquire, on cross-examination of a fact witness, about specific instances of the conduct of a fact witness for the purpose of providing evidence of that witness's character for truthfulness. D. Sustained; Rule 608 strictly prohibits the introduction of extrinsic evidence of specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness.

(B) is the correct answer. Rule 608 permits referring to specific instances of conduct when cross-examining character witnesses, but Patrick was not a character witness for Fahrmore. Rule 608 only permits cross-examination of character witnesses in order to "test the expertise" of the character witness; in this case, Patrick never claimed to know anything about Fahrmore's character, so the questions are improper. (D) accurately states Rule 608's prohibition against extrinsic evidence, but merely asking about an incident does not constitute extrinsic evidence, so (D) is incorrect. (A) and (C) also accurately states the law as set out by Rule 608, but Rule 608 does not apply to fact witness such as Patrick, so (A) and (C) are incorrect.

An injured taxi passenger files a negligence claim against both the taxi driver and company. At trial, the passenger offers evidence that is admissible against the driver but not the company. The trial judge admits the evidence, and the company's lawyer requests a limiting instruction. Which of the following is correct? A. The judge should require an offer of proof before giving the instruction. B. The judge must give the instruction. C. The judge has discretion to give the instruction. D. The judge should not give the instruction because these instructions do more harm than good.

(B) is the correct answer. The judge must give the requested limiting instruction. Rule 105 requires the trial judge to give a limiting instruction if the affected party requests that action. The rule differs from most Rules of Evidence by denying discretion to the trial judge. Answer (C) is incorrect because the judge does not have discretion on this issue. (D) is wrong because, again, the judge lacks power to deny the requested instruction. The company's counsel should consider whether the instruction will do more harm than good, but that is not an issue for the judge to weigh. Answer (A) is incorrect, because the company's counsel has not attempted to introduce any evidence; a party makes an offer of proof when an opponent objects to evidence.

In a civil assault case, the plaintiff introduces a blood-stained golf club that she claims the defendant used to beat her. The club is: A. Demonstrative evidence. B. Real evidence. C. Oral eyewitness testimony. D. Stipulated evidence.

(B) is the correct answer. The plaintiff claims that the defendant used the club to administer the beating; that makes the club a physical object used in the disputed incident. The plaintiff must authenticate the club in some manner, probably by testifying that she recognizes its distinctive features or picked it up after the beating and kept it in a secure place. Assuming that the plaintiff satisfies the authentication rules, which we will discuss later in the course, the judge will admit the club as real evidence. (A) is incorrect because the club is not a model or reproduction; it is the actual tool used by the defendant. (C) is incorrect because the club itself is not oral testimony of any kind. The plaintiff was an eyewitness to the event, and she may offer oral testimony about the club. But the club itself is a piece of physical evidence. (D) is incorrect: A stipulation is an agreement between the parties about the truth of a particular fact. Depending upon other evidence in the case, the defendant in this assault case might stipulate that the club was the one used to beat the plaintiff' while claiming, perhaps, that someone else wielded the club. A stipulation like that would eliminate the plaintiff's need to authenticate the club. But the club itself would remain a piece of real evidence shown to the jury; it would not be a stipulation.

Lou is accused of sexually assaulting his co-worker Mary during the lunch break at their workplace. Mary called the police immediately after the incident. The police arrived at the front door of the office suite ten minutes after Mary's call and one of the secretaries called out: "Hey, look, the police are here!" A minute later, the police entered Lou's office. The office appeared to be empty, but the police searched the office and found Lou curled up under his desk. At trial, the prosecution calls the arresting officer to testify that Lou was hiding under his desk when he was arrested. The defense attorney objects, arguing that there are a number of possible explanations consistent with innocence that explain why Lou might have been sitting under his desk, and that even if he were hiding it certainly does not prove that Lou was guilty, only that he didn't want to be arrested. What is the proper analysis? A. The evidence is irrelevant and therefore inadmissible. B. The evidence is relevant but probably barred by Rule 403. C. The evidence is relevant, and probably not barred by Rule 403. D. The evidence is only admissible if the defendant takes the stand and testifies that he never hid from the police.

(C) is correct. Courts frequently admit evidence of flight to suggest that a defendant had a guilty state of mind. Evidence of flight almost always is relevant, and the probative value of the evidence usually outweighs any unfair prejudice. The same analysis should apply to hiding from the police. If anything, the probative value of hiding is higher than that of flight, because there are fewer innocent explanations for hiding (as opposed to travel). (A) is incorrect because the information is clearly relevant. As long as the evidence tends to make the fact in consequence a little more likely, it is relevant, even though there are alternative explanations for the conduct. (B) is incorrect because the unfair prejudicial effect of this evidence is relatively small. If there is an innocent explanation for the defendant's conduct, he can explain it to the jury. (D) is incorrect because the evidence is admissible to prove the defendant actually is guilty, not just to prove the defendant is lying.

Jackson Lipscomb, who is thirty years old, was convicted of felony mail fraud eight years ago, but was pardoned by the governor three years later. Lipscomb has had a clean record ever since, with the exception of a misdemeanor for disorderly conduct. Subsequently, one of Lipscomb's former associates, Melissa Reed, was also charged with mail fraud, and the prosecutor called Lipscomb as a witness. At trial, Reed's attorney attempted to introduce evidence of Lipscomb's former crime to impeach him, and the prosecuting attorney objected. Most likely, the objection will be: A. Sustained; a crime committed eight years ago is too distant to have any substantial probative value, therefore the prejudicial effect will significantly outweigh it and make the evidence inadmissible under Rule 403. B. Overruled; the crime in question is a felony involving dishonesty, therefore under Rule 609(a)(2) it is admissible regardless of the Rule 403 balancing test. C. Sustained; the witness has received a pardon and under Rule 609(c) evidence of that conviction is inadmissible. D. Overruled; because the witness has been convicted of a subsequent crime the pardon does not preclude the possibility of impeaching Lipscomb with this evidence.

(C) is correct. Under Rule 609(c), if a pardon is based on a finding of innocence, evidence of the conviction is no longer admissible no matter what; if it is not based upon a finding of innocence, the conviction will still be inadmissible unless a subsequent felony has been committed. The question does not say why the pardon was issued, but in this case, it does not matter, since Lipscomb has not committed a felony since the pardon. Therefore answer (D) is incorrect. Because this is a felony involving dishonesty that was committed as an adult and confinement ended less than ten years ago and a pardon was issued, there is a conflict between Rule 609(a)(2) and Rule 609(c). In either case the Rule 403 balancing test is irrelevant, therefore answer (A) is incorrect. In a conflict between 609(a)(2) and 609(c), 609(c) must be taken into account first. The justification behind Rule 609(a)(2) is that crimes involving dishonesty are highly probative of a witness's character for truthfulness, but if the court has already determined that the witness was innocent of that crime or is rehabilitated then—at least ostensibly—evidence of the prior crime has little or no probative value. Therefore (B) is incorrect.

On direct examination, the prosecutor asks a witness for information that would violate the attorney-client privilege. Before defense counsel can interject, the witness responds. What type of motion should defense counsel make? A. A motion in limine. B. An objection. C. A motion to strike. D. An exception.

(C) is the correct answer. A motion to strike is the proper motion when inadmissible evidence has already entered the case. Since the witness has already volunteered information that violates the privilege, defense counsel will move to strike that testimony from the record. The judge may also give the jury a curative instruction, telling them to disregard the answer. A motion in limine (answer A) is an evidentiary motion filed before trial. An objection (answer B) is an evidentiary challenge asserted at trial before evidence is received. An exception (answer D) is an outdated mechanism used to preserve an objection for appeal. The Federal Rules of Evidence eliminate the need for exceptions.

After they were in a car accident, Brianna sued Chris for negligence. At trial, Chris called Devon as a witness. Devon's character for truthfulness was not questioned on cross-examination, but after her testimony Brianna called Lorraine to the stand. Lorraine will testify that she knew Devon well and that he had personally lied to her on three different occasions—twice about whether he was employed, and once about whether he owned a car. Chris objects to Lorraine's testimony. Lorraine's testimony is: A. Inadmissible because Devon's character was not bolstered or attacked on cross-examination, so Brianna was not allowed to call a witness to testify about his character. B. Inadmissible because the lies that Lorraine will testify to have nothing to do with whether or not he might lie on the stand. C. Inadmissible because Rule 608 only permits general reputation or opinion evidence, not testimony about specific dishonest acts. D. Admissible.

(C) is the correct answer. Rule 608 only permits a character witness to testify as to his or her opinion or the reputation of the fact witness's propensity to lie or tell the truth. Specific instances of conduct are not allowed. Therefore (D) is incorrect. (B) is incorrect because evidence of past lies is certainly relevant to whether or not he is lying on the stand, especially given the low standard of relevance. Finally, while Rule 608(a)(2) only allows evidence of a truthful character after the character of the witness for truthfulness has been attacked, there are no similar restrictions on evidence of an untruthful character. Therefore (A) is incorrect. Had Lorriane testified as to her opinion that Devon was a liar, or had she testified that Devon had a reputation in the neighborhood for lying, her testimony would be admissible.

After Michele Wilde attempted to sell cocaine to an undercover government agent, she was indicted on charges of drug possession with intent to distribute. At trial, Wilde's attorney asked DEA officer Lance Malfease if he had relied on any documents to help refresh his memory before trial. "Sure," Malfease replied, "I looked over quite a few investigators' reports and a few other documents." Wilde's attorney then invoked Rule 612 and requested to review the documents that Malfease used to refresh his memory and have them introduced into evidence. The trial judge denied this request, saying, "I know what you're trying to do here, and I won't let you drag out this trial unnecessarily by requesting that all of these documents be admitted. There are other ways of impeaching this witness." Was the ruling correct? A. No; a criminal defendant has a right to see every document that the witness used to refresh his recollection, and the judge's refusal to order that the documents be turned over is an abuse of discretion. B. No; Rule 612 expressly states that if a witness uses a writing to refresh memory for the purposes of testifying that an adverse party is entitled to inspect it and introduce it into evidence. C. Yes; despite the fact that the officer relied on the documents to refresh his memory, the trial court judge may use his discretion to decide that producing the documents was unnecessary, and his refusal to do so was not an abuse of discretion. D. Yes; Rule 612 only applies to documents used to refresh recollection during trial.

(C) is the correct answer. Rule 612(2) gives a trial judge discretion in this instance, stating that a writing used to refresh recollection prior to trial will only be subject to the Rule's disclosure requirements if the judge believes that it is necessary to do so in the interests of justice. Answer (A) is incorrect, because a criminal defendant does not have such a right; and the judge's decision not to order disclosure in this case is not an abuse of discretion. Abuse of discretion is a very high standard—the judge's decision would have to be unreasonable—and this decision was not. Answer (B) is incorrect, because Rule 612 expressly states that the trial judge has the discretion to deny the adverse party the right to inspect and/or admit the writings. Answer (D) is incorrect because it is too broad; Rule 612 also applies to documents used before trial, but states that the production and admission of those documents is within the discretion of the trial judge. (The details of this question were adapted from United States v. Blas, 947 F.2d 1320 (7th Cir. 1991))

Numerous parents are suing Blocko Toys, Inc. in a class action lawsuit, claiming that its Junior Blocko set contained poisonous amounts of lead, which made their children ill. The parents want to admit evidence that (i) immediately after the children's illness became publicized, Blocko sent a letter to all of its retailers, telling them to pull all Junior Blocko sets from the shelves; and (ii) at the same time, Blocko sent a letter to all of the customers who had purchased Junior Blocko sets, stating: "Enclosed please find a full refund for the product." Along with the letter was a check which reimbursed the customer for the purchase price of the Junior Blocko set. What is the correct ruling? A. Neither (i) nor (ii) are admissible. B. (i) is admissible, but (ii) is not. C. (ii) is admissible, but (i) is not. D. Both (i) and (ii) are admissible.

(C) is the correct answer. The recall letter that Blocko sent to the retailers is a subsequent remedial measure, since it was an attempt to remedy a dangerous situation after an injury had occurred. Therefore, the letter is inadmissible under Rule 407. The letter (and check) sent to the parents, however, is not precluded by any rule. It is not an attempt to cure the defect which allegedly caused the illness, so it is not covered by Rule 407. It is not an offer to settle under Rule 408, since there is no dispute at the time the letter is sent, and Blocko does not dispute liability in the letter. And although children became ill as a result of the product, the check is not intended to pay for their medical treatment, and so is not covered by Rule 409.

Henry Handler was driving south on High Street. As he was approaching the light at 24th and High, Wally Witness, who was driving in the car next to Henry, observed Henry talking on his cell phone, drinking coffee, and looking down at his CD player in the car. Two minutes later, at 12th and High, Henry turned right on green, accidentally striking Paula Peddler on her bike. Paula sues Henry for negligence. Paula's attorney wants to call Wally to testify as to Henry's behavior at 24th and High. Is this evidence relevant? A. No, because Wally observed Henry two minutes before the accident. B. No, because there is no evidence that the behavior Wally observed caused the accident. C. Yes, because Henry's actions while driving at 24th and High tend to prove, however slightly, that Henry was not paying close attention to his driving two minutes later. D. Yes. Because only two minutes elapsed between the observation and the accident, it is more likely than not that Henry was still talking on his cell phone and drinking coffee at the time of his accident.

(C) is the correct answer. Under Rule 401, for evidence to be deemed relevant and therefore admissible, it only has to make a fact 'of consequence' 'more or less probable.' Under this low threshold, Henry's multitasking at 24th and High makes it a little more probable that he was multitasking during the accident two minutes later, and tends to show him to be an inattentive and careless driver, both of which are 'facts of consequence.' Answer (D) is incorrect because it implies the wrong standard for relevance. Paula need not show that it was 'more likely than not' that Henry was still multitasking at the time of the accident; only that the proffered evidence makes such a fact slightly more likely than it would be without the evidence. Answer (A) is incorrect because timing is not a necessary factor in determining relevance of evidence. Even though the spill occurred several minutes before the accident, it may be relevant if it helps prove a fact 'of consequence.' Answer (B) is incorrect because Rule 401 does not require evidence to be the direct cause of an accident for it to be admissible; the evidence needs only to have 'any tendency' to make a fact 'more or less probable.' Multitasking while driving has some tendency to show that Henry was distracted--and therefore negligent--so it is admissible.

A small software company sues three larger competitors, claiming that they violated price-fixing laws by intentionally agreeing to sell products at the same price. The small company introduces pricelists distributed by the three competitors. The three price lists each advertise fifty different products at varying costs; each product, however, carries the same price on all the three lists. The three pricelists are: A. Real evidence that provides direct evidence of an intentional agreement to fix prices. B. Demonstrative evidence that provides direct evidence of an intentional agreement to fix prices. C. Real evidence that provides circumstantial evidence of an intentional agreement to fix prices. D. Demonstrative evidence that provides circumstantial evidence of an intentional agreement to fix prices.

(C) is the correct answer. The price lists are documents that serve as real evidence; they are the actual price lists distributed by the defendants. The lists, however, do not contain any direct evidence of the defendants' intent or agreement. Instead, the plaintiff will use the lists to urge the jury to infer that the defendants must have intentionally agreed to advertise the same price for each product. The number of identical prices, plaintiff will argue, is too large to result from coincidence. This is a circumstantial use of the price lists. Answers (A), (B), and (D) are wrong because they suggest that the evidence is demonstrative (rather than real) and/or that the price lists constitute direct evidence of price-fixing.

Harry Sherman had too much to drink one night at a college party, and in a drunken rage, he threw a chair out of a dormitory window. The police were called and Sherman was arrested for criminal damaging. At arraignments, Sherman pled guilty to the charge. The next week, the college sued Sherman for the damage done to the window and the chair. At trial, the attorney for the college wants to admit Sherman's guilty plea for the incident. Sherman objects. What is the proper ruling? A. The prior plea is barred by Rule 410. B. The prior plea is barred by Rule 403, since it is of very little probative value and would unfairly prejudice the jury. C. The prior plea is not barred by Rule 410, because this is a civil case, and Rule 410 only applies to criminal cases. D. The prior plea is not barred by Rule 410, because it is a completed plea.

(D) is correct. Rule 410 only applies to pleas of guilty which were later withdrawn, or to pleas of nolo contendere (otherwise known as "no contest" pleas). The Rule does not apply to completed pleas, so (A) is incorrect. (B) is incorrect because the evidence is extremely probative—by pleading guilty, Sherman admitted that he committed the act—and there is little to no chance of unfair prejudice. (C) is incorrect because although Rule 410 only deals with evidence of criminal plea bargaining, its ban on such evidence applies to both civil and criminal cases.

Dozens of women are suing Farnsworth Pharmaceuticals, claiming that its new anti-depressant drug Serenity caused birth defects in their children. Under the applicable state law, Farnsworth is strictly liable for any injuries caused by products that it manufactured, but it claims that the chemicals in the drug could not possibly have been the cause of the birth defects. Which of the following pieces of evidence would be relevant to the case? A. The plaintiffs offer evidence that the CEO of Farnsworth is a member of a White Supremacist group and attended monthly meetings which included a pledge to "protect and advance the interests of the Aryan race." B. The plaintiffs offer evidence that Serenity does not in fact help treat depression. C. The plaintiffs offer evidence that Farnsworth did not conduct any independent tests of the drug before putting it on the market. D. None of the above.

(D) is the answer. Although relevance is a very low standard, the evidence must make a fact in consequence a little more or less likely. Very often, whether something is relevant will depend on the law that applies to the case. In this lawsuit, the plaintiffs only need prove that Serenity caused their injuries—anything else about the effect of the drug, or about whether Farnsworth was at fault in manufacturing the drug—is irrelevant. (A) is incorrect because the racial bias of the CEO—however despicable—does nothing to help a finder of fact determine whether or not the drug caused birth defects. (In fact, the inflammatory nature of this evidence would make it even less likely to be admitted under Rule 403, as we will learn in subsequent chapters). If there were additional facts, such as the fact that Serenity was heavily marketed towards non-white patients, the CEO's racial bias could conceivably be relevant, but that was not the case here. (B) is incorrect because whether or not Serenity actually helps treat depression is irrelevant to the question of whether it causes birth defects. (C) is incorrect because the applicable law is strict liability—whether or not Farnsworth conducted tests would tend to prove negligent or reckless behavior, but Farnsworth's degree of fault is inadmissible in this case. Therefore, none of these facts are relevant to the lawsuit.

Mr. Ingalls made an oral contract to sell one hundred cords of wood to Dr. Baker. When the wood was delivered, Dr. Baker found that it was inferior pine wood, not the oak that he believed they had agreed upon. He immediately called Ingalls to complain, and Ingalls responded: "O.K., O.K., I'll send you oak; just don't sue me over it." Ingalls never delivered the oak he promised, and was sued by Baker for breach of contract. At trial, Baker wishes to admit Ingalls' promise to send him the oak. Will this be admissible? A. No, because of Rule 407 B. No, because the statement is irrelevant to the contract dispute. C. No, because of Rule 408. D. Yes.

(D) is the correct answer. Agreeing to send the correct type of wood is not a subsequent remedial measure, so (A) is incorrect. The statement is an implicit admission that Ingalls had promised to send oak wood, and is thus relevant to prove that he was in breach of the contract, so (B) is incorrect. And although this was an offer to settle, there was no dispute at the time the statement was made; Ingalls never stated that he did not have to send the wood to Baker. Thus, Rule 408 does not apply and (C) is incorrect.

Sergeant Joe Friday arrests Dutch under suspicion of committing an armed robbery. Friday reads Dutch his Miranda rights and Dutch states that he understands his rights and waives them. Dutch then gives Friday an alibi for the crime. Friday responds: 'Look, both you and I know that story isn't true. You really should be honest with me. Things will go better for you if you cooperate." Dutch then gives Friday a full confession. The prosecution later tries to admit the confession at Dutch's trial, and the defense attorney objects. The confession is: A. Irrelevant and therefore inadmissible. B. Inadmissible under Rule 410. C. Admissible only if Dutch takes the stand and testifies to facts inconsistent with the statement. D. Admissible.

(D) is the correct answer. Dutch's confession is very probative, so (A) is incorrect. And Rule 410 only applies if the defendant is engaged in plea discussions--that is, if he displayed an actual subjective expectation that he was negotiating a plea, and that expectation was objectively reasonable under the circumstances. Regardless of what Dutch might have subjectively believed, the objective circumstances here do not come close to being a plea bargaining situation. Friday has no authority to bargain, he never offers any specific deal, and Dutch never offers to plead guilty. Furthermore, Friday read Dutch his Miranda rights, which is another indication that the situation is an interrogation, not a plea discussion. So (B) and (C) are incorrect.

With respect to most evidentiary errors, an appellate court will reverse the trial court's judgment only if: A. The trial judge abused her discretion. B. The error affects a party's substantial right. C. The trial judge ruled with specificity. D. The trial judge abused her discretion and the error affected a party's substantial right.

(D) is the correct answer. Most evidentiary errors support reversal only if they (1) constitute an abuse of discretion and (2) affect a party's substantial right. Answers (A) and (B) are incorrect because they each offer only part of this formula. Answer (C) is wrong because the trial judge need not rule with specificity; the specificity standard applies to a litigant's objection.

Defendant is being prosecuted for possessing narcotics with the intent to sell. The prosecutor introduces a plastic bag of powdered sugar and asks the police detective on the witness stand to use the sugar to show how the defendant packaged the narcotics. The bag of sugar is: A. Eyewitness evidence. B. Expert evidence. C. Real evidence. D. Demonstrative evidence.

(D) is the correct answer. Rather than risk taking real narcotics into the courtroom, prosecutors sometimes use a model to show the jury how the defendant packaged and sold the drugs. Powdered sugar looks a lot like cocaine, so a plastic bag of powdered sugar is demonstrative evidence used to illustrate the contraband. If the defendant attempted to palm off powdered sugar as cocaine, answer (C) might be correct: This bag of sugar could be the actual goods offered for sale by the defendant. However, in that case, the defendant would not have been charged with possession of narcotics, since he would in fact not have possessed any narcotics. Therefore, the bag of powdered sugar is simply an illustrative prop. Answers A and B are incorrect because the bag of sugar is not oral testimony of any type. An eyewitness or expert might testify about the bag and what it represents, but the bag itself is demonstrative evidence.

Steve Kopel was charged with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor. At trial, the prosecution called Catarina Gonzalez as a witness. Gonzalez testified that Kopel told her about his plan to have sexual relations with an underage girl. Kopel's attorney attempted to impeach Gonzalez with evidence that three years ago she was convicted in Florida of issuing a bad check for $75. In Florida, anyone who issues a check for less than $150 knowing that there are insufficient funds in their account is guilty of issuing a bad check, which is a misdemeanor. The prosecution objected to the inclusion of this evidence under Rule 609. The trial judge should: A. Sustain the objection. The crime is a misdemeanor that does not involve dishonesty evidence of the crime must be automatically excluded. B. Overrule the objection if the judge determines that the evidence passes the Rule 403 balancing test. C. Overrule the objection if the judge determines that the probative value outweighs the possibility of unfair prejudice to the prosecution. D. Overrule the objection, Under Rule 609(a)(2) the evidence of Ms. Gonzalez's crime is automatically admissible.

(D) is the correct answer. This is a crime of falsity, and therefore it is automatically admissible under Rule 609(a)(2). Answer (B) would be correct if Rule 609(a)(1) were applicable; however, the relevant crime was a crime of falsity and also was not a felony. Answer (C) sets out the test if this were a felony, not a crime of falsity, and the witness was the defendant. None of these things are true. Finally, answer (A) would be correct if it were not for the fact that the misdemeanor in question does involve dishonesty. The mens rea requirement in the Florida statute (that one must "knowingly" have written a bad check) makes clear that dishonesty was an element of this crime: therefore (A) is incorrect.

Leon purchased a Periladder brand telescoping ladder in May 2000. In September 2000 the ladder collapsed while Leon was on it, causing Leon serious injury. After recovering, Leon recommended Periladder to his neighbor Carl, whom he deeply loathed. Carl purchased the same model of telescoping ladder from Periladder in November 2001 and was similarly injured in January 2002. Leon and Carl sued Periladder separately, each bringing a strict liability and negligence claim. In December 2001, Periladder modified the design of their telescoping ladder and began affixing warning labels to them. At trial, Leon seeks to admit the change in the design for the purpose of showing the original was unreasonably dangerous and Carl seeks to admit the new warning labels for the purpose of showing that there was a need for a warning. Periladder raised a Rule 407 objection in both cases. Periladder's objection will most likely succeed (thus precluding the evidence) in: A. Leon's case. B. Carl's case. C. Neither case. D. Both cases.

Answer (A) is correct. Redesigning the ladder and adding a warning both count as remedial measures, but Rule 407 only applies to measures that are taken after an injury or harm allegedly caused by an event. Periladder made the changes after Leon's injuries, so the evidence is barred in his case by Rule 407. Answers (B) and (D) are incorrect because Periladder's remedial measure was made prior to Carl's injury; thus, in Carl's case the remedial measure was not a subsequent remedial measure, and his Rule 407 objection will be overruled.

After having most of their products removed from nationally-recognized hardware stores, Periladder began selling their telescoping ladders on the Home Consumers Network ("HCN"). Erin McCain, an employee of HCN, was demonstrating the telescoping ladder during a November 2001 live broadcast when it collapsed, seriously injuring her. HCN had to run nine more shows in which they needed to demonstrate the ladder, and so in December 2001 HCN engineers reinforced the ladder so that the product could be safely demonstrated by other employees. Also in December 2001, Periladder made its own modifications to the design of the ladder. Erin sued Periladder for negligent product design. At trial, Erin attempted to introduce evidence of HCN's modification to show that the product was unreasonably dangerous before the accident, and also evidence of Periladder's subsequent modifications in order to prove that a safer design was feasible. Periladder did not contest feasibility in the case. Periladder raised a Rule 407 objection to the admission of both remedial measures. Periladder's Rule 407 objection will most likely succeed (thus precluding the evidence) with regard to: A. HCN's modification. B. Periladder's modification. C. Both modifications. D. Neither modification.

Answer (B) is correct. Rule 407 only allows Erin to admit evidence of Periladder's subsequent modification to prove feasibility if Periladder made the argument that a safer design was not feasible; since Periladder did not do so, the evidence is precluded. However, courts have held that Rule 407 does not apply to remedial actions by third parties, so HCN's modifications would most likely be admissible for any relevant purpose.

Tom McManus was fired from his job as a mechanical engineer for MLG Manufacturing and filed suit against his former company under the Age Discrimination in Employment Act. During litigation, Tom's old boss, Karen Leahy, asked to meet with him and Tom agreed. 'Listen Tom,' Karen said, 'maybe some of the higher-ups had a problem with your age but I never did. I support you in this lawsuit, but it looks like corporate management is determined to fight you to the end. In the meantime, I'm willing to make some calls to people I know at Acme Manufacturing--I'm sure I can get you a job there with a better salary than you ever got here." Tom replied, 'I don't like the work ethic at Acme--I want my old job back here.' Karen did not have the authorization to re-hire Tom, so he remained unemployed. At trial, Tom attempted to introduce evidence of Karen's statements and her offer in order to prove MLG intentionally discriminated against him. MLG raised a Rule 408 objection to the inclusion of the evidence. A. Overruled, because Karen and Tom were not in compromise negotiations B. Overruled, because the negotiations were not in connection with a claim that was disputed. C. Overruled, because the statement cannot be used to prove liability. D. Sustained.

The answer is (A). Karen and Tom were not in compromise negotiations. In order for negotiations to fall within the ambit of Rule 408, they must be an anticipation of the claim being forfeited. Tom had the ability to take Karen's offer of employment at another company and still pursue his claim against MLG, and therefore Rule 408 does not apply. Answer (B) is incorrect because the negotiations were in connection with a claim that was disputed. Tom's claim is directly related to his lost employment, and if Karen had offered him the employment opportunity in exchange for dropping the claim there would be no question about the connection between the negotiations and the claim. Answer (C) is incorrect because Karen's suggestion that company management had participated in age discrimination, while not a singularly decisive statement, can still be used to help prove liability in this case. Answer (D) is incorrect because the objection should be overruled.

Zeke Channing was on trial for fraud. During trial, the prosecution asked police officer Thomas Wolfe if he had taken a statement from Scramando. Wolfe replied, "No, I did not take any statement from him, and that's the sort of thing I would recall." The prosecutor asked if he had his investigative file with him, and Wolfe responded, "No, I had it with me yesterday, but I didn't need it to refresh my memory so I just sent it back to the station. I don't keep up with paperwork that well, and I don't need a file to tell me that I didn't take a statement from Scramando." At that point, Channing's attorney requested that the investigative file be produced so he could inspect it and introduce it into evidence. The request of Channing's attorney will most likely be: A. Denied; Rule 612 only permits the adverse party to inspect and admit evidence that has been used to refresh a witness's memory for the purposes of testifying. B. Denied; Rule 612 only permits evidence that has physically been brought into court and used at trial to be admitted into evidence. C. Granted; Rule 612(2) expressly states that evidence used before testifying may also be admissible, therefore the investigative file would have to be produced. D. Granted; a witness cannot choose to rely on their own faulty memory when a written record of the event exists and is readily available.

The correct answer is (A). Rule 612 only permits the adverse party to inspect and admit evidence that has been used to refresh a witness's memory for the purposes of testifying. In this case, the witness testified that he did not use the document to refresh his recollection, so Rule 612 does not apply. Rule 612(2) does expressly permit the review and admission of evidence that has been used to refresh memory prior to testimony, so if Wolfe had testified that he reviewed the investigative file in order to refresh his memory, the file would have to be brought in for review, even if it was never used directly at trial. Since Wolfe testified to exactly the opposite, (B) is incorrect. If evidence has not been used to refresh a witness's memory (as in this case), it cannot be admitted into evidence under Rule 612, so answer (C) is incorrect. While answer (D) may present a tempting line of reasoning, there is no requirement that a witness rely on a writing to refresh their memory. (The details of this question were adapted from United States v. Sheffield, 55 F.3d 341 (8th Cir. 1995))

Michael Cameron, the owner of a successful restaurant chain, gave all of his restaurant managers and head chefs generous employment contracts which offered long-term employees health benefits 'for life.' Cameron's restaurants began to fail, however, and it was soon apparent that they would have to close. Cameron met with all of his employees receiving benefits, told them about the closings, and offered them a lump sum payment in lieu of their health benefits. All of the employees declined. After closing the restaurants, Cameron stopped paying health benefits, explaining that continued operation of the restaurants was an implicit qualification in the contract. During trial for breach of contract, the employees attempted to introduce evidence of the lump sum offer to prove that Cameron had agreed with their interpretation of the contract and therefore Cameron and the employees had a "meeting of the minds" that the lifetime health benefits would continue even if the store closed. Cameron's lawyer raised an objection under Rule 408. Will Cameron's Rule 408 objection be overruled? A. No, because the offer was made during compromise negotiations and proves liability. B. Yes, because it impeaches Cameron. C. Yes, because there was no dispute at the time of the offer. D. Yes, because the evidence is not being offered to prove liability, the amount of a claim, or to impeach a witness.

The correct answer is (C). Although the employees might have suspected that Mitchell was anticipating a breach of contract or was unable to honor their contract, Rule 408 does not take effect until a dispute has actually arisen. Because a dispute had not yet arisen, Rule 408 did not apply. (A) cannot be correct, since Rule 408 treats offers to settle in the absence of a dispute as simply admissions. Answer (B) is incorrect because there is no information in the fact pattern to show that this information impeaches Cameron. Answer (D) is incorrect because the evidence is in fact being offered to prove liability' that is, that Cameron and his employees both had the same interpretation of the contract at the time of the signing, and therefore Cameron is now liable for breach. Note that, while the Rule 408 objection will fail, the evidence is still subject to other rules of evidence, such as Rule 403.

During a professional football game, Monus Lynch intentionally struck Holt Johnson in the back of the head with his forearm, causing Johnson serious injury. Johnson subsequently brought an action against Lynch and his football team for battery and negligence. During trial, the plaintiff introduced referee Ryan Chiaveroli as a witness. On direct examination, Chiavoroli testified that he did not see Lynch strike Johnson during the game in question. The plaintiff's attorney then asked Chiaveroli, "Mr. Chiaveroli, do you usually wear glasses or corrective lenses?" Chiaveroli answered yes. The plaintiff's attorney then asked: "Were you wearing your glasses or corrective lenses on the day of the game in question?" Mr. Lynch's attorney objected to the question. Most likely, the objection will be: A. Sustained, because Johnson cannot impeach a witness that he himself has called to the stand. B. Sustained, because a party cannot ask leading questions on direct. C. Overruled; a party generally cannot impeach his or her own witness, but a question about whether a witness was wearing glasses is not a question of impeachment. D. Overruled; this is an impeaching question, but parties are allowed to question their own witness's credibility.

The correct answer is (D). Rule 607 expressly permits either party to question a witness's credibility. (C) is incorrect because a question which attacks a witness's perception is an impeaching question. (B) is incorrect for two reasons. First, its statement of law is too broad—there are a number of exceptions to the rule against leading questions on direct. Second, the question asked by the plaintiff in this scenario was not a leading question—it did not suggest a specific answer because the witness was free to answer yes or no. (A) is incorrect because Rule 607 abolished the old common law rule of "vouching," and allows any party to impeach his or her own witness.

Martin Rinker notified local law enforcement officers that he suspected his former friend and coworker, Greg Marietta, of drug trafficking. Rinker subsequently agreed to work with police in gathering evidence concerning Marietta's activities, and on several occasions Rinker recorded phone conversations with Marietta in which the two discussed a potential transaction. Marietta was indicted, and at trial the prosecution asked Rinker, "Do you recall the details of the phone conversation that occurred between you and Marietta at 7:00 p.m. on the evening of June 5, 2005?" When Rinker responded in the negative, the prosecution asked Rinker if hearing a portion of the audiotape from that conversation would help to refresh his memory. (The entire taped conversation was over half an hour long, and had already been provided to Marietta's attorney). Rinker responded that hearing the tape would indeed help refresh his memory, and he used headphones to privately listen to a one minute portion of the tape. After hearing the audiotape, Rinker testified about details of the conversation that were not on the tape. Marietta's attorney objected the use of the tape. This objection will most likely be: A. Sustained; Rule 612 refers explicitly to a "writing" that is used to refresh memory, therefore other forms of media are not permitted for this purpose. B. Sustained; a witness cannot claim that they are using a writing to refresh their memory and yet testify about matters that were not included in the writing. C. Overruled, because the witness did not testify about the material that he actually heard, so this was a legitimate use of Rule 612. D. Overruled; the fact that the audiotape is not a "writing" in the traditional sense is immaterial, and Rule 612 permits a witness to use such material in the way the prosecution did.

The correct answer is (D). The term "writing" in Rule 612 applies to any document or item that is used to refresh recollection—audiotapes, pictures, physical items all count as "writings" for the purposes of Rule 612. Therefore (A) is incorrect. And there is no requirement that the witness's testimony be an exactly the same as the information contained in the writing; the purpose of using material under Rule 612 is to refresh the witness's memory of a past event, not to "prove" that the witness's testimony is correct by comparing it to a written document. If anything, the fact that the witness in this case did not directly rely upon material in the audio recording proves that the witness is using the material for the purpose Rule 612 was designed for: refreshing memory as opposed to reciting material. Therefore (B) is incorrect. (C) is incorrect because Rule 612 does in fact allow a witness to testify to exactly what was in the writing. Note that the opposing counsel could, if she wished, admit into evidence and then play for the jury the portion of the tape that was used to refresh the witness's recollection. (The details of this question were adapted from United States v. Rinke, 778 F.2d 581 (10th Cir. 1985))

Shelly accused Graham of assault and battery. Shelly called Thaddeus to the stand, and Thaddeus testified that he saw bruises on Shelly's body the day after the alleged assault. On cross-examination, Graham elicited the fact that Thaddeus and Shelly were co-workers at the same company in order to show bias. Shelly now wants to call Erin to the stand. If allowed to testify, Erin will say that she has known Thaddeus for many years, and that he "would never tell a lie." Graham's attorney objects to this testimony. The objection should be: A. Overruled; Erin's testimony is in response to an attack on Thaddeus's character for truthfulness, and only presented evidence of Thaddeus's reputation for having a truthful character. B. Sustained; Rule 608 only allows evidence of opinion or reputation for honesty, and Erin's comment fell outside of those bounds. C. Overruled; once a witness has testified, his or her character for truthfulness may be attacked or supported by either side. D. Sustained; Rule 608(2) requires that the character of the witness for truthfulness first be attacked, and that has not occurred.

The correct answer is (D). Under Rule 608(2), a witness's propensity for truthfulness cannot be bolstered until it is attacked. Therefore (C) is an incorrect statement of the law. And although Thaddeus's sincerity has been attacked when Graham brought out evidence of bias, this does not constitute an attack on Thaddeus's character or propensity. Evidence of bias presents a reason why the witness may choose to be untruthful on this particular occasion, but it does nothing to attack a witness's character for truthfulness. Therefore (A) is incorrect. Erin's proposed testimony is opinion testimony which is directly relevant to Thaddeus's honesty, so (B) is incorrect. (Some details from Renda v. King, 347 F.3d 550 (3rd Cir. 2003) were modified to fit this question)