Evidence Multiple Choice

What is the standard for relevance? What are its two main parts?

-any tendency to make a fact of consequence more or less likely to be true -2 main parts: the evidentiary fact is probative of the targeted fact that is material to an essential element

What are the limits of impeaching a witness on past acts of untruthfulness?

-good faith belief that past acts occurred -you cannot use extrinsic evidence while doing so, and only if their character for truthfulness is put at issue by their testimony

Give two examples of when you can admit liability insurance.

-if D disputes they own whatever it is that is being controlled -ownership of the insured thing, when door is opened by the other side

List the ways in which you can impeach someone's character for truthfulness.

-past lies -prior convictions no older than 10 years ago -character witness limited to opinion or reputation

What is the purpose of offering past criminal convictions?

-to impeach character for truthfulness -past lies -character witness testifying about character for truthfulness

When you can offer evidence of a post slip and fall repair of a sidewalk?

-when they open the door or to prove ownership or control, or when it isn't being used to show liability -you can offer it for any purpose besides showing liability or negligence -you could, for example, offer it for any purpose besides showing liability or negligence -you could, for example, use it to show control of the sidewalk if it is at issue

1) Cynthia is a witness in a kidnapping trial. The prosecutor wants to prove that John, the victim, left his house on at around 8:00 AM on December 19th. The prosecutor call Cynthia to the stand to testify about the morning of December 19, but Cynthia claims the Fifth Amendment and refuses to answer any questions. Which of the following pieces of evidence does Rule 801(d)(1) now allow the prosecutor to introduce? A) Bill's testimony that, 'After John disappeared, Cynthia told me that she looked out our window at 8:00 a.m. on December 19 and saw John leaving his house B) the police report noting that, during questioning after John's disappearance, Cynthia reported that she saw John leaving his house at 8:00 a.m. on December 19 C) the police report, but only if Cynthia signed her statement under penalty of perjury D) Cynthia's testimony to a grand jury, under oath subject to the penalty of perjury, that she saw John leave his house at 8:00 a.m. on December 19 E) none of these 2) Same facts as above. The state now calls Rose who is prepared to testify that Cynthia told her 3 days after the kidnapping that "she and the D had planned and executed the kidnapping 3 days prior." The court should: A) admit the evidence B) refuse the evidence

1) E) none of these 2) A) admit the evidence

Give 2 possible justifications for the admissible of bad past acts.

1) character for truthfulness 2) to disprove accident or mistake

1) When/how can a criminal D use character evidence? 2) What kind of evidence can criminally accused produce? 3) What defines pertinent trait? 4) When the mercy rule is invoked by a criminal D, how might he produce evidence of his pertinent trait? 5) When V's pertinent trait is attacked, what can the prosecution do in response? 6) Under the mercy rule, criminally accused can give evidence of their pertinent trait. What defines pertinence?

1) mercy rule: they can use it to show they have a good character 2) pertinent trait 3) what he's been accused of; the charge brought against him 4) character witness 5) come to the defense of V (rebut), or attack D's pertinent trait 6) pertinence is based on the charge; can also show evidence of V's pertinent trait (character witness)

Explain the workings of 403; what is a reverse 403 test? Give examples.

403 is when a piece of the evidence's probative value is substantially outweighed by the prejudicial impact; it is meant to be heavily in favor of admissibility -evidence is admissible unless its probative value is substantially outweighed by prejudice -presumes admissibility reverse 403: bring conviction of over 10 years if you establish probative value substantially outweighs the prejudicial effect

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 Peiladder separately, each brining 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 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

A) Leon's case

Blair is suing Tootie for battery, alleging that Tootie pushed her down the stairs of the dormitory at their boarding school, causing Blair to break her arm. Before trial, Blair deposes Mrs. Garrett, the headmistress of the school, who was present in the dormitory at the time of Blair's fall. Garrett states in her deposition that the she heard Blair and Tootie yelling at each other upstairs, and then heard Tootie say: 'I'll make you pay!' and then saw Blair come tumbling down the stairs. At trial, Tootie calls Garrett to the stand. Garrett testifies that she never heard Tootie's voice at all before the accident, and she in fact had no idea that Tootie was present at the time of Blair's fall. On cross-examination, Blair's attorney asks Garrett whether she said in her deposition that she had heard Tootie's voice. Garrett admits that she said that in the deposition, but states that she was mistaken. Blair's attorney then seeks to admit that portion of the deposition into evidence. Tootie's attorney objects. The evidence is: A) admissible for any purpose B) admissible, but with a limiting instruction stating it can only be used to impeach Garrett, not for the truth of the matter asserted C) admissible if Blair's attorney has offered some evidence that Garrett had a motive to fabricate her testimony, and then with a limiting interaction stating it can only be used to impeach Garrett, not for the truth of the matter asserted D) inadmissible for any purpose

A) admissible for any purpose

Same facts as questions 1-4 above. Wilma, in her CIC, seeks to introduce evidence that Fred is a member of a Neo-Nazi group advocating the violent overthrow of the US government. The best objection to this evidence would be: A) excluded as the evidence is not relevant to a fact of consequence B) the evidence violates FRE 403 C) excluded as the evidence is hearsay D) excluded as the evidence violates Fred's sixth amendment right to confront

A) excluded as the evidence is not relevant to a fact of consequence *FRE 401

Andy Taylor is on trial for physically assaulting his 10-year-old son Opie. The prosecution calls Aunt Bee, who testifies that two years ago she saw the defendant strike his nephew Danny in the head. The prosecutor also wishes to admit a certificate of conviction showing that Taylor pled guilty to the misdemeanors of assault and child endangerment in that prior case. How is the court most likely to rule? A) neither Aunt Bee's testimony nor the prior conviction are admissible B) the prior conviction is admissible, but Aunt Bee's testimony is not C) the prior conviction is admissible only if Taylor testifies, but Aunt Bee's testimony is not admissible under any circumstances D) both Aunt Bee's testimony and the prior conviction are admissible in the case-in-chief

A) neither Aunt Bee's testimony nor the prior conviction are admissible *altering the questions to accidentally hit; absence of mistake (exception to 404(b)) *EF1 = in court testifying Aunt Bee about Taylor that he has hit his nephew, offered to prove he beats kids *EF2 = in court testimony introducing evidence by prosecutor of prior conviction, offered to prove character for truthfulness *Andy Taylor hasn't taken the stand; prosecutor cannot call D to stand *if not called to the stand, cannot challenge their character for truthfulness *not a felony, but a misdemeanor; we only use felony convictions to challenge character for truthfulness

Same questions as 1-3 above. Wilma, in her CIC, calls Delores Stoner to testify in the case. Ms. Stoner was an eyewitness to the crash, and on direct examination she is asked: "Ms. Stoner how fast was the red car traveling when it spun out of control and hit the median?" Ms. Stoner is prepared to testify that the red car was traveling 85-90 mph when it spun out of control crushing the highway median when an objection was lodged by Fred claiming the question calls for improper opinion testimony. The court is likely to: A) overrule the objection if foundation is laid that Stoner personally observed the car B) overrule the objection only if foundation is laid that Stoner possesses expertise on the speed of vehicles C) sustain the objection as calling for an opinion D) sustain the objection if it is established that Stoner was high on drugs when she witnessed the crash E) answers C and D above

A) overrule the objection if foundation is laid that Stoner personally observed the car *FRE 701

Same facts as above. While testifying on the witness stand, Wilma is having a hard time recalling all the numerous doctor visits and procedures she underwent to treat her personal injuries. Wilma's best friend Betty was the person who drove her to each of her doctor/hospital visits. Betty was a diarist who wrote down her day-to-day activities in painstaking detail. Counsel for Wilma now seeks to have Wilma silently review Betty's diary on the stand to assist her in testifying. Counsel for Fred objects, the court should: A) overrule the objection if it will help Wilma testify B) sustain the objection unless Wilma adopted the statements in Betty's diary as her own C) sustain the objection as the diary is hearsay D) sustain the objection unless Wilma can lay personal knowledge foundation for the admission of the diary

A) overrule the objection if it will help Wilma testify *FRE 612

Bo Duke is on trial for stealing a Cadillac from Mr. Hogg. The prosecutor alleges that Duke stole the car by dressing up as a valet at Hogg's favorite restaurant and taking the keys from Hogg as though Duke intended to park the car. Duke has 3 prior convictions: 1) misdemeanor drug possession from last year (Duke possessed marijuana) 2) felony and grant theft auto from 4 years ago (Duke dressed up as a valet outside a restaurant and took the keys from the victim as though he intended to park the car) 3) misdemeanor fraud (Duke swindled a widow out of $50 by soliciting money for a nonexistent charitable organization) Which of these convictions, if any, are likely admissible against Duke? A) 2 and 3 in the CIC, but not 1 under any circumstances B) 2 in the CIC, and also 3 if Duke testifies C) 2 and 3 in the CIC, and also 1 if Duke testifies D) none in the CIC, and only 3 if Duke testifies

B) 2 in the CIC, and also 3 if Duke testifies

An oil well exploded in Western Colorado, killing 3 workers. The well was owned by Denver-Carrington, a large multi-national oil company. The families of the workers are suing Denver-Carrington, claiming the company was negligent in maintaining the oil well. In its defense, Denver-Carrington offers 2 documents. The first is a monthly maintenance report filled out by the company's regional safety inspector, indicating the oil well was inspected and found to be in good working condition every month from the day it was built until the day it exploded. The second is an email, written by the same inspector to the CEO of the company, which was written a few hours after the incident and provides a physical description of the damage to the pump and the surrounding area. The Ps object to both documents as hearsay. The judge should: A) Preclude both documents B) Admit the monthly maintenance report but not the email C) Admit the email but not the monthly maintenance report D) Admit both documents

B) Admit the monthly maintenance report but not the email

Prosecution of D for burglary. D testifies that she was in another state when the crime was committed. To impeach D, the prosecution gives appropriate notice that it wishes to offer evidence of D's fifteen-year-old conviction for perjury, (a felony, for which D served three years imprisonment), and supplies evidence about the circumstances supporting the probative value of the conviction. The evidence is: A) admissible if the court finds the probative value of the conviction outweighs the danger of unfair prejudice B) admissible if the court finds that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs the danger of unfair prejudice C) admissible if the court finds the probative value of the conviction, supported by specific facts and circumstances, is not substantially outweighed by the danger of unfair prejudice D) admissible without regard to a balancing of probative value and unfair prejudice E) inadmissible without regard to a balancing of probative value and unfair prejudice

B) admissible if the court finds that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs the danger of unfair prejudice *C) is 403 flipping the standard *the rule specifically says we must convince the court the probative value substantially outweighs the prejudicial effect

Marcia Brady is on trial for killing her stepfather Michael. In its case-in-chief, the prosecutor introduces a properly authenticated letter from Jan, Marcia's sister. The letter was found in Marcia's possession when she was arrested, and it is dated the day before the murder. In the letter, Jan wrote that Michael had sexually assaulted her numerous times over the past few weeks. The defense objects to this document as hearsay and inadmissible character evidence. The court should rule that the letter is: A) admissible for any purpose B) admissible to prove Marcia's motive for committing the crime C) admissible to prove that Michael actually did sexually assault Jan D) inadmissible for any purpose

B) admissible to prove Marcia's motive for committing the crime

Prosecution of D for the murder of V. D admits killing V, but claims that she acted in self-defense when V attacked her. To prove that V attacked D, D wishes to offer evidence that V had a community reputation as a violent person. D was unaware of this fact at the time she killed V. Which of the following statements is most accurate? A) because D was unaware of the story about V at the time she killed V, the evidence is irrelevant B) even though D was unaware of the story about V at the time she killed V, the evidence is relevant and admissible to show V was the first aggressor in the fight C) the evidence is relevant but is an improper attempt to impeach V D) the evidence is relevant but is an improper attempt to use character evidence to prove V's out-of-court conduct E) the evidence is relevant but is inadmissible hearsay

B) even though D was unaware of the story about V at the time she killed V, the evidence is relevant and admissible to show V was the first aggressor in the fight *doesn't matter D knew of the reputation because that is not in the rule *calling the character witness to attack V's violent character is to establish V was the first aggressor *A) the evidence is being offered by D to show V had a violent character and he acted consistent with that behavior when D had to kill him; not irrelevant *C) we aren't impeaching V, they are dead *D) this is character evidence of V to show out of court conduct; we can use it under the mercy rule; the reason we're bringing the evidence is to prove she was the first aggressor and to prove out of court conduct; that is exactly why we're calling it (exception to propensity rule)

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 rehire Tom, so he remained. 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

B) overruled, because the negotiations were not in connection with a claim that was disputed

Louie De Palma is accused of killing Robert, one of his employees, by shooting him with a shotgun. The shotgun allegedly involved in the shooting was retrieved from D's home. At trial, the prosecutor seeks to introduce into evidence a photograph of the shotgun which depicts the shotgun placed on a couch with several other knives, machetes, pistols, assault rifles, and ammunition which were not involved in the shooting, and did not belong to the accused. The prosecution's photograph of the shotgun 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 E) inadmissible as it violates the rule in Shelley's case

B) relevant but probably barred under Rule 403 *TF = D owns the murder weapon *EF is relevant and probative of TF *evidence is admissible unless probative value is substantially outweighed *alternative evidence (the shotgun was retried) decreases probative value of the photo - the additional weapons shown are prejudicial to D

Wilma, a passenger in a car operated by Fred, is injured when the car strikes a guardrail on the highway. Wilma files suit against Fred alleging Fred operated his car in a negligent manner. At trial, while Wilma is on the witness stand in her CIC, she is asked to recall the contents of a written note Fred sent her apologizing for the accident and the harm that it caused. A timely objection is made by counsel for Fred; the court should: A) sustain the objection if the objection is based on hearsay B) sustain the objection if Wilma can't account for why the letter cannot be produced C) sustain the objection as the question violates Fred's right to confront. D) sustain the objection if it is based on relevance

B) sustain the objection if Wilma can't account for why the letter cannot be produced *FRE 1004

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) sustained; Rule 608(a) applies only to witnesses, and Lindemann has not taken the stand *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 it is incorrect *C) is incorrect because Liz's testimony does not constitute character evidence *D) is a completely backwards statement of the law; Rule 608 allows general opinion or reputation testimony, but not evidence of specific conduct

Rogers 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) 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) can only do this if it was attacked *Patrick is a fact witness, not a character witness; we cannot inquire a fact witness about the honesty of another fact witness

In a prosecution for the burglary of a Unitarian church, the state, in its case-in-chief, seeks to introduce evidence of 3 other burglaries committed by the D. The most important factor in getting this evidence admitted is likely to be: A) whether D has been convicted of the other burglaries B) whether the earlier burglaries were of Unitarian churches C) whether the D has put in evidence of his good character D) whether D takes the stand E) whether D has introduced reputation or opinion evidence

B) whether the earlier burglaries were of Unitarian churches

Ralph Kramden is on trial for assaulting his wife Alice; she suffered two broken ribs when Ralph's fist connected with her stomach. Ralph claims that he hit Alice accidentally while he was flexing his arm to improve his bowling swing. The prosecutor wants to call Ed Norton, one of Ralph's neighbors, who will testify that one week before the alleged assault, he was in the Kramdens' apartment and saw Ralph go up to Alice, shake his fist in her face, and say: "One of these days I am going to strike you so hard you'll end up on the moon!" The judge is most likely to rule that this testimony is: A) inadmissible B) inadmissible to prove D has a propensity to be violent C) admissible under 404(b) D) admissible to impeach D if he testifies

C) admissible under 404(b) *404(b) exception

A group of veterans from the Korean War are suing the US government for exposure to Code Blue, a chemical defoliant used by the US Army during that conflict. The veterans claim their exposure to Code Blue caused them to develop lung cancer. The US concedes that the veterans were exposed to Code Blue, but argues that the chemical was perfectly safe and could not possibly have caused the injury. The veterans intend to call Dr. Ben Pierce, a world-famous physician and author of many scholarly articles on cancer and its causes. Dr. Pierce has devised a new laboratory test for studying chemicals to determine whether or not they cause cancer. This test has only been accepted by a handful of researchers around the country, but the judge is convinced that it is reliable, since it has undergone peer review and has very low error rates. Dr. Pierce has not personally tested Code Blue, but he has seen the results of various tests performed by lab technicians who applied his new technique. He will testify that it is standard for physicians and epidemiologists to rely on the work of trained lab technicians when conducting studies and reaching conclusions. Based on the results of the tests that he has seen, he is willing to testify that Code Blue can in fact cause lung cancer. What is the proper ruling governing Pierce's proposed testimony? A) his testimony should be barred entirely because the technique he is relying upon has not been accepted by most of scientists practicing in the field B) his testimony should be barred entirely because he bases his conclusions on hearsay data C) his testimony about his conclusions should be allowed, but he cannot testify about the underlying data on direct unless the court determines that the probative value in assisting the jury to evaluate his opinion substantially outweighs the prejudicial effect of the hearsay data D) his testimony about his conclusions and the description of the underlying data should be allowed on direct examination

C) his testimony about his conclusions should be allowed, but he cannot testify about the underlying data on direct unless the court determines that the probative value in assisting the jury to evaluate his opinion substantially outweighs the prejudicial effect of the hearsay data

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) inadmissible because Rule 608 only permits general reputation or opinion evidence, not testimony about specific dishonest acts *A) is a misstatement of the law *B) is not the problem because his past acts of lying might support a conclusion that he is a liar *EF = in court testifying Loraine (character witness) testifying about Devon's past acts of lying *TF = Devon is a liar *calling a character witness is one of the 3 methods, but Loraine is not doing it the right way; she should be limited to reputation and opinion; instead, she jumped right to examples

Same facts as questions 1-9 above. With the above-mentioned accident the photographer on the stand is asked to describe the wreckage at the accident scene. An objection is made by Fred based on the best evidence rule, the court should: A) sustain the objection unless the original photographs can be accounted for B) sustain the objection as the original photographs (or a copy) is the best evidence of the accident scene C) overrule the objection D) overrule the objection if the photographs were previously provided to Fred by Wilma

C) overrule the objection *photographer is an eyewitness FRE 602

Same facts as questions 1-2 above. On cross examination of Wilma, she is asked about a police report she falsely filed concerning a criminal matter involving Mr. Barney Rubble. Although she was arrested for making a false police report, Wilma now denies making any false statements concerning Barney. Counsel for Fred has a certified copy of a police report filed against Wilma concerning the false claims Wilma made against Barney and now seeks to use the police report to complete the impeachment of Wilma. A timely objection is made, the court should: A) sustain the objection as the report is hearsay B) overrule the objection if the report proves Wilma is not telling the truth about her past lies C) sustain the objection as you cannot follow up a witness' denial of a past lie with a document D) overrule the objection if the report is not certified as a business document E) answers A and D

C) sustain the objection as you cannot follow up a witness' denial of a past lie with a document *FRE 608(b)

Dr. Pierce is an expert who testified on direct that in his opinion the D's defoliant, known as "Code Blue," caused the cancer which the plaintiff was suffering from. On cross-examination, the defense attorney asks Dr. Pierce if he is familiar with A Study of the Causes and Treatments of Cancer,' a medical textbook written by Charles Winchester. Pierce says he has and he agrees that Winchester's book is well-respected in the medical field. The defense attorney then directs Pierce's attention to a footnote in Winchester's book which states: 'It is well-known that most defoliants, such as Code Blue and Undertaker, pose absolutely no danger of cancer due to the inert molecular structure of their ingredients.' The Ps object to any reference to the Winchester book. What is the proper ruling? A) the passage in the textbook is inadmissible for any purpose B) the passage in the textbook may be used to impeach the witness, but not considered for the truth of the matter asserted C) the passage in the textbook may be read to the jury, and considered for the truth of the matter asserted, but the book itself may not be admitted into evidence D) the book may be admitted into evidence and considered for the truth of the matter asserted

C) the passage in the textbook may be read to the jury, and considered for the truth of the matter asserted, but the book itself may not be admitted into evidence

Charles Murphy died from an overdose of sleeping pills. The insurance company claimed that Charles committed suicide, and refused to make payment on his life insurance policy. Charles's wife argued that the overdose was accidental, and sued the insurance company for non-payment. At trial, the insurance company called Dr. Mears, a clinical psychiatrist who was a close friend of Charles. Dr. Mears never examined Charles as a patient, but she did have lunch with Charles two days before he died. The insurance company did not attempt to qualify Dr. Mears as an expert. Mears testified that on the day she saw Charles, he "seemed very depressed; in fact, it appeared to me that he displayed all the symptoms of bipolar affective disorder." Charles's wife objects to this testimony. How should the court rule? A) none of the testimony is admissible, because Mears was not qualified as an expert B) none of the testimony is admissible, because it has very little probative value and a high risk of unfair prejudice C) the statement "He seemed very depressed" is admissible, but the rest of the statement is not D) the entire testimony is admissible, because Mears has the technical and scientific expertise to make such a diagnosis

C) the statement "He seemed very depressed" is admissible, but the rest of the statement is not

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) 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) may sound appealing, but it is the wrong standard of relevance

Same facts as questions 1-5 above. In her CIC, Wilma calls her treating surgeon Dr. Rockstone to testify about the nature and extent of Wilma's injuries. Dr. Rockstone is asked about communications he had with Wilma about her physical complaints and treatments. Defendant objects as hearsay, the court should: A) exclude the evidence as it violated defendant's 6th amendment rights B) admit both Wilma's conversation to Rockstone and his response C) admit Rockstone's conversation to Wilma but not her response to him D) admit Wilma's conversation to Rockstone but not his response to her

D) admit Wilma's conversation to Rockstone but not his response to her *FRE 803(4)

Same facts as questions 1-6 above. In the direct examination of Dr. Rockstone, he testified that in order to arrive at his opinions in this case concerning the nature and extent of Wilma's injuries, he consulted with a radiologist on staff at the hospital where he works. Rockstone testified that he routinely consults with radiologists in his regular practice of medicine. He is also asked on direct examination about the contents of the conversation he had with the radiologists. The court is likely to: A) exclude the opinion and contents of the conversation as both concern hearsay B) exclude the opinion as it is partially based on hearsay C) admit the opinion and the content of the conversation as it was relied upon by the expert D) admit the opinion, and admit the contents of the conversation if it is probative value substantially outweighs the prejudicial effect of doing so

D) admit the opinion, and admit the contents of the conversation if it is probative value substantially outweighs the prejudicial effect of doing so *FRE 703

Dozens of women are suing Farnsworth Pharmaceuticals claiming its new antidepressant 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 Ps 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 Ps offer evidence that Serenity does not in fact help treat depression C) the Ps 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) none of the above *(A) and (B) are not relevant to the lawsuit *(C) is inadmissible because it is not a negligence case, and strict liability is interested in actual performance of the product

Same facts as questions 1-8 above. In her CIC Wilma seeks to introduce a photograph of the accident scene taken by a member of the Highway Patrol who arrived shortly after the accident to investigate. Defendant objects to admission into evidence of the photograph; the court should: A) sustain the objection if it was based on hearsay B) sustain the objection as the photograph is not "real" evidence C) overrule the objection as the photograph is "real" evidence in the accident D) overrule the objection if an eyewitness testifies that the photograph fairly and accurately depicts the accident scene

D) overrule the objection if an eyewitness testifies that the photograph fairly and accurately depicts the accident scene *general foundation for photo

Same facts as above. Prior to trial, the original investigating detective (Detective Wheeler) retires from the force to join the growing Marijuana Industry in California (if you can't beat them, join them!). A new detective (Officer Friday) takes over the case and is prepared to testify at trial. Because Detective Friday was not present during the interview of Nick, he reviewed the video recording of the interview and is prepared to testify at trial as to what was said. Nick objects arguing best evidence. The court should: A) overrule the objection if there is ESSF establishing that Detective Friday has personal knowledge of what was said at the stationhouse B) overrule the objection because the testimony has "any tendency" to make a fact of consequence more or less true C) overrule the objection if is established that the video recording is available D) overrule the objection if it is established the video recording in unavailable (and no "bad faith" was involved)

D) overrule the objection if it is established the video recording in unavailable (and no "bad faith" was involved)

Danny Defendant was charged by the state of Miller with the offense of receiving stolen property. At trial, before testifying himself, Danny called Willy, who testified that Danny's reputation in the community for being law abiding is excellent. On cross examination the prosecutor asked Willy whether he had heard that Danny had been convicted five years ago of offering a bribe to a public official. Danny's attorney objects. Select the proper ruling and rationale. A) sustained, because the question calls for a hearsay response B) sustained, because Danny's character for honesty or dishonesty cannot be attacked until he takes the stand himself as a witness C) overruled because Danny's character has been put directly in issue in view of the nature of Willy's testimony D) overruled as it is permissible to test Willy's knowledge of Danny's reputation

D) overruled as it is permissible to test Willy's knowledge of Danny's reputation *C) true as a practical matter, but cannot be an official justification *Willy is testifying under the mercy rule *limiting to opinion and reputation *the trait he is talking about is pertinent to the charged crime (receiving stolen property, being an honest citizen)

During a professional football game, Johnny 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 Jones as a witness. On direct examination, Jones testified that he did not see Lynch strike Johnson during the game in question. The plaintiff's attorney then asked Jones, "Mr. Jones, do you usually wear glasses or corrective lenses?" Jones 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

D) overruled, this is an impeaching question, but parties are allowed to question their own witness's credibility *not (A) or (C) because it is an incorrect statement of what is going on in the problem *not (B) because it wasn't a leading question *EF = in court testifying, witness Jones is asked a question "were you wearing your glasses on the day of the penalty?" *TF = his vision may not have been very good that day *lawyer who called the witness is impeaching the 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.

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. *EF = the use of the tape *TF = to refresh witness's memory on something they once knew *not (A) or (B) because anything can be used to refresh a memory *(C) is correct-ish, but not the best answer

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 coworkers 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 on 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

D) sustained; Rule 608(2) requires that the character of the witness for truthfulness first be attacked, and that has not occurred *EF = Erin's testimony that Thaddeus (previous testifying witness) would never tell a lie (bolstering) *TF = Thaddeus has a truthful character *you can bolster a character for truthfulness when their character is under attack; does not fall under the 3 ways and character has not been attacked

Same fact pattern as above. Assume the defense called Gail Donovan as a character witness, and she testified that she had worked at Drugs-n-Stuff for many years knew that Michael Farhrmore very well, and that in her opinion Fahrmore was a very dishonest man. On cross-examination, the prosecutor asked Donovan: "Have you heard that Mr. Farhrmore gave generous annual donations to Amnesty International?" The defense objected to the question. Most likely, the objection will be: A) overruled; Rule 608(b) specifically allow such testimony from a character witness on cross-examination B) sustained; by mentioning that Fahrmore specifically donates to Amnesty International, the defense is attempting to introduce extrinsic evidence about a specific instance of conduct. Except for Rule 609's exception, such extrinsic evidence is inadmissible. C) sustained; the question the prosecutor asked Donovan is about a habit of Mr. Fahrmore's - his practice of annually donating money to a human rights organization - and not about a specific instance of conduct. As such, it is impermissible under Rule 608 D) sustained; the specific instance of conduct that the prosecutor inquired about was not probative of truthfulness or untruthfulness

D) sustained; the specific instance of conduct that the prosecutor inquired about was not probative of truthfulness or untruthfulness *A) is not true *B) is an incorrect statement of the law; if she had examples of Fahrmore's acts of dishonesty, she could ask about them

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

D) the letter is admissible for the truth of the matter asserted

Same facts as questions 1-7 above. On cross examination of Wilma, Fred caught Wilma in a statement she made in court that is inconsistent with an out of court statement previously made. Which of the following is correct? A) Fred can impeach Wilma only if the out of court statement was made under oath B) Fred can impeach Wilma if the subject matter of the statement is not collateral to the issues in the case C) Fred can ask about the inconsistent statement but may not use extrinsic evidence to impeach D) Fred can use extrinsic evidence of the out of court statement to impeach Wilma E) answers B and D

E) answers B and D *FRE 613

Nick, Schmitt, Winston and Jess are all roommates living their best lives in LA. Nick is accused by his roommates of stealing Winston's prized Ernie Banks autographed baseball. Nick is arrested by police and taken down to the police station for questioning. Nick waives his right per Miranda and talks with the investigating detective. The entire interview is digitally filmed. Nick is charged with felony theft and eight months later proceeds to trial. At trial, the prosecutor calls the interviewing detective to testify about the admissions Nick made during his interview. Nick, (who is defending himself pro se) objects under the best evidence rule arguing the digital recording of his interview is the best evidence of what was said. The court should: A) sustain the objection as the video recording will be more accurate than the detective's memory of what was said B) sustain the objection as the video recording is the most enlightening and persuasive evidence of what transpired at the stationhouse with Nick C) sustain the objection unless the officer testifies he is absolutely certain that his testimony accurately reflects what was said at the stationhouse D) answers A and B E) overrule the objection

E) overrule the objection

Pamela sues Duncan to recover for injuries suffered in an automobile accident which occurred on January 1. Wilma testifies for Pamela and states that the accident occurred when Duncan's car went through a red light and struck Pamela's car. On cross-exam, Wilma admits that since she lost her job on April 15, Pamela has been letting her live in Pamela's house. Pamela then calls a police officer who testifies that he investigated the accident and interviewed Wilma on January 3 and at that time Wilma stated that the accident occurred when Duncan's car went through a red light and struck Pamela's car. Duncan objects to the admission of the officer's testimony. The court should: A) sustain the objection on the ground there has been no evidence of an inconsistent statement by Wilma B) sustain the objection on the ground of lack of foundation since Wilma was never asked whether she made the prior statement C) overrule the objection because Wilma's prior statement may not be proven by extrinsic evidence D) overrule the objection because the prior statement was made at a time when Wilma's memory would have been better, and is therefore admissible as her recorded recollection E) overrule the objection because the prior statement was made before Wilma moved in with Pamela

E) overrule the objection because the prior statement was made before Wilma moved in with Pamela

What is the requirement for eyewitness testimony? What is the standard by which it must be proved?

ESSF of personal knowledge of the thing testified about

What is the standard for laying foundation for an item of evidence?

evidence sufficient to support a finding per Rule 901 *evidence sufficient to support a finding that the piece of evidence is what the proponent says it is

T/F: The primary tool for the cross examiner is impeachment.

false, it is leading questions

T/F: the statement: "Oh I am so sorry; it was all my fault! I insist on paying for your medical care and treatment" is inadmissible unless the injured party first asserted a claim before the statement was made.

false, only the portion that is relevant could be admissible, but the medical bill exclusion applies to the offer to pay the medical bills and the medical exclusion rule does not include claim ascertain like negotiation rule

T/F: Redirect examination is limited to the subject covered in direct examination.

false, redirect exam is limited to the subjects covered in cross exam

T/F: The following are the steps to be taken to impeach with an inconsistent statement: 1) validate that an out of court statement was made 2) refresh the witness's memory 3) remind the witness she is under oath 4) ask the witness to explain the inconsistency.

false, steps: 1) commit 2) validate 3) confront 4) move on

T/F: A SRM is never admissible in a civil torts case.

false, subsequent remedial measures may be admissible to prove ownership or control

T/F: The exclusion for offers to pay medical expenses include admissions of culpability made by the offeror.

false, the offer exclusion does not cover culpability

T/F: If a D denies her past felony conviction, extrinsic evidence may not be used to impeach.

false, the prohibition only applies for past lies

T/F: Relevance requires the attorney to establish there is ESSF that the proposed evidence (EF) is probative of the TF for which it is offered.

false, the standard for relevance is any tendency, not evidence sufficient to support a finding (which is foundation)

T/F: The standard under 403 requires the exclusion of evidence unless its probative value substantially outweighs its prejudicial effect.

false, they are giving a reverse 403 standard *403 = evidence is admissible unless prejudicial effect outweighs probative value

T/F: The basis for the prohibition against the use of character evidence is that the jury doesn't need character evidence to decide what weight to give eyewitness testimony.

false, this is an incorrect statement of the law; to suggest the jury doesn't need character evidence is incorrect

T/F: An offer to pay money for an injury caused is not admissible at the subsequent trial of that dispute.

false, unless there is some evidence of a claim being brought and the offer is to pay for medical expenses only *true if there is an asserted claim (using the evidence to prove liability) *false if there is not an asserted claim (not using to prove liability)

T/F: When impeaching a character witness, you are not allowed to ask as about specific instances of conduct.

false, you can ask to test their knowledge, ask if they have other criminal convictions, their own past lies

T/F: One may never ask a leading question on direct.

false, you can only ask a leading question during hostile witness, direct witness to follow court's order on MIL, or if the witness is too old or young

T/F: Part of the foundation required to refresh a witness's memory with a writing is that they have adopted the writing as their own.

false, you can use anything to refresh someone's memory

Name 3 ways that habit testimony differs from character evidence testimony?

habit evidence is specific, numerous, and morally neutral character evidence is general propensity, opinion, reputation, while habit is more specific routine character is variable, habit is invariable habit must be morally neutral while character is oftentimes morally slanted

What are the foundational requirements for habit evidence?

habit evidence requires ESSF that there was a habit with enough specificity, numerosity, invariability, and morally neutral nature to be entered at habit evidence

What are the two ways in which the character witness can be attacked on cross?

impeachment and foundation *lack of personal knowledge by asking them if they know about other things D has done; asking questions to test how well character witness knows him *impeach the character witness's own character for truthfulness (lies, convictions, or antlers witness, pointing out inconsistent statement about subject witness, bias, prejudice) *inconsistent statement (commit the witness; validate the out of court statement; confront; shut up)

What are the two methods of proving character with a character witness in a standard case?

opinion or reputation

When does the best evidence rule apply? Give examples.

the best evidence rule applies when the content of a piece of evidence is the topic of interest Ex: Anytime a witness is being asked about the content of a writing, recording, or photograph -once best evidence has been lodged, the court considers if the actual writing, photograph, or video is available to look at (if it's not, bad faith) -if no bad faith, then overruled and the secondary proof (the witness saying what the writing said) is allowed to come forward Ex: If I didn't actually interview you but looked at the interview itself and asked what the interview showed Ex: If you want to know what the content of the contract is, then you probably need the contract, not a witness that says what the contract says

T/F: Evidence that is unfairly prejudicial is admissible at trial.

true, 403 only takes unfairly prejudicial evidence if it substantially outweighs prejudicial effect

T/F: An offer to settle a tortious act may be admissible at trial.

true, settlement negotiations are only prohibited when used to prove liability for the claim

What is bolstering? When/how can it be done?

when you offer evidence of good character or for truthfulness it generally can only be done once someone's character for truthfulness is attacked

What is the foundation for a past recollection recorded?

witness can no longer recall; writing was made or adopted; accurately reflects their knowledge *can read it if past recollection recorded (reading from something that was made outside court being offered for its truth sounds like hearsay) *that the document was written or adopted by the witness and that it was written at the time of the incident or event