Evidence Themis Questions

In the prosecution of a defendant for murder, the state seeks to qualify a forensic analyst as an expert in order to have her testify as to her professional opinion of the crime scene.  The defense has objected on the ground of inadequate qualifications.  The prosecution now seeks to introduce a letter written by the editor-in-chief of a well-respected academic journal of forensic science, stating that the forensic analyst has published a number of well-reviewed papers on the subject of crime-scene analysis and is generally acknowledged in her field as very qualified.

On the issue of the forensic analyst's qualifications, may the judge consider the editor's letter?

Answer: Yes, because the judge may consider the letter without regard for the hearsay rule.

A witness is qualified to provide expert opinion testimony if the witness has specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in the case.  Whether a witness meets these qualifications is a preliminary question for the court—not the jury (Choice D).  The court is not bound by the rules of evidence in deciding such questions.  Therefore, the court may consider otherwise inadmissible hearsay—e.g., the editor-in-chief's letter—in determining if a witness is qualified to provide expert opinion testimony (Choices A & C).

A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property.  A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen.  On cross-examination, the prosecutor asked the defendant, "Didn't you also previously buy a stolen stereo from the same man who sold you this television?"  The defendant's attorney immediately objected.

What is the strongest basis for the defense attorney's objection?

Answer: The probative value of the prosecutor's question is substantially outweighed by the danger of unfair prejudice.

Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence, and it is admissible unless excluded by a specific rule or law.  For example, under Federal Rule of Evidence (FRE) 403, relevant evidence can be excluded if its probative value is substantially outweighed by any of the following dangers:

• unfair prejudice – evidence tends to encourage the jury to decide the case on improper grounds

• confusing the issues – evidence leads the jury to focus on a nonmaterial matter

• misleading the jury – evidence creates misconceptions in the jurors' minds

• undue delay or wasting time – presenting the evidence will cause unnecessary delay or waste time

• needless cumulation – similar evidence on the same issue has already been admitted

Here, the probative value of the prosecutor's question regarding the prior receipt of a stolen stereo is substantially outweighed by the danger of unfair prejudice.  That is because the question (and potential answer) tends to encourage the jury to decide the case on the defendant's past conduct instead of the evidence presented at the current trial.  Therefore, this is the strongest basis for the defense attorney's objection.

In his criminal trial for battery, a defendant sought to introduce evidence of his peaceful character.  He had met the leader of a local animal rights group once during a recent animal rights demonstration in front of the mayor's office, during which the defendant succeeded in calming down an angry group of protestors.  The defendant planned to ask the group leader to testify about this incident to the jury.  The prosecution objected to the introduction of this evidence.

How should the court rule on the objection?

Answer: Sustain the objection, because this testimony constitutes an inappropriate use of character evidence.

The mercy rule allows a criminal defendant to introduce evidence that his/her character is inconsistent with the crime charged—e.g., a defendant's character for peacefulness is inconsistent with a charge of battery.  But under this rule, the defendant only may do so through:

• reputation testimony – testimony by someone sufficiently familiar with the defendant's reputation among associates or in the community or

• opinion testimony – testimony sharing an opinion on the defendant's character that is based on personal knowledge and familiarity with the defendant.

Therefore, evidence of the defendant's specific acts of conduct is not admissible for this purpose—even if that evidence is relevant to the charged crime (Choices C & D).

Here, the defendant seeks to introduce evidence of his peaceful character at his battery trial by calling the group leader to testify as to how the defendant acted on one specific occasion.  That testimony is inadmissible since it does not concern (1) the defendant's reputation for peacefulness among associates or in the community or (2) the group leader's opinion on the defendant's character for peacefulness.  Therefore, the court should sustain the prosecution's objection.

A politician on trial for the misdemeanor assault and battery of a reporter asserts that the reporter started the altercation by shouting questions in his face and shoving him.  At trial, the politician did not take the stand and did not introduce evidence of his own character, but he did call the reporter's neighbor to testify that the reporter has a reputation among neighbors for violent outbursts.  After the neighbor testified, the prosecution moved to introduce testimony by a community leader that the politician has a reputation for violence in the community as evidence that the politician started the altercation.

Is the prosecution's evidence regarding the politician's reputation admissible?

Answer: Yes, because the politician "opened the door" to the evidence of his bad character for violence by introducing evidence of the reporter's character for violence.

Under Federal Rule of Evidence 404, a prosecutor generally may not introduce evidence of a criminal defendant's bad character to show that the defendant acted in conformity with that character on the occasion in question.  However, a defendant "opens the door" to such evidence by offering:

• evidence of the defendant's own good character for a trait pertinent to the charged crime, in which case the prosecution may offer evidence to rebut it or

• evidence of the alleged victim's bad character—e.g., to show that the victim was the first aggressor—in which case the prosecution may offer evidence to rebut it or offer evidence of the defendant's same trait (Choice A).

Here, the politician introduced evidence that the reporter, the alleged victim, had a bad reputation among neighbors for violent outbursts to support the politician's contention that the reporter started the altercation.  As a result, the politician "opened the door" for the prosecution to properly introduce evidence of the politician's same trait—his bad reputation for violence in the community.

A defendant was charged with battery following a bar fight with his neighbor.  At trial, the defendant asserted that he did not initiate the altercation, but instead acted in self-defense.  In addition to testifying about the event in question, he sought to testify that the preceding night, he and a coworker had gone out for a drink at the same bar, and that the evening had passed peacefully.  Prior to his own testimony, the defendant sought to introduce testimony of a lifelong acquaintance of the neighbor that, in the opinion of the acquaintance, the neighbor had a violent streak.  After testifying, the defendant sought to introduce testimony of the pastor of the church that the defendant regularly attended that the defendant had a reputation among the members of the church as a nonviolent person.  Following testimony introduced by the prosecution that impeached the defendant's truthfulness, the defendant sought to introduce testimony of his employer that, in his opinion, the defendant was a truthful individual.

Which of the proffered testimony is most likely to be successfully challenged by the prosecution?

Answer: The testimony of the defendant regarding his peaceful behavior on the night before the bar fight.

A defendant was charged with aggravated assault arising from an altercation following a car accident.  The defendant called a witness who testified that, in his opinion, the defendant was a nonviolent person.  On cross-examination, the prosecutor asked the witness whether he was aware that the defendant had been involved in a bar fight during the past year.  Although the defendant was actually involved in such a fight, the prosecutor herself was not aware of the incident, as the defendant had not been arrested or charged.  However, the prosecutor had witnessed the defendant's short temper during her interactions with the defendant and knew that he was a drinker.  As it happened, the witness was aware of the defendant's involvement in the fight.

Should the court require the witness to answer the prosecutor's question?

Answer: No, because the prosecution did not know the defendant had been involved in a bar fight.

A criminal defendant may present evidence that his/her character is inconsistent with the charged crime—e.g., a defendant's peaceful character is inconsistent with a violent crime like aggravated assault.  But evidence of the defendant's good character can only be established by calling a witness to provide reputation or opinion testimony (as seen here).  Once the defendant's character witness has testified, the prosecution may:

●      cross-examine the witness about a specific act committed by the defendant that relates to the trait in question or

●      call another witness to provide reputation or opinion testimony on the defendant's corresponding bad-character trait.

Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant's past behavior goes to the witness's credibility.  But such questions must be asked by the prosecution in good faith.  This means that questions based on a hunch will not suffice—even when the hunch proves accurate.

Here, the prosecutor asked the defendant's character witness about a bar fight (specific act) the defendant had within the past year.  This question would affect the witness's credibility because it raises a doubt about the witness's opinion that the defendant was a nonviolent person.  But since the prosecution did not know the defendant had been involved in a bar fight, she asked the question on a hunch.  Therefore, the question was not asked in good faith, and the court should not require the witness to answer it (Choices A & B).

A defendant was charged with burglary.  One of the key pieces of evidence in the case was a note left by the burglar that read, "It's just 2 easy."  At trial, the defendant testified in his defense, asserting that he did not commit the crime.  On cross-examination, the prosecutor, having a proper factual basis, asked the defendant if he had been convicted of felony burglary five years ago after having left a note at the crime scene that read, "It's just 2 easy."  The defendant's attorney, having received proper notice from the prosecutor regarding use of the prior conviction, objected to the prosecutor's question as seeking to elicit improper criminal-propensity evidence.  The court, after determining that the probative value of this evidence and its prejudicial effects were equal, overruled the objection and instructed the defendant to answer the question.

Has the court acted properly?

Answer: Yes, because the prior conviction helps establish the defendant as the perpetrator of the burglary for which he is on trial.

Under Federal Rule of Evidence (FRE) 404, evidence of a criminal defendant's prior crimes or wrongful acts is inadmissible if it is used to show the defendant's propensity (or inclination) to commit the charged crime.  This helps to ensure that the jury convicts the defendant for committing the charged crime—not for having a bad character.

However, evidence of a prior crime or wrongful act is admissible for relevant, noncharacter purposes (i.e., MIMIC).  This includes proving the perpetrator's identity—e.g., by showing that a prior crime was committed in a unique manner that is similar to the charged crime.  But MIMIC evidence, like all other evidence, is subject to the FRE 403 balancing test.  Under this test, a court may exclude relevant evidence if its probative value is substantially outweighed by certain dangers such as unfair prejudice.

Here, the prior burglary conviction is being used to establish the identity of the perpetrator based on the presence of a uniquely worded note left at both crime scenes—not to prove the defendant's criminal propensity (Choice A).  And since the court concluded that the probative value of the prior conviction was equal to (i.e., not substantially outweighed by) its prejudicial effects, the court acted properly in overruling the defendant's objection.

A defendant was charged with fraud in connection with the sale of nutritional supplements.  The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements.  In fact, the defendant had no medical training.  The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician.  The sole issue in dispute is whether the defendant made such representations.

At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant.  The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the ground that the prosecution was required to introduce an original contract under the best evidence rule.  The court sustained the defendant's objection.

Did the court err in making its ruling?

Answer: Yes, because the best evidence rule is not implicated in this case

The defendant's objection to the introduction of his contract with the alleged victim was based on the best evidence rule.  This rule requires that the original document OR a reliable duplicate be produced to prove the contents of a document—including writings, recordings, and photographs.  However, this rule is only implicated in two narrow situations:

• when a witness is relying on the document while testifying (not seen here) or

• when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).

This fraud case concerns the defendant's verbal misrepresentations that he was a physician, which were made to convince others to sign contracts authorizing him to charge their credit cards.  As a result, the defendant's misrepresentations—not the contents of the contract—are at issue.  And since the contract was not relied upon by a witness while testifying, the best evidence rule was not implicated (Choice A).  Therefore, the court did err in sustaining the defendant's objection.

The defendant's objection to the introduction of his contract with the alleged victim was based on the best evidence rule.  This rule requires that the original document OR a reliable duplicate be produced to prove the contents of a document—including writings, recordings, and photographs.  However, this rule is only implicated in two narrow situations:

• when a witness is relying on the document while testifying (not seen here) or

• when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).

This fraud case concerns the defendant's verbal misrepresentations that he was a physician, which were made to convince others to sign contracts authorizing him to charge their credit cards.  As a result, the defendant's misrepresentations—not the contents of the contract—are at issue.  And since the contract was not relied upon by a witness while testifying, the best evidence rule was not implicated (Choice A).  Therefore, the court did err in sustaining the defendant's objection.

Answer: Yes, because the manufacturer began providing the warning before the boat owner's accident.

When measures are taken by a defendant that would have made an earlier injury or harm to a plaintiff less likely to occur, evidence of those subsequent remedial measures is not admissible to prove any of the following:

• negligence or other culpable conduct

• a defect in a product or its design or

• the need for a warning or instruction.

The grounds for this exclusion rest on the public policy of encouraging people to take steps in furtherance of added safety without the fear of having the remedy used as evidence against them—with limited exceptions, as listed in the table above.  However, this exclusion does not apply to remedial actions taken before the plaintiff was injured.

Here, the boat owner offered evidence that the manufacturer had begun including a written warning about the switch for all boats manufactured beginning in the year after the owner's boat was manufactured.  But since the manufacturer began providing a warning before the boat owner's accident, this was not a subsequent remedial measure (Choice A).  For this reason, the evidence is admissible.

Two officers, a veteran and a novice, brought an experienced drug-sniffing dog on patrol one evening.  They properly pulled over a driver on a bridge for erratic driving, and the veteran waited in the car to let the novice handle the stop.  As the novice officer questioned the driver through the driver's window, the dog circled the car and began barking and pawing desperately at the passenger-side door.  The novice officer noticed that the driver had a package sitting on his passenger seat.  When asked about the package, the driver responded that it was just meat from a butcher shop.  As the novice officer stepped away from the window to write a ticket, the driver grabbed the package and threw it out of the passenger window and over the railing of the bridge.  The dog immediately stopped barking.  The veteran officer saw the whole event.

Assuming that the parties stipulate that the veteran is an expert in the training and reactions of drug-sniffing dogs, is the veteran officer's testimony describing the dog's reactions to the package admissible in a trial of the driver for possession of illegal drugs?

Answer: Yes, as evidence that the package contained illegal drugs

The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted therein.  A statement is defined as a person's assertion (oral, written, or nonverbal) that was intended to be an assertion.  Therefore, the rule against hearsay is implicated only when the statement is made by a person.  Evidence generated by a machine or an animal does not implicate this rule.

Here, the prosecutor seeks to introduce the veteran officer's testimony describing the dog's reactions to the package.  Although the dog's behavior was assertive conduct, the veteran officer's testimony does not implicate the hearsay rule because it relates to evidence generated by an animal (Choice A).  Therefore, this evidence is admissible as evidence that the package contained illegal drugs.

In a criminal trial for arson, a prosecution witness testifies under oath that she saw the defendant set fire to the victim's home.  The defendant's attorney asked the witness on cross-examination whether she had previously stated that she did not see the defendant set fire to the victim's home.  The witness denied making the statement.

The defendant's attorney now seeks to introduce testimony that the witness gave at a deposition several months before the trial.  At the deposition, the witness testified under oath that she did not see the defendant set fire to the victim's home.  The witness remains present in the courthouse and can be recalled.

Should the court admit the deposition testimony?

Answer: The court should admit the witness's deposition testimony for impeachment purposes and as substantive evidence.

A prior inconsistent statement is a past statement that is contrary to a witness's present testimony.  This type of statement is inadmissible to prove the truth of the matter asserted therein (i.e., as substantive evidence) unless it is excepted or excluded from the hearsay rule.  It will be excluded from hearsay (i.e., is nonhearsay) if:

• the statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and

• the declarant testifies and is subject to cross-examination at the current trial.

Here, the witness's prior inconsistent statement—that she did not see the defendant set fire to the victim's home—was given under penalty of perjury at a deposition.  And since the witness testified and was subject to cross-examination at trial, her deposition testimony is admissible nonhearsay and can be used as substantive evidence (Choices A & D).

After a witness has a chance to explain or deny a prior inconsistent statement, extrinsic evidence of that statement may be used to impeach the witness if the opposing party can still examine the witness about it.

Here, the defendant's attorney seeks to admit a prior inconsistent statement in the witness's deposition testimony (i.e., extrinsic evidence) after confronting her about the statement.  Because the witness can be recalled, the prosecution can still question her about it (Choice C).  Therefore, the deposition testimony should also be admitted for impeachment purposes.

A customer at a grocery store slipped and fell on a wet spot on the floor.  The customer sued the store to recover for the resulting injuries to her back.  At trial, the store's lawyer sought to prove that the damage to the customer's back was not serious, and called the customer's neighbor to testify regarding the severity of the customer's injuries.  The neighbor testified that on the morning after the fall, the customer walked to her car wearing a tennis dress and carrying a tennis racket.  The neighbor then added, "I told my sister, 'There goes [the customer] off for her weekly tennis match.'"  The customer's lawyer moves to strike this statement as inadmissible hearsay.

How should the court rule on this motion?

Answer: Deny the motion, because the neighbor was describing an event as it was taking place.

The rule against hearsay bars the admission of out-of-court statements offered for the truth of the matter asserted therein—even if the declarant is testifying at the current trial (Choice A).  Here, the neighbor testified at trial that, "I told my sister, 'There goes [the customer] off for her weekly tennis match.'"  The neighbor's (declarant's) out-of-court statement to the sister constitutes hearsay because it is being offered to prove that the customer was going to play tennis the day after the fall (i.e., the truth of the matter asserted).

However, certain statements are specifically excluded or excepted from the rule against hearsay, including the exception for present sense impressions—i.e., statements that:

• describe an event or condition and

• were made while or immediately after the declarant perceived it.

These statements are admissible—regardless of the declarant's availability as a witness—because the declarant did not have time to reflect, distort, or fabricate prior to speaking.

Here, the neighbor made the statement to the sister as the neighbor watched the customer walk to her car wearing a tennis dress and carrying a tennis racket.  Since the neighbor was describing an event as it was taking place, the statement qualifies under the present sense impression exception to hearsay (Choice C).  Therefore, the court should deny the motion by the customer's lawyer to the strike this statement as inadmissible hearsay.

During a defendant's trial for the murder of her husband, the prosecution attempted to submit two pieces of evidence to establish that she committed the crime: (1) a printout of a phone-tracking device indicating that the husband's mobile phone had called 911 a minute before his death and (2) a written statement from the 911 operator to her supervisor, made at the supervisor's request after charges against the defendant were filed, indicating that the operator did not speak to the defendant's husband.  The defendant did not object to the relevance of the evidence but did object that both pieces of evidence were hearsay not falling under any exception.

How should the court rule on the admission of this evidence?

Answer: Allow the printout only.

Under the rule against hearsay, out-of-court statements offered to prove the truth of the matter asserted therein are inadmissible unless they fall within a hearsay exclusion or exception.  However, this rule only applies to statements made by a person—not statements generated by a machine.  As a result, the printout of the phone-tracking device is not subject to, or barred by, the rule against hearsay (Choice D).

In contrast, the out-of-court statement from the 911 operator is subject to the rule against hearsay.  But it may be admissible if it falls within the hearsay exception for business records.  Under this exception, business records are admissible if they are:

• made at or near the time of the recorded event

• made by or based on information from someone with personal knowledge of the event and

• made and kept as a regular practice in the course of regularly conducted business activities.

However, this exception does not apply to records prepared in anticipation of litigation because they lack trustworthiness.

Here, the statement from the 911 operator was likely prepared in anticipation of litigation.  That is because she was directed to prepare the statement only after charges were filed against the defendant and there is no indication that the statement was otherwise prepared in the ordinary course of business.  And since the statement does not fall within any other hearsay exception, it should be excluded as hearsay (Choices A & C).  Therefore, the court should only allow the printout to be admitted into evidence.

In a civil assault suit between a plaintiff and a defendant, a witness testified that the defendant had been with her on the night of the alleged assault, more than 200 miles away from where the assault was alleged to have occurred.  To challenge the witness's credibility, the plaintiff's attorney sought to present evidence of the witness's juvenile conviction for voluntary manslaughter five years ago.  The defendant objected to the admission of this evidence.

Should the judge admit the evidence?

Answer: No

Under Federal Rule of Evidence 609, evidence of a juvenile conviction is never admissible in a civil case to attack a witness's character for truthfulness (Choice D).  The policy underlying this rule is that juvenile adjudications lack the precision and general probative value of criminal convictions.  This is generally attributed to the informality of juvenile proceedings, the diminished amount of proof required for juvenile adjudications, and other departures from accepted standards for criminal trials.

A noncitizen who had previously been deported was charged with unlawful reentry into the United States.  At trial in federal district court, the prosecution called a border patrol agent to testify.  After the prosecution laid a proper foundation, the agent testified that he had diligently searched the relevant governmental computer database and did not find that the noncitizen had applied for permission to reapply for admission to the United States.  The prosecution did not offer any documentary evidence to support the agent's testimony.  The noncitizen moved to strike the agent's testimony.

Should the court grant the noncitizen's motion?

Answer:

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and is inadmissible unless an exception or exclusion applies.  One exception applies to existing public records, while another applies to absent public records.  Under the latter exception, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—so long as the public office regularly kept records for a matter of that kind.

Here, the border patrol agent testified that a diligent search of the relevant governmental computer database failed to disclose a record of the noncitizen's application for reentry.  This testimony is admissible to prove that the application does not exist, assuming that the government regularly kept records of applications made by noncitizens reapplying to enter the United States.  For this reason, the court should deny the noncitizen's motion to strike the border patrol agent's testimony.

A pedestrian was struck by a school bus while crossing a major intersection.  The pedestrian brought suit against the bus company for negligence.  At trial, the pedestrian testified that he always waits for the pedestrian-crossing signal before crossing major intersections.  On cross-examination, the bus company asked the pedestrian about a ticket he had received for jaywalking at a major intersection three months before the accident in question.

Is the bus company's question likely permissible?

Answer: Yes, because the evidence contradicts the pedestrian's testimony that he always waits for the pedestrian-crossing signal.

A witness may be impeached (i.e., discredited) by evidence that directly contradicts the witness's testimony on a material issue.  This can be done through both:

• intrinsic evidence – testimony elicited from the witness sought to be discredited and

• extrinsic evidence – evidence from any source other than the witness's own testimony. 

Here, the pedestrian testified that he always waits for the pedestrian-crossing signal before crossing major intersections.  The bus company's question on cross-examination about the pedestrian's prior ticket for jaywalking (intrinsic evidence) is designed to elicit evidence that directly contradicts the pedestrian's testimony.  Since this evidence goes toward the material issue of whether the pedestrian was in the crosswalk when he should not have been, the question is likely permissible to impeach him.

A defendant was charged with theft of merchandise from a store.  On the witness stand, the defendant admitted to taking the merchandise on the day in question but contended that she lacked the intent to do so.  A rebuttal witness testified that she was standing outside the store after purchasing something, and she saw the defendant outside the store furtively removing the merchandise from her coat.  When asked about her recollection of the date, the witness testified that she knew that it was the day in question because that date was on her receipt.  The defendant objected, asserting that the prosecution must produce the receipt.

How is the court likely to rule on this objection?

Answer: Overrule the objection, because the date is a collateral issue

The best evidence rule applies when a witness relies on the contents of a writing, recording, or photograph while testifying (as seen here) or when the contents of the item are at issue (e.g., a will in a probate dispute).  This rule generally requires that an original or reliable duplicate be produced to prove its contents.  However, an original or reliable duplicate is not required, and other evidence of content (e.g., testimony) is admissible, when the contents go toward a collateral issue—i.e., an unimportant or undisputed issue or fact.

Here, the witness relied on the date on the receipt when testifying about the date of the theft.  But the date of the theft is collateral (i.e., undisputed) because the defendant has already admitted to taking the merchandise on the day in question.  This means that the prosecution need not produce the receipt (or a reliable duplicate) for the witness to testify about it.  Therefore, the court will likely overrule the objection (Choice D).

A defendant was on trial for the attempted murder of his employer.  The prosecutor called the defendant's wife to the witness stand and asked her to recall anything the defendant said prior to leaving their home on the morning that the attempted murder took place.  The wife sought to testify that while they were in bed, the defendant stated, "I've had enough of the way my employer treats me.  Something has to be done."  The defendant objected to his wife's proposed testimony.  The defendant and his wife had legally separated after the defendant was arrested.

Is the wife's testimony admissible?

Answer: No, because the wife's testimony concerns a confidential communication.

The marital-communications privilege protects confidential communications made between spouses during the marriage.  This privilege applies in both civil and criminal cases.  Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and:

• refuse to testify about the communication or

• prevent the other spouse from testifying about the communication.* 

Here, the wife sought to testify about a confidential statement that the defendant made while the wife and the defendant were married.  Although the couple had legally separated by the time of trial, the defendant may still assert the privilege and prevent his wife from testifying.  Therefore, the defendant's statement falls under the marital-communications privilege, so the wife's testimony about that statement is inadmissible.

A plaintiff was injured while touring a clothing factory.  On the date of the accident, a factory employee, who had witnessed the accident, wrote down the name of the plaintiff, the exact circumstances of the accident, and the time and date.  Although the factory did not have a policy of keeping accident reports, the factory employee thought that doing so might be useful in case the plaintiff decided to file a lawsuit.  Soon after the accident, the plaintiff brought an action against the factory owner for negligence.

At trial, the factory owner's attorney called the factory employee to testify as to the accident.  Although he testified that the written report accurately reflected his knowledge when it was made, the factory employee was unable to sufficiently recall the accident, even after reviewing the report.  The factory owner's attorney then sought to have the factory employee read the written report into evidence.

May the factory employee do so?

Answer: Yes, under the past recollection recorded exception to the hearsay rule.

Hearsay is an out-of-court statement offered for the truth of the matter asserted therein and is inadmissible absent an exclusion or exception.  The past recollection recorded exception allows a record to be read into evidence if it:

• concerns a matter that a witness once knew but cannot recall at trial

• was made or adopted by the witness when the matter was fresh in his/her mind and

• accurately reflects the witness's personal knowledge at the time it was made.

Before invoking this exception, the party should attempt to refresh the witness's memory under Federal Rule of Evidence 612 (as seen here).  If the witness still cannot sufficiently recall the events recorded, the past recorded recollection may be utilized.

Here, the factory employee testified that the report accurately reflected his knowledge at the time it was made but was unable, even after reviewing the report, to sufficiently recall the accident.  This testimony is sufficient to invoke the past recollection recorded exception to the hearsay rule (Choice A).  Therefore, the factory employee may read the report into evidence.

A husband was on trial for the murder of his wife.  The wife's death was attributable to a fall which the prosecution alleged was purposefully caused by her husband.  Shortly after the wife's death, the wife's brother found a video recording, made by the husband, in which the husband sorrowfully stated that his wife's death "was no accident."  The video recording was turned over to the police and is now in the prosecution's custody.  The prosecution, worried that the video recording makes the husband look sympathetic, intends to instead call the wife's brother to testify as to the husband's statement in the video.  The defense has objected to admission of the brother's testimony.

Answer: No, because the video recording must be produced.

The best evidence rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (collectively referred to as "document") be produced to prove its contents.  This rule applies when a document's contents are at issue—i.e., when:

• the document is used to prove the happening of an event (e.g., video of bank robbery)

• the document has a legal effect (e.g., contract) or

• the witness is testifying based on facts learned from the document, as opposed to personal knowledge (i.e., knowledge based on firsthand observations or experience).

Here, the prosecution seeks to have the wife's brother testify as to the husband's statement that the wife's death was not an accident.  The brother learned that the husband made that statement by watching his video recording—not from personal knowledge of the statement.  As a result, the best evidence rule applies, and the prosecution must produce the video recording.

A plaintiff brought a defamation action against his friend, an internet blogger, for the publication of defamatory accusations against the plaintiff that the friend allegedly published on his internet blog.  The plaintiff testified that because he had always been a daily reader of the friend's writing, he read the defamatory remarks on June 10, the same day they were published.  When the plaintiff's attorney asked the plaintiff how he remembered the date, the plaintiff answered, "When I called his house to demand that he take down the post, his girlfriend answered the phone and said that he was out seeing a movie that had come out that day."  The friend's attorney objected and moved to strike the testimony.

Should the court strike the plaintiff's testimony about the girlfriend's statement on the phone?

Answer: No, because the statement is not being offered for its truth. 

Hearsay is an out-of-court statement offered for the truth of the matter asserted therein.  Under the rule against hearsay, such statements are inadmissible absent an exclusion or exception.  However, a statement that is offered for some other purpose does not implicate the hearsay rule and is therefore admissible without an applicable hearsay exclusion or exception.

Here, the plaintiff is offering the girlfriend's statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day.  Since the statement is not being offered for its truth, it is not barred by the hearsay rule.  Therefore, the court should not strike the plaintiff's testimony about the girlfriend's statement from the record.

A plaintiff sued a defendant for libel after the defendant published an article on his website calling the plaintiff an adulterer.  At trial, the defendant's attorney called the plaintiff's wife, who testified that on two separate occasions, the wife had found the plaintiff in a hotel with another woman.  The plaintiff objected to the wife's testimony.

Should the court sustain the plaintiff's objection?

Answer: No, because the plaintiff's infidelity is directly at issue in the trial.

Character evidence is generally inadmissible when it is used to prove that a person acted in conformity with his/her character during the litigated event.  But such evidence is admissible substantively in rare instances when character (or a character trait) is an essential element of a civil claim, criminal charge, or asserted defense—e.g., in a defamation action.  In such cases, character evidence can be introduced by any party through either:

• reputation or opinion testimony on that essential character trait or

• specific instances of conduct (e.g., prior instances of adultery) demonstrating that trait.

Here, the plaintiff sued the defendant for libel—a type of defamation.  The plaintiff's character is an essential element of this claim because he must prove that he is not an adulterer to show that the defendant's writing was false.  The wife's testimony that she twice found the plaintiff committing adultery goes directly toward this issue.  Therefore, her testimony is admissible as substantive evidence that the plaintiff is an adulterer, and the plaintiff's objection should be overruled (not sustained).

The owner of a restaurant sued a real estate developer from whom the owner had purchased land.  The owner alleged that the developer had lied to the owner during contract negotiations for the purchase of the land.  According to the owner, the developer had told the owner that he was in final negotiations to develop the surrounding area for a large retail complex.  The developer denied that he had made this statement.

At trial, the owner sought to introduce an affidavit from the attorney who had negotiated the land-sale contract on his behalf.  In the affidavit, the attorney swore that the developer did make the statement at issue to the owner in the attorney's presence.  The attorney had moved to a foreign country and refused to appear at trial to testify.  The owner did not submit the land-sale contract negotiated by the attorney into evidence.  The developer objected to the introduction of the affidavit.

Is the affidavit admissible?

Answer: No, because the affidavit is hearsay not within any exception

The hearsay rule bars the admission of an out-of-court statement offered to prove the truth of the matter asserted therein.  When such a statement is contained within another (i.e., double hearsay), neither statement is admissible unless both are excluded or excepted from hearsay.  Here, the real estate developer's statement is excluded from hearsay as a statement of a party-opponent.  But since that statement is contained within the attorney's affidavit, the affidavit must also be admissible.

Some hearsay exceptions only apply to out-of-court statements made by an unavailable declarant.  Here, the attorney is unavailable because the attorney has moved out of the country and refuses to testify.  However, unavailability alone does not make a hearsay statement admissible—the statement also must meet the specific parameters of a hearsay exclusion or exception (Choice D).  For example, the former testimony exception allows an unavailable declarant's former testimony to be admitted if:

• the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues and

• the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.

An affidavit does not fall under the former testimony exception because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant (Choice C).  And since the attorney's affidavit does not fall under any other hearsay exclusion or exception, it is inadmissible.

A defendant has been sued in a civil action for battery.  The plaintiff plans to introduce a letter from the defendant to his attorney in which the defendant summarized his account of the incident.  The letter had been inadvertently disclosed to the plaintiff in response to a discovery request, despite the defense attorney's reasonable precautions against such disclosure and prompt efforts to rectify the error.  Before sending the letter, the defendant had asked his sister to proofread it for him.  The defendant plans to invoke his Fifth Amendment privilege against self-incrimination if called by the plaintiff to testify at trial.

On grounds of the attorney-client privilege, the defense attorney has filed a motion in limine to prevent the plaintiff from introducing this letter at trial.  The plaintiff contends that he has a substantial need for the letter and cannot obtain the information within the letter by any other means, as the defendant's sister is now deceased.

Of the following, which would provide the strongest support for denying the defense attorney's motion?

Answer: The defendant showed the letter to his sister before sending it to his attorney.

The attorney-client privilege protects communications between an attorney and a client that were (1) made for the purpose of obtaining legal advice or representation and (2) intended to be and kept confidential.  A communication is confidential if the circumstances indicate an intention of secrecy between the client and the attorney.  This means that a communication is not confidential if the client voluntarily shares it with a third party (e.g., the defendant's sister).  As a result, the strongest support for denying the defense attorney's motion in limine is that the defendant's letter is not protected by this privilege.

While driving through her neighborhood on the way to work, a woman was involved in a car accident with her neighbor.  The neighbor alleged that the woman failed to stop at a stop sign.  The neighbor brought an action for negligence against the woman.  At trial, the woman intends to call a witness to testify that the woman stops at the stop sign each time she encounters it.  The witness is the woman's coworker and carpools with the woman to work daily, driving the same route with the same stop sign.  However, the witness was not present for the accident with the neighbor, as she was sick that day.

Should the court admit the witness's testimony?

Answer: Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.

Evidence of a person's habit or an organization's routine practice is admissible to prove that the person or organization acted in accordance with that habit or practice on a particular occasion.  A habit is a person's routine reaction to a specific set of circumstances that is semiautomatic in nature and is considered highly probative of the person's conduct on a particular occasion.

A witness who is familiar with the person—and his/her habit—may testify to prove the existence of that habit (as seen here).  The witness need not have been present at the event in question to do so (Choice B).  Therefore, the court should admit the witness's testimony that the woman stops at the stop sign each time she encounters it to prove that she stopped at the stop sign on the day of the accident.

A handyman sued a homeowner for negligence after falling off the homeowner's roof while repairing the homeowner's chimney.  The handyman was knocked off the roof when one of several large dead branches from a nearby tree fell on him.  The homeowner's answer contested the handyman's claim that the tree was on the homeowner's property.

At trial, counsel for the handyman seeks to introduce into evidence a properly authenticated invoice, made in the regular course of business, from a landscaping company to the homeowner that indicated that the tree's dead branches were subsequently trimmed at the homeowner's expense.  The homeowner objected to the admission of the invoice.

Should the judge admit the invoice into evidence over the homeowner's objection?

Answer: Yes, because ownership of the tree was disputed

A subsequent remedial measure is a precaution taken after an injury has occurred that—if taken earlier—might have prevented the injury.  Because social policy encourages remedial measures to protect the public, evidence of such measures is inadmissible to prove negligence or other culpable conduct.  But a court may allow evidence of subsequent remedial measures for other limited purposes such as:

• resolving a dispute about the feasibility of precautionary measures

• impeaching a witness or

• proving ownership or control.

Here, the handyman offered evidence of the homeowner's subsequent remedial measure of trimming the tree.  That evidence is not admissible to prove the homeowner's negligence in failing to maintain the tree.  However, it is admissible to prove ownership of the tree—which is in dispute (Choice A).  And the invoice is relevant to ownership since it is unlikely that the homeowner would have paid to have the tree trimmed if it did not sit on the homeowner's property.

An accountant and a banker were charged with conspiracy to commit embezzlement.  The banker agreed to testify against the accountant in exchange for a plea bargain.  However, at the accountant's trial, the banker unexpectedly testified that the accountant had embezzled the funds without the banker's knowledge or assistance.  On cross-examination, the accountant asked whether the banker had ever told anyone that the banker had helped the accountant embezzle the funds.  The banker denied making such a statement.

While the banker was still subject to being recalled as a witness, the prosecution called the banker's secretary to testify that the banker said, "I gave the accountant what he needed to take the money, and no one will notice for months.  He just wired me my share, so let's go celebrate!"

Is the secretary's testimony admissible?

Answer: Yes, because it is a prior inconsistent statement

However, a prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively.  A party may impeach the witness with the statement by:

• examining the witness about the statement or

• introducing the statement through extrinsic evidence if (1) the witness first has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires.

Here, the prosecution called the banker's secretary (i.e., extrinsic evidence) to introduce the banker's prior inconsistent statement after confronting the banker about the statement.  Since the banker is still subject to recall as a witness, the accountant has an opportunity to cross-examine her about it.  Therefore, the secretary's testimony is admissible for impeachment purposes (Choice A).

A plaintiff sued a defendant under a disabilities discrimination statute, alleging that the defendant refused to hire the plaintiff because of her physical disability.  The defendant has asserted that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job.  The defendant sought to testify that the plaintiff's former employer advised him not to hire the plaintiff because she was unable to work productively for more than three hours each day.

Is the defendant's testimony admissible?

Answer: Yes, as evidence of the defendant's reason for refusing to hire the plaintiff.

Evidence is admissible if it is relevant—i.e., tends to make a material fact more or less probable—and not excluded by law or other evidentiary rules.  For example, the rule against hearsay bars otherwise relevant out-of-court statements that are (1) offered to prove the truth of the matter asserted therein and (2) not excluded or excepted from the hearsay rule.  But the hearsay rule does not bar out-of-court statements that are offered for another purpose—e.g., to show the statement's effect on the listener.

Here, evidence pertinent to the defendant's hiring decision is relevant in this discrimination suit.  The defendant testified that he did not hire the plaintiff because he reasonably believed that she was unable to perform the job.  That belief stemmed from the former employer's out-of-court statement that the plaintiff was unable to work productively for more than three hours a day.  Although this statement cannot be used to prove the truth asserted therein, it is admissible to show the statement's effect on the defendant's hiring decision (Choices B & D).

The defendant's attorney in a fraud case called a witness to testify as to the defendant's character.  On cross-examination, the prosecutor asked the witness whether he had ever been arrested for writing bad checks.  In fact, the witness had been arrested two years ago for writing bad checks, but the charges had been dropped due to a lack of evidence that the witness had committed the crime.  The defendant's attorney objects to the question.

Should the prosecutor be allowed to ask the question?

Answer: No, because the witness was never convicted of the crime.

A party can attack any witness's character for truthfulness with reputation or opinion testimony OR with specific instances of conduct (SICs) that are probative of that character (Choice A).  Only two types of SICs are admissible for this purpose: (1) convictions for a felony or crime of dishonesty and (2) other bad acts.  However, a mere arrest does not qualify as a bad act that can be used to attack a witness's character for truthfulness.  That is because an arrest for misconduct is not itself misconduct.

Here, the witness was arrested for writing bad checks—an act that is probative of a person's character for untruthfulness (Choice D).  But the witness was never convicted due to a lack of evidence that he had committed the crime.  And since the arrest alone cannot be introduced to attack the witness's character for truthfulness, the prosecutor should not be allowed to ask the question.

A defendant is on trial for embezzling $50,000 from his former employer.  The prosecution wishes to offer into evidence an anonymous letter, in its entirety, that was received by the defendant's former supervisor.  The supervisor testified that the letter was written in the defendant's handwriting, which the supervisor knew from their years of working together.  The letter reads, "I am consumed by guilt for what I have done.  Here is half the money I took from you, and if you promise not to prosecute, I will send you the rest later this year.  If you accept this arrangement, please post a personal ad in the local paper using the phrase 'All is forgiven.'"  The note was accompanied by $25,000 in cash.  The defense objects to the admission of the letter.

Is the letter admissible?

Answer: Yes, because the letter contains statements by an opposing party to the current litigation.

Under the rule against hearsay, an out-of-court statement (e.g., the letter to the former supervisor) is inadmissible if it is offered to prove the truth of the matter asserted therein (e.g., that the defendant embezzled money).  However, certain statements are excluded from this rule and are therefore considered nonhearsay.  One exclusion applies to statements made by and offered against an opposing party.  Therefore, the letter written by the defendant is admissible on this basis.

A defendant is on trial for burglary.  The jurisdiction has a statute that a charge of burglary may be elevated to aggravated burglary if the crime is committed with a firearm.  An eyewitness, who is the burglary victim's neighbor, called the police on the night in question and reported that she saw the defendant climb out of the victim's window and that he was carrying a gun.  The eyewitness wrote a detailed description of the incident and the weapon in her diary soon after she called the police.

During the trial, the prosecutor put the eyewitness on the stand, but she could no longer recall whether the defendant was holding anything.  The prosecutor asked her to read the diary entry to herself to see if it refreshed her memory.  When the eyewitness admitted that it did not, the prosecutor sought to have the eyewitness read the diary entry to the jury and to introduce the diary entry as an exhibit.  The defendant objects to both.

How should the court rule?

Answer: The court should overrule the objection as to the eyewitness reading the diary entry to the jury but sustain the objection as to entering it as an exhibit.

A party may use a writing (or other evidence) to refresh a witness's memory when (1) the witness once knew but cannot recall a fact or event and (2) the writing will help the witness recall that information.  If the writing does not refresh the witness's recollection, then the hearsay exception for recorded recollections allows the party to ask the witness to read the record into evidence if it:

• concerns a matter that the witness once knew but cannot recall at trial

• was made or adopted by the witness when the matter was fresh in his/her mind and

• accurately reflects the witness's personal knowledge at the time it was made.

However, only the party opposing the use of the record may introduce it as an exhibit.

Here, the eyewitness's memory was not refreshed by having her read the diary entry to herself.  And since the diary entry satisfies the criteria for admission under the recorded recollections hearsay exception, the court should allow the eyewitness to read the diary entry into evidence (Choices A & B).  But only the defendant, as the opposing party, may introduce the diary entry as an exhibit (Choices B & D).  Therefore, the court should sustain the defendant's objection as to entering the diary entry as an exhibit.

A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district court in State X under diversity jurisdiction, in connection with an automobile accident that occurred in State Y.  The defendant has had no contacts with State X.  The plaintiff personally served the defendant with a summons and complaint at his home in State Y.  The defendant's first response to the complaint was an answer that specifically denied the plaintiff's claims but omitted the defense of lack of personal jurisdiction.  Fifteen days after serving the answer on the plaintiff, the defendant amended the answer to include the defense of lack of personal jurisdiction without asking leave of the court.

Which of the following statements is most accurate regarding the defendant's actions?

Answer: The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.

Lack of personal jurisdiction is a defense that must be raised (1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course (i.e., without the court's permission).  Otherwise, this defense is waived (Choice A).  Under FRCP 15, an answer can be amended once as a matter of course within 21 days:

• after serving the answer, if no responsive pleading (e.g., reply) is required or

• if a responsive pleading is required, after being served with a responsive pleading or motion under FRCP 12(b), (e), or (f)—whichever occurs first.

Here, the defendant's answer specifically denied the plaintiff's claims but omitted the defense of lack of personal jurisdiction.  The defendant amended the answer 15 days after serving it to assert lack of personal jurisdiction.  The defendant did not file a pre-answer motion, and the amendment occurred within 21 days of the plaintiff being served with the answer.  Therefore, the defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.

Without justification, a plaintiff failed to appear for trial in federal district court.  The trial had been postponed several times, and the court had warned the parties that failure to proceed would lead to dismissal of the case.  Upon the defendant's motion, the court properly dismissed the case without stating whether the dismissal was with or without prejudice.  At the time of dismissal, 130 days had passed since the case was first set for trial.

Is the plaintiff entitled to pursue a new action based on the same claim in federal court?

Answer: No, because the plaintiff failed to prosecute his case. 

Under Federal Rule of Civil Procedure (FRCP) 41, a suit can be dismissed in two ways:

• Voluntary dismissal – when the plaintiff moves to dismiss the suit

• Involuntary dismissal – when the defendant moves to dismiss the suit

A defendant can move for an involuntary dismissal under FRCP 41 if the plaintiff failed to comply with a rule or court order or failed to prosecute the action—just as the defendant did here.

An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise.  This means that the plaintiff's action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future (Choice D).  Therefore, the plaintiff here is not entitled to pursue a new action based on the same claim in federal court because the dismissal was proper after he failed to prosecute his case.

A plaintiff filed a breach-of-contract action based on diversity jurisdiction in federal district court.  In her answer, the defendant alleged that she was not liable to the plaintiff due to a novation.  The plaintiff did not reply to this allegation, and the court did not order the plaintiff to do so.

How should the court treat the defendant's novation allegation?

Answer: As denied by the plaintiff, because the plaintiff was not required to respond to the defendant's pleading.

Federal Rule of Civil Procedure 7(a) lists the pleadings allowed in federal court.  The two most common pleadings are the plaintiff's complaint against the defendant and the defendant's answer in response to that complaint.  A plaintiff need only respond to the defendant's answer by filing a reply in the rare instance that the court orders the plaintiff to do so.

If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation).  Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.  But when a reply is not required (as seen here), then the plaintiff is deemed to deny any allegation in the defendant's answer (Choice B).  Therefore, the court here should treat the defendant's novation allegation as denied by the plaintiff.

A corporation that sells pollution-control chemicals and related equipment brought suit in federal district court under diversity jurisdiction against a former employee for unfair competition under state law.  The corporation's suit was based on information it had been given that the former employee was going to open her own pollution-control business in the state using confidential information of the corporation.  After filing the complaint, the corporation moved for preliminary injunctive relief to restrain and enjoin the former employee from competing with the corporation.

Upon receiving notice of the hearing on the motion, the former employee responded by disputing the facts as alleged by the corporation.  After a full hearing on the motion for a preliminary injunction, the court concluded that several questions of material fact were in dispute.  As a result, it was unclear whether the corporation would ultimately prevail in its suit and that discovery would likely be needed for the corporation to be able to prove its claim.

Should the court issue a preliminary injunction?

Answer: No, because it is unclear whether the corporation will succeed on the merits of its claim.

A preliminary injunction is a temporary court order that commands or prohibits certain actions while the case is pending before the court.  This extraordinary form of equitable relief is typically sought by the plaintiff and granted only in limited circumstances since it is issued prior to a full hearing on the merits of the case.  As a result, a federal court may grant a preliminary injunction only when it is established that:

• the plaintiff is likely to succeed on the merits of his/her underlying claim

• the plaintiff is likely to suffer irreparable harm in the absence of relief

• the balance of equities is in the plaintiff's favor and

• the injunction is in the best interests of the public.

Here, the corporation seeks to enjoin the employee's competition by moving for preliminary injunctive relief.  The corporation will suffer irreparable harm in the absence of a preliminary injunction since monetary damages cannot compensate the corporation for any lost goodwill caused by the employee's competition (Choice D).  However, the court concluded that it was unclear whether the corporation will succeed on the merits of its claim since material facts were in dispute.  Therefore, the court should not issue a preliminary injunction.

A company properly filed a diversity action in federal district court against an accountant for malpractice in preparing the company's financial statements.  The accountant impleaded his malpractice insurer, asserting a claim for contribution against the insurer in the event that the accountant was liable to the company.  The company then timely filed a third-party claim against the insurer for $90,000 in damages to the company vehicles caused by a falling tree.

The insurer and the accountant are citizens of the same state, while the company is a citizen of a different state.

The insurer has moved to dismiss this claim due to improper joinder.

Should the court grant the insurer's motion?

Answer: Yes, because the company's claim against the insurer does not arise out of the accountant's preparation of the company's financial statements.

Impleader (i.e., third-party practice) allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim.  When this occurs, the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim:

• arises out of the same transaction or occurrence that is the subject matter of the plaintiff's claim against the defendant in the original complaint and

• satisfies original subject-matter jurisdiction on its own.

Here, the accountant (defendant) impleaded his insurer (third-party defendant) for contribution if he was found liable for malpractice in preparing the company's financial statements.  The company (plaintiff) then filed a third-party claim against the insurer for damage to the company's vehicles caused by a falling tree.  But since the company's third-party claim does not arise out of the accountant's preparation of the company's financial statements, the court should grant the insurer's motion to dismiss.

A plaintiff brought an action in federal district court to compel an owner of real property to sell the property to the plaintiff pursuant to their agreement.  The plaintiff, knowing that there was "bad blood" between the owner and the owner's adult son, approached the son about serving process on the owner.  The son readily agreed.  Although the plaintiff had intended for the son to serve the owner personally, the son instead served the owner with the summons and complaint by certified mail, which was delivered to the owner at his home.

The procedural rules of the forum state do not permit service by certified mail, but the procedural rules of the state where the owner resides permit such service.

The owner filed a motion to quash service.

How should the court rule on the owner's motion?

Answer: Deny the motion, because the procedural rules of the state in which service was made permit service by certified mail.

A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint.  Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:

• following the rules of the state where the court sits or where service is made

• having process delivered to the defendant personally (or to an agent authorized to receive process) or

• having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.

Here, the service rules of the forum state (where the court sits) and where service was made (where the owner resides) are different.  But FRCP 4 permits service by following the rules of either state.  And since the son served the owner with the summons and complaint by certified mail—a method of service permitted by the rules of the state where service was made—the owner was properly served with process.  Therefore, the owner's motion to quash (i.e., set aside) service should be denied.

A federal district court denied certification of an action as a class action.  In doing so, the court made a mistake of law.  Thirteen days after the entry of the district court's order, the plaintiff filed a petition with the clerk of the applicable circuit court for permission to appeal the denial of certification.

Must the appellate court hear this appeal?

Answer: No, because entertaining this appeal is at the discretion of the appellate court.

Appellate courts only have jurisdiction to hear appeals from a final judgment unless an exception applies.  Federal Rule of Civil Procedure 23(f) provides such an exception for district court orders granting or denying class action certification.  A petition to appeal this order must be filed with the appellate court clerk within 14 days after the order is entered.*  The appellate court then has the discretion to permit the appeal from the district court order that granted or denied class action certification.

Here, the plaintiff timely filed its petition for permission to appeal with the clerk of the applicable circuit court 13 days after the district court entered its order denying class action certification (Choice B).  However, since entertaining this appeal is at the discretion of the appellate court, it is not required to hear the appeal.

An internet start-up company began marketing a line of products under a trade name that was identical to a manufacturer's protected trademark.  The manufacturer filed an action in federal district court for injunctive relief against the start-up company, seeking to put a stop to the company's use of the protected trade name.  The district court granted a preliminary injunction in favor of the manufacturer and scheduled a hearing to consider a permanent injunction.  The start-up company wants to immediately appeal the preliminary injunction.

Which of the following is most accurate concerning the start-up company's potential appeal?

Answer: Immediate appeal is allowed by right.

The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment.  But the interlocutory appeals statute (28 U.S.C. § 1292) provides exceptions to this rule that allow certain equitable orders to be immediately appealed as a matter of right.  These include:

• orders granting, modifying, refusing, or dissolving injunctions

• orders appointing or refusing to appoint receivers and

• decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Here, the district court granted the manufacturer's request for a preliminary injunction and scheduled a hearing to consider a permanent injunction.  Although the district court has not yet entered a final judgment, the start-up company can immediately appeal the district court order that granted this equitable relief as a matter of right (Choices C & D).

A man from State A interviewed for jobs in State B because he planned to relocate there.  As a result, the man spent a substantial amount of time driving to State B for interviews and social events.  After one such event, the man crashed his car into a parked, rare sports car.  After the accident occurred, the man returned to State A.

The owner of the car, a resident of State B, properly filed a diversity action against the man in a federal district court in State B.  The car owner's attorney was unable to find the man's address, so the attorney telephoned the man and told him to appear in the federal district court in State B the following week.

That next week, the man, who had returned to State B for more interviews, appeared in the federal district court in State B.  The sole purpose of the man's appearance in the court was to litigate the merits of the car owner's case.  After his appearance, the man contacted an attorney and asked whether the federal district court in State B has personal jurisdiction over him.

What is the best advice the attorney can provide?

Answer: The man consented to personal jurisdiction by appearing in court.

Personal jurisdiction is a court's authority over the parties or property before it.  One way to establish personal jurisdiction is through the parties' consent.  A plaintiff consents to the court's jurisdiction by filing the complaint in that court.  In contrast, a defendant can consent in any of the following ways:

• Express consent – by contractually agreeing to the court's jurisdiction (e.g., forum-selection clause)

• Implied consent – by engaging in an activity that the forum state has a substantial interest in regulating (e.g., driving on public roads)

• Waiver – by failing to assert a personal-jurisdiction objection in a pre-answer motion or answer, whichever occurs first

• Appearance – by voluntarily appearing in court to litigate the merits of the case without challenging personal jurisdiction (i.e., a "general appearance")*

Here, the man appeared in the federal district court in State B for the lawsuit.  Since the sole purpose of the man's appearance was to litigate the merits of the case, the best advice the attorney can provide is that the man effectively consented to personal jurisdiction by appearing in court (Choice C).

(Choice D)  A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint—unless the plaintiff requests that the defendant waive service and the defendant does so.  Although the man did not receive proper service of process or a proper request for waiver of service, he waived any objection to personal jurisdiction when he voluntarily appeared in court.

A salesman filed a complaint in federal court against his former employer's CEO and human resources director for allegedly violating a federal law that prohibits workplace discrimination based on age.  The complaint alleged that the salesman's income was substantially reduced when he was reassigned to a less profitable sales territory after the CEO's restructuring of the company resulted in more lucrative sales territories being given to younger employees.  The complaint also alleged that, prior to the overall restructuring, the salesman's request to be reassigned to a particular lucrative sales territory was denied by the human resources director, who had a substantial role in making sales territory assignments, and the territory was instead assigned to a younger employee.  The salesman seeks $100,000 in damages from the human resources director and $25,000 in damages from the CEO.

The CEO has filed a motion asking the court to sever the salesman's claims.

Should the court grant this motion?

Answer: No, because the salesman's claims arise out of the same series of occurrences.

The motion to sever the salesman's claims against the CEO and the human resources director should be granted if the defendants were improperly joined.  Under the permissive joinder rule (FRCP 20), multiple persons may be joined as plaintiffs or defendants in the same suit if:

• the claims asserted by or against the joined parties arise out of the same transaction, occurrence, or series of transactions or occurrences and

• the action will involve a common question of law or fact among all joined parties.

Here, the salesman's claims stem from an alleged pattern of discriminatory conduct by the CEO and the human resources director involving sales territory assignments (same series of occurrences) (Choice C).  The salesman's claims are based on the same federal statute (common question of law) and the same allegation that the CEO and the human resources director discriminated based on age (common question of fact).  Therefore, the defendants were properly joined, and the motion to sever the salesman's claims should be denied.

The owner of an oil and gas lease on federal land brought a declaratory judgment action in federal district court against the owner of an adjacent oil and gas lease also on federal land to resolve a boundary dispute.  The land is located in the forum state's northernmost federal judicial district, where the plaintiff brought the action.  Both the plaintiff and the defendant are residents of a neighboring state.  The forum state's long-arm statute specifically allows for personal jurisdiction for all actions involving land located within the state.  The defendant has timely filed a motion to dismiss the action on the basis of improper venue.  The court has granted this motion.

Is the court's ruling correct?

Answer: No, because the property that is the subject of this dispute is located in the forum district.

Venue—i.e., the geographical location of the federal court that can hear a lawsuit—is proper in any judicial district where:

• any defendant resides—so long as all defendants reside in the same state (i.e., residency-based venue)

• a substantial portion of the events that gave rise to the suit occurred (i.e., events-based venue)

• a substantial part of the property at issue is located (i.e., property-based venue) or

• any defendant is subject to the court's personal jurisdiction—but only if none of the above provisions apply (i.e., fallback provision).

Here, venue is proper in the federal judicial district in the neighboring state where the (sole) defendant resides.  Venue is also proper in the forum state's northernmost federal judicial district since that is where the federal land that is at dispute is located.  Therefore, the court's ruling that granted the defendant's motion to dismiss the action based on improper venue is incorrect.

A plaintiff brought suit in a federal district court sitting in diversity jurisdiction against a law firm and a lawyer for legal malpractice.  The law firm moved to dismiss the claims against it, and the district court granted the motion on August 15.  On August 20, the district court directed entry of a final judgment as to the law firm, including language in the judgment that it was expressly determining that there was no just reason for delay in entering the judgment.  On September 30, the plaintiff filed a notice of appeal with the district court clerk.

Can the court of appeals hear the plaintiff's appeal?

Answer: No, because the appeal is untimely.

A party may only appeal, absent limited exceptions, after the district court has entered a final judgment.  However, when an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines (i.e., certifies) that there is no just reason for delay.  A party may then appeal that judgment if the notice of appeal is filed with the district court clerk within 30 days after entry of that judgment.*

Here, the district court entered a final judgment as to the plaintiff's claims against the law firm on August 20 (Choice C).  The judgment was properly certified for appeal since it included an express determination that there was no just reason for delay in entering the judgment (Choice D).  However, the plaintiff did not file the notice of appeal with the district court clerk until September 30, which was 41 days after the entry of final judgment.  Therefore, the court of appeals cannot hear the plaintiff's appeal because it was untimely.

A consumer brought a federal diversity action in a federal district court in State A against a corporation for negligence in failing to warn of the potential dangers of a product it sold.  Following a jury trial, the district court entered judgment in favor of the consumer.  The corporation appealed and posted bond to stay the judgment.  The court of appeals affirmed the judgment.  The consumer then filed a motion for penalty under the law of State A.

By statute, State A requires a party who loses on appeal to pay a 10 percent penalty.  A federal rule addressing this issue states that such a penalty is discretionary with the court.  In response to the consumer's motion, the corporation contends that the State A law is not applicable to the action.

What action should the court of appeals take?

Answer: Determine whether the federal rule abridges, enlarges, or modifies the substantive rights of the parties.

When a federal court's subject-matter jurisdiction is based on diversity (as seen here), the court must apply state law to substantive issues and federal law to procedural issues.  When it is unclear whether an issue is substantive or procedural—e.g., penalizing a party for losing an appeal—the court must determine if there is a conflict between state and federal law.  If a conflict exists, then the federal-rule analysis provides that a valid federal rule that directly addresses the issue applies if the rule:

• is arguably procedural and

• does not abridge, modify, or enlarge a substantive right.

Here, the law of State A and the federal rule conflict because the state law requires a party who loses on appeal to pay a 10 percent penalty while the federal rule grants the court discretion to impose such a penalty.  This valid federal rule* is arguably procedural since it imposes a penalty, so the court of appeals should determine whether the rule abridges, enlarges, or modifies the parties' substantive rights (e.g., the right to an appeal).  If it does, then the state rule should be applied.

In a civil action tried in federal district court, the judge determined that, due to the anticipated length of the trial, nine jurors were needed to ensure that six jurors remained when the case was sent to the jury for deliberation.  The judge's determination was made in good faith and based on her experience as a judge dealing with juror requests for dismissal from a case.  Consequently, nine individuals were selected as members of the jury.  However, after each attorney had made his closing argument, all nine jurors remained.  Without consulting either party, the judge, acting without discriminatory intent with regard to race or gender, excused the three jurors who had been selected last to reduce the jury to six jurors.

Was this action proper?

Answer: No, because the judge did not excuse the three jurors for good cause.

Under Federal Rule of Civil Procedure 48, a jury must begin with at least six and no more than 12 members.  Each juror must participate in the verdict unless excused (i.e., dismissed) by the court for good cause during trial or after jury deliberations have begun.  Good cause exists when the juror has an illness, has a family emergency, or has committed juror misconduct that might cause a mistrial—e.g., providing false testimony during voir dire.

Here, the jury began with nine members.  After closing arguments were made, the judge excused the last three jurors who had been selected to sit on the jury.  However, the judge excused those jurors to reduce the jury's size—not because they were ill, had family emergencies, or had committed juror misconduct.  As a result, good cause did not exist for the judge to excuse the three jurors, so her action was improper.

A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff.  The complaint was signed by an associate at the large law firm that represented the plaintiff.  The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint and thus did not violate the plaintiff's patent.  The court held a hearing on the motion to dismiss.

At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff's patent.  The defendant also showed that the plaintiff's attorney had never actually used the application but had drafted the complaint based solely on his client's description of the application.  The court granted the motion to dismiss.  The court also issued an order requiring the plaintiff's attorney and his law firm to pay the defendant's attorney's fees, finding that the plaintiff's attorney had not conducted a reasonable inquiry into the factual contentions in the complaint.

Which of the following is the best argument that the court erred in its order requiring payment of attorney's fees?

Answer: A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order.

A court can impose sanctions, including an order to pay the opposing party's attorney's fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b)—shown above (Choice D).  Sanction proceedings can be initiated in two ways:

• by a party's motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or

• on the court's own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.

Here, the court found that the plaintiff's attorney had not conducted a reasonable inquiry into the factual contentions in the complaint—a violation of FRCP 11(b)(3).  The court then ordered the plaintiff's attorney and his law firm to pay the defendant's attorney's fees.  However, a court cannot impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order.  Since the court failed to do so, this is the best argument that the court erred in its order requiring payment of attorney's fees.

A customer who was injured by a fall at a retailer's store sued the retailer for negligence.  The action was properly brought in federal district court based on diversity jurisdiction.  After the trial began, the customer, due to a death in the family, requested an extended continuance.  The court granted the customer's request.  Due to the continuance, the court dismissed, for good cause, a juror who had prepaid a vacation trip that was scheduled to begin during the period of the continuance and run through the anticipated completion of the trial.  The dismissal left the jury with six members.

After the case was given to the jury for deliberation, a juror took ill.  The court dismissed this juror for good cause.  Given the possibility of a mistrial, both the customer and the retailer agreed to the return of a verdict by a five-person jury.  After the jury returned a unanimous verdict for the customer, the retailer filed a motion for a new trial based on the size of the jury.

How will the court likely rule on the retailer's challenge?

Answer: Deny the motion, because the parties stipulated to a five-person jury

Under Federal Rule of Civil Procedure 48, a jury must begin with at least 6 and no more than 12 members.  Each juror must participate in the verdict unless excused for good cause (e.g., paid vacation, illness), which can occur during trial or after jury deliberations have begun (Choice C).  The verdict must be unanimous and returned by at least 6 jurors—unless the parties stipulate otherwise.  A court should grant a party's motion for a new trial if any of these requirements are not met.

Here, the jury properly began with seven members.  One juror was excused for good cause during the trial, and another was excused for good cause after the case was submitted to the jury (Choice A).  This left five jurors, who returned a unanimous verdict.  And though a verdict normally requires at least six jurors, the parties stipulated to a five-person jury (Choice D).  Therefore, the court will likely deny the retailer's motion for a new trial.

A retailer was found liable for $300,000 in a products liability class action for selling a particular defective brand of coffeemaker.  The retailer then brought a diversity action in the federal district court against the coffeemaker manufacturer for contribution.  The jury found that the retailer was not liable for any of the judgment against him and awarded the retailer the entire $300,000 requested as contribution.  However, through a clerical error, the judgment entered reflected an award of only $300.  After the manufacturer filed an appeal of the judgment and the appeal was docketed with the appellate court, the district court clerk discovered the mistake.  The district court immediately corrected the error.

Did the district court properly correct the written judgment?

Answer: No, because the appeal has been docketed in the appellate court.

A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record.  The court may do so on its own initiative or pursuant to a party's motion before an appeal from the judgment or order is docketed (Choice B).  But after an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).

Here, a clerical mistake occurred since the jury awarded the retailer $300,000 as contribution from the manufacturer but the final judgment awarded the retailer $300 instead.  The district court clerk did not discover this mistake until after the manufacturer's appeal had been docketed with the appellate court.  As a result, the district court could correct the mistake only with the appellate court's leave—not on its own initiative.  Therefore, the district court improperly corrected the written judgment.

A plaintiff filed a complaint in federal district court alleging that a city police officer had violated the plaintiff's constitutional rights during a traffic stop.  The complaint, which asserted claims against the city and a named police officer, was filed the day before the statute of limitations for the claims was set to expire.  The named defendants filed an answer, and the parties engaged in expedited discovery.  During discovery, the plaintiff learned that he had misidentified the officer in his complaint, and that it was actually the named officer's partner who had stopped him.  Discovery also revealed that the named officer's partner was aware of the suit and the fact that he was the intended defendant.

Sixty days after filing the complaint, the plaintiff filed a motion to amend his complaint to remove the named police officer and add the officer's partner as a defendant.  The plaintiff had process served on the officer's partner.  The officer's partner objected, arguing that the amendment was not timely and the claims were barred by the statute of limitations.  The applicable statute of limitations for the claims does not mention relation back.

Should the court allow the plaintiff to amend his complaint?

Answer: Yes, because the amendment relates back to the date the original pleading was filed.

An amended complaint filed after the statute of limitations has expired is prohibited unless the relation-back doctrine applies.  This doctrine treats the amended complaint as if it were filed on the same date as the original complaint.  An amendment that changes a defendant "relates back" only if the statute of limitations allows (not seen here) OR when the following requirements are met:

• the amendment concerns the same transaction or occurrence as the original complaint

• the new party received notice of the suit within 90 days after the original complaint was filed and

• the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party's identity.

Here, the plaintiff's amended complaint concerns the same traffic stop.  The officer's partner received notice 60 days after the original complaint was filed.  And the partner knew that the suit would have been brought against him but for the plaintiff's mistake about which officer had violated his constitutional rights during the traffic stop.  As a result, the amendment relates back to the date the original complaint was filed—before the statute of limitations expired (Choice B).  The court should therefore allow the plaintiff to amend his complaint.

A group of residents sought certification as a class in federal district court for a class action against a nursing home for damages resulting from substandard nursing care.  The district court granted certification of the class, and the defendant nursing home timely and properly filed a petition for permission to appeal the certification with the appropriate court of appeals.

If the court of appeals permits the nursing home's appeal, what is the effect on the district court proceedings?

Answer: The proceedings in the district court are stayed pending the appeal if the district court or the court of appeals so orders.

Appellate courts can only hear appeals from a final judgment absent limited exceptions.  One exception to this final-judgment rule arises when a district court order grants or denies class action certification.  A party may appeal this order by filing a petition with the appellate court clerk within 14 days after the order is entered.  If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when ordered by the district court or the appellate court (Choice A).

Here, the district court granted certification to the group of residents as a class.  The nursing home then timely and properly filed a petition for permission to appeal the certification with the appropriate court of appeals.  If the court of appeals permits the nursing home's appeal, then the proceedings in the district court will be stayed pending the appeal only if so ordered by the district court or the court of appeals.

A grantor conveyed his vacation home "to my daughter provided that she passes her Real Property course in law school; but if she does not, then to my son."  The daughter received a passing grade on her Real Property final exam, but another student in her class told the Real Property professor that the daughter had cheated on the exam.

The daughter sued the student for defamation.  Despite a court order, the son, who was aware of the grantor's conveyance, refused to testify at the defamation trial.  Therefore, the student called one of the son's friends to the stand.  The friend testified that while he was on the phone with the son on the morning of the exam, the son had told him, "I just saw my sister make a cheat sheet for the Real Property exam and hide it inside her long-sleeve shirt."  On cross-examination, the daughter's attorney asked, "Isn't it true that if the law school determines that the plaintiff cheated on her exam, then the vacation home will be conveyed to the son?"

Is this question proper?

Answer: Yes, because the question establishes the son's bias

When a hearsay statement is admitted into evidence, the hearsay declarant may be impeached (i.e., discredited) as if the declarant had testified at trial.  One way a declarant can be impeached is by introducing evidence that the declarant's statement was motivated by bias or self-interest.

Here, the court admitted the son's hearsay statement without objection from the daughter's attorney.  As a result, the son can be impeached as though he had testified at trial.  Evidence that the son stood to benefit from the daughter failing the exam tends to establish the son's potential bias.  Therefore, the daughter's attorney's question to the friend is proper.

A defendant is on trial for armed robbery and felony murder.  The prosecution seeks to admit testimony by the first witness to arrive at the scene of the crime.  The witness discovered the victim just before he died of a gunshot wound, and the victim identified the defendant as his assailant only moments before he died.  The defense asserts that the victim was too delirious from blood loss to know that he was dying and hopes to present a statement from the victim's widow to support this assertion.  However, both parties agree that the widow's statement is privileged under federal law.

In what manner should the court determine whether the victim's statement is a dying declaration?

Answer: Consider only the unprivileged evidence from both sides outside the presence of the jury.

Under Federal Rule of Evidence 104, the court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified.  In making this decision, the court is only bound by evidentiary rules regarding privilege.  Both parties can present evidence at the hearing, but the hearing must occur outside the presence of the jury if:

• the matter involves the admissibility of a confession

• a defendant in a criminal case is a witness in a hearing on the matter and so requests or

• justice so requires—e.g., when the disputed evidence would prejudice a party if heard by the jury.

A female and a male candidate were both competing for a junior coaching position with a college football team.  Although the female candidate was more qualified and experienced, the head coach chose the much less competent male candidate for the coaching position.  The female candidate subsequently sued the head coach for employment discrimination.  At trial, the female candidate's lawyer sought to introduce testimony by a football player on the team claiming that the head coach had told him that "women don't belong on the football field unless they are wearing a cheerleading uniform."

Is the head coach's statement admissible?

Answer: Yes, because it is relevant to the claim of employment discrimination against the head coach.

Evidence is admissible if it is relevant—i.e., tends to make a material fact more or less probable—and not excluded by law or other evidentiary rules.  For example, the rule against hearsay bars otherwise relevant out-of-court statements that are (1) offered to prove the truth of the matter asserted therein and (2) not excluded or excepted from the hearsay rule.  But statements that are offered for another purpose—e.g., to illustrate the declarant's world view or belief system—are not hearsay and therefore not barred by the rule.

Here, in this employment discrimination suit, the head coach's statement is relevant because it tends to make it more probable that he hired the less competent male candidate based on gender.  And the statement is not barred by the rule against hearsay because it was offered to show the head coach's thoughts about women coaching male sports—not for the literal truth that women do not belong on a football field unless they are cheerleaders (Choice B).  Therefore, the statement is admissible.*

A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building.  The prosecution called a female witness who lived in the defendant's prior apartment building to testify that she also received a number of unidentified but identical threatening phone calls while the defendant lived in her building.  The defense objected to the testimony on the ground of relevance.  The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant.

Is the witness's testimony admissible?

Answer: Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.

When the relevance of evidence depends on whether a fact exists, proof must be introduced to support a finding that the fact does exist.  The court may admit the proposed evidence on the condition that such proof be introduced later (Choice B).  And in determining whether sufficient proof has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

Here, the witness's testimony about calls from an unidentified caller is irrelevant unless there is evidence that the defendant was the caller (Choice A).  That is because such evidence would tend to make the material fact that the defendant also made the threatening phone calls to the woman more probable by establishing a common scheme or plan.*  Therefore, the testimony is admissible on the condition that evidence is later introduced that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.

In a medical malpractice case, a patient sued her surgeon for allegedly causing organ damage during a routine surgery.  In a previous case, the patient sued her medical insurance company for not covering some of the medical expenses associated with the complications from the organ damage.  During that trial, the patient testified that she overheard a nurse assisting the surgeon tell another assisting nurse during the surgery that it appeared the patient's kidney had been pierced.  Before the patient could testify about this statement in the medical malpractice trial, she died from complications stemming from the surgery.

Is the patient's testimony from the previous trial admissible in the medical malpractice trial?

Answer: No, because the defense did not have an opportunity to question the patient in the previous trial.

When a party seeks to introduce double hearsay—i.e., a hearsay statement contained within another hearsay statement—each statement must be independently admissible.  This means that both statements must fall under a hearsay exclusion or exception.  Here, the nurse's statement, which qualifies as a present sense impression, is contained within the patient's previous testimony.  Therefore, an exclusion or exception must be established to admit that testimony.

An unavailable declarant's former testimony is excepted from the hearsay rule if:

• the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding and

• the party against whom the testimony is offered—or, in a civil case, the party's predecessor in interest—had an opportunity and similar motive to develop the testimony through direct or cross-examination of the declarant.

Here, the patient died before she could testify in the medical malpractice trial and is therefore unavailable.  But the surgeon did not have the opportunity to examine the patient during the previous trial.  And the insurance company—whose objective at trial was to justify its denial of coverage and not to clear the surgeon of liability—is not the surgeon's predecessor in interest.  Therefore, the former testimony exception does not apply (Choice D).  And since no other hearsay exclusion or exception applies, the patient's former testimony is inadmissible.

In a sexual harassment action brought by an employee against her employer, the employee alleged that her supervisor had created a hostile work environment by making repeated crude and explicit sexual comments that were unwelcome.  The employer filed a motion to admit evidence that the employee had a sexual relationship with her previous supervisor to show that the employee welcomed the employer's advances.

How should the court rule on the admissibility of this evidence?

Answer: The court should admit evidence of the relationship only if its probative value substantially outweighs the danger of harm and unfair prejudice to the employee.

Evidence offered to prove (1) that a victim engaged in other sexual behavior or (2) a victim's sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct.  This rule is designed to shield the alleged victim from the embarrassment associated with disclosure of such private information and to prevent the jury from relying on stereotypes during the fact-finding process.

However, such evidence may be admitted if the court determines, at an in camera hearing, that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party (Choice C).  Therefore, in this civil sexual harassment suit, the court may admit evidence of the employee's sexual relationship with her previous supervisor if it makes this determination.

The director of a company that produces organic products was being sued by the minority shareholders of the company for allegedly breaching his duty of care and unwisely investing corporate funds into an organic clothing venture.  During the trial, a witness for the minority shareholders testified that the director had been accused of battery three years ago, although he was never charged or arrested for the crime.  The director's lawyer then attempted to call a witness to testify that the witness heard the individual who had accused the director of battery verbally retract his accusation.  The lawyer for the minority shareholders objected to the introduction of this evidence.  The court overruled the objection and allowed the testimony.

Did the court err by overruling this objection?

Answer: No, because the admission of additional evidence refuting the battery accusation was necessary to remove any unfair prejudice.

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal.  This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Here, the testimony that the director was once accused of battery was improper because it is not relevant to whether he breached his duty of care to the minority shareholders.*  The director then offered testimony from a witness who heard the alleged battery victim recant his accusation.  Although that evidence is hearsay—and also not relevant to the lawsuit—it was necessary to remove the unfair prejudice caused by the initial improper evidence (Choices C & D).  Therefore, the court did not err in overruling the shareholders' objection.

A defendant was charged with possession of prescription drugs without a prescription.  At trial, the defendant testified that he received the drugs from a friend and believed they were an acceptable over-the-counter medication.  The prosecutor intends to ask the defendant about his previous three misdemeanor convictions in the last five years for possession of the same type of prescription drugs without a prescription.

Should the court allow the prosecutor to ask about the defendant's previous convictions?

Answer: Yes, to show that the defendant knew the prescription drugs were not an over-the-counter medication.

Evidence that a criminal defendant previously committed a similar crime or bad act is inadmissible character evidence if it is offered to show the defendant's propensity to commit the charged crime (Choice A).  But that evidence may be admissible for other relevant, noncharacter purposes (i.e., MIMIC).  This includes proving the defendant's absence of mistake.  Therefore, evidence of the defendant's previous convictions is admissible to show that he did not mistake the drugs for over-the-counter medication in the present case.

(Choices B & C)  A party may impeach a witness's character for truthfulness by introducing evidence of certain criminal convictions—i.e., felonies or crimes of dishonesty typically 10 years old or less.  This evidence is meant to suggest that the witness is generally untruthful.  Here, the defendant's convictions are not admissible for this purpose even though they occurred within the last 10 years.  That is because they are not felonies or misdemeanors involving dishonesty.

A plaintiff sued a company for damages incurred when the company's delivery truck drove through the plaintiff's storefront.  The plaintiff wants to testify that the driver, a permanent employee of the company, told the plaintiff, "These brakes were on their last miles, but the company didn't replace them.  They failed as I turned that corner."  The company owns the truck.

Is the plaintiff's testimony regarding the truck driver's statement likely admissible?

Answer: Yes, because the testimony is nonhearsay.

Out-of-court statements offered to prove the truth of the matter asserted therein are generally inadmissible under the rule against hearsay.  However, some statements are excluded from the definition of hearsay (i.e., are nonhearsay) and can therefore be offered for their truth.  This includes out-of-court statements offered against a party-opponent that were:

• made or adopted by the party-opponent

• made by a person authorized by the party-opponent to make a statement on the subject

• made by the party-opponent's agent or employee about a matter within the scope of that agency or employment relationship and while the relationship existed or

• made by the party-opponent's coconspirator during and in furtherance of the conspiracy.

Here, the plaintiff seeks to testify about an out-of-court statement made by the defendant's employee—the driver.  The statement asserts that the delivery truck's brakes were about to fail but the company had not replaced them—a matter within the scope of the driver's employment.  And since the driver's statement was offered against the company, it is likely admissible as a nonhearsay statement of a party-opponent's employee (Choices A & D).

A church is being sued for negligent hiring after its bus driver got in a drunk-driving accident while driving a bus full of parishioners to a church retreat.  Evidence discovered by the plaintiff suggests that the bus driver had a well-documented drinking problem.  The defense called a witness from the bus driver's last employer, who testified that no one at the driver's last job was aware that the bus driver had a drinking problem.  The plaintiff's attorney asked on cross-examination whether the witness is a member of the defendant-church.  The defense objects to the question as an improper impeachment question.

Is the plaintiff's attorney's question proper?

Answer: Yes, as proper impeachment evidence.

A party may impeach a witness's credibility by offering evidence that the witness is biased and therefore had a motive to lie while testifying.  One method of establishing bias is showing that the witness is affiliated with the opposing party outside the context of the litigation.  This can be established through either:

• intrinsic evidence – by questioning the witness about the affiliation or

• extrinsic evidence – by introducing the affiliation using any source other than the witness's testimony.

Here, the plaintiff's attorney asked the witness if she is a member of the defendant-church.  Since that affiliation is evidence of the witness's possible bias in favor of the church, the plaintiff's attorney's question is proper as impeachment evidence.

A plaintiff who had been injured in a car accident with a truck brought an action against the employer of the truck driver for negligent hiring.  Prior to trial, the employer filed a motion for summary judgment.  In her response, the plaintiff submitted an affidavit by a former secretary of the employer stating that the secretary overheard the truck driver tell the employer that he had a history of accidents while interviewing for the job.

Can the court properly consider the driver's statement in the affidavit in ruling on the employer's summary-judgment motion?

Answer: Yes, because it is not hearsay, and no hearsay exception is needed for the affidavit.

A motion for summary judgment is a request that the court enter judgment without a trial.  A court can grant summary judgment if the movant shows that (1) there is no genuine dispute of material fact and (2) it is entitled to judgment as a matter of law.  A party may support or oppose a motion for summary judgment by submitting affidavits, which lay out the testimony the party would present at trial.  This means that the contents of the affidavit must be admissible under the rules of evidence.

The rule against hearsay bars admission of out-of-court statements offered for the truth of the matter asserted unless an exclusion or exception applies.  However, a statement is not hearsay if offered for a different purpose.  For example, a statement offered to show that a party had notice of a relevant fact or condition is not hearsay.

Here, the secretary's affidavit stated that the secretary heard the driver disclose a history of accidents to the employer.  That statement is hearsay if offered for the truth of the matter asserted—because no exclusion or exception applies.  But it is not hearsay if offered, as it is here, to show that the employer had notice of the driver's history and may have been negligent in hiring him (Choice B).  Therefore, the court may consider the statement because it is not hearsay as it is not being offered to prove the truth of the matter asserted.