Evidence Socrative Questions

In a civil assault case, the plaintiff introduces a blood-stained golf club that she claims the defendant used to beat her.
The club is:

(A) Demonstrative evidence.

(B) Real evidence.

(C) Eyewitness testimony.

(D) Stipulated evidence.

(B) is correct. The plaintiff claims that the defendant used the club to administer the beating; that makes the club a physical object used in the disputed incident. The plaintiff must authenticate the club in some manner, probably by testifying that she recognizes its distinctive features or picked it up after the beating and kept it in a secure place. Assuming that the plaintiff satisfies the authentication rules, which we will discuss later in the course, the judge will admit the club as real evidence.

Defendant is being prosecuted for possessing narcotics with the intent to sell. The prosecutor introduces a plastic bag of powdered sugar and asks the police detective on the witness stand to use the sugar to show how the defendant packaged the narcotics.
The bag of sugar is:

(A) Eyewitness evidence.

(B) Expert evidence.

(C) Real evidence.

(D) Demonstrative evidence.

(D) is correct. Rather than risk taking real narcotics into the courtroom, prosecutors sometimes use a model to show the jury how the defendant packaged and sold the drugs. Powdered sugar looks a lot like cocaine, so a plastic bag of powdered sugar is demonstrative evidence used to illustrate the contraband.

A small software company sues three larger competitors, claiming that they violated price-fixing laws by intentionally agreeing to sell products at the same price. The small company introduces pricelists distributed by the three competitors. The three pricelists each advertise fifty different products at varying costs; each product, however, carries the same price on all the three lists.
The three pricelists are:

(A) Real evidence that provides direct evidence of an intentional agreement to fix prices.

(B) Demonstrative evidence that provides direct evidence of an intentional agreement to fix prices

(C) Real evidence that provides circumstantial evidence of an intentional agreement to fix prices

(D) Demonstrative evidence that provides circumstantial evidence of an intentional agreement to fix prices.

C) is correct. The pricelists are real evidence; they are the actual pricelists distributed by the defendants. The lists, however, do not contain any direct evidence of the defendants' intent or agreement. Instead, the plaintiff will use the lists to urge the jury to infer that the defendants must have intentionally agreed to advertise the same price for each product. The number of identical prices, plaintiff will argue, is too large to result from coincidence. This is a circumstantial use of the pricelists.

James and Mike were stockbrokers who worked together at the same brokerage firm. James is now on trial for insider trading. The prosecutor wants to admit statements made by Mike which implicate James in the insider trading scheme. James objects, arguing that Mike’s statements are hearsay. The prosecutor responds that although Mike’s statements are hearsay, they should be admitted as an opposing party’s statement because Mike and James were co-conspirators. The trial judge rules that Mike and James were co- conspirators and admits the evidence.

James appeals the trial court’s decision to admit Mike’s statements. How should the appellate court rule?

(A) Overturn the lower court ruling if the ruling was an abuse of discretion and affected James’ substantial rights.

(B) Conduct a de novo review of whether the evidence should have been admitted and overturn the trial court if the evidence should have been excluded.

(C) Overturn the lower court because the jury, not the judge, should decide whether a conspiracy existed.

(D) Overturn the lower court if no reasonable juror could find that a conspiracy existed.

(A) is correct. Under Rule 103(a), an appellate court should overturn a lower court's ruling on an evidentiary issue if the ruling affected a substantial right of one of the parties, and as long as the party made a timely objection at the trial court level, the standard of review is abuse of discretion.

(B) is incorrect. An appellate court does not conduct a de novo review of a trial court’s evidentiary rulings. The trial court is in the best position to evaluate the facts of the case and the admissibility of the evidence, and so the appellate court must show some deference to the trial court’s decision. (C) is incorrect. Under Rule 104(a), the judge, not the jury, must decide all questions of admissibility of evidence. (D) is incorrect. It is irrelevant what a reasonable juror would have decided. Under Rule 104(a), the judge, not the jury, must decide all questions of admissibility of evidence.

P is suing D for negligence resulting from a rear-end automobile collision. Which of the following facts is relevant to P’s case?

(A) The fact D was not carrying a driver’s license.

(B) The fact D was driving faster than the posted speed limit.

(C) The fact the license plate on D’s car was expired.

(D) The fact that D was driving a Toyota Prius.

(B) Is the correct answer because driving faster than the posted speed limit might have contributed to an accident whereas the others would not have, and therefore are not relevant.

Daphne Defendant was driving south on High Street. As she was approaching the light at 10th and High Streets, Wally Witness, who was driving in the car next to Daphne, observed her talking on her cell phone and drinking coffee. Two minutes later, at 12th and High Streets, Daphne accidentally struck Patty Peddler on her bike. Patty sues Daphne for negligence. Patty's attorney wants to call Wally to testify as to Daphne's behavior at 10th and High Streets. Is this evidence relevant?

(A) No, because Wally observed Daphne two minutes before the accident.

(B) No, because there is no evidence that the behavior Wally observed caused the accident.

(C) Yes, because Daphne's actions while driving at 12th and High Streets tend to prove, however slightly, that she was not paying close attention to her driving two minutes later.

(D) Yes. Because only two minutes elapsed between the observation and the accident, it is more likely than not that Daphne was still talking on her cell phone and drinking coffee at the time of his accident

(C) is the correct answer. Under Rule 401, for evidence to be deemed relevant and therefore admissible, it only has to make a fact 'of consequence' 'more or less probable.' Under this low threshold, Daphne's multitasking at 12th and High makes it a little more probable that she was multitasking during the accident two minutes later, and tends to show her to be an inattentive and careless driver, both of which are 'facts of consequence.’

Answer (D) is incorrect because it implies the wrong standard for relevance. Patty need not show that it was 'more likely than not' that Daphne was still multitasking at the time of the accident; only that the proffered evidence makes such a fact slightly more likely than it would be without the evidence. Answer (A) is incorrect because timing is not a necessary factor in determining relevance of evidence. Even though the spill occurred several minutes before the accident, it may be relevant if it helps prove a fact 'of consequence.' Answer (B) is incorrect because Rule 401 does not require evidence to be the direct cause of an accident for it to be admissible; the evidence needs only to have 'any tendency' to make a fact 'more or less probable.' Multitasking while driving has some tendency to show that Daphne was distracted--and therefore negligent--so it is admissible.

Dozens of women are suing Danforth Pharmaceuticals, claiming that its new anti-depressant drug Serenity caused birth defects in their children. Under the applicable state law, Danforth is strictly liable for any injuries caused by products that it manufactured, but it claims that the chemicals in the drug could not possibly have been the cause of the birth defects.

Which of the following pieces of evidence would be relevant to the case?

(A) The plaintiffs offer evidence that the CEO of Danforth is a member of a White Supremacist group and attended monthly meetings which included a pledge to “protect and advance the interests of the Aryan race.”

(B) The plaintiffs offer evidence that Serenity does not in fact help treat depression.

(C) The plaintiffs offer evidence that Danforth did not conduct any independent tests of the drug before putting it on the market.

(D) None of the above.

(D) is the answer. Although relevance is a very low standard, the evidence must make a fact in consequence a little more or less likely. Very often, whether something is relevant will depend on the law that applies to the case. In this lawsuit, the plaintiffs only need prove that Serenity caused their injuries—anything else about the effect of the drug, or about whether Danforth was at fault in manufacturing the drug—is irrelevant.

(A) is incorrect because the racial bias of the CEO —however despicable—does nothing to help a finder of fact determine whether or not the drug caused birth defects. (In fact, the inflammatory nature of this evidence would make it even less likely to be admitted under Rule 403, as we will learn in subsequent chapters). If there were additional facts, such as the fact that Serenity was heavily marketed towards non-white patients, the CEO’s racial bias could conceivably be relevant, but that was not the case here. (B) is incorrect because whether or not Serenity actually helps treat depression is irrelevant to the question of whether it causes birth defects. And (C) is incorrect because the applicable law is strict liability—whether or not Danforth conducted tests would tend to prove negligent or reckless behavior, but Farnsworth’s degree of fault is inadmissible in this case. Therefore, none of these facts are relevant to the lawsuit.

Paul is suing Daphne for injuries sustained when Paul slipped on an icy sidewalk allegedly owned by Daphne. Daphne denies owning the part of the sidewalk where Paul slipped.

Which of the following is not admissible?

(A) That after the accident, Daphne contracted with Bob to shovel and apply salt to the sidewalk.

(B) That after Paul filed a lawsuit, Daphne's lawyer said to Paul's lawyer during a settlement discussion “She may be subject to liability.”

(C) That immediately after Paul fell, Daphne put an orange cone next to the ice.

(D) That after offering to pay Paul’s medical bills, Daphne said “I should have shoveled my sidewalk; I just didn’t get around to it.”

(B) is correct because under Rule 408, this was an offer to settle.

(A) is incorrect because under Rule 407, this SRM is admissible because Daphne contested ownership. (C) is incorrect because under Rule 407, this SRM is admissible because Daphne contested ownership. (D) is incorrect because under Rule Rule 409, only the portion of the statement offering to pay medical bills is excluded.

A Secna 172 aircraft stalled in flight, killing the pilot and 2 passengers. After the crash, Secna began installing stall warning indicators on all production aircraft. The estate of a passenger sues Secna alleging defective design for failing to install a stall warning indicator on the subject airplane. Secna’s only defense is pilot error. Is the evidence of installing stall warning indicators admissible?'

(A) Yes, it is relevant to prove the feasibility of installing the indicators.

(B) Yes, it is relevant to prove Secna’s negligence.

(C) No, this is a subsequent remedial measure, and is not within an exception.

(D) No, installation of the indicator is not relevant because it is insufficient to establish proximate cause.

(C) is correct because defendant did not dispute feasibility.

(A) is incorrect because this is a SRM that is being used to show defective design, and defendant did not dispute feasibility. (B) is incorrect because this is a SRM that is being used to show negligence which is one of the purposes for which SRMs are not allowed. (D) is incorrect because the evidence is clearly relevant, however it is excluded for Rule 407 policy reasons.

The Dacite Corporation fired Patty, a 63 year-old vice-president. Patty sued for age and gender discrimination. During settlement negotiations, Dacite offered Patty an alternative position as a salesperson. She refused the offer and later the negotiations broke down. At trial six months later, Dacite attempts to offer evidence of its offer. The judge should:

(A) Admit the evidence because the rule excluding such evidence does not apply when the party offering the evidence is the party that made the statement.

(B) Admit the evidence because it is not being used to show the amount of a disputed claim.

(C) Exclude the evidence.

(D) Admit the evidence because settlement negotiations broke down.

(C) is correct because the statement was made during settlement negotiations and no exception applies.

(A) is incorrect because Rule 408 expressly states the evidence is not admissible "on behalf of either party." (B) is incorrect because under Rule 408(a)(2), "a statement made during compromise negotiations" is excluded unless an exception applies. (D) is incorrect because the only time a statement would be used in trial is if settlement negotiations broke down - otherwise there would not be a trial.

The prosecutor wants to introduce a recorded statement made by Darrell to a police officer after failed plea negotiations had ended. Darrell said: “Yes, I am guilty of killing Val, but your eyewitness is dead.” Is the statement admissible?

(A) No because it is not relevant.

(B) Yes because it goes to the issue of credibility.

(C) No, statements made during plea negotiations are not admissible.

(D) Yes because the statement was made to a police officer after plea bargaining had ended.

(D) is correct because Rule 410(a)(4) limits excluded plea bargaining statements to those made "during plea discussions with an attorney for the prosecuting authority."

(A) is incorrect because under Rule 401, the statement is relevant.

(B) is incorrect because credibility is not an exception to Rule 410.

(C) is incorrect because there are some limited exceptions to Rule 410.

Petunia Patient suffered complications from surgery and sued Dr. Danielle for malpractice. At trial, Dr. Danielle introduced the testimony of Dr. Expert who testified that Dr. Danielle met the standard of care. Petunia seeks to admit evidence that Dr. Expert is employed by Dr. Danielle’s malpractice insurance company. How should the judge rule?

(A) Admit the evidence because it is not being used to show that Dr. Danielle acted negligently.

(B) Admit the evidence because the rule applies only to liability insurance, not malpractice insurance.

(C) Exclude the evidence because it involves evidence of liability insurance.

(D) Exclude the evidence because it is not relevant.

(A) Is the correct answer because under Rule 411, evidence regarding liability insurance may be admitted to show a witness’s bias.

(B) Is incorrect because malpractice insurance is a type of liability insurance. (C) Is incorrect because this evidence fits within an exception to Rule 411. (D) Is incorrect because the evidence is relevant.

Gail is an eyewitness in a hit-and-run prosecution. When the prosecutor asks her for the license plate of the car that she saw strike the pedestrian, she states that she cannot remember the license plate number. The prosecutor asks if seeing a photo of the license plate would refresh her recollection, and Gail says yes. The prosecutor has a photo of the license plate. What is the proper procedure to refresh the witness’ recollection?

(A) The prosecutor should introduce the photo into evidence and then show it to the jury.

(B) The witness should look at the photo and then it should be taken away from her and she should testify about the license plate number from her refreshed recollection.

(C) The prosecutor must confirm that the witness was the one who took the photo before it can be used to refresh her recollection.

(D) The photo cannot be used to refresh recollection because it is not a “writing.”

B) is correct. The proper procedure for refreshing recollection under Rule 612 is to have the witness look at the writing, then take it away and have her testify from her refreshed recollection. Any item that refreshes recollection can count as a “writing.” The writing cannot be admitted as evidence by the party who is using to refresh recollection.

(A) is incorrect because Rule 612 allows the opposing party to admit a writing used to refresh recollection, but it does not allow the party who is using the writing to refresh recollection to admit the writing into evidence. (D) is incorrect because the term "writing is construed broadly. (C) is incorrect because there is no requirement that the witness must create the writing which is used to refresh her recollection.

George was loading a truck at work with boxes when the forklift operator accidentally hit him with the forklift, crushing his torso and breaking six ribs. George was rushed to the hospital and prepped for surgery to repair damage to his internal organs. As he was waiting to go into surgery, the Vice-President of the company he worked for came to him and said: “George, this was a terrible thing to happen. I want to assure you that the company will pay for this surgery and any rehabilitation that you need.”

George is now suing his company for negligent training and supervising of its employees, and he wants to testify as to the Vice-President’s statement. Which rule of evidence would be the BEST one for the company to cite when it objects to this evidence?

(A) Rule 402, which bars irrelevant evidence.

(B) Rule 409, which bars any offer to pay medical expenses.

(C) Rule 408, which bars evidence of settlement offers or negotiations.

(D) Rule 403 which excludes evidence when the risk of prejudice substantially outweighs the probative value of the evidence.

(B) is correct. Rule 409 bars evidence of any offer to pay medical expenses if offered to prove liability, regardless of whether there was a disputed claim at the time of the offer.

(A) is incorrect. Rule 402 states that irrelevant evidence is inadmissible. Although the statement made by the Vice-President has very little probative value, it is relevant because the fact that the Vice-President offered to pay for the surgery makes it a little more likely that the company is at fault in the accident. (C) is incorrect. Rule 408 bars evidence of any settlement offer, but only if there was a disputed claim at the time the offer was made. In this case, there was no claim because George had not filed any kind of formal complaint against the company, and there was no dispute because the Vice- President did not contest liability in any way. Thus, Rule 408 does not apply. (D) is incorrect. Although it is possible that Rule 403 would preclude the evidence, that rule presents a high bar because the risk of prejudice must substantially outweigh the probative value of the evidence. Therefore, B is a better answer.

The state is prosecuting Daniel for conspiracy to sell drugs. In its case-in-chief, the state offers the testimony of Walter, who allegedly conspired with Daniel and is now cooperating with the state. Walter has a prior conviction for felony aggravated assault, which occurred eleven years ago. He received probation for the crime. Can the defendant’s attorney use that prior conviction to impeach Walter?

(A) Yes, if the trial judge finds that the probative value of the prior conviction outweighs its prejudicial effect on the state.

(B) Yes, if the trial judge finds that the probative value of the prior conviction substantially outweighs its prejudicial effect to the state.

(C) Yes, unless the trial judge finds that the probative value of the prior conviction is substantially outweighed by the prejudicial effect to the state.

(D) Yes, as long as the prior conviction has some probative value— there is no need to conduct a balancing test.

(B) is correct. Under Rule 609, this is the test to use for admitting prior convictions that occurred over ten years ago, as is the case here.

(A) is incorrect. Under Rule 609, this is the test to use for admitting prior convictions that occurred within the past ten years when the witness is the criminal defendant. (C) is incorrect. Under Rule 609, this is the test (the Rule 403 test) to use for admitting prior convictions that occurred within the past ten years, but this conviction is over ten years old. (D) is incorrect. Under Rule 609, some balancing test is required unless the crime is a crime of falsity, and aggravated assault is not a crime of falsity.

Theresa is on trial for aggravated assault. She has testified in her defense. She has three prior convictions: one for aggravated assault (a felony) from six years ago, one for fraudulently filing a false police report (a misdemeanor) three years ago, and one for selling narcotics (a felony) one year ago. The prosecutor seeks to admit all three prior convictions as evidence in order to impeach her through proof of character for dishonesty. Which convictions (if any) are admissible?

(A) The aggravated assault is likely inadmissible; filing a false police report is admissible, and the selling of narcotics will be admissible if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its prejudicial effect on the defendant.

(B) The aggravated assault is almost certainly inadmissible; filing a false police report is certainly admissible, and the selling of narcotics will be admissible if the probative value of the evidence in proving the defendant’s propensity for committing crimes outweighs its prejudicial effect to the defendant.

(C) The aggravated assault is almost certainly admissible; filing a false police report is admissible if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its prejudicial effect on the defendant, and the narcotics sale is almost certainly inadmissible.

(D) The aggravated assault is almost certainly admissible; filing a false police report is admissible if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its unfair prejudice to the defendant, and the narcotics sale will be admissible if the probative value of the evidence in proving the defendant’s propensity for committing crimes outweighs its prejudicial effect on the defendant.

(A) is correct. Rule 609 governs the admissibility of prior convictions when used to impeach witnesses. Felonies which are not crimes of falsity (such as the aggravated assault and the narcotics sales) are admissible if the probative value of the evidence in proving the defendant’s propensity for dishonesty outweighs its unfair prejudice to the defendant. In the case of the aggravated assault, the prior conviction is almost certainly inadmissible, because its similarity to the current crime makes it extremely unfairly prejudicial to the defendant. The filing of a false police report is a crime of falsity, so it is automatically admissible under Rule 609(a)(2).

(B) is incorrect. Rule 609 governs the admissibility of prior convictions when used to impeach witnesses. The probative value that is measured under Rule 609, however, is only the probative value to prove propensity for truthfulness, not propensity for criminal behavior. Thus, the probative value for committing crimes cannot be part of the balancing test. (C) is incorrect. Rule 609 governs the admissibility of prior convictions when used to impeach witnesses. The rule for felonies against criminal defendants is that the probative value to prove propensity for dishonesty must outweigh the unfair prejudice to the defendant. The prior conviction for aggravated assault is identical to the crime for which the defendant is now on trial, so the unfair prejudice would be extremely high, while the probative value to prove propensity for dishonesty is very low for a crime of violence, so the prior conviction for aggravated assault is almost certainly not admissible. (D) is incorrect. Rule 609 governs the admissibility of prior convictions when used to impeach witnesses. The rule for felonies against criminal defendants is that the probative value to prove propensity for dishonesty must outweigh the unfair prejudice to the defendant. The prior conviction for aggravated assault is identical to the crime for which the defendant is now on trial, so the unfair prejudice would be extremely high, while the probative value to prove propensity for dishonesty is very low for a crime of violence, so the prior conviction for aggravated assault is almost certainly not admissible.

Fred is on trial for selling heroin. He has a prior conviction for burglary from two years ago. Under what conditions is it most likely that the prior conviction for burglary will be admitted in evidence?

(A) If Fred testifies.

(B) If Fred calls a character witness to testify that he has known Fred for ten years and in his opinion Fred would never use or sell heroin.

(C) If the prosecutor calls a character witness to testify that she has known Fred for ten years and in her opinion Fred has a propensity to commit crimes.

(D) If the burglary conviction came from a jury verdict rather than a plea bargain.

(A) is correct. The court should apply the balancing test from Rule 609(a)(1)(B), and admit the prior conviction only if its probative value to impeach Fred in this case outweighs the unfair prejudice to Fred.

(B) is incorrect. It is true that under Rule 609(a)(2), a prior conviction is a crime of falsity if the court can readily determine that establishing the elements of the crime required proving a dishonest act. However, if the prior conviction is determined to not be a crime of falsity, the conviction could still be admissible under Rule 609(a)(1)(B). (C) is incorrect. Under Rule 609(a)(2), a prior conviction is a crime of falsity if the court can readily determine that establishing the elements of the crime required proving a dishonest act. A court is allowed to review the indictment to see if the defendant committed the crime with a dishonest act. (D) is incorrect. Under Rule 609(a)(2), a prior conviction is a crime of falsity if the court can readily determine that establishing the elements of the crime required proving a dishonest act. A court is allowed to review the indictment to see if the defendant committed the crime with a dishonest act.

Greg is suing Valerie for breach of contract. Valerie has two prior convictions. Twelve years ago she was convicted of income tax fraud, a felony, and she served three years in prison. Six years ago she was convicted of filing a false police report, a misdemeanor, and she served six months in prison. Greg would like to admit the two prior convictions as evidence. Are they admissible?

(A) If Valerie testifies, the filing a false police report is automatically admissible, and the income tax fraud is admissible if its probative value to impeach her substantially outweighs its unfair prejudice.

(B) If Valerie testifies, they are both automatically admissible.

(C) If Valerie testifies, the income tax fraud is admissible if its probative value to impeach her substantially outweighs its unfair prejudice, and the filing a false police report is not admissible.

(D) Neither conviction is admissible whether Valerie testifies or not.

(B) is correct. Under Rule 609(a)(2) any conviction for a crime of falsity that occurred within ten years is automatically admissible. The ten years is calculated from the time of “conviction, or release from confinement, whichever is later.” Thus, the ten year time limit does not count any time spent in prison, so for the purposes of Rule 609, the income tax fraud conviction occurred nine years ago.

(A) is incorrect. Although it may appear that the income tax fraud conviction occurred over ten years ago, the time calculation does not include any time spent in prison, so for the purposes of Rule 609, the income tax fraud conviction occurred nine years ago. (C) is incorrect. Although it may appear that the income tax fraud conviction occurred over ten years ago, the time calculation does not include any time spent in prison, so for the purposes of Rule 609, the income tax fraud conviction occurred nine years ago. Also, although the filing a false police report is a misdemeanor, it is a crime of falsity under Rule 609(a)(2). (D) is incorrect. Under Rule 609, a non-falsity misdemeanor conviction is not admissible for impeachment purposes.

Which of the following convictions is a judge most likely to allow into evidence?

(A) A 2-year-old felony burglary conviction in a criminal case where a testifying criminal defendant is charged with burglary.

(B) A 5-year-old misdemeanor forgery conviction where a testifying criminal defendant is charged with burglary.

(C) A 3-year-old rxpe conviction where a testifying criminal defendant is charged with burglary.

(D) A 12-year-old felony fraud conviction where a testifying criminal defendant is charged with burglary.

(B) is correct because 609(2)(A) requires the judge to admit a conviction for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving- or the witness’s admitting-a dishonest act or false statement.

(A) is incorrect because the judge is required to admit (B). Additionally, similarity between a past offense and the charged offense weighs against admission of evidence. (C) is incorrect because the judge is required to admit (B). Additionally, conviction of violent crimes is less probative o truthfulness. (D)is incorrect because the conviction is more than 10-years-old. Under Rule 609(b), a more stringent test is applied.

Louis was pulled over for speeding by Officer Gareth of the Tarrytown Police Department. During this encounter, Officer Gareth allegedly ordered Louis out of the car and then struck him six times with his nightstick when Louis insulted him. Louis is now suing Officer Gareth and the Tarrytown Police Department, alleging that Officer Gareth used excessive force against him and that the Tarrytown police department failed to properly train, supervise, and discipline Officer Gareth. In his case-in-chief, Louis seeks to admit evidence that on three prior occasions in the past year, Officer Gareth had beaten motorists after he pulled them over for speeding. This evidence is:

(A) Admissible against Officer Gareth to prove he has a propensity for violence and against the Tarrytown Police Department.

(B) Admissible against Officer Gareth to prove he has a propensity for violence, but not against the Tarrytown Police Department.

(C) Admissible against the Tarrytown Police Department, but not admissible against Officer Gareth if offered to prove he has a propensity for violence.

(D) Inadmissible against both Officer Gareth if offered to prove he has a propensity for violence and inadmissible against the Tarrytown Police Department.

(C) is correct. If the evidence is offered to prove that Officer Gareth has acted violently in the past and is therefore more likely to have acted violently on this occasion, it is improper character evidence and is barred by Rule 404. However, it is relevant in the case against the police department as evidence that the department knew (or should have known) that Officer Gareth was violent and therefore should have taken some measures (training, discipline, termination) to prevent him from acting violently again. In other words, the police department could be liable for negligent entrustment by not taking action against Officer Gareth. Thus, Officer Gareth’s character is directly at issue in the case against the police department, and the evidence is not barred by Rule 404.

(A) is incorrect. If the evidence is offered to prove that Officer Gareth has acted violently in the past and is therefore more likely to have acted violently on this occasion, it is improper character evidence and is barred by Rule 404. It is not specific enough nor repeated enough to be considered habit evidence under Rule 406. (B) is incorrect. If the evidence is offered to prove that Officer Gareth has acted violently in the past and is therefore more likely to have acted violently on this occasion, it is improper character evidence and is barred by Rule 404. It is not specific enough nor repeated enough to be considered habit evidence under Rule 406. (D) is incorrect. The evidence in the case against the police department is relevant to show the department knew (or should have known) that Officer Gareth was violent and therefore should have taken some measures (training, discipline, termination) to prevent him from acting violently again. Thus, Officer Gareth’s character is directly at issue in the case against the police department, and the evidence is not barred by Rule 404.

Stan is charged with felony domestic violence after he allegedly struck his girlfriend in the chest with a baseball bat. At trial, the prosecutor will seek to offer evidence that six months earlier, Stan had beaten his former girlfriend with his fists so severely that she went to the hospital for two days. Stan is pleading self-defense, and at trial he will seek to admit evidence that three years earlier, his girlfriend got into a dispute with a store manager while she was shopping and she pushed the manager into a glass table, causing multiple lacerations and requiring the manager to get over twenty stitches. There is no evidence that Stan knew about the incident with the store manager at the time he struck his girlfriend with the baseball bat. How should the judge rule on these proposed pieces of evidence?

(A) Both pieces of evidence are admissible regardless of the order in which they are offered.

(B) The evidence that Stan’s girlfriend pushed the manager into a glass table three years ago is admissible, but the evidence that Stan beat his former girlfriend six months earlier is not admissible.

(C) The evidence that Stan’s girlfriend pushed the manager into a glass table three years ago is admissible, and after that evidence is admitted, the evidence that Stan beat his former girlfriend six months earlier is admissible.

(D) Both pieces of evidence are inadmissible regardless of the order in which they are offered.

(D) is correct. Although Rule 404(a)(2) allows the criminal defendant to go first in offering propensity evidence of the victim, and then allows the prosecutor to respond with evidence of the defendant’s propensity, Rule 405 states that when character evidence is offered to prove propensity (as here where Stan is proving that his girlfriend has a propensity to be violent, and therefore is more likely to have been acting violently on this occasion), character evidence can only be proven on direct with reputation or opinion evidence, not with specific instances of conduct. Stan could try to argue that his girlfriend’s violent action towards the store manager is admissible to support his self-defense claim, to show he had reasonable fear of her when he hit her with the bat, but since he had no knowledge of his girlfriend’s violent action at the time he struck her, this evidence is irrelevant to his state of mind at the time of the alleged crime.

(A) is incorrect. Rule 404(a)(2) and Rule 405 set out specific rules for admitting character evidence, stating that the criminal defendant must go first with offering character evidence and restricting the manner in which character evidence can be proved to the jury. (B) is incorrect. Rule 405 states that when character evidence is offered to prove propensity (as here where Stan is proving that his girlfriend has a propensity to be violent, and therefore is more likely to have been acting violently on this occasion), character evidence can only be proven on direct with reputation or opinion evidence, not with specific instances of conduct. Stan could try to argue that his girlfriend’s violent action towards the store manager is admissible to support his self-defense claim, to show he had reasonable fear of her when he hit her with the bat, but since he had no knowledge of his girlfriend’s violent action at the time he struck her, this evidence is irrelevant to his state of mind at the time of the alleged crime. (C) is incorrect. Rule 405 states that when character evidence is offered to prove propensity (as here where Stan is proving that his girlfriend has a propensity to be violent, and therefore is more likely to have been acting violently on this occasion), character evidence can only be proven on direct with reputation or opinion evidence, not with specific instances of conduct. Stan could try to argue that his girlfriend’s violent action towards the store manager is admissible to support his self-defense claim, to show he had reasonable fear of her when he hit her with the bat, but since he had no knowledge of his girlfriend’s violent action at the time he struck her, this evidence is irrelevant to his state of mind at the time of the alleged crime.

Detective Starr works as a narcotics detective for the Smithville Police Department. He has been indicted on charges of theft and cocaine possession with intent to distribute. The prosecutor alleges that six months ago Detective Starr arrested a suspect for cocaine possession, and found five kilograms of cocaine in the trunk of the suspect’s car, but only turned in four kilograms to the police property room as evidence, keeping one kilo for himself in order to sell. Detective Starr denies the charges, arguing that there were only four kilograms of cocaine in the trunk originally and that he never stole any cocaine.

At trial, Starr calls two character witnesses. The first is Detective Reynoso, Starr’s partner. Detective Reynoso will testify that he has worked with Starr for five years and that Starr is the bravest police officer he has ever known. The second witness is Sarah, Detective Starr’s girlfriend. Sarah will testify that she has known Starr for ten years and that he is extremely honest and law-abiding. The prosecutor objects to both witnesses. How should the court rule?

(A) Admit Detective Reynoso’s testimony but not Sarah’s testimony.

(B) Admit Sarah’s testimony but not Detective Reynoso’s testimony.

(C) Admit both Detective Reynoso’s testimony and Sarah’s testimony.

(D) Preclude both Detective Reynoso’s testimony and Sarah’s testimony.

(B) is correct. Rule 404(a)(2) allows a criminal defendant to admit propensity evidence for any “pertinent trait,” and Sarah’s testimony that Starr is honest and law-abiding tends to prove that he did not commit the crime of stealing the cocaine with the intent to sell it. However, Detective Reynoso’s testimony that Detective Starr is a brave a police officer is not pertinent to whether Starr stole the cocaine or possessed it with the intent to sell it.

(A) is incorrect. Although Rule 404(a)(2) allows a criminal defendant to admit propensity evidence in his defense, the evidence must be about a “pertinent trait.” Detective Starr’s bravery as a police officer is not pertinent to whether he stole the cocaine or possessed it with the intent to sell it. (C) is incorrect. Although Rule 404(a)(2) allows a criminal defendant to admit propensity evidence in his defense, the evidence must be about a “pertinent trait.” Detective Starr’s bravery as a police officer is not pertinent to whether he stole the cocaine or possessed it with the intent to sell it. (D) is incorrect. Rule 404(a)(2) allows a criminal defendant to admit propensity evidence for any “pertinent trait,” and Sarah’s testimony that Starr is honest and law-abiding tends to prove that he did not commit the crime of stealing the cocaine or possessed it with the intent to sell it.

Sandy is on trial for selling crack cocaine. To prove the crime, the prosecutor will call Officer Grange, an undercover officer who will testify that he approached Sandy and that she gave him a rock of crack cocaine inside a red balloon. Sandy argues that she was not the one who sold Officer Grange the cocaine—she was merely standing next to the seller, and the police arrested the wrong person. The prosecutor also wants to call Officer Hansen, an undercover officer who purchased crack cocaine from Sandy one year ago. Sandy was arrested for that crime, pled guilty, and served six months in jail.

Officer Hansen will testify that when he bought the crack cocaine from Sandy one year ago, she gave him the cocaine inside a red balloon. Is Officer Hansen’s testimony admissible?

(A) Only if Sandy challenges the fact that the substance sold was in fact crack cocaine.

(B) Only if the judge is convinced that using red balloons to package crack cocaine is a distinctive and unusual practice for drug dealers

(C) Only if the judge determines that the probative value of her propensity to sell cocaine outweighs the unfair prejudice of the jury hearing the evidence.

(D) No, his testimony is not admissible.

(B) is correct.This evidence is offered in order to prove identity under Rule 404(b)—that is, to prove that since Sandy was the one who sold drugs in this distinctive way one year ago, it is more likely that she was the one who sold drugs in this distinctive way in the current case. The prior act was only one year ago, and so it is close enough in time that it is not remote. This evidence has no probative value for this purpose unless the judge determines that packaging crack cocaine inside a red balloon is distinctive and unusual.

(A) is incorrect. It is irrelevant whether Sandy challenges the fact that the substance was in fact crack cocaine. The evidence is being offered to prove identity under Rule 404(b), which is still at issue regardless of whether Sandy claims that no crack cocaine was sold. C) is incorrect. Under Rule 404(a), the evidence is inadmissible to prove the defendant’s propensity to sell cocaine, and so it does not matter how much probative value the evidence has to prove that point. (D) is incorrect. Although the evidence is inadmissible to prove the defendant’s propensity to sell cocaine under Rule 404(a), it is relevant and thus admissible for another purpose.

Stanley is accused of shooting and killing his wife. Stanley admits that he shot his wife, but claimed that it was an accident—that he had picked up the gun to see whether it was loaded and it went off. The prosecutor wishes to call Greg as one of her witnesses. Greg is one of Stanley’ friends from the local bar, and Greg will testify that two weeks before Stanley shot his wife, Stanley offered Greg $1,000 if Greg would break into Stanley’s house and kill his wife. Greg refused the offer, but did not go to the police with the information until after Stanley’s wife was killed. Stanley has not been charged with a crime for his offer to Greg.

Can Greg testify about Stanley’s offer?

(A) Yes, to prove intent and lack of accident.

(B) Yes, to prove identity.

(C) No, because character evidence is inadmissible.

(D) No, because it is unfairly prejudicial.

(A) is correct. Greg’s testimony might have been admissible under Rule 404(b) even if Stanley were not claiming that the shooting was an accident, in order to prove that Stanley intended to kill his wife. Since Stanley is claiming that the shooting was an accident, it increases the probative value of Greg’s testimony significantly in order to rebut Stanley’s claim.

(B) is incorrect. Stanley is not contesting identity in this case—he is admitting that he was the one who shot his wife. Also, identity is usually proven by showing a prior, similar crime conducted by an unusual, distinctive method. (C) is incorrect. Although the evidence does tend to prove something about Stanley’s character (namely, that Stanley is has a propensity to commit criminal acts), and although it would be inadmissible under Rule 404(a) if offered for that purpose, it is being offered (and has strong probative value) for a different purpose. (D) is incorrect. Although the evidence may have some slight level of unfair prejudice in that it shows that Stanley was willing to pay money to have his wife killed, the unfair prejudice is very small compared to the extremely high probative value of the evidence.

The police exercised a search warrant on Carl and Stacy’s apartment and they found half a kilo of cocaine hidden under the couch in a guest room. Carl and Stacy were both arrested. After the arrest, Carl maintained his innocence, claiming that he had no idea there was cocaine in the apartment. Stacy immediately told the police that the cocaine was hers and that Carl didn’t know anything about it. The prosecutor did not believe that Carl was innocent, and she charged both Stacy and Carl with possession of a controlled substance with the intent to sell. Stacy pled guilty, but Carl went to trial.

At trial, Carl took the stand and testified that he knew nothing about the cocaine, but that he had seen Stacy hiding something under the couch in the bedroom. He will further testify that she told him not to worry about what it was and never to look at it, an order which he obeyed. In her rebuttal, the prosecutor offered evidence that Stacy had only a sixth grade education, that she had a very low I.Q., that she immigrated to this country only eighteen months before the police raided the apartment, and that she speaks almost no English. Carl objected to this evidence and was overruled. After the prosecutor’s rebuttal, Carl responded by offering evidence that Stacy has two prior convictions for selling cocaine over the past eighteen months. The prosecutor objected to this and was overruled. Stacy did not testify in this case. Was the judge correct in making her rulings?

(A) Yes, both pieces of evidence were properly admitted.

(B) No. Neither piece of evidence should have been admitted.

(C) No. Although the prosecutor should have been allowed to admit evidence about Stacy’s background, the defendant should not have been allowed to admit evidence of Stacy’s prior convictions.

(D) No. The prosecutor should not have been allowed to admit evidence of Stacy’s background, but the defendant was properly allowed to admit evidence of Stacy’s prior convictions.

(A) is correct. The prosecutor’s evidence of Stacy’s education level, low I.Q., and proficiency in English is not technically character evidence; it tends to show that Stacy did not have the ability to buy and sell that quantity of drugs. Carl’s evidence of Stacy’s prior convictions could be considered character evidence and would be inadmissible if offered to prove Stacy had a propensity to sell drugs, but it is being offered here to prove knowledge under Rule 404(b)—that is, to show that Stacy did in fact have the knowledge and ability to sell drugs.

(B) is incorrect. Although both pieces of evidence could be seen as character evidence, which would make them inadmissible under Rule 404(a), neither is offered to prove propensity, and both have some probative value to prove something other than propensity. (C) is incorrect. Carl’s evidence of Stacy’s prior convictions could be considered character evidence and would be inadmissible if offered to prove Stacy had a propensity to sell drugs, but it is being offered here for another purpose. (D) is incorrect. The prosecutor’s evidence of Stacy’s education level, low I.Q., and proficiency in English is not technically character evidence, and it is relevant to prove that Stacy did in fact have the knowledge and ability to sell drugs.

Stuart is charged with stabbing a person in an alleyway outside a bar. He is pleading self-defense. During his defense case, his attorney has four character witnesses he wants to call. Which of them is most likely to be allowed to testify?

(A) Stuart’s wife will testify that she knows Stuart very well and in her opinion he is a very honest person.

(B) Stuart’s boss at work will testify that he has known Stuart for fifteen years and Stuart is a model employee who is never late and has an excellent work ethic.

(C) Stuart’s best friend will testify that he once saw a person threaten Stuart with a knife, and Stuart never lost his temper, remained calm, and convinced the person to put the knife down.

(D) Stuart’s father will testify that he has known Stuart his entire life and that Stuart has always been peaceful and never loses his temper.

(D) is correct. Stuart’s peaceful character is a pertinent trait, and Rule 404(a) allows the defendant to elicit evidence that supports a pertinent character trait if given in the form of opinion or reputation evidence.

A) is incorrect. Although general opinion evidence is admissible under Rule 404(a) to support a defendant’s character, the opinion evidence has to be about a pertinent character trait, and Stuart’s honesty is not pertinent to the crime for which he is being charged. Character evidence about Stuart’s honesty will only be allowed if Stuart has testified and his character for honesty has been attacked by the prosecutor. (B) is incorrect. Although general opinion evidence is admissible under Rule 404(a) to support a defendant’s character, the opinion evidence has to be about a pertinent character trait, and Stuart’s work ethic is not a pertinent trait. (C) is incorrect. Although Stuart’s peaceful character is a pertinent trait, and Rule 404(a) allows the defendant to elicit evidence that supports a pertinent character trait, the evidence must be given in the form of opinion or reputation, not a specific act.

Louis is on trial for robbing a convenience store. The prosecutor seeks to call his girlfriend as a witness to testify that Louis was a regular user of heroin, and spent over $50 on heroin every day. She will also testify that Louis owed his heroin dealer over $500. Louis objects to this testimony as inadmissible character evidence. The judge should:

(A) Admit the testimony about Louis’ heroin use and his debt to the dealer to prove motive.

(B) Admit the testimony about Louis’ heroin use and his debt to prove that he has a propensity to commit crimes.

(C) Admit the testimony about Louis’ heroin use and debt only after Louis calls a character witness to testify that he is law-abiding and honest.

(D) Preclude the testimony about Louis’ heroin use and debt.

(A) is correct. The evidence has significant probative value in proving that Louis had a motive to commit the crime, and it is admissible for that purpose under Rule 404(b). If Louis requests it, the judge will give a limiting instruction telling the jury not to consider the evidence for character purposes.

(B) is incorrect. If offered to prove propensity, the evidence is inadmissible under Rule 404(a). (C) is incorrect. The evidence is not being offered to prove character, and so the prosecutor does not have to wait for Louis to open the door with his own character evidence. Even if Louis did offer character evidence, under Rule 405 the prosecutor would not be permitted to admit extrinsic evidence of specific act evidence, only opinion and reputation evidence. Thus, the prosecutor ask about Louis’ heroin use when cross-examining Louis’ character witness, but could not bring in extrinsic evidence to prove his propensity to commit crimes. (D) is incorrect. Although the evidence is inadmissible if offered to prove propensity, it has a probative value aside from the propensity purpose.

Paul Plaintiff trips on uneven pavement in front of Daryl Defendant’s house. Daryl denies that the pavement belongs to him, arguing it belongs to Danger City. Paul sues Daryl for his injuries and seeks to introduce the testimony of Nora Neighbor who saw Daryl repairing the sidewalk a week after Paul tripped. Is Nora’s testimony admissible?

(A) Nora’s testimony is inadmissible because it goes to a subsequent remedial measure

(B) Nora’s testimony is inadmissible because too much time has passed since the injury.

(C) Nora’s testimony is admissible because it is evidence that Daryl owns or controls the sidewalk.

(D) Nora’s testimony is admissible because it proves the sidewalk was dangerous before the repair.

(C) is correct. Under Rule 407, a SRM is admissible to show ownership or control.

David Defendant is on trial for murdering Valerie Victim. The prosecutor offers the testimony of William Witness who heard Valerie accuse David of embezzling from their partnership. David timely objects to the testimony. The judge should rule:

(A) For the prosecutor because Valerie’s statement may have motivated David to murder her.

(B) For the prosecutor because Valerie’s accusation tends to establish that David is dishonest.

(C) For David because the testimony is insufficient to sustain a guilty verdict.

(D) For David because the testimony is circumstantial evidence.

(A) is correct. Under 404(b)(2) the evidence is offered not to show propensity, but to show motive.

Danny is on trial for molesting his 11-year old stepdaughter. The prosecutor intends to introduce evidence that Danny was discharged from his position as a 5th grade elementary school teacher 12 years ago after he was caught molesting one of his female students. Which of the following is most accurate?

(A) The judge may admit this evidence, but Danny is entitled to a limiting instruction that the evidence may be considered only on the question of Danny’s credibility.

(B) The evidence is inadmissible because the prior molestation took place more than 10 years ago.

(C) The evidence is inadmissible to prove Danny’s propensity to molest young girls.

(D) The evidence is admissible to prove Danny’s propensity to molest young girls.

(D) is correct. Under Rule 414, the court may admit evidence of any other child molestation and it may be considered on any matter to which it is relevant.

Penelope Plaintiff is suing Darla Defendant for breach of contract. Penelope called Darla after suit was filed and offered to settle for $2,000 saying “I’m not sure if the contract terms were clear.” Darla rejected the offer, and now seeks to testify about the statement and offer at trial. If Penelope objects, how should the judge rule?

(A) The offer is admissible, but the statement is privileged.

(B) The amount of the offer is inadmissible, but the statement about the contract is admissible.

(C) Both the offer and statement are admissible because the evidence is more probative than prejudicial.

(D) Both the offer and the statement are inadmissible.

(D) is correct. Under Rule 408, evidence of making an offer to settle, the amount offered and statements made in connection with settlement negotiations are inadmissible.

Parker, the plaintiff in a civil auto collision case, calls Wilhelm as a witness Wilhelm testifies that Darcy Defendant ran a red light and collided with Parker. Darcy’s counsel asks Wilhelm: “Isn’t it true that you were convicted six years ago of Aggravated Assault which is a felony. If Aggravated Assault is punishable by five years in prison, Parker’s objection should be:

(A) Sustained if the court concludes that the probative value of the conviction is substantially outweighed by its prejudicial effect.

(B) Sustained because the question calls for an answer that is irrelevant.

(C) Sustained because character evidence is inadmissible.

(D) Overruled because character evidence is always admissible if it is not used to show propensity.

(A) is correct. See Rule 609(a)(1)(A). (B) is wrong because leading questions ordinarily are permitted on cross-examination. (C) is wrong because of Rules 404(a)(3) and 609(a)(1). (D) might be right but for choice (A).

Patrice sued David for injuries sustained in an automobile collision. At trial, Patrice calls Wendy who would testify that after the collision, David said “I didn’t see that stop sign; I’ll pay all of your medical bills.” After David objects, the judge should rule:

(A) Wendy’s entire statement is admissible.

(B) Wendy’s entire statement is inadmissible

(C) Only the first sentence is admissible.

(D) Only the second sentence is admissible.

(C) is correct. Rule 409 would exclude the second sentence, but not the first sentence; and Rule 408 also would not exclude the first sentence, since there is no evidence that D's statement was made as part of an effort to compromise a claim that was disputed as to validity or amount.

Daryl is on trial for armed robbery. He was convicted of armed robbery in 2012. If the judge allows evidence of his prior conviction, it will be because:

(A) Conviction of a previous armed robbery shows Daryl is more likely to have been the perpetrator of this crime.

(B) Daryl testified at trial, and the judge determined the prior conviction’s probativeness of Daryl’s character for untruthfulness outweighs its prejudice to Daryl.

(C) Daryl testified and the conviction shows his propensity to commit armed robbery

(D) The evidence tends to prove Daryl’s intent to commit armed robbery.

(B) is correct. This is the test under Rule 609(a)(1)(B).

Val alleges in a criminal case that Dave raped her. No semen was discovered, but Val had recent bruising in her pelvic area on the night of the alleged rape. Defense Counsel seeks admission of evidence that Val had consensual sex with someone other than David on the same day as the alleged rape. Is the evidence admissible?

(A) No because evidence offered to prove that a victim engaged in other sexual behavior is prohibited under FRE Rule 412.

(B) No because evidence offered to prove a victim’s sexual predisposition is not admissible.

(C) Yes because the evidence is offered to prove that someone other than the defendant was the source of the bruising.

(D) Yes because is offered to prove consent.

(C) is correct. Rule 412(a)(1)(A) allows evidence of specific instances of a rape victim's sexual behavior in a criminal case "if offered to prove that someone other than the defendant was the sources of semen, injury or other physical evidence."

Daphne crashed into Perry’s car, and Perry claimed Daphne was negligent and sued her for damages. At trial, Perry wishes to call Daphne’s brother Bill, who will testify that Daphne “is always speeding, and never pays attention to the road when driving.” Daphne objects. The court should:

(A) Preclude this testimony as irrelevant.

(B) Preclude this testimony under Rule 404(a) because is propensity evidence.

(C) Admit this testimony as Rule 406 habit evidence.

(D) Admit this testimony under Rule 404(b) regarding other acts, with a limiting instruction that it is not to be considered to prove propensity.

(B) is correct. This conduct is not sufficiently specific to be habit evidence, and would therefore be introduced to show propensity.

Frank Father and Martha Mother are having a custody dispute involving their two children. At the custody hearing, Martha Mother seeks to admit evidence that two years ago, when the children were five and three, Frank Father left the children alone in his car for an hour while he had a beer with friends. Frank Father objects. The court should:

(A) Sustain the objection because this is impermissible propensity evidence.

(B) Sustain the objection because character may be proved with reputation or opinion evidence, not specific acts.

(C) Overrule the objection because this is proper impeachment regarding character for truthfulness.

(D) Overrule the objection because character evidence is directly relevant to this dispute.

(D) is correct. Pursuant to Rule 405(b), "When a person's character or character trait s an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct."

Which of the following is non-assertive conduct as to whether it is/was raining outside?

(A) Tom’s secretary sees Tom glance out a window on his way out of the office, turn around, and take an umbrella off the coat rack.

(B) Upon Tom’s return, the secretary asks, “Is it raining outside?’ Tom takes off one of his shoes and pours water on the secretary’s desk.

(C) Upon Toms return, the Secretary says, “Is it raining?” Tom looks at her and furiously shakes out his umbrella.

(D) Upon Tom’s return, the Secretary asks, “Is it raining outside?” Tom shakes his head.

(A) Is correct because Tom does not intend to convey anything through his conduct.

(B) through (D) are all incorrect because in each of these choices, Tom is trying to convey something through his conduct.

Walter Witness testifies at trial that Desmond Defendant ran a red light and collided with a truck driven by an employee of Percy Plaintiff’s Pool Service. On cross-examination, Walter admits he was hired by Percy Plaintiff’s Pool Service a month before trial. On re-direct, Plaintiff asks the question “did you give a statement to police after the accident?” Walter replies “Yes, I told the police that Desmond ran a red light.” Desmond’s counsel objects. Is the answer admissible?

(A) Yes. It is not offered to prove the truth of the matter asserted.

(B) Yes. It is admissible as a prior consistent statement.

(C) No. It is hearsay not within an exception.

(D) No. The statement was made after the motive to fabricate had arisen.

(B) Is correct under Rule 801(d)(1)(B) because it is consistent with the declarant’s prior testimony, it is offered to rebut an implied charge of fabrication, and it was made right after the accident which was before a motive to fabricate arose.

(A) Is incorrect because the statement is offered to prove the truth of the matter asserted that Desmond ran a red light. (C) Is incorrect because the statement is nonhearsay. (D) Is incorrect because the statement was made before the pool service hired Walter.

Which of the following evidence (if any) is barred by the hearsay rule?

(A) A robbery victim testifies that he now has no memory of the robbery and cannot identify the defendant in court, but he estifies that in a line-up three days after the robbery he identified the defendant as the person who robbed him.

(B) After the robbery victim testifies and describes identifying the defendant in a line-up, the police officer who was present at the line-up also testifies that in a line-up three days after the robbery, the victim identified the defendant as the person who robbed him.

(C) A robbery victim testifies for the defense and states that the defendant is definitely not the person who robbed him. On cross- examination, the victim admits that he did indeed identify the defendant at a line-up three days after the robbery as the person who robbed him.

(D) None of the above; all of this testimony would be permissible under the hearsay rule.

(D) is correct. Rule 801(d)(1)(C) allows the witness to testify to any prior out-of-court statement of identification, even if it is inconsistent with the witness’ trial testimony or if the witness now has no memory of the incident.

(A) is incorrect. Rule 801(d)(1)(C) allows the witness to testify to any prior out-of-court statement of identification, even if the witness now has no memory of the incident. (B) is incorrect. Rule 801(d)(1)(C) allows any witness to testify as to another witness’ prior identification, as long as that other witness has testified and was subject to cross-examination about the identification. (C) is incorrect. Rule 801(d)(1)(C) allows the witness to testify to any prior out-of-court statement of identification, even if it is inconsistent with the witness’ trial testimony.

Ed is riding in a rodeo when his horse steps into a huge gopher hole in the southwest corner of the arena, causing the horse to fall and throwing Ed into the fence of the arena. Ed breaks his leg and sues Andy, the owner of the arena, for negligently maintaining the grounds. During the trial, Ed calls Jack as a witness. Jack works at the arena and will testify that the day before the incident, he overheard a conversation between Ron, another rodeo rider, and defendant Andy. Jack testifies that during this conversation Ron told Andy: "There's a large hole near the southwest corner; my horse almost stepped into it." Andy's attorney objects to Jack's testimony, claiming the statement by Ron is hearsay. Which of the following is correct?

(A) The statement should be entirely precluded as hearsay.

(B) The statement should be admitted with no limiting instruction.

(C) The statement should be admitted with a limiting instruction that the statement should only be considered for the purposes of proving Andy knew there was a hole (assuming that is a relevant fact), not to prove there was in fact a hole.

(D) The statement should be admitted with a limiting instruction that the statement should only be considered for the purpose of proving the existence of the hole and for no other purpose.

(C) is correct. The statement is admissible to show notice. For that purpose, it is not being admitted for the truth of the matter asserted, but rather to prove Andy knew about the hole.

(A) is incorrect. If offered for notice, the statement is not offered for the truth of the matter asserted. (B) is incorrect. There should be a limiting instruction to inform the jury how they may use the evidence. (D) is incorrect. If the evidence were offered for this purpose, it would go to the truth of the matter asserted - that there was a hole in the arena.

Ronald is suing his former employer for breach of contract. Ronald claims that his producer Terri promised him a large bonus in exchange for filing ten extra news reports, and that even though Ronald filed the reports, the bonus was never paid. To support his claim, he offers two pieces of evidence: (1) a contract, signed by Ronald and Terri, which states that Ronald will be paid a $10,000 bonus if he files ten extra stories in the year, and (2) a letter Ronald wrote to his wife, dated the day after the contract was signed, which states: "Honey, we can plan that trip to Hawaii now! Terri has just promised me an extra $10,000 if I do ten more stories this year!"

(A) Both the contract and the letter are hearsay.

(B) The letter is hearsay but the contract is not.

(C) The contract is hearsay but the letter is not.

(D) Neither the letter nor the contract is hearsay.

(B) is correct. The contract language is a legally operative statement. Therefore, it is not offered for the truth of the matter asserted, but rather to show the parties agreed to those terms. A contract determines the parties’ legal rights and duties. Evidence of a contract is relevant to prove the terms of the contract exist, not to prove those terms are “true.”

(A) is incorrect because the contract language is not hearsay. (C) is incorrect because the contract language is not hearsay. (D) is incorrect because the letter is hearsay - it is being offered to prove the truth of what Terri said.

At Peter Pyro’s arson trial, the prosecution offers the testimony of a police officer who will testify that Winnie Witness viewed a lineup and identified Peter as the person she saw running from the building right before the fire began. Winnie was hit by a bus and killed the week before trial. Should the evidence be admitted over Peter’s objection?

(A) Yes, it is an excited utterance.

(B) Yes, it is a prior identification.

(C) No, it is hearsay without an exception.

(D) Yes, it is a present sense impression.

C) is correct because no hearsay exceptions apply. Rule 801(d)(1)(C), provides that the witness must testify and be subject to cross-x about the prior statement.

(A) Is incorrect because there is no indication Winnie was under the stress of a startling event or condition when she made the statement. (B) Is incorrect because under 801(d)(1)(C), the witness must testify and be subject to cross-x about the prior statement. (D) Is incorrect because it is not "a statement describing or explaining an event or condition."