evidence masterrrrr barbri

The Federal Rules of Evidence guard against all of the following except:

wasting time.

development of evidence law.

unfair administration of the proceedings.

unjust expense.

Development of evidence law is correct. FRE 102 states, "These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination."

A judge may share her opinion about the evidence only when:

the trial is regarding a federal question.

either side's counsel hasn't presented its case thoroughly.

the judge is charging the jury after closing statements have been made

the judge makes it clear that the jury is to determine all matters of fact.

the judge makes it clear that the jury is to determine all matters of fact is correct.

Because the judge rules on issues of law and the jury determines issues of fact, a judge who opines about the evidence must clarify that it is the jury who must determine all matters of fact. A is incorrect because a judge may share an opinion regarding evidence in any trial. B is incorrect because it is not the judge's duty to argue on behalf of the attorneys. C is incorrect because the judge may share her opinion regarding the evidence at any point.

A juror may not testify to which of the following occurrences:

The jury chose the verdict by drawing straws.

The bailiff offered cash to encourage the jury to acquit

Juror #4 posted about the deliberations on Facebook and responded to the comments.

Juror #8 read a newspaper in the jury room.

The jury chose the verdict by drawing straws.

A juror may testify as to extrinsic influences on the jury, but not as to intrinsic influences. A is correct because drawing straws was an internal activity of the jury in the jury room. B, C, and D are incorrect because the bailiff's offer, the Facebook post including its subsequent likes and comments, and newspaper are all extraneous influences.

Which of the following is false about competent witnesses?

Everyone is presumed competent to testify unless proved otherwise. Drug addicts as well as people with histories of mental incapacitation and psychological problems are allowed to testify unless they are unable to communicate at all or are completely unintelligible.

Judges and jurors are incompetent to testify in cases before them.

Correct!

Drug addicts as well as people with histories of mental incapacitation and psychological problems are not allowed to testify unless they are proved competent.

A witness's general competency to testify is limited by the scope of that witness's personal knowledge.

Drug addicts as well as people with histories of mental incapacitation and psychological problems are not allowed to testify unless they are proved competent.

Answer C is the correct choice because Dead Man Statutes prohibit, not allow, the testimony of an interested witness if that witness offers to testify about an issue where the only opposing witness would be a dead person. Answers A, B, and D are all true statements.

Which witness will most likely be barred from testifying by the judge? (Hint: The Wheeler case and its precedent note will help you with this question.)

A witness who was extremely drunk at the time of a robbery that he saw take place across the street.

A 2-year-old whose mother is in a custody battle over the toddler with the child's violent father.

A psychiatric patient who saw a murder being committed by another patient in the psychiatric ward.

A woman with poor vision who was not wearing her glasses at the time of a drug store robbery and could only see shapes and colors.

A 2-year-old whose mother is in a custody battle over the toddler with the child's violent father.

A competent witness must take an oath or make an affirmation to tell the truth, have perceived the event, have the ability to recall and communicate about the event, and understand the difference between truth and falsehood. Answer B is correct because a child under the age of 3 is not likely to be able to tell the difference between truth and lie or be able to remember and coherently narrate events. Answers A, C, and D are incorrect because, as noted in United States v. Blankenship, a person compromised by alcohol, drugs, or psychological problems is still competent to testify. The jury may determine what weight to give each witness's testimony.

What is the evidence?

Something that tends to prove or disprove the existence of an alleged fact.

Something that tends to prove or disprove the existence of an alleged fact and must be admitted in court.

Something that tends to prove or disprove the existence of an established fact.

Something that tends to prove or disprove the existence of an established fact and must be admitted in court.

Something that tends to prove or disprove the existence of an alleged fact.

Which of the following witnesses has personal knowledge of a slip-and-fall incident at the grocery store?

The janitor who mopped the floor hours earlier and was surprised to learn that a customer slipped and fell on a clean floor.

The off-duty grocery store greeter who heard about the accident and figured the congested Christmas Eve shopping rush was the cause.

The store manager who heard the customer cry out as she slipped and fell.

The grocery store chain's attorney who anticipates two or three slip-and-fall law suits per year.

The store manager who heard the customer cry out as she slipped and fell.

A witness has personal knowledge if the witness perceives the event with one or more of his five senses. The janitor, store greeter, and attorney were not present at the time of the event; however, the manager perceived the customer's cry.

Sitting in the witness stand, the plaintiff's key witness was overcome with nervousness and could not recall the dates and times about which she was asked to testify. In an effort to refresh the witness's memory the attorney quickly jotted the information on a sheet of paper and handed it to the witness for her to read aloud as part of her testimony. On which grounds may the defense object?

The witness's memory may only be refreshed by a writing created by the witness, not by a writing the attorney drafted.

The witness must testify in her own words without reading directly from the page.

The witness has been called to testify as to what she knows. If she must rely on notes, the witness clearly doesn't have personal knowledge, allowing the defense to void the testimony.

All of the above.

The witness must testify in her own words without reading directly from the page.

The witness may review notes as a "memory spark," but must then testify in her own words without reading from the writing. The opposing party may request production for cross-examination according to FRE 612. A is incorrect because the writing may be drafted by anyone. C is incorrect because relying on notes does not mean the witness had no personal knowledge. For instance, if a witness were testifying to the number of tickets sold for each event at the local arena over the last five years, the witness would probably need to refer to notes for a particular event even if the witness was the creator of the records.

Which of the following is true about judges questioning witnesses?

The Federal Rules of Evidence frown on judges questioning witnesses.

Cases are often overturned on appeal because of the judge's tone when questioning a witness.

When the cross-examination is weak, a judge may question a witness in order to help steer the jury's determination of the witness's credibility.

The judge may call his own witnesses.

The judge may call his own witnesses.

A is incorrect because FRE 614 expressly allows judges to question witnesses. B is incorrect because appellate records (transcripts) do not convey the demeanor or tone of judicial questioning. C is incorrect because, while a judge may question a witness when cross-examination is weak, the judge may not steer the jury regarding the credibility of the witness's testimony.

Which of the following is true about a witness's oath or affirmation to testify truthfully?

Both an oath and affirmation are now acceptable in court, but an oath carries slightly more weight.

Felons may now testify in court by making an affirmation or taking an oath.

A witness may not testify if the witness refuses to make an affirmation or take an oath, unless the witness's good character is already firmly established with the court.

The purpose of the affirmation or oath is to impress on the minds of the jury that the witness is being truthful.

Felons may now testify in court by making an affirmation or taking an oath.

Convicted felons, agnostics, atheists, parties to criminal cases and their spouses, persons with an interest in the case, children, and the mentally ill were all considered incompetent, but FRE 601 presumes that all of these may now testify if they meet the basic qualifications of any witness. A is false because an oath and affirmation carry equal weight in the eyes of the law. C is false because an oath or affirmation must be given regardless of the witness's reputation. D is false because according to FRE 603 the purpose of the affirmation or oath is to impress the duty of truth on the mind of the witness, not the jury.

The court must decide any preliminary questions about:

Whether a witness is qualified

Whether a privilege exists

Whether evidence is admissible

All of the above.

All of the above.

Eddie from Boston was accused of robbing the First City Bank of Massachusetts. Eddie is alleged to have used a "Saturday Night Special" revolver during the robbery.

Which of the following items of evidence would be irrelevant to the prosecution's case? (Note, the question asks about relevancy, not admissibility.)

Eddie was fired from his previous job as a clerk in a convenience store as a result of an unproven allegation that he stole money from the cash register.

Eddie has two children, ages two and seven.

Eddie was divorced and delinquent in his payments of $400 per month in child support.

Eddie prefers "rock" to Bach and gin without tonic.

Eddie withdrew money at the same bank the day prior to the robbery after having a friendly ten-minute conversation with the teller (no one else was in line).

Eddie prefers "rock" to Bach and gin without tonic.

is the correct answer because this evidence is irrelevant.

Answer "A" is relevant. While it may be unfairly prejudicial, the fact that Eddie was fired for allegedly stealing money makes it more likely (however infinitesimal) that Eddie committed the subsequent bank robbery.

Answer "B" is relevant. The fact that Eddie has two children is relevant background information. It helps paint a picture of Eddie, the person.

Answer "C" is relevant. Eddie's financial situation provides a motive for the robbery.

Answer "E" is relevant. Eddie's prior appearance at the bank that was robbed indicates familiarity with the bank and suggests that he was more likely the robber because he was reconnoitering the bank. Alternatively, he was less likely the robber because patronizing a bank the day before it was robbed it would increase the likelihood of him being identified and suggests he was just a customer, not the robber.

JK Lassiter is accused of forgery, allegedly writing several false checks in his employer's name and then cashing them. When the prosecutor asks the defendant to submit handwriting exemplars to further identify the forged handwriting, he refuses. The prosecutor wishes to offer evidence of the refusal to prove a guilty mind at the subsequent trial, and the defense objects.

Which of the following is the most accurate statement about the defendant's refusal?

The evidence is irrelevant because the defendant's pre-trial refusal to do something is not related to a fact of consequence in the case.

The evidence is irrelevant because the defendant's pre-trial refusal is not probative of his frame of mind at a previous time.

The evidence may be relevant but excluded on other grounds.

The evidence should be excluded because it violates the false hearsay document rule, unless its substantive value outweighs its probative nature.

The evidence may be relevant but excluded on other grounds. is the best answer.

The evidence would be probative of a guilty conscience — making it more or less likely whether Lassiter committed forgery, a fact of consequence to the forgery action. The evidence still might be excluded, especially if the danger of unfair prejudice substantially outweighs its probative value under Rule 403. Answer choice "A" is incorrect because relevant events can occur at any time prior to and even during the trial — including that which occurs during the pretrial proceedings. Answer choice "B" is incorrect because the refusal to submit a handwriting example is indeed probative of forgery. This type of action is often called an implied admission because the actor seemingly "admits" something unintentionally by his conduct. Other examples of actions within this implied admissions genre include defendant's running from the scene of a crime, attempting to bribe a witness and trying to improperly influence a judge. Answer choice "D" is a rule that should not be familiar because it is entirely made-up and incorrect.

Which of the following arguments is an example of an irrelevant argument?

In a prosecution for the destruction of property, the defendant used a false name when arrested. The prosecutor wants to offer the fact that the defendant offered a false name as evidence of guilt.

In a prosecution for defacing government property, a protester allegedly threw ashes and mud at the Pentagon walls. In his defense, the protester wants to introduce evidence about vagaries of United States policy toward nuclear weapons control.

In a tort action for strict product liability after a tire exploded, the defendant used a substantially similar tire to test whether the same type of tire was defective.

In a prosecution for securities fraud, the fact that the defendant deleted many of the files on his computer just before being arrested.

In a prosecution for defacing government property, a protester allegedly threw ashes and mud at the Pentagon walls. In his defense, the protester wants to introduce evidence about vagaries of United States policy toward nuclear weapons control is correct.

Because it reflects evidence that is least likely relevant to the case. Specifically, evidence of U.S. nuclear arms control policy is not probative of the facts of consequence in an action for defacing government property. While the defendant's motive in throwing ashes and mud at the Pentagon may be relevant, and his perceptions about government policy probative, the actual United States policy on nuclear weapons is not pertinent to whether defacing property had occurred. Choice "A" is an example of an implied admission probative of the defendant's guilty conscience. Choice "C" is an illustration of a test that would be probative of whether a defect existed, although the evidence still might be excluded as unfairly prejudicial. Choice "D" is a variation of choice "A," indicating a guilty conscience and guilt of the crime charged.

Alou was charged with conspiracy to distribute cocaine. At trial, the judge overruled an objection by the defense to evidence that Alou participated previously in a similar operation involving the distribution of cocaine. The court ruled the evidence was not unfairly prejudicial.

If Alou was convicted and appealed the trial court's ruling, how should the appellate court rule?

Uphold the trial judge's decision, unless other trial courts have excluded similar evidence under identical circumstances.

Uphold the trial judge's decision, because of the great deference given by appellate courts to decisions by the trial courts.

Reverse the trial judge's decision if it fails the litmus test of being a reliable decision more likely than not

Reverse the trial judge's decision if the ruling affected a substantial right of the defendant.

Uphold the trial judge's decision, because of the great deference given by appellate courts to decisions by the trial courts is correct.

Because the trial judge has great discretion in determining the admissibility of evidence, only rarely will an appeals court overrule such a decision. This answer choice reflects why the "abuse of discretion" standard is applied to such evidentiary determinations. As stated in Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 5 (1st Cir. 1994), "Only rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a district court's on the-spot judgment . . . ." Answer choice "A" is incorrect, because how other judges ruled is not significant given the wide latitude courts have in making such determinations. Answer choice "C" is wrong because it misstates the test. The appellate judge does not look to see whether the trial court's decision is believable more likely than not, but instead whether the trial court abused her discretion in making such a ruling. Answer choice "D" also is incorrect because it simply offers a threshold consideration for the appellate court,not the test of whether a ruling was in error.

Ali Staton, the manager of a successful coffee shop, was charged with embezzling funds from the business. At trial, the prosecutor offered evidence that Staton earned an annual salary of $45,000 from the coffee shop, with yearly bonuses of up to $10,000. The prosecutor then offered a new witness to testify that in the months leading up to the arrest, Staton was seen leasing a Porsche Boxter and traveling to Hawaii in the first-class section of the airplane.

If the defense objects to this evidence, how should the judge rule?

Admit the evidence, providing the defense has an opportunity to rebut it under the "rule of completeness," permitting opposing parties to submit remainders.

Admit the evidence, but only if its prejudicial impact is not very high.

Admit the evidence even if the probative value and danger of unfair prejudice of the evidence are equal.

Exclude the evidence because it is not relevant to whether the defendant embezzled as charged.

Admit the evidence even if the probative value and danger of unfair prejudice of the evidence are equal. Correct!

While the answer choice is not expressed in the exact framework of Rule 403, it is saying that the evidence should not be excluded unless its probative value is substantially outweighed by the danger of unfair prejudice. Answer choice "A" is incorrect because the so-called "Rule of Completeness," Rule 106, applies only to the remainders of writings or recordings, not testimony as offered here. Answer choice "B" also is not the best answer, because the answer does not express the test of Rule 403, which permits evidence with even high prejudicial effect, so long as the danger of unfair prejudice does not substantially outweigh its probative value. Finally, answer choice "D" is wrong because the evidence is indeed relevant — it makes it a little more likely that a person with that salary was embezzling to support expensive tastes. Of course, that inference could be rebutted by evidence that the defendant had obtained terrific bargains or had inherited millions of dollars and did not need to work, marginalizing the probative value. No such rebuttal is indicated, however, and it is important to read a problem as it stands, not as it could be.

Arlen Spanos is a 50 year old man who was prosecuted for securities fraud after skimming from several mutual funds he managed. At trial, the defendant offered a psychiatrist who testified that Spanos had a terrible childhood of abuse, neglect, and material deprivation -- his parents locked him in a closet for eighteen years and he rarely saw the light of day. The psychiatrist testified that Spanos is actually quite high functioning psychologically for what he went through as a child. The prosecution then objected to the testimony as unduly prejudicial and requested that it be struck from the record.

How should the judge rule?

The testimony should be excluded because it was an irrelevant opinion about the defendant's state of mind.

The testimony should be excluded because while it may be relevant to the defendant's state of mind, it would mislead jurors into ruling in favor of Spanos out of sympathy.

The testimony should be allowed, because it was relevant to the element of intent in a crime of fraud.

The testimony should be allowed so that the jury obtains the "full picture" of Spanos.

The testimony should be excluded because while it may be relevant to the defendant's state of mind, it would mislead jurors into ruling in favor of Spanos out of sympathy. Correct!

While the evidence is relevant as to why Spanos may be motivated to commit a fraudulent act, the evidence is unduly prejudicial and likely to sway the jury to rule in favor of Spanos out of sympathy. Further, given that Spanos is 50 years old and the abuse happened many years ago, the passage of time makes this evidence likely less relevant as to Spanos' acts in this instance.

Rasheed went to the Lotus Room one Friday night for a dinner of Chinese food. Later that evening, he became very ill and attributed it to food poisoning. After being out of work for several weeks and still feeling unable to work at a competent level, he sued the restaurant for damages. At trial, Rasheed wished to offer the fact that in the month of Rasheed's dinner there, eight other people, all in separate parties, had become ill after eating at the Lotus Room for dinner. Rasheed offered no further evidence other than the fact than the assertion that eight people got sick after eating at the restaurant.

If the defendant objects to this evidence, how should the judge rule?

The judge should admit the evidence because it is relevant to how Rasheed became ill.

The judge should admit the evidence because everyone else became ill after dinner, just like the plaintiff.

The judge should exclude the evidence because it is hearsay and irrelevant.

The judge should exclude the evidence, unless additional evidence is offered showing a much greater similarity between the other events and the dinner in question.

The judge should exclude the evidence, unless additional evidence is offered showing a much greater similarity between the other events and the dinner in question. Correct!

These other occurrences are unfairly prejudicial in that they will mislead the jury on the question of causation. The prior events must be shown to be substantially similar in order to survive a Rule 403 analysis. Here, there is no indication of what the other people ate, whether the food was even the same, prepared the same way, or by the same chef using the same ingredients. Answer choice "A" is a classic example of how one-half of an answer can be correct, but not enough to be the proper selection. As choice "A" explains, the evidence is indeed relevant because it makes it at least somewhat more likely that Rasheed's illness was caused by food poisoning at the Lotus Room. Unfortunately, the evidence must still satisfy many other barriers, including unfair prejudice, and it likely will be excluded on that ground. Upon a critical reading of the response, answer choice "B" also is not the best answer. While the fact that eight other people ate dinner at the Lotus Room and thereafter became ill is similar, it is not "sufficiently" similar to achieve admissibility. As noted above, there are many additional facts required before the threshold "substantial similarity" will be met. Answer choice "C" is wrong because the evidence is not hearsay -- which requires an out-of-court statement -- and because the evidence is indeed relevant.

FRE 408

Sal Dolly brings a civil action against Cole Lector after Cole, an art collector, refuses to pay Sal the $1 million that Sal says Cole agreed to pay for Sal's painting, "Sam I Am." Sal wants to testify that at a pretrial settlement conference, Cole said, "I am willing to give you $200,000 just to make this suit go away. I don't think your claim is worth much -- you and I may know that I agreed to buy the painting, but no one else knows what happened. And no one in their right mind will believe your story, since they wouldn't think I'd be so dumb as to buy such a thing." Cole objects to the statement as falling within the rule against admissibility of settlement negotiations.

How should the court rule?

Objection overruled because Cole admitted that he agreed to buy the painting.

Objection overruled because this is not a "disputed" claim and the admission would be allowed into evidence.

Objection sustained because Cole's statement is unfairly prejudicial to him.

Objection sustained because the admission was made in settlement negotiations and is being offered to prove the validity of the claim.

Objection sustained because the admission was made in settlement negotiations and is being offered to prove the validity of the claim.

Correct!

While Huey, Dewey, and Louie are pheasant-shooting from a boat in a lake, Donald carelessly drives his Ski-Doo personal watercraft into them, injuring all three. All three sue Donald, but Huey and Duey settle with Donald and receive payment from him for their damages. As part of the settlement, Huey and Dewey agree to testify against Louie in Louie's suit against Donald if that suit should go to trial.

At trial, Donald offers in his defense Huey's testimony that, "I was watching Donald right before the accident, and as far as I could tell, Donald drove slowly and carefully, but a wave swept his Ski-Doo into our boat." Louie seeks to show on cross examination of Huey that Huey received a settlement from Donald in return from Huey's promise to testify in Donald's favor at trial. Donald objects to this testimony as inadmissible under the rule prohibiting proof of settlements on the issue of liability.

Should the court allow Louie's line of cross examination?

No, because offers of settlement can never be admitted to prove liability.

No, because questioning Huey about the settlement would be unfairly prejudicial to Donald.

Yes, because admission of the settlement is for the limited purpose of showing that Huey is now biased in favor of Donald.

Yes, because the settlement constitutes an admission by a party opponent.

Yes, because admission of the settlement is for the limited purpose of showing that Huey is now biased in favor of Donald. Correct!

Max has civilly sued George for defamation. Max's first witness, Blue True, testified at trial that he overheard George tell a local newspaper, The Daily Globe, "John Max is a well-known liar. He raped my daughter, Rosetta, and now he's trying to lie his way out of it just like he always does." The Globe printed this quote in a story about Rosetta's rape. When Max calls his second witness, Father O'Reilly (Maxwell's next-door neighbor and parish priest for the past 23 years), to testify that Max has a reputation for truthfulness in the community in which they both live, George objects.

George's objection should be:

Overruled because O'Reilly's testimony is admissible under both Rule 405(b) and Rule 608(a).

Overruled because O'Reilly's testimony is admissible under Rule 405(b) as Maxwell's character is an essential element of a defamation case - relevant to both reputation and damages.

Sustained because O'Reilly's testimony is an act propensity use of character evidence.

Sustain because the mercy rule does not apply.

Overruled because O'Reilly's testimony is admissible under Rule 405(b) as Maxwell's character is an essential element of a defamation case - relevant to both reputation and damages.

Correct!

The defamation claim here is based on the defendant's statement that Maxwell is a liar, that is, that he is the sort of person who lies, a character trait. To succeed in the defamation case, Maxwell must show that he in fact has a truthful character, making the statement false, thus, when published, defaming. Accordingly, there is no way for Maxwell to prove his case other than by proving his character as a truthful person. Character or, more precisely, a trait of character (truthfulness) is therefore an "essential element of a charge, claim, or defense," admissible in any form — reputation, opinion, or specific acts — under FRE405(b). That provision says that where character is an essential element, proof may "also" be made of specific instances of that person's conduct, the "also" meaning "in addition to the reputation or opinion evidence permitted by FRE 405(a)."

Sherri is prosecuted for the distribution of cocaine after she allegedly sold one gram of the substance to an undercover officer. The prosecution offers evidence in its case-in-chief that Sherri had sold cocaine on four prior occasions. The prosecutor seeks to admit this evidence generally with no limitation. Sherri objects.

How should the court rule?

Overruled as character evidence is always admissible on direct.

Overruled because character evidence is never admissible.

Sustained because this constitutes "propensity" evidence.

Overruled as the facts do not say Sherri was ever charged and convicted for selling the cocaine.

Sustained because this constitutes "propensity" evidence.

Correct!

This is classic propensity evidence - once a drug seller, always a drug seller. If there is a signature quality to the prior drug sales, or a special modus operandi, they may be admissible under 404(b) as other wrong or act evidence.

Debbie, a cabbie, gave Eldridge a ride across town, from 7th Street to Piedmont. While Debbie was telling Eldridge that she would one day be famous because of her great desire to succeed, she forgot to pay attention to the road and crashed. In the ensuing lawsuit brought by Eldridge, Eldridge offers evidence that Debbie had received twelve citations for reckless driving in the past two years.

Is this evidence admissible to show Debbie's propensity to drive carelessly?

Not admissible because they are being offered to show Debbie is a bad driver and that she acted in conformity with that character trait.

Admissible because it is a civil suit.

Admissible because the probative value of the prior accidents substantially outweighs any prejudicial impact.

Not admissible because Debbie, the Defendant has not introduced character evidence under the "Mercy Rule."

Not admissible because they are being offered to show Debbie is a bad driver and that she acted in conformity with that character trait.

Correct!

The citations would not be admissible in the law suit. The citations are inadmissible propensity character evidence - they are offered in a civil suit and constitute specific acts.

Houston Rambo II collects exotic weapons as a hobby, participates in bodybuilding competitions, loves the film Natural Born Killers (which is about several serial killers), and was a professional wrestler for several years. At approximately 3 a.m. On Saturday, July 14th, Rambo was involved in a brawl outside of a local bar named "The Varsity."

If Rambo is prosecuted for assault as a result of the same brawl, can the prosecution introduce evidence on direct examination of Rambo's hobby, bodybuilding, or prior employment?

Admissible because the evidence is relevant as to whether Rambo is a peaceful person.

Admissible because Rambo "opened the door" as to his character.

Inadmissible because the evidence is irrelevant.

Inadmissible because the prosecution is offering character evidence on direct which it cannot do.

Inadmissible because the prosecution is offering character evidence on direct which it cannot do.

Correct!

This is a criminal case. The evidence will not be allowed, because the prosecution is offering it first, and not the accused.

The defendant, Plato, is charged with bribery. In the defendant's case-in-chief, his college ethics teacher, Professor Stotle, testifies that, in his opinion, Plato has a high moral character against bribery.

In the same bribery case, the prosecution offers in rebuttal a witness who will testify that (1) Plato's reputation in the community is one of dishonesty, and that (2) Plato had stolen three hubcaps from a car the year before.

Which of the following is the correct answer?

The professor's testimony is admissible as proper character evidence.

The prosecutor's witnesses are not proper rebuttal witnesses as to Plato's reputation.

The prosecutor may offer a separate witness to testify as to specific acts of Plato.

The professor's testimony is not admissible as proper character evidence.

The prosecutor's witnesses are not proper rebuttal witnesses as to Plato's reputation.

The prosecutor may offer a separate witness to testify as to specific acts of Plato.

The professor's testimony is admissible as proper character evidence.

The prosecutor's witnesses are proper rebuttal witnesses as to Plato's reputation.

The prosecutor may not offer a separate witness to testify as to specific acts of Plato.

None of the evidence is admissible.

The professor's testimony is admissible as proper character evidence.

The prosecutor's witnesses are proper rebuttal witnesses as to Plato's reputation.

The prosecutor may not offer a separate witness to testify as to specific acts of Plato.

Correct!

Plato may offer the Professor's testimony under 404(a) The Mercy Rule. This evidence tends to negate the likelihood that he committed the crime charged, burglary.

The prosecution can rebut under Rule 404(a) with a new reputation or opinion witness to testify about Plato's dishonesty. Plato's reputation in the community is proper rebuttal evidence.

The prosecution may not offer a separate witness (extrinsic evidence) to testify about the stolen hubcaps. While Rule 404(a) allows the prosecution to reply to the defense evidence, by allowing the prosecution to call reputation and opinion witnesses of its own to show D's bad character, the prosecutor cannot offer a separate witness to testify about specific acts of the Defendant. The prosecution can, however, cross examine the Professor by asking the Professor whether the Professor was aware that Plato had stolen hubcaps (as it goes to how well the Professor knows Plato's reputation in the community.)

Austin was prosecuted for resisting arrest and assault on a police officer after being stopped and frisked while leaving a bar. Austin claimed he acted in self- defense. At trial, assume the prosecution offers evidence that the accused, Austin, had committed four prior assaults on police officers all of which were thoroughly planned and distinctive in character and were very similar to the assault in question.

Admissible?

Inadmissible because it is specific act evidence the prosecutor is offering on direct.

Inadmissible because its probative value is outweighed by undue prejudice.

Admissible to show that Austin dislikes police officers.

Admissible for the limited purpose of showing plan, intent, and identiy.

Admissible for the limited purpose of showing plan, intent, and identity.

Correct!

Maxwell the defendant in a criminal rape trial raises an alibi defense: "I couldn't have been there - I was somewhere else." On cross-examination, the prosecutor asks Maxwell to admit that he was charged with rape in two other instances 8 years ago, both cases later being dismissed.

Defense counsel's objection should be:

Sustained because the charges were later dropped.

Overruled because they are inadmissible propensity evidence.

Correct! Overruled under FRE 413.

Sustained because the prior charges violate Rule 412.

Overruled under FRE 413. Correct!

Under FRE 413 evidence of any other sexual assaults is admissible for any purpose, even if the perpetrator was never convicted. However, admission of evidence under Rules 413-415 are subject to the 403 balancing test.

Warren Beetney is charged with the crime of seduction, which has among its elements having sexual intercourse with a previously chaste female. It turns out that the female was under age of consent in this state, so Beetney is also charged with statutory rape. Because the same conduct is the basis for both alleged crime, Beetney is tried on both charges at a single trial. The defense, in its case in chief, offers evidence of the victims reputation as a promiscuous woman. The prosecution objects.

Select the best answer:

The objection will likely be sustained.

The objection will likely be overruled.

The trial judge probably has discretion to admit the evidence but only if he: (a) instructs the jury that it may consider it as to the seduction charge only but not as to the statutory rape charge; and (b) reasonably believes that the jury will be able to follow that instruction.

The trial judge probably has discretion to admit the evidence but only if he: (a) instructs the jury that it may consider it as to the statutory rape charge only but not as to the seduction charge; and (b) reasonably believes that the jury will be able to follow that instruction.

None of the above.

The trial judge probably has discretion to admit the evidence but only if he: (a) instructs the jury that it may consider it as to the seduction charge only but not as to the statutory rape charge; and (b) reasonably believes that the jury will be able to follow that instruction.

Correct!

Evidence of the victim's reputation as promiscuous may be admissible as to the seduction, but not the statutory rape, charge. Being "previously chaste," a character trait in the commonsense use of that concept, is an element of the crime of seduction. Character is not offered to prove current sexual conduct. Rather, chaste previous character is an element of the offense. Evidence of a prior promiscuous character tends to disprove that element and is potentially admissible, both because it is relevant evidence (Fed. R. Evid. 401) not specifically prohibited by Fed. R. Evid. 404 or any other rule, and because Fed. R. Evid. 405(b) expressly underscores that such evidence may be admissible and, if admissible, may be proven by reputation, opinion, or prior acts.However, Fed. R. Evid. 403 gives the trial court discretion to exclude the evidence if it is substantially unfairly prejudicial, for example, if it is likely that despite contrary jury instructions, the jury is likely to use the evidence for act propensity purposes.The evidence is irrelevant to statutory rape, which involves sexual intercourse with an underage girl or young woman, regardless of her previous condition of chastity. The dangers that the evidence will confuse the jury on this point or lead it to ignore the law of statutory rape may also favor exclusion under Fed. R.Evid. 403.

What does it mean to impeach a witness?

To fluster the witness

To attack the witness's credibility

To prove the witness is lying

To throw fruit at the witness

To attack the witness's credibility - Correct!

Lawyers may attack the credibility of any witness. A is incorrect because the witness's demeanor or a particular emotional response is not an element of impeachment. Answer C is incorrect because, impeachment does not have to rise to the level of proving a lie. Rather, impeachment calls the witness's credibility into question in the jury's mind, even without solid evidence of a lie. D is a freebie.

Which of the following is not an occasion to ask a leading question?

During cross-examination

When questioning an adverse party

When questioning a witness

identified with an adverse party

When direct questioning a hostile witness

When direct questioning a cooperative witness

When direct questioning a cooperative witness

Correct!

The other four answer choices are legitimate occasions for leading questions. Leading questions are appropriate during cross-examination of the adverse party (Answer B) or the adverse party's witnesses (Answer C). Open-ended questions are required during direct questioning of your own cooperative witness (Answer E), unless the witness turns hostile, in which case leading questions are permitted (Answer D). See FRE 611 (c)(2).

Cross examination is designed to attack all of the following things about a witness except:

The witness's perception

The witness's memory

The witness's communication

The witness's relationship with the defendant

The witness's sincerity or bias

The witness's relationship with the defendant - Correct!

The witness's relationship with the defendant is not a particular target of the cross-examination. Professor Vuletich boils down the witness's four testimonial capacities that may be attacked on cross-examination to: Perception, Memory, Communication, and Sincerely/Bias. (Perhaps remember the first letter of each element with the saying "Praise My Cross-examination Skills, Baby.")

Which of the following is not required for Henry to be presumed competent to serve as a witness?

He must be able to remember and communicate what he perceived.

He must understand his duty to tell the truth.

He must be able to take an oath or make an affirmation.

He must be at least four years old.

He must be at least four years old.

Correct!

There is no minimum statutory age for a witness to testify. If the witness meets the qualifications in Answers A, B, and C, the witness will be allowed to testify regardless of age. The jury may determine what weight to give to the testimony.

An attorney may attack the credibility of a witness by eliciting testimony of the witness's quest to get in touch with all 57 of the human senses via a Church of Scientology program called the "Super Power Rundown."

Is this statement True or False?

True

False

False - Correct!

According to FRE 610, evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's testimony. However, an attorney may always present evidence that a witness is affiliated with a religious group that is a party to the litigation to show that witness's bias.

Hamlet is on trial for the murder of Yorick. The prosecutor claims that Hamlet has long been jealous of Yorick. Hamlet denies knowing Yorick at all. The prosecutor calls Horatio as a witness, who offers to testify, "Hamlet told me, 'Alas, poor Yorick - I knew him, Horatio.'"

Which of the following is the best answer to the question of whether this statement by Horatio is admissible and for what purpose?

It is admissible to impeach Hamlet.

It is admissible to to prove substantively that Hamlet knew Yorick.

It is admissible to both impeach Hamlet and to prove that Hamlet knew Yorick.

It is not admissible as it is improper extrinsic evidence.

It is admissible to both impeach Hamlet and to prove that Hamlet knew Yorick. Correct!

It is proper impeachment by contradiction, and it goes to a material fact in the case - that Hamlet knew Yorick. Though it is a hearsay statement, it is admissible as an admission under FRE 801(d)(2).

In a negligence action arising from an automobile accident, the plaintiff called an eyewitness, Sheila Scranton, to testify about what she observed at approximately 8:00 AM on the date in question. The witness testified that after leaving the International House of Pancakes, where she had breakfast, she almost immediately observed the accident. On cross-examination, Sheila is asked, "Isn't it true that you were eating that morning at Gaia Health Food Cafe, not the International House of Pancakes which is on the other side of the street?"

If there is an objection to this question, how should the judge rule?

Allow the question because it is permissible impeachment by prior inconsistent statement.

Allow the question because it contradicts Sheila's testimony.

Disallow the question because it is collateral to the issues in the case.

Disallow the question because it is confusing and unfairly prejudicial.

Allow the question because it contradicts Sheila's testimony. - Correct!

The question seeks to contradict the witness, which is a permissible form of intrinsic impeachment. Answer A is incorrect because for this to be prior inconsistent statement impeachment, there must be two statements by the witness. Here, there is only one — the one made while the witness was testifying. Answer C is incorrect because contradiction is a permissible form of impeachment. The theory is that if the witness is incorrect about even minor facts, it is more likely she might be wrong about more important facts as well. Answer D imports Rule 403, but it does not serve to bar this proper form of intrinsic impeachment.

Allan Jackson is charged with larceny. At trial, he takes the witness stand to deny committing the crime. On cross-examination, the prosecutor wishes to ask him about a 9-year-old conviction for robbery, for which the defendant received probation.

May the prosecutor use the conviction to impeach Jackson?

Yes, because the conviction is less than 10 years old.

Yes, if the prejudicial impact does not substantially outweigh the conviction's probative value.

No, because the defendant did not serve any jail time on the conviction.

Yes, if the judge determines that the probative value outweighs the conviction's prejudicial impact on the defendant.

Yes, if the judge determines that the probative value outweighs the conviction's prejudicial impact on the defendant.

Correct!

Under Rule 609, criminal defendants who testify get a special dispensation before they are impeached by prior felony convictions. That dispensation is a more favorable balancing test than that described in Rule 403. If a judge determines the probative value of the conviction does not outweigh its prejudicial impact — even a tie goes to the defendant — the evidence is excluded. Answer A is improper because while the conviction is not "stale," it still is a felony and must satisfy the special prejudice test prescribed by the rule. Answer B states the Rule 403 balancing test, which does not apply when a testifying criminal defendant is impeached by a prior felony conviction. (The problem is the inclusion of the word "substantial.") Answer C is wrong because serving jail time is irrelevant.

In a murder trial, a critical witness for the defense is the cashier at the convenience store where the killing took place. The cashier will testify that the police never asked him whether the defendant looked like the perpetrator and ignored his protests about arresting the defendant. In the prosecution's case-in-chief, a police officer is called to testify that he had previously arrested the cashier and at the time the cashier kept saying, "I hate cops; I hate cops."

This testimony is:

Admissible to impeach the cashier based on bias.

Admissible to impeach the cashier based on prior bad untruthful acts.

Correct! Inadmissible to impeach the cashier because it occurred in the prosecution's case-in-chief.

Inadmissible to impeach the cashier because the impeachment is extrinsic, not intrinsic.

Inadmissible to impeach the cashier because it occurred in the prosecution's case-in-chief.

Correct!

The prosecution cannot impeach a witness preemptively and the problem states the cashier has not yet testified. Thus, there is a timing problem — the impeachment is occurring too soon and is consequently inadmissible. Answer A is incorrect because while the impeachment would be permitted to show bias, it is still too soon, violating the cardinal rule of no preemptive strikes. Answer B is incorrect because while the officer brought up prior acts — i.e., the arrest and statements of the cashier — the acts did not concern the truthfulness of the witness to be impeached, and, as noted above, the impeachment is still too soon. Answer D is incorrect because the evidence is excluded not simply because it is extrinsic in nature, but because of its inappropriate timing.

Cock Robin is on trial for shooting Mr. Sparrow with his little bow and arrow. Big Bad Wolf is a witness for the prosecution. On cross examination, defense counsel seeks to impeach him by asking, "Mr. Wolf" isn't it true that you terrorized the Three Little Pigs, threatened them, and obtained title to their brick house through lies and trickery? (Counsel had a good faith basis for believing Wolf did this.) Wolf denies it. Wolf has never been convicted of a crime involving these acts. Counsel now offers the testimony of Nice Lamb to the effect that he personally witnessed Wolf obtain title to the Pigs' house through threats and extortion.

Is Nice Lamb's testimony admissible to show that Wolf's denial on cross exam was untrue?

Yes, as this is a proper means of attacking the witness's character for truthfulness.

Yes, because extrinsic evidence is allowed to impeach a witness's character for truthfulness.

No, because the only extrinsic evidence of specific instances of conduct that can be used to impeach a witness are certain types of criminal conviction.

No, because everyone already knows the Big Bad Wolf did it.

No, because the only extrinsic evidence of specific instances of conduct that can be used to impeach a witness are certain types of criminal conviction. - Correct!

FRE 608(b) states that extrinsic evidence is not admissible to prove specific instances of conduct in order to attack the witnesses character for truthfulness. The lawyer may cross examine the witness but must "take his or her answer."

A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the truck driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive, knowing that he had a drinking problem and convictions for drunk driving. The truck driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the truck driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman's car.

The counsel for the moving company wants to confront the truck driver with his deposition testimony that he was completely sober at the time of the accident. Will this evidence be permitted?

No, the statement is hearsay not within a recognized exception.

No, the moving company cannot impeach its own witness.

Yes, but it may be used only to impeach the driver.

Yes, it can be used to impeach the driver and as substantive evidence on the question of whether the driver was drunk.

Yes, it can be used to impeach the driver and as substantive evidence on the question of whether the driver was drunk.

Correct!

The evidence will be permitted to impeach and as substantive evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules. Answer A is, therefore, incorrect. Answer B is incorrect because the Federal Rules permit a party to impeach its own witness, even if not "surprised." Answer C is incorrect because it is too narrow.

The plaintiff filed a personal injury action against a restaurant. The plaintiff alleges that she suffered food poisoning after consuming the restaurant's daily special: extra-strong coffee and chili over eggs. The restaurant defends by claiming that the special on the day in question was an exotic tea served with a yogurt and fruit blend, and that the extra-strong coffee drink was not even on the menu that day. Counsel for the restaurant called a former waitress to testify as to whether the extra-strong coffee drink was on the menu that day. The former waitress, who lives with the plaintiff, testified that it was always on the menu. The restaurant's attorney then asked, "Didn't you, in fact, state at your deposition that the extra-strong coffee drink was not on the menu that day?" The plaintiff's attorney objects. Is the question proper?

(Attribution: Law in a Flash cards)

Correct! Yes, because the former waitress is hostile.

Yes, because it constitutes refreshing the witness's recollection.

No, because this is a leading question on direct examination.

No, because the restaurant cannot impeach its own witness.

Yes, because the former waitress is hostile.

Correct!

For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of her present testimony. Under the Federal Rules, any party may impeach any witness (even its own witness), so Answer D is incorrect. Answer C is incorrect because leading questions are permitted on direct examination when a witness is hostile or identified with an adverse party. See FRE 611(c)(2). Thus, leading questions are permitted because the former waitress lives with the plaintiff and because she changed her testimony from the deposition. Answer B is incorrect because the restaurant's attorney is not trying to refresh the former waitress's recollection of whether the drink was on the menu; rather, he is talking about a deposition and is trying to impeach her with an inconsistent statement.

A truck driver is suing a car driver for injuries he suffered when their vehicles collided at an intersection controlled by stoplights. The truck driver called a witness to the accident to testify that he saw the driver of the car drive through a red light. On cross-examination, the car driver's attorney asks the witness, "Isn't it true that the car driver's ex-wife is paying $500 for your testimony today?" The truck driver's attorney objects. Should the objection be overruled?

Yes, because the question gives the witness an opportunity to explain or deny the allegation.

Yes, because the question is a proper form of impeachment if the attorney has a good faith basis for asking the question.

No, because the question addresses a collateral issue.

No, because it is a leading question.

Yes, because the question is a proper form of impeachment if the attorney has a good faith basis for asking the question.

Correct!

the objection should be overruled. It is proper to impeach a witness by showing that the witness has a possible bias. Evidence that the witness is being paid to testify would be proper impeachment through bias. Answer A states the requirement for introduction of a prior inconsistent statement; this is obviously inapplicable here. The credibility of a witness is not collateral, and so Answer C is incorrect. Leading questions are proper on cross-examination; thus Answer D is incorrect.

Defendant Ozzie Harriet takes the stand as part of his defense in his manslaughter case. On cross-examination, the prosecutor asks Harriet whether he was convicted two years ago for tax fraud.

The question is:

Proper to show Harriet is inclined to lie.

Proper to show that Harriet is inclined to steal.

Improper because the conviction has insufficient similarity to the crime charged.

Improper because the probative value of the evidence is outweighed by the danger of unfair prejudice.

Proper to show Harriet is inclined to lie.

Correct!

Tax fraud is crimen falsi, thus a conviction for this offense is admissible to impeach under FRE 609 whether or not the offense is a felony or a misdemeanor.

What is the definition of hearsay?

A statement made in court that a party offers in evidence to prove the truth of the matter asserted in the statement.

A statement made outside of court that a party offers in evidence to prove the truth of the matter asserted in the statement.

A statement made outside of court that a party offers only in verbal testimony to prove the truth of the matter asserted in the statement.

A "sworn statement" offered to prove the truth contained in the statement.

A statement made outside of court that a party offers in evidence to prove the truth of the matter asserted in the statement.

Correct!

Hearsay within hearsay is admissible if:

The anchor statement qualifies for an exemption or exclusion under the rules.

The underlying insinuation of the statement qualifies for an exemption or exclusion under the rules.

Each statement qualifies for an exemption or exclusion under the rules.

Each statement qualifies for an exemption, not an exclusion under the rules.

Each statement qualifies for an exemption or exclusion under the rules.

Correct!

Hearsay within hearsay is admissible if each statement qualifies for an exemption or exclusion under the rules.

Though they are technically hearsay, both common law exclusions and exclusions under FRE 801 allow statements into evidence because they have sufficient indicia of trustworthiness that make them "fair" to use as evidence against another person.

True

False

True - Correct!

Though they are technically hearsay, both common law exclusions and exclusions under FRE 801 allow statements into evidence because they have sufficient indicia of trustworthiness that make them "fair" to use as evidence against another person. For exemptions, this is usually because the statement is made by the party him or herself or by someone very close to them.

What is a prior consistent statement?

A statement that is considered inadmissible hearsay because it was not made by the declarant under oath in the courtroom.

A statement that had been consistent with the witness's in-court testimony until it was determined to have been coerced.

A statement by a declarant that is used to prove that the declarant recently fabricated the statement or is biased.

A statement by a declarant that is used to rebut a claim that the declarant recently fabricated the statement or is biased.

A statement by a declarant that is used to rebut a claim that the declarant recently fabricated the statement or is biased.

Correct!

A prior consistent statement is a statement by a declarant that is used to rebut a claim that the declarant recently fabricated the statement or is biased. The statement cannot be entered into evidence until after the claim of fabrication or ill intent is made.

Which is true about a prior inconsistent statement?

A prior inconsistent statement is a prior statement made by a declarant under oath that contradicts the declarant's testimony in court and is admitted into evidence against the declarant.

The prior inconsistent statement can be used to impeach the declarant.

The prior inconsistent statement can be used as substantive evidence to prove or disprove the truth of the matter asserted in the statement.

All of the above.

All of the above. -

Correct!

A prior inconsistent statement is a prior statement made by a declarant under oath that contradicts the declarant's testimony in court and is admitted into evidence against the declarant. The statement can be used to both impeach the declarant, but also as substantive evidence to prove or disprove the truth of the matter asserted in the statement.

A statement of prior identification may be used to rehabilitate the witness if his or her in-court identification is faulty.

True

False

True - Correct!

A statement of prior identification may be used when someone is testifying about identifying another person on a prior occasion. The earlier identification can be used to rehabilitate the witness if his or her in court identification is faulty.

In an alleged conspiracy, a statement of one of the co-conspirators will be admissible against the other co-conspirator if the statement was made during and in furtherance of the conspiracy, but only if the court makes a separate finding that a conspiracy existed.

True

False

True -

Correct!

In an established conspiracy, a statement of one of the co-conspirators will be admissible against the other co-conspirator if the statement was made: During and in furtherance of the conspiracy. Note: The existence of the conspiracy itself must be established before the statement will be admitted. The court may take inadmissible evidence into account in determining whether a conspiracy existed but it cannot make that conclusion based solely on the statement in question.

For the employee/agent exception to apply, the statement must be made in the course of the employer-employee, agent relationship.

True

False

True

Correct!

For the employee/agent exception to apply, the statement must be made in the course of the employer-employee, agent relationship.

Jones is charged with DUI (driving under the influence). The police took Jones to the police station and administered a Breathalyzer test. The officer seeks to testify that Jones "blew" a reading of .13 on the Breathalyzer machine, well over the legal limit of .08. Jones objects that the reading is hearsay.

The judge should:

Sustain the objection because the machine's readout constitutes the arresting officer's out-of-court statement.

Overrule the objection because machines don't make hearsay assertions.

Sustain the objection because the machine's readout constitutes the Breathalyzer machine manufacturer's out-of-court statement.

Sustain the objection because Jones's erratic driving is the equivalent of Jones's out-of-court assertion that "I drank too much alcohol."

Overrule the objection because machines don't make hearsay assertions.

Correct!

the machine is not a hearsay declarant. A is incorrect because the officer testifies to the results of the test, not to the officer's out of court statement. C is incorrect because the manufacturer made no assertion concerning the results of Jones's test. (The only issue with the manufacturer would involve whether the machine was manufactured and maintained properly, but those are not hearsay issues.) D is incorrect because Jones's driving was not intended as an assertion.

Which item(s) of evidence below would not be considered hearsay, and thus admissible, by the plaintiff to prove that the sun was shining brightly at the time that a traffic accident took place?

The plaintiff's testimony that "As my spouse and I left the store and walked to our car about five minutes before the accident occurred, I asked my spouse, "Do you have any of that sunblock lotion that you usually carry?"

The plaintiff's testimony that "As my spouse and I left the store and walked to our car about five minutes before the accident occurred, my spouse said, 'Can you believe that this morning's weather report said it was going to be cool and cloudy today?'"

The plaintiff's testimony that "As my spouse and I left the store and walked to our car about five minutes before the accident occurred, I saw a man walk outside the store, stop, apply lotion from a bottle labeled 'World's Best Sunblock,' then continue walking."

The plaintiff's testimony that "As my

spouse and I left the store and walked to our car about five minutes before the accident occurred, my spouse said to me that 'I just saw a man walk outside the store, stop, apply lotion from a bottle labeled 'World's Best Sunblock,' then continue walking.'"

The plaintiff's testimony that "As my spouse and I left the store and walked to our car about five minutes before the accident occurred, I saw a man walk outside the store, stop, apply lotion from a bottle labeled 'World's Best Sunblock,' then continue walking."

Correct!

the act of putting on sunblock lotion constitutes non-verbal conduct. The label itself does not present a hearsay issue because the man's actions are relevant even if the label is incorrect. A is hearsay because the plaintiff impliedly asserts that "I need sunblock," which has to be accurate to allow the inference that it was sunny to be drawn. B is hearsay because the spouse's implied statement is that "it is sunny." D is hearsay because the spouse's statement that a man was putting on sunblock lotion has to be accurate for the inference that it was to be drawn.

Which two items of evidence below would not be considered hearsay, and thus admissible, if offered by the plaintiff to prove that a black-and-while Lhasa Apso dog belonged to the defendant? (Mark two answers.)

Correct! The plaintiff seeks to testify that "I saw the black-and-white Lhasa Apso jump up on the defendant's lap and lick the defendant's face."

Same as A, but the plaintiff also offers into evidence a passage from the book "Canine Behavior for Dummies" stating that "Lhasa Apsos are extremely owner-loyal and will only lick the faces of owners.

A receipt from the Furry Friends Pet Shop that indicates the date on which a black-and-white Lhasa Apso was sold to the defendant, as well as the sale price.

A book entitled "How to Raise a Lhasa Apso" was found in the nightstand next to the defendant's bed.

The plaintiff seeks to testify that "I saw the black-and-white Lhasa Apso jump up on the defendant's lap and lick the defendant's face."

&

A book entitled "How to Raise a Lhasa Apso" was found in the nightstand next to the defendant's bed.

Correct!

A is correct because the dog is not a hearsay declarant, therefore the dog's licking of the defendant's face is not an assertive statement. D is correct because the relevance of the book on the nightstand does not depend on the accuracy of any out-of-court assertion. The relevance grows out of the presence of the book on the nightstand. B is incorrect because the passage in the book constitutes the author's out-of-court assertion that is relevant only if it is accurate. C is incorrect because the receipt is the preparer's out-of-court assertion that the defendant purchased the dog, accurate only if it is correct. (If a proper foundation is laid, the receipt might be admissible as a business record under Rule 803(6).)

Salty Sea Captain builds custom made boats. Donald Trump hired Salty to build and design a boat for him: Trump of the Sea." A week after delivering the boat to Trump, Trump invites Salty and his family to come sail on the boat with him and Melania, which Salty and his family did. A week later, the boat springs a leak while Trump is sailing with Vladimir Putin and Putin drowns at sea. Putin's many children sue Trump. In the lawsuit, Trump seeks to admit Salty's family outing on the boat as evidence that:

1. Salty must have believed the boat he built was safe or he wouldn't have taken his family on it.

2. If Salty believed the boat was safe, it probably was safe.

Putin's heirs object to the testimony on hearsay grounds. Putting aside any issues or exclusions or exceptions, should the court conclude that Salty's conduct constitutes hearsay?

Yes, because Salty was proving the boat was safe by taking his family sailing on it.

Yes, because it is an out of court statement made by Salty.

No because Salty going sailing on the boat is irrelevant.

No, because Salty did not intend his act of taking his family sailing on the boat as an assertion.

No, because Salty did not intend his act of taking his family sailing on the boat as an assertion.

Correct!

Salty did not intend the act of taking his sailing to be an assertion of anything. He was just living his life. A statement only qualifies as hearsay when the declarant makes a statement that contains an assertion. Thus the evidence is admissible as it is not hearsay, but may be excluded on other grounds such as 403 - misleading the jury or cumulative evidence.

Ronald McDonald sues Burger King for violating age discrimination laws when it terminated his employment as an accountant. Ronald seeks to offer into evidence an e-mail that he sent to his former co-workers in the accounting department stating that "King terminated my employment today as part of its effort to save money by firing older workers and bringing in new ones at much lower salaries." Assume Ronald properly authenticates the e-mail and seeks to use it to prove that King fired him for age discrimination.

Which statement below is accurate?

The portion of the e-mail stating that King fired Ronald is non-hearsay, admissible as "words of independent legal significance" because termination of employment is a material fact that Donald has to prove.

The entire e-mail is non-hearsay, admissible as "words of independent legal significance" because both terminations of employment and age discrimination are material facts that Donald has to prove.

The entire e-mail is admissible as non-hearsay because Ronald, the maker of the statement, testifies and is subject to cross-examination.

The entire e-mail is admissible as non-hearsay to show that Ronald's former co-workers believe that Donald was improperly terminated is reasonable

The e-mail is inadmissible hearsay.

The e-mail is inadmissible hearsay.

Correct!

The email is hearsay because Donald is attempting to use the email to prove that King fired him i.e. he is trying to use his out of court statement to prove the truth of the matter asserted in it - that he was fired. It makes no difference that it is Donald's statement. Donald may testify about what happened to him but he may not testify as to his out of court statement, absent an applicable exemption or exception.

In a traffic accident, to prove that the defendant drove negligently the plaintiff can offer evidence that:

Just prior to the accident, the passenger in the defendant's car said, "There's a sharp turn up ahead, you should probably slow down," to prove that Defendant had notice of the sharp turn.

Shortly after the accident, the passenger in the defendant's car said, "That was a sharp turn back there, you should have slowed down."

Just prior to the accident, the passenger in the plaintiff's car said, "There's a sharp turn up ahead, that car coming the other way needs to slow down."

Shortly after the accident, the passenger in the plaintiff's car said, "That was a sharp turn back there, that car coming the other way should have slowed down."

Just prior to the accident, the passenger in the defendant's car said, "There's a sharp turn up ahead, you should probably slow down," to prove that Defendant had notice of the sharp turn.

Correct!

The passenger's statement is admissible as "notice to hearer," because the passenger's statement provides information about a dangerous feature of the road that a reasonable driver would take into account when deciding how fast to drive. B is incorrect because since the statement is made after the accident it does not provide "notice." It is relevant only for its truth, and therefore is hearsay. C and D are incorrect because statements made to the plaintiff cannot provide notice to the defendant.They are relevant only if they are accurate, and are thus hearsay.

Miggins sues Police Officer Sara O'Hara for false arrest. At trial, Officer O'Hara seeks to offer evidence that she responded to an alarm at the home of LeMieux, who pointed in the direction of Miggins and said, "That's the guy who broke into my house."

Evidence of LeMieux's statement is:

Admissible to show that the officer reasonably believed that Miggins had committed the burglary even though LeMieux's statement was a false statement.

Admissible as non-hearsay to prove that Miggins did commit the burglary, because the statement explains why LeMieux pointed in Miggins's direction.

Inadmissible hearsay.

Admissible to prove that LeMieux believed that Miggins committed the burglary.

Admissible to show that the officer reasonably believed that Miggins had committed the burglary even though LeMieux's statement was a false statement.

Correct!

The homeowner's statement provides the officer with a basis for arresting Miggins even if the statement is incorrect. B is incorrect because the statement proves that Miggins committed the crime only if it is accurate. C is incorrect because the officer can offer the statement for a legitimate non-hearsay use. D is incorrect because the homeowner's belief is irrelevant.

Kramden is charged with assaulting Norton; Kramden contends that Norton was the aggressor and that Kramden acted in self-defense. Kramden seeks to have Alice testify that the day before the alleged assault, Kramden told her, "That guy Norton is as mean and vicious as they come."

Kramden's statement to Alice is:

Admissible to prove that Norton is mean and vicious and therefore was the aggressor.

Admissible evidence to prove Kramden's fear of Norton, from which it can be inferred that Kramden would not have attacked Norton.

Inadmissible evidence of Norton's propensity for violence.

Inadmissible unless, pursuant to Rule 104(b), Kramden offers foundational evidence sufficient to support a finding that Norton had previously engaged on violent conduct.

Admissible evidence to prove Kramden's fear of Norton, from which it can be inferred that Kramden would not have attacked Norton.

Correct!

The statement suggests that Kramden fears Norton, and from that fear one can infer that Kramden would not have attacked Norton even if Kramden's belief was incorrect. A is incorrect because the use depends on the statement's accuracy. C is incorrect because the evidence is relevant without reference to Norton's character. D is incorrect; no further foundation is need because the statement is relevant without regard to its accuracy.

Sara Jane, who had been a fugitive from justice for 25 years, is arrested and tried for attempted murder for planting a car bomb under a police car. Three days after the bombing, Lee identified Jane as the bomber after looking through photos and selecting the photo depicting Jane. At Jane's trial 25 years later, Lee testifies that "I'm sorry, it's been so long ago that I just can't remember whether Jane is the person who I saw plant the bomb."

Which of the following statements is accurate?

The prosecution can offer evidence of Lee's photo identification to prove that Jane was the bomber.

The prosecution can offer evidence of Lee's photo identification as a prior inconsistent statement to prove that Jane was the bomber.

The prosecution can offer evidence of Lee's photo identification as a prior consistent statement to prove that Jane was the bomber.

The prosecution cannot offer evidence of Lee's photo identification.

The prosecution can offer evidence of Lee's photo identification to prove that Jane was the bomber - Correct!

The prior identification is admissible because Lee testifies and is subject to cross examination. B is incorrect because the prior statement was not under oath and is not inconsistent with the in-court testimony. C is incorrect because the prior statement is not consistent with the in-court testimony. D is incorrect because A is correct.

In a slip-and-fall case filed by plaintiffs Ben and Anna Peel against a department store for damages including loss of consortium, Ben testifies that he tripped on loose carpeting in the store's sportswear department. Ben seeks to testify that "While I was being treated in the emergency room, I told a nurse that I had tripped on loose carpeting."

Ben's statement to the nurse is:

Admissible as a prior consistent statement not for its truth, but for the non-hearsay purpose of corroborating Ben's credibility.

Inadmissible as a prior consistent statement because the statement to the nurse was not made under oath.

Admissible as a prior consistent statement after the defense attorney suggests that Ben is fabricating his testimony and Ben admits during cross-examination that he lost his job a month after the accident and needs money to pay family bills.

Admissible as prior consistent statement after Ben admits during cross-examination that after being treated in the emergency room, he told the friend who drove him home that "I'm not really sure why I fell."

Admissible as a prior consistent statement after the defense attorney suggests that Ben is fabricating his testimony and Ben admits during cross-examination that he lost his job a month after the accident and needs money to pay family bills.

Correct!

the prior consistent statement is admissible to rebut a charge that his testimony is motivated by the loss of his job. A is incorrect because prior inconsistent statements are admissible for their truth or not at all. B is incorrect because admissibility of a prior consistent statement does not depend on its being made under oath. D is incorrect because evidence of a prior inconsistent statement does not amount to a charge of improper motive or recent fabrication.

Josh is charged with distribution of cocaine. At trial, Jenni testifies for the government under a grant of immunity that she bought a package of what was later determined to be cocaine from Josh. On cross-examination, Josh's attorney asks Jenni, "Didn't you previously say that Jerry and not Josh was the person from whom you bought the cocaine?"

Which of the following statements is accurate?

Jenni's prior statement is admissible to prove that Jerry was the cocaine seller if it was made under oath during grand jury proceedings.

Jenni's prior statement is admissible only for its truth and not to impeach her credibility as a witness if it was made to her attorney after her arrest.

Jenni's prior statement is admissible unless it was made under oath.

Jenni's prior statement is admissible as a prior inconsistent statement to prove that Jerry was the cocaine seller if it was made to the police shortly after they arrested her for possession of cocaine.

Jenni's prior statement is admissible to prove that Jerry was the cocaine seller if it was made under oath during grand jury proceedings.

Correct!

the grand jury statement is inconsistent with Jenni's prior statement and was made under oath.

At trial, government witness Sarah points to the defendant Robertson as the person she saw take money at gunpoint. During cross-examination, the defense attorney seeks to elicit testimony from Sarah that when she attended a lineup that included Robertson a few days after the robbery, she told a police officer that "I don't think that any of these people are the robber."

Sarah's statement to the police officer is:

Inadmissible to prove that the robber was not in the lineup.

Admissible under Rule 801(d)(1)(C) for the purpose of proving that the person she saw commit the robbery was not in the lineup.

Inadmissible because Sarah was not under oath at the time she spoke to the police officer.

Admissible for the purpose of casting doubt on Sarah's in-court identification (impeachment).

Admissible for the purpose of casting doubt on Sarah's in-court identification (impeachment).

Correct!

Sarah's statement is inconsistent with her in-court testimony; since it was not made under oath, it is admissible only for the purpose of casting doubt on her credibility. A is incorrect because even if she was uncertain as to the robber's presence in the lineup, the fact that she made the statement may detract from the believability of her in-court identification. B is incorrect because inability to make an identification is not admissible for its truth under Rule 801(d)(1)(C). C is incorrect because a prior inconsistent statement is admissible for impeachment purposes regardless of whether the witness was under oath as the time the prior statement was made.

The attorney-client privilege is created when. . .

a communication is made in confidence between an attorney and a client (or the client's agents) for the purpose of facilitating legal services.

a communication is made in confidence between an attorney and a client (or the client's agents) for the purpose of conspiring to commit a crime.

a communication is made in confidence between an attorney and a witness (or the witness's agents) for the purpose of facilitating legal services.

the privilege is deemed more important than the communication's probative value.

a communication is made in confidence between an attorney and a client (or the client's agents) for the purpose of facilitating legal services.

Correct!

The attorney-client privilege is created when a communication is made in confidence between an attorney and a client (or the client's agents) for the purpose of facilitating legal services. Answer B is incorrect because an attorney's services may not be used in furtherance of a crime. Answer C is incorrect because the attorney client privilege does not extend to the witnesses. Answer D is incorrect because privilege is not measured by importance.

Which is not a source of privileges?

The US Constitution and rules of the Supreme Court

State common law in civil cases where a state law supplies the rule for a claim or defense

An executive order

A federal statute

An executive order

Correct!

FRE 501 essentially says that there are four sources of privileges:

1. The US Constitution

2. A federal statute

3. Rules of the Supreme Court

4. State common law in civil cases where a state law supplies the rule for a claim or defense.

The attorney-client privilege applies to non-lawyers used by the lawyer to assist in providing legal services.

True

False

True - Correct!

All persons necessary to facilitate legal work on a case have privilege; otherwise, the lawyer would have to perform all tasks of the case by himself/herself.

Trial preparation materials are always protected against compelled disclosure under the Work Product Privilege.

True

False

False - Correct!

The use of the word "always" is a red flag here, because there is an exception to almost every rule. While Work Product Privilege usually applies to trial preparation materials (documents prepared in anticipation of litigation), there are some exceptions. The other party may compel disclosure if it can prove substantial need and undue hardship.

Choose the best answer. An inadvertent disclosure of a privileged communication will not act as a waiver if:

the disclosure is inadvertent.

the holder of the privilege took reasonable steps to prevent the disclosure.

the holder took prompt and reasonable steps to rectify the error.

all of the above.

all of the above. - Correct!

FRE 502(b) says that an inadvertent disclosure of a privileged communication will not act as a waiver if:

1) The disclosure is inadvertent.

2) The holder of the privilege took reasonable steps to prevent the disclosure.

(3) The holder took prompt and reasonable steps to rectify the error.

The marital communications privilege prevents disclosure of confidential marital communications made during the course of marriage (other than the exceptions noted in class), but any marital communications made during the marriage may legally be divulged upon dissolution of the marriage or upon death of either the husband or wife.

True

False

False - Correct Answer

Any marital communication (other than the exceptions noted in class) made during the marriage remains privileged even upon dissolution of the marriage or upon death of the husband or wife.

Adverse testimonial privilege does not apply if the husband and wife are no longer married at the time of the trial.

True

False

True - Correct!

If the husband and wife are no longer married at the time of the trial, adverse testimonial privilege does not apply.

A criminal defendant cannot be compelled to testify; however, a civil defendant can be compelled to testify with the option to plead the Fifth Amendment while on the stand.

True

False

True -

Correct!

A criminal defendant cannot be compelled to testify, and no comment can be made about the defendant's failing to testify. However, there is no protection against a civil defendant being forced to testify, though the civil defendant may assert the Fifth Amendment on a question by question basis. And the opposing party may comment on "taking the 5th."

Prosecutor sent a subpoena to Barlie Thompson to testify against her husband, Artis Thompson, in a criminal fraud action. Artis allegedly told Barlie he was cashing a check he knew to be fraudulent and showed her the stolen money hidden in his sock drawer. Artis asserts the adverse testimony privilege and attempts to keep Barlie off the witness stand.

May Artis keep Barlie off the stand?

Artis holds the adverse testimony privilege and can keep Barlie off the stand.

The marital communications privilge allows Artis to keep Barlie off the stand.

Barlie holds the privilege, and if she wants to take the stand against Artis she may, though she may be foreclosed about testifying about certain communications under another principle of law.

Barlie may take the stand and testify about everything Artis told her that is relevant to the case.

Barlie holds the privilege, and if she wants to take the stand against Artis she may, though she may be foreclosed about testifying about certain communications under another principle of law.

Correct!

The adverse testimony privilege prohibits a prosecutor from forcing a spouse to testify against the other spouse. A is incorrect because the testifying spouse holds the privilege, and the decision whether to testify is up to the testifying spouse. While it's true that the marital communications privilege may be asserted by Artis and would foreclose Barlie from testifying as to any "communications" Artis made to her during the course of their marriage (which is why Answer D is incorrect), she could still take the stand to testify as to what she observed Artis doing. Answer B is incorrect because observations are not covered by the marital communications privilege, and thus Barlie can still testify about what she saw. The adverse testimony privilege only applies in criminal proceedings, so if this was a civil fraud case, Barlie could be forced to take the stand.

Biloxi Barnes was married to Harold Hines, an alleged member of a large crime syndicate in Chicago, Illinois. After Harold had passed away, Biloxi was called to testify in a criminal case involving her husband's business associates. The associates have been charged with mail fraud and conspiracy. Harold had allegedly told Biloxi, "Yeah, me and the boys had to take charge of our business and minimize the opportunities of our competitors, if you know what I mean."

This statement:

It is not admissible as a co-conspirator admission as it is protected by the marital communications privilege.

Is admissible under the adverse testimonial privilege.

Is admissible because Harold has passed away.

Is admissible though it is hearsay as an excited utterance.

It is not admissible as a co-conspirator admission as it is protected by the marital communications privilege.

Correct!

The statement between spouses qualifies as the subject of the marital communications privilege and can be claimed by either spouse. It is irrelevant that the declarant, Harold, is now dead, because the privilege generally survives the death of the holder. Further, even if the statement is admissible hearsay under several exceptions, the marital communications privilege trumps those exceptions and cannot be admitted. (It may be a statement against interest but it is not an excited utterance, for obvious reasons, and is not an admission by a co-conspirator as it was not made "in furtherance" of the conspiracy.)

Alice went to her massage therapist to work out the pain in her back after her car was rear-ended by another car. During the massage, Alice told her therapist, whom she had known for many years, "In the strictest of confidence, the pain in my lower back resulted from straining my back years ago at the supermarket, not from this accident."

If, during trial, the therapist is called to testify by the defendant against Alice, this testimony should be:

Admitted because Alice's statement is relevant, is a hearsay "exemption," and is not privileged.

Admitted, because it falls into an exception to the therapist's privilege.

Excluded, because the statement is privileged under the broad interpretation given the therapist privilege.

Excluded, because the promise to keep the information confidential binds the therapist in the face of law.

Admitted because Alice's statement is relevant, is a hearsay "exemption," and is not privileged.

Correct!

The statement is an admission by a party opponent, considered non-hearsay under Rule 801(d). It is not privileged because there is no massage therapist-patient privilege, but only a psychotherapist-patient privilege. While the psychotherapist-patient privilege has been interpreted broadly and includes social workers, it does not include massage therapists.

Answers B and C are therefore incorrect, because the privilege is not that broadly interpreted.

Answer D is incorrect because the promise to keep the statement confidential must bend to the requirements of the law and the court system, not the other way around.

Cinderella Cruise Line seeks to have the highest safety standards of any cruise line. It routinely reviews all accidents, even the most minor ones, on its ship. As part of the routine, an investigator is appointed, a file is created, and a confidential meeting is held between the investigating staff member and the ship's captain to determine if safety standards have been met. After an accident in the dining room of one of the Cinderella ships and after a report has been prepared by Cinderella per its usual process, a lawsuit is filed. The plaintiff seeks access to the report prepared by the cruise line, and the cruise line claims privilege.

How should the court rule?

The document is privileged because it was intended to be confidential and reviewed only by certain company employees.

The document is privileged under the attorney-client privilege.

The document is not privileged because, in this case, it was not prepared in anticipation of litigation.

The document is protected under the work-product privilege.

The document is not privileged because, in this case, it was not prepared in anticipation of litigation.

Correct!

While some courts have recognized a privilege for some critical reviews such as those involving safety, both in the context of Rule 407, subsequent remedial measures, and Rule 501 privilege, a routine and voluntary review generally is not considered privileged under the work product doctrine, which protect documents prepared "in anticipation of litigation." The cruise line was not anticipating any particular litigation when the report was generated.

Lawyer was just admitted to the bar and has no office. He meets his clients at the local Starbucks coffee shop. Lawyer represents criminal defense client who is charged with murder and is out on bond. One afternoon Lawyer holds a follow up meeting with criminal defense client at the local Starbucks at 3:30 when the local high school has just dismissed. Client leans over and says quietly to the Attorney: "You know Alice and I had strawberry frappucinos right before, you know, . . . I wanted her to be happy at the end."

Prosecutor subpoenas two high school students sitting next to Lawyer and Client to testify as to what Client said. Lawyer objects, claiming the attorney client privilege on behalf of the client.

The objection should be:

Sustained because client's statement is protected by the attorney-client privilege.

Sustained because the Prosecutor cannot use a subpoena to invade the sanctity of the attorney-client privilege.

Overruled because Client's statement was not made in confidence.

Overruled because the statement may be admissible hearsay under the present sense impression.

Overruled because Client's statement was not made in confidence.

Correct!

The statement was not made "in confidence." Though the client intended that no one else hear the statement, both the attorney and client should know that it would be easy for someone else to overhear anything attorney and client said to each other. There is no reasonable expectation of confidentiality at a busy Starbucks which is required in order to classify a communication as privileged. Accordingly a prosecutor may validly issue a subpoena under these circumstances. The statement is not a present sense impression because client is talking about his past state of mind

Lawyer is at the wedding reception of her best friend. At the reception, a woman who was a sorority sister with Lawyer in college sees Lawyer and comes over to talk. Halfway through the conversation the woman begins to laugh, shakes her head from side to side and casually asks Lawyer, "One of my employees is threatening to sue me for employment discrimination - can you believe it? Do I need to take this seriously?" Lawyer replies, "I am happy to discuss it with you at a more appropriate time and place - we can meet at my office on Monday if you like." The woman never follows up with the lawyer.

Woman is sued for employment discrimination.

May the Plaintiff subpoena Lawyer to testify about the conversation with the woman at the wedding reception?

Yes, because it is an admissible hearsay statement.

Yes, because the conversation is not protected by the attorney client privilege because it was not made with the intent to have Lawyer provide legal services to the woman.

No, because the conversation is protected under the attorney client privilege.

No, because woman never followed up with Lawyer.

Yes, because the conversation is not protected by the attorney client privilege because it was not made with the intent to have Lawyer provide legal services to the woman.

Correct!

Judging from the woman's casual and flippant framing of the questions, it is reasonable to believe that she was not making the statements in a an effort to have attorney provide legal services to her. He was simply fishing for an off the cuff opinion and no attorney client relationship was created. The attorney client privilege applies in situations where the goal is to facilitate the provision of legal services, i.e. obtaining a full legal opinion.

Lawyer is at the wedding reception of her best friend. At the reception, a woman who was a sorority sister with Lawyer in college sees Lawyer and approaches her. After a few minutes of small talk, the woman asks if she might talk with Lawyer privately. Lawyer and the woman go to an empty room near the reception room and shut the door. The woman recounts how she fears that one of her employees might sue her for employment discrimination, and she shares the details of the allegations being made by the employee.

Lawyer replies sympathetically and states, "I am happy to discuss this with you at a more appropriate time and place. We can meet at my office on Monday if you like." The woman never follows up with the lawyer.

Woman is sued for employment discrimination.

May the Plaintiff compel Lawyer to testify about the conversation with the woman at the wedding reception?

Yes, because the woman never hired Lawyer.

Yes, because Lawyer never provided the woman with legal advice.

No. The attorney-client privilege protects the conversation. The conversation was made in confidence between the attorney and the woman, with the goal of obtaining legal services.

No. The contents of the conversation are inadmissible hearsay.

No. The attorney-client privilege protects the conversation. The conversation was made in confidence between the attorney and the woman, with the goal of obtaining legal services.

Correct!

The woman was seeking a legal opinion from Lawyer and took measures to relay the information in confidence. This is sufficient to establish an attorney client relationship and the attorney client privilege. It is irrelevant that the woman never went on to hire the lawyer (Answer A) or provided her with legal advice (Answer B). Though the conversation may indeed be hearsay, Answer D is overly broad and C is the better, more precise answer.

One night after one of his concerts, Justin Bieber held a wild party at his hotel penthouse suite. There were many people there who Bieber did not know. At the party, Bieber had trays of illegal drugs in every room and invited guests to consume the drugs. One young woman brought a civil suit against one of Bieber's band members for rape, alleging that he raped her when she was unconscious after ingesting a particular drug on one of the trays.

The female plaintiff seeks to compel Bieber, a witness, to testify at trial.

Which of the following statements is the most accurate?

Bieber cannot be compelled to appear at trial and cannot be compelled to testify because of his Fifth Amendment privilege.

Bieber can be compelled to appear and be compelled to testify.

Bieber has no Fifth Amendment privilege because he is Canadian.

Bieber can be compelled to appear, but he may exercise his Fifth Amendment privilege in response to any question if his answer might incriminate him.

Bieber can be compelled to appear, but he may exercise his Fifth Amendment privilege in response to any question if his answer might incriminate him.

Correct!

In criminal proceedings, the Fifth Amendment protects the defendant's right to not testify, and the prosecutor may not comment on the Defendant's refusal to testify. In a civil proceeding, a witness may be compelled to appear and take the stand, but may invoke his or her Fifth Amendment right in response to any question if the answer may incriminate the witness.

Which of the following is not true about judicial notice?

Judicial notice is a method for bypassing the evidentiary process to admit evidence that no one disputes.

Judicial notice saves time and money, allowing the focus to be on matters that are truly disputed.

Judicial notice bypasses the evidentiary process if the judge alone is fully aware of the facts.

A court can accept or "take notice" of certain types of undisputed "facts."

Judicial notice bypasses the evidentiary process if the judge alone is fully aware of the facts.

Correct!

Answer C states that the evidentiary process may be bypassed via judicial notice if the judge alone is fully aware of the facts. Rule 201 clearly states that the fact must be generally known in the jurisdiction. The judge's knowledge alone is not sufficient.

Fill in the blank. "_____________ facts may be judicially noticed."

Adjudicative facts

Legislative facts

Both adjudicative and facts

Neither adjudicative nor legislative

Adjudicative facts

Correct!

Adjudicative facts are a type of facts normally determined by a jury or judge, usually consisting of evidence showing the "who, what, where, why and how." Per FRE 201, only adjudicative facts can be the subject of judicial notice.

Which is true regarding judicial notice?

(1) The court may take judicial notice on its own.

(2) The court must take judicial notice if a party requests it and the court is supplied with the necessary information

(3) A party can ask the court to take judicial notice of a fact at any stage of the proceeding, if the request is timely.

(4) The party has a right to be heard on the issue, even if the judge took judicial notice of a fact before notifying the party.

1, 2, and 3 only

1, 3, and 4 only

2 and 4 only

1, 2, 3, and 4

1, 2, 3, and 4

Correct!

In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

True

False

True. - Correct!

FRE 201(f):

In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

FRE 201 applies only to facts that cannot readily and fully be answered by consulting Google or another reputable source.

True

False

False - Correct!

The word that makes this statement incorrect is "cannot."

FRE 201 applies only to facts that can readily and fully be answered by consulting Google or another reputable source.

Judicial notice can be taken for the first time on appeal in a criminal case but many courts are reluctant to do so.

True

False

True - Correct!

Courts are often reluctant to take judicial notice of a fact on appeal as it interferes with the jury's fact finding role.

In a case involving the Chicago Bulls, the judge is asked to take judicial notice of the fact that Michael Jordan was voted the "most valuable player" for the 1991-1992 National Basketball Association season. Should the court take judicial notice of this fact? Why?

yes

no

yes - Correct!

In a divorce action, the petitioner asks the court to take judicial notice that adversarial testimony of parents in the presence of young children is bad policy and would destroy the family unit. Should the court take judicial notice?

yes

no

no - Correct!

This is an example of a legislative fact not covered by the judicial notice rule. It is a legislative fact because it deals with public policy, not the particular parties, events, or facts of the case.

Dave is sued for trespassing on another person's property. At issue in the case is whether it was still light out at the time Dave allegedly trespassed. Dave asked the court to take judicial notice that it was dark at the time he allegedly entered the property. Should the court take judicial notice?

yes

no

no - Correct!

The fact must not be subject to reasonable dispute to be judicially noticed. Whether it was light out at that time is different than asking whether the sun had set. Sun set and sun rise are scientifically assessed and properly subject to judicial notice. Whether it was "light out," however, is disputable and a jury question. Judicial notice is improper.

An issue in a recent lawsuit concerned several facts regarding the Constitutional Convention. May the court properly take judicial notice of all of the following:

1. That the Constitutional Convention took place from May 25 through September 17, 1787?

2. That there was a rule of secrecy requiring the framers to close the windows during their discussions?

3. That Rhode Island was the only state that did not attend the convention?

yes

no

yes - Correct!

Judicial notice is proper under Rule 201. These facts are not reasonably subject to dispute and are capable of accurate and ready determination.

The plaintiff alleges that the defendant threw boiling water at her. Plaintiff asks the court to take judicial notice that water boils at 212 degrees Fahrenheit. Is judicial notice proper?

yes

no

yes - Correct!

Scientific principles, such as the temperature at which water boils, are subject to judicial notice.

A rock band brings suit for copyright infringement. To show the amount of damages, it uses the record sales of another similar folk-rock band, the Karaoke Kings. The judge happens to be very familiar with the band, even though most people in that jurisdiction have never heard of such a group. Should the judge take judicial notice that the Karaoke Kings band plays music similar to that of the plaintiffs?

yes

no

no - Correct!

Judicial notice is inappropriate. The standard under Rule 201 does not relate to the judge's personal knowledge of the fact in question, but on whether the fact is generally known in the territorial jurisdiction of the court.

In a desegregation suit brought in Los Angeles, California, the plaintiff asked the court to take judicial notice of the Supreme Court decision in Brown v. Board of Education. Should the district court take judicial notice?

yes

no

yes

Correct!

Prior case law of the United States Supreme Court is properly the subject of judicial notice (US v Wilson), in which the court held it proper to take judicial notice of its own record and other case law, as well as records of an inferior court in other cases. In US v Houston, for example, the court concluded that statutes and case law from sister states are also within the purview of judicial notice.

In a suit for personal injury arising out of an automobile accident, which of the following items of evidence could NOT properly be proved through Judicial Notice?

Attribution: Friedland on Evidence

That small children frequently play in the residential alleyway in which the accident occurred.

That the alleyway in which the accident occurred is located within the city limit of the City of Phoenix, Arizona.

That as of 5:00 p.m. on October 3, the date of the accident, the sun had not yet set.

That skid marks will be produced if the brakes of a car are suddenly applied to a car traveling at least 40 mph.

That small children frequently play in the residential alleyway in which the accident occurred.

Correct!

Whether children frequently play in a small residential alleyway is unlikely to be generally known in the trial court's jurisdiction not determinable by resort to accurate sources.The facts stated in Answers B and C are appropriate for judicial notice as they can be established by consulting city maps, local newspapers or almanAacs. Answer D is appropriate for judicial notice because the fact that cars traveling at least 40 mph will leave skid marks if the brakes are applied suddenly would be generally known to most adults.

A group of parents sue a school district in an effort to obtain a court order to require the school district to offer additional Advanced Placement courses in inner city high schools. They argue that this will give children from lower income areas a fair chance to gain entry into top colleges. Which, if any, of the following trial court conclusions must have either been testified to or have been properly judicially noticed?

Attribution: Friedland on Evidence.

"Attending a top university is an important way of making connections that can open doors later in life."

"The competition to get into the nation's top colleges and universities is fierce."

"Students admitted last year into a group of 25 universities typically ranked among the top universities in the country took an average of nine advanced placement courses.

"A college education is as important for the maturation process it stimulates as it is for the knowledge and skills that students obtain."

"Students admitted last year into a group of 25 universities typically ranked among the top universities in the country took an average of nine advanced placement courses.

Correct!

because it refers to an adjudicative fact. Since the matter is unlikely to qualify for judicial notice, as it is neither generally known nor readily capable of accurate determination, the conclusion would have to be supported by evidence in the record.

"Authenticating" an exhibit means supplying a minimal amount of evidence sufficient to support a finding that a piece of tangible evidence is what it is claimed to be.

True

False

True - Correct!

"Authenticating" an exhibit means supplying a minimal amount of evidence sufficient to support a finding that a piece of tangible evidence is what it is claimed to be. It is an aspect of relevancy. For instance, when a proponent is trying to admit a letter into evidence, there must be a minimal amount of evidence introduced first (a foundation laid) that the letter was written by the person the proponent claims wrote the letter.

Like other tangible evidence, the proof required to authenticate a piece of evidence such as a photograph, may take the form of testimony, stipulation, admission, or other proof.

True

False

True - Correct!

Like other tangible evidence, the proof required to authenticate a piece of evidence such as a photograph, may take the form of testimony, stipulation, admission, or other proof.

If trying to prove the existence of a writing, recording, or photograph, the original must be provided unless the Federal Rules of Evidence or a statute provided otherwise.

True

False

False - Correct!

If trying to prove the content of a writing, recording, or photograph, the original must be provided unless the Federal Rules of Evidence or a statute provided otherwise. The existence of a writing, recording, photograph could be testified to by a witness who perceived this evidence; it's only when the content of the evidence are in question that the actual evidence must be provided. For instance, Bill may testify that he saw Betty writing a letter, but the actual letter would need to be admitted into evidence if the content of the letter were pertinent to the case.

Demonstrative Evidence is the actual evidence or articles related to the case, such as the actual murder weapon. Substantive Evidence is not the actual evidence of the case, but is "just like the real evidence" that a witness can authenticate as being identical to the original.

True

False

False - Correct!

The words "Demonstrative" and "Substantive" are reversed. Substantive Evidence is the actual evidence or articles related to the case, such as the actual murder weapon. Demonstrative Evidence is not the actual evidence of the case, but is "just like the real evidence" that a witness can authenticate as being identical to the original.

The Best Evidence Rules divide evidence into three categories. Which of the following is not one of the categories?

Originals

Duplicates (accurate reproductions of originals)

Primary Evidence (evidence directly related to the incident)

Other Evidence (any type of evidence that is not an original or duplicate)

Primary Evidence (evidence directly related to the incident) - Correct!

There is no category of "Primary Evidence." The three categories of evidence are Original, Duplicate, and Other Evidence. See FRE 1001-1003.

Ann Larimore purchased a "Balance" nutrition bar from the local supermarket, Everyday's Market. Shortly after eating the bar, Larimore became very ill. Upon recovering, she sued the maker of the bar. At trial, Larimore offered a bar in the identical wrapper to the one she purchased. While testifying, her own attorney asked her, "Ann, do you recognize plaintiff's Exhibit #11 for identification purposes?" Ann responded, "Yes. It is a Balance nutrition bar. It is just like the Balance Bar I purchased that made me sick." The attorney then offered the bar into evidence. The defendant objected on several grounds, including lack of authentication.

As to the objection relating to authentication, how should the court rule?

The exhibit should be excluded because the attorney failed to satisfy authentication requirements.

The exhibit should be excluded because it is unfairly prejudicial and will mislead the jury.

The exhibit should not be excluded based on a lack of authentication because it is self authenticating under Rule 902.

The exhibit should not be excluded because the importance of the document outweighs the minor omissions by counsel in laying the foundation.

The exhibit should not be excluded based on a lack of authentication because it is self authenticating under Rule 902.

Correct!

The Balancing Bar is self-authenticating under Rule 902, and the attorney need not lay a foundation to admit it. While there may be relevancy issues, since the bar offered in evidence was not the exact bar that allegedly caused the plaintiff's illness, the relationship of the bar offered at trial to the bar allegedly causing the illness was briefly described. Therefore, Answer B, concerning unfair prejudice, is not the best answer. Answer A also is incorrect because a self-authenticating label does not need an attorney to lay a foundation. Answer D is wrong because there is no necessity provision that circumvents the authentication requirements.

In a negligence action resulting from a collision between a sports utility vehicle and a truck, the plaintiff called an expert in accident reconstruction to describe what exactly occurred during the accident. The expert was admitted by the court and, after laying a foundation of how she constructed her demonstrative computer graphics, the expert attempted to use a computer reenactment of the accident to illustrate her testimony. The defense objects.

How should the court rule?

Answer Admit, if it is reasonably accurate and will aid in the witness's testimony.

Admit, if counsel shows the reenactment constitutes business records under the applicable hearsay exception.

Exclude, because such reenactment is highly prejudicial.

Exclude, because the reenactment is not probative of a fact of consequence.

Answer Admit, if it is reasonably accurate and will aid in the witness's testimony.

Correct

The use of demonstrative evidence is permitted to aid a witness's testimony so long as the necessary foundation is laid. If the evidence is simply being used demonstratively, and it will not be offered in evidence otherwise, courts often allow a foundational inquiry relating to the reasonable accuracy of the aid. Answer B is incorrect because the reenactment is not an out-of-court statement and not subject to the hearsay rule. Answer C, while tempting, is incorrect, because courts often admit computer-generated graphics or photos to aid testimony. Answer D is wrong because the reenactment helps the witness's testimony and relates to the case, thus making a relevance objection improper.