Barbri - Evidence - MBE

In certain instances, a party may prove a witness's prior inconsistent statement by use of extrinsic evidence.

Which statement regarding the permissibility of extrinsic evidence is false?

response - correct

A

A hearsay declarant's inconsistent statements may be used to impeach her despite the lack of a foundation.

B

Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.

C

The prior inconsistent statement may concern any matter that casts doubt on the witness's credibility, whether or not it is related to the case.

D

The prior inconsistent statement must be relevant to the case.

C The prior inconsistent statement may concern any matter that casts doubt on the witness's credibility, whether or not it is related to the case.

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party's statement. QUESTION ID: E0004

Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness's prior inconsistent statement made at a deposition is:

response - correct

A

Hearsay, but admissible as an exception

B

Not hearsay, as long as the witness is subject to cross-examination

C

Inadmissible hearsay

D

Not hearsay, as long as the witness is given an opportunity to explain or deny the prior statement

B Not hearsay, as long as the witness is subject to cross-examination

A testifying witness's prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).

Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.

A witness testifies on direct examination that he saw defendant's car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made:

response - correct

A

Before a grand jury

B

To a police officer

C

At a deposition

D

At a prior hearing

B To a police officer

The witness's prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination.

The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception.

Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?

response - correct

A

An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.

B

An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement.

C

An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

D

An unavailable hearsay declarant may not be impeached by any method because she is not present at trial.

C An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.

Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant's credibility is impeached, it may also be rehabilitated.

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 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 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 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 driver with his deposition testimony that he was completely sober at the time of the accident.

Will this evidence be permitted?

response - incorrect

A No, the statement is hearsay not within any recognized exception.

B No, the moving company cannot impeach its own witness.

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

D Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.

D Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.

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. (A) is therefore incorrect. (B) is incorrect because the Federal Rules permit a party to impeach its own witness, even if not "surprised." (C) is incorrect because it is too narrow.

The plaintiff sued the defendant for injuries suffered when the defendant's car struck the plaintiff as she was crossing a busy intersection. The plaintiff planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, the plaintiff called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, "My God, the woman was crossing on the green light!" Over objection, the statement was admitted as an excited utterance. The defendant now wishes to call the bystander's friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: "You know that accident I saw this afternoon? The driver didn't run a red light. The light was yellow."

Should the friend's testimony be admitted over the plaintiff's objection?

response - incorrect

A Yes, but only to challenge the credibility of the bystander's earlier inconsistent statement.

B Yes, both for impeachment purposes and as substantive evidence.

C No, because the bystander is not available to explain or deny the statement.

D No, because it is hearsay, not within any recognized exception to the hearsay rule.

A Yes, but only to challenge the credibility of the bystander's earlier inconsistent statement.

The friend's testimony is admissible only to challenge the credibility of the bystander's earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the bystander's hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement. (B) is wrong because the statement is hearsay not within any exception, and thus not admissible as substantive evidence. Under Federal Rule 801(d)(1), a prior inconsistent statement is only considered nonhearsay when (i) the declarant is now testifying at trial and subject to cross-examination and (ii) it was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition. Here the bystander is not testifying at trial and did not make the statement to the friend under penalty of perjury. so the statement is hearsay. Furthermore, it does not fall within any apparent hearsay exception. (C) is wrong because the general requirement that an impeached witness be given an opportunity to explain or deny an apparently inconsistent statement does not apply to hearsay declarants. Because hearsay statements are often admissible at trial after the declarant has died or is otherwise unavailable, Rule 806 provides that the declarant need not be given an opportunity to explain or deny statements that are inconsistent with the declarant's hearsay statement. (D) is wrong. While it is true that the statement is hearsay not within an exception (and thus inadmissible as substantive evidence), it is still admissible for the purpose of impeachment.

A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant's attorney called the clerk's employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him.

How should the trial judge rule on the admissibility of this testimony?

response - correct

A Admissible, because it tends to show that the clerk is an unreliable witness.

B Admissible, because it has bearing on the clerk's truthfulness and veracity.

C Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.

D Inadmissible, because it is hearsay not subject to any exceptions.

C Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.

The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant's face, and so the color of the gun is not material to any issue in the case under the facts given. (A) and (B) are incorrect because, even if the evidence does have some bearing on the clerk's credibility as a witness, it will be excluded because it will possibly confuse the issues or because it is a waste of time. (D) is not correct because the defendant is not seeking evidence to prove the truth of any material issue, but to impeach the clerk. The hearsay rule does not apply.

The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff's employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant's home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.

If the employee's letter to his friend is properly authenticated, should the court admit the letter?

response - correct

A Yes, for impeachment purposes only.

B Yes, as both substantive and impeachment evidence.

C No, because a party may not impeach his own witness.

D No, because it is inadmissible hearsay.

B Yes, as both substantive and impeachment evidence.

The letter is admissible as substantive evidence as well as for impeachment purposes. 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. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff's employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness's prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee's letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee's statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence, making (B) correct and (A) incorrect. (C) is incorrect because the Federal Rules provide that the credibility of a witness may be attacked by any party, including the party calling him. [Fed. R. Evid. 607] (D) is incorrect. The letter is hearsay because it is being offered to prove the truth of the matter asserted—that the employee was going to do electrical work on the home—as a basis for inferring that the employee did do the work. Additionally, it is not categorized as nonhearsay under the Federal Rules because it was not made under oath. However, as discussed above, it falls within the "present state of mind" exception to the hearsay rule.

In federal courts, spousal immunity __________.

response - incorrect

A

may be invoked in both civil and criminal cases

B

is not terminated upon divorce

C

can be asserted as to matters that took place before the marriage

D

can be invoked by both the witness-spouse and the party-spouse

C can be asserted as to matters that took place before the marriage

The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.

Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege.

The privilege lasts only during the marriage and terminates upon divorce or annulment.

Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.

Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.

When may the spousal immunity doctrine be invoked?

response - correct

A

In criminal or civil cases, as long as the matter concerns a confidential communication between the spouses

B

In criminal or civil cases, for matters that took place before or during the marriage

C

In criminal cases only, for matters that took place before or during the marriage

D

In criminal cases only, for matters that took place during the marriage only

C In criminal cases only, for matters that took place before or during the marriage

When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only.

The privilege lasts only during the marriage and terminates upon divorce or annulment. However, if a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.

Spousal immunity may not be invoked in civil cases.

Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of spousal immunity.

Which statement regarding the privilege for confidential marital communications is true?

response - incorrect

A

The confidential communication must have been spoken aloud.

B

The privilege may be asserted as to communications made after divorce.

C

Either spouse may prevent anyone from disclosing confidential marital communications.

D

The privilege may be asserted as to communications made before the marriage.

C Either spouse may prevent anyone from disclosing confidential marital communications.

Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication.

The privilege cannot be asserted as to communications made before the marriage. In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.

The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.

The confidential communication need not be spoken; it may be made by conduct intended as a communication.

Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.

Regarding the privilege for confidential marital communications, __________ spouse can prevent anyone from disclosing confidential communications made __________ a valid marriage.

response - correct

A

Only the party-; before or during

B

Only the party-; during

C

Either; during

D

Either; before or during

C Either; during

Either spouse (whether a party or not) can prevent any other person from disclosing the confidential communication (or can refuse to disclose the communication). The privilege applies to communications made during the marriage. The privilege cannot be asserted as to communications made before the marriage. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.

An indictment was filed in federal district court charging the defendant with violations of federal bank robbery statutes. At trial, the government attempted to introduce into evidence the testimony of the defendant's wife, who would testify that she had seen the defendant arm himself on several occasions with weapons identical to those used in the bank robberies, had seen him return to their home carrying sacks filled with money with the markings of the robbed banks, and had overheard, while serving meals, the defendant and his co-defendants discussing plans for robbing the various banks and concealing the loot. The defendant's attorney objected, and the district court judge ruled that the wife's testimony was within the spousal privilege and could not be admitted over the defendant's objection.

Was this ruling correct?

response - correct

A No, because the spousal privilege may be asserted only by the testifying spouse—she may not be compelled to testify nor be foreclosed from testifying.

B No, because there is no federal common law, and the spousal privilege is a creation of the common law.

C Yes, because the privilege not to testify may be asserted by either the testifying or nontestifying spouse.

D Yes, because the defendant and his wife were married at the time and he can prevent her from disclosing the confidential communication.

A No, because the spousal privilege may be asserted only by the testifying spouse—she may not be compelled to testify nor be foreclosed from testifying.

Federal Rule 501 provides that federal courts shall apply rules of privilege developed at common law except in diversity cases, wherein state law controls, but this is not a diversity case. The United States Supreme Court has held that the privilege not to testify may be asserted only by the testifying spouse, and if she is willing to so testify against her husband, the marital relationship is so disharmonious that there is nothing left for the privilege to preserve. Thus, (A) is correct and (B) and (C) are incorrect. (D) is incorrect because it states the privilege for confidential marital communications, which is different from the spousal privilege. Further, the confidential communication was between the defendant and his co-defendants, not between the defendant and his wife.

A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend's presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant's wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it.

May the defendant's wife testify about the conversation?

response - correct

A Yes, because the conversation occurred prior to their marriage.

B Yes, but only if she chooses to do so.

C No, because the defendant forbids it.

D No, unless both the defendant and his wife agree that she may testify.

B Yes, but only if she chooses to do so.

The wife may testify if she chooses to do so. In federal court, the privilege of spousal immunity belongs to the witness-spouse. There are two privileges based on the marital relationship. Under spousal immunity, a person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, one spouse may choose to testify against the other in a criminal case, with or without the consent of the party-spouse. Spousal immunity lasts only during the marriage and terminates upon divorce. However, as long as a marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage. Because the defendant is a criminal defendant, his wife cannot be compelled to testify about his conversation with the visitor. She may, however, choose to testify, and the defendant cannot stop her. The other choices reflect elements of the privilege for confidential marital communications. Under that privilege, either spouse (whether or not a party) may refuse to disclose, and may prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife. The communication must be made during a marriage, and must be in reliance upon the intimacy of the marital relationship, which is presumed in the absence of contrary evidence. This privilege is not afforded to a communication that is made in the known presence of a stranger. Both spouses jointly hold this privilege. The conversation between the defendant and the visitor cannot qualify as a confidential marital communication for several reasons. Most importantly, it was not a communication between the defendant and his wife. Moreover, the incident did not occur during the marriage. Thus, the privilege for confidential marital communications does not apply, and the defendant cannot prevent his wife's testimony should she choose to testify. (A) is wrong because it states a reason why the privilege for confidential marital communications does not apply. Spousal immunity still applies; thus (B) is a better choice because it reflects the fact that the wife's testimony cannot be compelled. (C) is wrong because, in federal court, spousal immunity does not permit the defendant-spouse to foreclose testimony by the witness-spouse. As discussed above, the privilege for confidential marital communications, under which both spouses may prevent disclosure, does not apply here. (D) is wrong for the same reason.

The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child's parents seeks to have the defendant's wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, "Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would've hit the kid." The wife was recently divorced from the defendant and eager to testify against him. The prosecution also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window.

Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?

response - correct

A Yes, because she and the defendant were divorced during the time between the making of the statement and the trial.

B Yes, because the fact that the neighbor heard the statement removes the privileged status of the statement.

C No, because the defendant's statement was a confidential marital communication.

D No, because the privilege to foreclose such testimony belongs to the party-spouse.

C No, because the defendant's statement was a confidential marital communication.

The defendant's statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with "between you and me," and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement. (A) is incorrect because the communication was made during the marriage, and the privilege is not abrogated by a later divorce. (B) is incorrect because the fact that the neighbor heard the statement was unknown to the defendant and his wife. If the communication is made in the known presence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged. Nothing in these facts indicates negligence. Thus, the defendant can prevent his wife from testifying to the statement. (D) is incorrect because the privilege for confidential marital communications belongs to both spouses, rather than to just one. The trial here is a civil case, so the spousal immunity is inapplicable; this question involves the privilege for confidential marital communications. Furthermore, even if spousal immunity did apply, the federal privilege belongs to the witness-spouse, not the party-spouse.

The police arrested the defendant and charged him with murder. After the defendant's arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim's blood characteristics. At the defendant's trial for murder, the prosecution seeks to introduce the jacket into evidence.

Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket's admissibility, should the court admit the jacket?

response - correct

A Yes, as relevant evidence linking the defendant to the crime.

B Yes, because the wife waived the marital privilege by handing over the jacket.

C No, as hearsay not within any exception.

D No, because of the privilege against self-incrimination.

A Yes, as relevant evidence linking the defendant to the crime.

The jacket is admissible as relevant evidence linking the defendant to the crime. Generally, all relevant evidence is admissible if offered in an unobjectionable form and manner (i.e., if it does not violate an exclusionary rule, such as hearsay). Clearly, the bloodstained jacket makes it more probably true that the defendant committed the murder than it would have been without the jacket; therefore, the jacket is relevant evidence. Because it does not violate any exclusionary rule, the jacket is admissible. (B) is incorrect because neither spousal immunity nor the privilege for confidential marital communications applies in this situation. Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding; that clearly is not at issue here. The privilege for confidential marital communications protects communications (i.e., expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship. Nothing in the facts suggests a confidential communication with respect to the jacket. No privilege applies to observations of a spouse's condition, actions, or conduct. Furthermore, this is a testimonial privilege and probably would not prevent the wife from handing over real evidence. (C) is incorrect because a jacket is not a "statement," and the hearsay rule excludes out-of-court statements that are offered for their truth. While the wife's conduct in handing over the jacket arguably may be a statement and perhaps hearsay, the jacket itself is not. (D) is incorrect because the jacket does not incriminate the wife, and she is the person who gave it to the police. More importantly, the privilege against self-incrimination applies only to testimony, not real evidence.