Evidence Module 2 End of Module Questions

A hit man was on trial for murder. His sister, with whom he lived, was called to testify regarding the hit man’s demeanor in the days preceding the killing. She testified that the hit man had been acting erratically and was unusually anxious in the days before the murder. After she testified, the defense attorney called the sister’s ex-husband to the stand. He was prepared to testify that the sister had engaged in several adulterous affairs during their marriage and kept those affairs hidden for many years. The prosecution objected to this testimony.

Should the court allow this testimony?

Yes, because the evidence addresses whether the sister is untruthful.

Yes, because specific instances of conduct are only inadmissible in civil trials.

No, because the prosecution did not put the sister’s character for truthfulness at issue.

No, because the ex-husband’s testimony constitutes extrinsic evidence.

Answer choice D is correct. Although a witness’s character for truthfulness or untruthfulness is always relevant, it can only be proved by either opinion or reputation evidence. Extrinsic evidence (including another witness’s testimony) of specific instances of conduct is inadmissible to prove a witness’s character for untruthfulness. Note that character witnesses may be cross-examined about specific instances of conduct, but no extrinsic evidence is permissible. Here, the ex-husband’s testimony about the sister’s secret affairs constitutes extrinsic evidence of specific conduct, and is therefore inadmissible. Answer choice A is incorrect because, while evidence of a witness’s character for truthfulness is relevant and admissible, that evidence must be presented in the form of reputation or opinion evidence, not specific instances of conduct. Answer choice B is incorrect because it misstates the law. Specific instances of conduct are admissible in civil cases only in the limited cases in which character evidence is admissible, such as when character is at issue. Answer choice C is incorrect because a witness always puts her credibility at issue by testifying at trial.

A businessman is on trial for criminal fraud. The prosecution alleges that the businessman knowingly created, signed, and passed bad checks to several dozen individuals and corporations. The prosecutor called the businessman's former assistant to the stand as a witness. The assistant was familiar with the businessman's handwriting from working for the businessman for a number of years. During direct examination by the prosecutor, the assistant testified that the handwriting on the allegedly fraudulent checks matched the businessman's handwriting. When the prosecution sought to enter the checks into evidence, the businessman’s attorney objected on the basis that the checks have not been properly authenticated.

Should the judge sustain the objection?

Yes, because the assistant did not compare the checks at issue with another properly authenticated writing of the businessman.

Yes, because the assistant has not been qualified as a handwriting expert.

No, because the assistant testified that the checks matched the businessman’s handwriting based on the personal knowledge he acquired while working for the businessman.

No, because a lay witness is always permitted to authenticate handwriting based on personal knowledge.

Answer choice C is correct. Handwriting can be verified in two ways: (i) an expert witness or the trier of fact may compare the writing in question to another writing that has been proven to be genuine in order to determine the authenticity of the writing in question, or (ii) a lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. The lay witness must not have become familiar with the handwriting for the purposes of the current litigation. In this case, the assistant, a lay witness, has personal knowledge of the businessman's handwriting from his time working for the businessman and thus can properly authenticate the handwriting on the checks. The judge should overrule the objection and admit the checks as properly authenticated evidence. Answer choice A is incorrect. Although handwriting authentication by an expert witness or the trier of fact requires an authenticated handwriting sample for comparison, there is no similar requirement for a non-expert witness’s authentication of handwriting. Answer choice B is incorrect. A non-expert witness may testify as to handwriting verification if the witness has personal knowledge of the author’s handwriting from before the litigation. Answer choice D is incorrect because it overstates the rule regarding handwriting authentication by lay witnesses. A lay witness who became familiar with the handwriting for the purposes of the current litigation cannot authenticate the handwriting.

A defendant was charged with embezzlement. The prosecution called the defendant’s former employer to testify against the defendant. The defense sought to introduce evidence of the employer’s conviction for felony battery nine years prior. The prosecution filed a motion to exclude the conviction. At a hearing on the motion, the parties presented evidence that the employer had served one month in prison after testifying against his co-defendant regarding their plan to lure a mutual enemy to a dark alley in order to beat him up. At the conclusion of the hearing, the judge noted that the conviction was probative and would have little prejudicial effect.

Is the judge likely to allow the conviction to be admitted to impeach the employer?

No, because only a defendant may be impeached by a prior criminal conviction.

No, because the employer was imprisoned for less than one year.

Yes, because the employer was convicted of a crime involving dishonesty or false statement.

Yes, because the probative value of the conviction is not substantially outweighed by its prejudicial effect.

Answer choice D is correct. A witness may be impeached with evidence of a conviction for a felony that is less than 10 years old. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect. In this case, the judge noted that the conviction was probative and would have little prejudicial effect. Thus, it is likely to be admitted. Answer choice A is incorrect because a witness who is not a criminal defendant may be impeached with evidence of a prior conviction. Answer choice B is incorrect because the employer was convicted of a felony, even though he only served a month of prison time. Answer choice C is incorrect because the crime of battery does not involve dishonesty or false statement, even though the employer acted deceitfully in committing the crime.

As in previous years, a band director and an event organizer entered into a written agreement for the director’s band to play at a New Year’s Eve party. Two identical copies of the agreement were prepared, with both the director and organizer signing each copy. The director retained one copy and the organizer retained the other. Prior to the party, the band director threw away his copy of the contract for the upcoming party, mistakenly thinking that it was a contract for a prior year’s party. After the party, the organizer contacted the director and informed him that, since she believed the band had failed to adhere to the terms of the contract, she planned to pay the director only half of the contract amount. The director filed suit to recover the full contractual amount. At trial, the director testified as to why he discarded the contract, and to the terms of the contract. The organizer objected to the testimony regarding the terms of the contract, offering to produce his copy, which the organizer had provided to the director during discovery.

Should the court permit the director to testify as to the terms of the contract?

No, because the director discarded his copy of the original contract.

No, because the organizer has a copy of the original contract.

Yes, because the director was a party to the contract and had personal knowledge of its terms.

Yes, because the director’s loss of his copy of the original contract was unintentional.

Answer choice B is correct. A written contract, as a document with legal effect, is subject to the best evidence rule. Under this rule, the original must be introduced to prove the terms of the contract unless the unavailability of the original is appropriately explained. Because there were two signed originals, both must be unavailable before the terms of the contract can be proved by other evidence. Since the organizer’s original contract is available, the director cannot prove the terms of the contract through his testimony. Answer choice A is incorrect because, even though the director discarded his original contract, he would be able to testify as to the terms of the contract had that document been the only original. However, since there is a second original that has been made available by the opposing party, the director cannot prove the terms of the contract through his testimony. Answer choice C is incorrect because, although a party may testify as to the contents of a contract or other document that is subject to the best evidence rule when the unavailability of the contract or other document has been satisfactorily explained, the existence of a second original that the opposing party has made available prevents the director from proving the terms of the contract through his testimony. Answer choice D is incorrect because, although the director’s unintentional loss of the contract is a sufficient explanation since the loss was not effected in bad faith (i.e., to prevent the introduction of the original into evidence), the director cannot prove the terms of the contract through his testimony. The best evidence rule requires that the original possessed by the organizer be introduced to prove the terms of the contract.

Editor's Note: Remember that the Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Your practice questions test concepts, including the Best Evidence Rule, in a variety of ways, in the event you see a question like it on the bar exam. You may see situations in which the Best Evidence Rule is the correct answer during your practice sessions, or on the bar exam.

While shopping in a busy grocery store, a five-year-old girl accidentally got separated from her mother. After a few minutes, a woman approached the girl and asked her if she was lost. When the girl replied that she was, the woman said, “Your mommy was in an accident and is in the hospital. She told me to take you there.” The girl went with the woman in her car. After driving for a few minutes, the woman saw police cars approaching. The woman immediately pulled over and forced the girl to get out of her car before speeding away.

Based upon eyewitness statements, the woman was apprehended and prosecuted for kidnapping the girl. At trial, the prosecution called the girl to testify about the kidnapping.

Which of the following is a true statement with regard to the admissibility of the girl’s testimony?

The testimony is not admissible, because the testimony of a five-year-old has little probative value.

The testimony is not admissible, because a five-year-old is too young to understand the importance of telling the truth.

The testimony is admissible if the prosecution offers evidence to convince the judge that a five-year-old is competent to testify.

The testimony is admissible if the court determines that the girl has personal knowledge and understands the difference between the truth and falsehood.

Answer choice D is correct. A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness’s own testimony as well as through other means. The competence of a child depends on his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth. Here, if it is established that the girl has personal knowledge of the kidnapping, which she clearly does, and that she understands the difference between truth and falsehood, then she will be competent to testify. Answer choice A is incorrect. Although the age of the girl may affect the weight given to her testimony, this is a question for the jury, not one of admissibility. Answer choice B is incorrect because, as stated above, a five-year old can be competent to testify if she is able to differentiate between truth and falsehood and understands the importance of telling the truth. Answer choice C is incorrect because the actual age of the child is inapplicable to the issue of her competency to testify.

A plaintiff sued a defendant for injuries resulting from alleged negligence by the defendant in an automobile accident. On direct examination, the plaintiff described the circumstances surrounding the accident and testified that the defendant’s car was blue. On cross-examination, the defendant’s attorney showed the plaintiff pictures of the accident scene taken by the police that indicate that the defendant’s car was actually black. In rebuttal, the plaintiff’s attorney calls the plaintiff’s boss as a witness to testify that she has known the plaintiff for ten years, and that in her opinion the plaintiff is a truthful person. The defendant objects to the introduction of this evidence.

Should the judge admit the boss’s statement over the defendant’s objection?

No, because the boss’s statement does not discuss the plaintiff’s reputation for truth and veracity.

No, because the plaintiff’s character was not attacked.

Yes, because it is properly in the form of opinion evidence.

Yes, because it tends to show that the plaintiff is an honest person.

Answer choice B is correct. Pursuant to FRE 608, evidence of the truthful character of the witness is generally admissible only if the character of the witness for truthfulness has been attacked. Here, the plaintiff’s character for truthfulness has not been attacked. Instead, his credibility has been attacked by showing that his testimonial faculties were faulty. While evidence for the truthful character of a witness may be introduced after the witness’s character for truthfulness has been attacked, an attack on credibility cannot be rebutted by evidence showing the witness to be honest. Answer choice A is incorrect because evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. As explained above, the plaintiff’s character for truthfulness has not been attacked. In addition, evidence of a witness’s truthful character, if admissible, may take the form of opinion testimony as well as reputation testimony. Answer choice C is incorrect. While evidence used to support the witness’s character for truthfulness must be presented in the form of either opinion or reputation evidence, introduction of this evidence at all is inappropriate here, as was explained with respect to answer choice B. Answer choice D is incorrect. As noted above, evidence of the truthful character of the witness is generally admissible only if the character of the witness for truthfulness has been attacked. Here, the plaintiff’s character for truthfulness has not been attacked.

During a trial for insurance fraud, the prosecution would like to introduce the testimony of an insurance claims processor. The claims processor received an insurance claim that he knew contained a forgery of a doctor’s signature, because he was familiar with the doctor’s signature and handwriting, having processed many claims from the doctor’s office before. The prosecutor wants to call the claims processor at the alleged forger’s trial to testify that the signature was forged.

Is the claims processor’s testimony admissible?

Yes, because an insurance claims processor is an expert on handwriting by occupation.

Yes, because it is based on the processor’s own perception and is helpful to the jury.

No, because the claims processor is not a certified expert on handwriting and cannot give an opinion based on specialized knowledge.

No, because the jury itself must compare the alleged forgery to a genuine signature and assess any differences.

Answer choice B is correct. Lay witnesses may testify as to their own opinions when such opinions concern the witness’s common sense impressions. The opinions must be rationally based on the witness’s own perceptions and must be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Here, the witness’s opinion that the signature is not genuine is based on his own perceptions of it compared to a signature with which he is familiar. His familiarity with the doctor’s signature and the differences between the doctor’s signature and the allegedly forged signature are helpful to the jury in determining whether the signature is genuine, which is a material fact in issue. Answer choice A is incorrect because it is not necessary that the witness be an expert. Further, there is nothing in the fact pattern indicating that the witness is an expert on handwriting in general. Answer choice C is incorrect because, as explained above, a lay witness can testify as to his opinions based on his own perceptions. While it is true that lay witnesses are not permitted to testify as to any opinion based on scientific, technical, or specialized knowledge, a witness’s own familiarity with someone’s handwriting is permissible. Answer choice D is incorrect because jury verification is not the only way to verify handwriting. An expert witness or the jury may compare the writing in question with another writing that has been proven genuine in order to determine the authenticity of the writing in question. Additionally, a lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting, as long as the lay witness has not become familiar with the handwriting for the purposes of the current litigation. Answer choice D excludes these alternate methods of verification.

A man was sued by an acclaimed artist for the conversion of one of her expensive paintings. The man claims that the allegedly converted painting is only a forgery that he painted himself by mimicking the artist’s style and technique after extensive study of her past works. The painting featured what appeared to be the signature of the artist. At trial, the artist seeks to admit the painting in question into evidence.

Which of the following is the best way for the artist to authenticate the painting?

An expert must be presented to testify that the painting was created by the artist.

The artist can identify the painting as being created by her based on her personal knowledge of the painting’s distinctive characteristics.

The artist must establish a chain of custody in order to ensure that the painting is the painting in question.

The painting is self-authenticating based on the artist’s signature.

Answer choice B is correct. All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. A physical object may be authenticated by testimony of personal knowledge of the object or by testimony as to its distinctive characteristics. In this case, the artist can identify the painting based on her personal knowledge of having created it and by pointing out its distinctive characteristics. Answer choice A is incorrect because there is no rule requiring that an expert must be called to authenticate tangible evidence. Answer choice C is incorrect because chain of custody is used with respect to a physical object that could easily be tampered with or confused with a similar item, such as a blood sample. Although establishing that the painting was passed from the artist to the man and then from the man to a third party would help the artist establish her conversion claim, it is not required in order to authenticate the painting. Answer choice D is incorrect because neither tangible physical objects nor signatures are self-authenticating

A defendant in a federal securities case introduced the testimony of a witness who claimed on direct examination that the defendant had no prior knowledge of a change within a corporation's executive board; the defendant's knowledge of this fact was a central issue in the case. On cross-examination, the prosecutor asked the witness whether he had ever claimed that the defendant knew about the change. The witness said he had not.

The prosecutor proposes to call the witness's coworker, who would testify that she had heard the defendant's witness say in the office one day that the defendant knew of the change. The defendant's attorney objects to the coworker's proposed testimony.

Should the court allow the coworker's testimony?

Yes, to impeach the witness's testimony.

No, because a witness's character for truthfulness can only be impeached with opinion or reputation evidence.

No, because extrinsic evidence may not be used to prove a prior inconsistent statement.

No, because it is immaterial.

Answer choice A is correct. A witness’s prior statement that is inconsistent with the witness’s testimony may be used to impeach the witness. Here, the witness testified on direct examination that the defendant had no prior knowledge of a change within a corporation's executive board. After the witness denied on cross-examination ever having claimed that the defendant knew about the change, the prosecutor sought to introduce the coworker's testimony that she heard the witness say the defendant knew of the change. Therefore, the coworker's testimony can properly be used to impeach the witness as evidence of a prior inconsistent statement. Answer choice B is incorrect. A witness’s credibility may be attacked (i.e., impeached) by testimony regarding the witness’s character for untruthfulness. Generally, this testimony must be about the witness’s reputation for having a character for untruthfulness or in the form of an opinion of the witness’s character for untruthfulness. But a witness may also be impeached by other methods, such as by introducing the witness’s prior inconsistent statement (as seen here). Answer choice C is incorrect. Impeachment with a prior inconsistent statement may occur by cross-examination or, after the witness has the opportunity to explain or deny the statement, by use of extrinsic evidence (e.g., the coworker's testimony). Answer choice D is incorrect because the facts indicate that whether the defendant possessed the knowledge in question is a central issue in the case—that is, it is a material matter. It is true that extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral, or immaterial, matter; when a witness testifies as to an immaterial matter, the questioning party is bound by the answer the witness gives.

A defendant is on trial for murder. The statute under which the defendant has been charged requires the prosecution to prove that the accused “knowingly or recklessly caused the death of another.” The defendant admits to killing the victim but he has raised insanity as a defense, asserting that he could not have “knowingly or recklessly” killed the victim. The defendant’s attorney calls a psychologist as an expert witness on the insanity defense to testify on the defendant’s behalf. After the psychologist is qualified as an expert and sworn, the defendant’s attorney asks him the following question: “In your opinion, did the defendant act to kill the victim knowingly or recklessly?” The prosecutor objects.

How should the judge rule on the objection?

Overrule the objection, because the expert witness’s opinion is helpful to the trier of fact on this issue.

Overrule the objection, because the assertion of an insanity defense puts the defendant’s mental state at issue.

Sustain the objection, because an expert may not testify as to his opinion of whether a defendant had the requisite mental state of any element of the crime charged.

Sustain the objection, because an expert may not testify as to the ultimate issue in a case.

Answer choice C is correct. An expert witness may not testify as to his opinion about whether a criminal defendant had the requisite mental state of any element of a crime charged or of a defense. The determination of whether the defendant had the requisite mental state is the province of the trier of fact. In this case, the defense attorney is seeking to have an expert witness testify as to whether his client had the requisite mental state for the crime changed. This is an inadmissible question and the objection should be sustained. He could testify as to whether the defendant has the capability or forming the requisite mental state. Answer choice A is incorrect, because even if the psychologist’s opinion is helpful to the trier of fact, an expert may not testify as to whether a criminal defendant had the requisite mental state. Answer choice B is incorrect, because the general rule stated above does not change simply because the defendant has pled an insanity defense. Answer choice D is incorrect, because an expert may testify as to the ultimate issue in a case, other than whether the criminal defendant had the requisite mental state.

A defendant is on trial for armed robbery of a convenience store. At trial, the defendant testified that he was not at the convenience store on the night of the robbery. The prosecutor sought to introduce into evidence the defendant’s conviction for embezzlement from the previous year. The defense attorney promptly objected.

How should the judge rule on the defense attorney's objection?

Overrule the objection, because the conviction is admissible to show the defendant’s propensity for criminal conduct.

Overrule the objection, because the conviction is admissible to impeach the defendant.

Sustain the objection, because the prior conviction is improper character evidence.

Sustain the objection, because the prejudicial effect of the conviction outweighs its probative value.

Answer choice B is correct. A witness’s character for truthfulness may be impeached with evidence that the witness has been convicted in the last 10 years of any crime involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof (or admission) of an act of dishonesty or false statement, such as embezzlement. In this case, the prosecutor intends to impeach the defendant’s character for truthfulness with a recent conviction for embezzlement. Because embezzlement is a crime that involves dishonesty, the defendant’s prior conviction is admissible to impeach. Answer choice A is incorrect because prior bad acts, including convictions, are not admissible to prove a person’s character in order to show that the person acted in accordance with that character on a particular occasion. Answer choice C is incorrect because this evidence is admissible for the purpose of impeaching the defendant’s character for truthfulness. Answer choice D is incorrect because a conviction for a crime involving dishonesty is admissible to impeach the witness’s character for truthfulness, regardless of the prejudicial effect.

In a civil trial regarding a store owner’s negligence in clearing ice from his front walkway, the defendant store owner testified on direct examination that he had cleared the ice from his front walkway on the morning of the plaintiff’s injury. On cross-examination, the plaintiff’s attorney asked the defendant if he was sure that he cleared all of the ice off the walkway, without missing any, and the defendant replied that he had. The plaintiff’s attorney then sought permission to ask the defendant about two prior incidents in the last three winters in which the defendant’s customers claimed to have fallen on patches of ice that the defendant failed to clear. The defendant’s attorney objected to the introduction of this evidence.

Should the court allow the plaintiff’s attorney to question the defendant about the prior incidents?

Yes, because the two prior incidents serve as evidence that the defendant has a habit of failing to clear ice from his front walkway.

Yes, because the two prior incidents bear on the defendant’s credibility, since he claims to have cleared all the ice in this case.

No, because failing to clear ice on the two prior incidents does not bear on the defendant’s credibility and does not contradict his testimony in this case.

No, because there is no evidence here as to the outcome of the prior claims.

Answer choice C is correct. A witness can be impeached with specific instances of conduct that bear upon truthfulness; failing to clear ice from a walkway has no bearing on truthfulness. Generally, a witness also can be impeached with evidence that contradicts a material part of his testimony, but nothing about the plaintiff's questions would contradict the defendant's testimony. Evidence of specific instances of conduct generally cannot be used as evidence that a witness/defendant acted in a particular way on the occasion in question. Answer choice A is incorrect because, while evidence of a person's habit is admissible to prove conduct in conformity with the habit on a particular occasion, there is no evidence here that the defendant has a habit of not clearing ice from his walkway. The fact that there have been two claims over three winters that the defendant failed to sufficiently clear ice is not enough to establish a habit. Answer choice B is incorrect because, as explained above, a witness can be impeached with specific instances of conduct that bear upon truthfulness by demonstrating dishonesty; failing to clear ice does not constitute an act bearing on honesty. Answer choice D is incorrect because the outcome in the prior claims is irrelevant to the claims' admissibility. A witness can be impeached with prior bad acts that do not result in convictions or judgments (if they relate to truthfulness, as explained above). However, even if the customers in the other cases had brought successful claims against the defendant in the past, those claims have no bearing on the defendant's veracity in this instance.

At a trial for armed robbery, the prosecutor called a witness to testify as to her knowledge of the robbery. Unexpectedly, the witness froze on the stand and stated that she was unable to recall the event. The prosecutor then showed the witness a photocopy of the handwritten notes the witness had made the day after the armed robbery occurred. After looking at the photocopy of her notes, the witness indicated that she remembered the event and could testify. The prosecutor then provided the defense with another photocopy of the notes. Following the witness’s testimony, the prosecutor sought to introduce the photocopy of the witness’s notes into evidence. The defendant objected to the prosecutor’s introduction of the notes into evidence.

Should the photocopy of the witness’s handwritten notes be admitted?

Yes, because the witness’s testimony was based on the notes.

Yes, because the prosecutor provided the defense with a photocopy of the notes.

No, because the original notes, not a photocopy, must be admitted.

No, because the prosecutor cannot introduce the notes into evidence.

Answer choice D is correct. A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. When the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. In this case, only the defendant is entitled to introduce a relevant portion of the handwritten notes into evidence. Although the prosecutor was permitted to show the photocopy to the defendant, he cannot admit it into evidence unless it is otherwise admissible. Answer choice A is incorrect. The use of the notes by the witness to refresh her memory is not sufficient to justify the admission of these notes into evidence by the party who has called the witness to testify. Unless the notes are otherwise admissible, they are not admissible into evidence solely because the witness’s testimony was based on the notes. Answer choice B is incorrect. A document or item used to refresh a witness’s recollection is not admissible into evidence by the party that called the witness, even though that party provides the opposing party with a copy of the document used to refresh the witness’s memory as is required by the rule. Only the opposing party may move to admit the document into evidence on the basis that it was used to refresh the witness’s memory. Answer choice C is incorrect. Here, the prosecutor is most likely attempting to introduce a photocopy of the notes for the truth of the matter asserted in the notes, thus the best evidence rule will apply, which requires that the original document be produced in order to prove the contents of a writing. However, a duplicate or photocopy is generally admissible to the same extent as the original unless there is a genuine question as to the authenticity of the original.

A photographer took a series of pictures of a crowd at a fair. The photographer subsequently learned that a stabbing had taken place at the fair around the time she had taken the pictures. Relying on a detailed physical description of the assailant that had been provided to the police, the photographer examined the photographs and identified the assailant. At the criminal trial of the assailant, the photographer was called as a witness to identify the defendant as the assailant. The defense objected, arguing that the photographer could not testify because the photographs were available.

Should the court rule in the defense’s favor?

No, because a photograph is not a writing and therefore is not subject to the original document rule.

No, because the photographer was present at the scene of the crime.

Yes, because the photographs are the best evidence of the assailant’s identity.

Yes, because the trial is criminal, and not civil, in nature.

Answer choice C is correct. The photographer does not have personal knowledge of the identity of the assailant apart from the information she gleaned from examining the photographs. Accordingly, the original document rule, which compels the production of the best evidence where the contents of a writing are at issue, requires that the photographs be produced to prove that the defendant was the assailant, or that their unavailability be explained. Answer choice A is incorrect because the original document rule applies to photographs as well as writings. Answer choice B is incorrect because, although the photographer was present at the scene of the crime, her knowledge as to the identity of the assailant comes from the photographs that she took and from the police description, not from the personal knowledge gained while she was at the crime scene. Answer choice D is incorrect because the original document rule does not distinguish between civil and criminal trials. Consequently, the criminal nature of the trial is irrelevant.

Editor's Note: Remember that the Best Evidence Rule applies in narrow situations, which is what makes it an attractive and usually incorrect distractor. Before selecting the Best Evidence Rule as the correct answer, confirm that either the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Your practice questions test concepts, including the Best Evidence Rule, in a variety of ways, in the event you see a question like it on the bar exam. You may see situations in which the Best Evidence Rule is the correct answer during your practice sessions, or on the bar exam.

A plaintiff sued a defendant for damages resulting from a traffic accident. The plaintiff called an eyewitness to the accident who testified that the defendant was at fault. The eyewitness, in response to cross-examination by the defendant seeking to impeach the eyewitness, admitted that she was the plaintiff’s sister. The plaintiff called another witness to testify as to her opinion of the eyewitness’s character for truthfulness. The defendant objected.

How should the court rule?

Sustain the objection, because the credibility of a witness may not be bolstered.

Sustain the objection, because any party may attack the credibility of a witness.

Overrule the objection, because testimony in the form of an opinion of a witness’s character for truthfulness is permitted.

Overrule the objection, because the eyewitness has been impeached by the defendant.

Answer choice A is correct. The credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack. Consequently, the court should not permit the plaintiff to call a witness to bolster the testimony of the eyewitness, the plaintiff’s sister, because her character for truthfulness has not been attacked. Answer choice B is incorrect because, although it is correct that any party may attack the credibility of a witness, the plaintiff here is seeking to support the testimony of the eyewitness that the plaintiff called as a witness, not to attack her testimony. Answer choice C is incorrect. Evidence of a witness’s character for truthfulness may be presented in the form of opinion testimony as well as reputation testimony. However, evidence of the truthful character of a witness is admissible only after the witness’s character for truthfulness has been attacked, which did not occur here. Answer choice D is incorrect because, even though the eyewitness has been impeached by the defendant by testimony that she is closely related to the plaintiff, suggesting possible bias, this testimony has not specifically attacked her character for truthfulness. Consequently, the plaintiff may not bolster the eyewitness’s testimony through a character witness’s testimony as to the eyewitness’s character for truthfulness.