Evidence Chapter 5 Quiz

Sam is suing Super-Mart for employment discrimination, arguing that they refused to promote him because of his race. In his case-in-chief, he offers e-mails written by his supervisor at Super-Mart in which she uses a derogatory racial epithet to describe Sam. Super-Mart objects to the e-mail as improperly authenticated, and Sam’s attorney does not respond to the objection. The e-mails are precluded. The jury ultimately finds Super-Mart not liable.

On appeal, Sam argues that the e-mails should have been admitted, and he presents in his brief sufficient foundation to authenticate them. However, he never presented this foundation at trial. What should the appellate court do?

A. Overrule the lower court’s ruling and remand for a new trial, with an order that the trial court reconsider the authentication issue in light of the evidence Sam’s attorney has presented, but only if the preclusion of the e-mails affected Sam’s substantial right and it was plain error for the judge to preclude them.

B. Overrule the lower court’s ruling and remand for a new trial, with an order that the trial court reconsider the authentication issue in light of the evidence Sam’s attorney has presented, but only if the preclusion of the e-mails affected Sam’s substantial right.

C. Overrule the lower court’s ruling and remand for a new trial, with an order that the trial court reconsider the authentication issue in light of the evidence Sam’s attorney has presented.

D. Affirm the trial court’s ruling because Sam failed to object at trial and so cannot raise the issue on appeal.

Overrule the lower court’s ruling and remand for a new trial, with an order that the trial court reconsider the authentication issue in light of the evidence Sam’s attorney has presented, but only if the preclusion of the e-mails affected Sam’s substantial right and it was plain error for the judge to preclude them.

Correct. Rule 103(a)(2) states that a party “may claim error” in an evidentiary ruling excluding evidence only if the party informed the court of its substance by an offer of proof. Sam needed to give the trial judge all the information she needed in order to make a proper ruling at the time of the objection. However, Rule 103(e) allows the appellate court to consider the issue if it was a plain error and the error affected the party’s substantial right

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

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

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

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

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

Incorrect. An appellate court does not conduct a de novo review of a trial court’s evidentiary rulings. The trial court is in the best position to evaluate the facts of the case and the admissibility of the evidence, and so the appellate court must show some deference to the trial court’s decision.

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

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

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

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

Defendant Davidson Motors manufactures automobiles. On February 15th of this year, a motor in one of its cars spontaneously caught fire, causing property damage to the surrounding area. The plaintiff is the owner of the car and is now suing Davidson, alleging that the motor was defectively designed.

It is undisputed that Davidson issued a recall letter on or about February 15th, ordering all of its customers to take their cars into a dealership for mechanical work that would fix the defect that caused the plaintiff’s car to catch fire. There is no dispute that the recall letter, if it was issued after the plaintiff’s motor caught fire, would be a subsequent remedial measure under Rule 407 and would therefore be inadmissible in the plaintiff’s case if offered to prove liability. However, the plaintiff argues that the defendant issued the recall letter before the plaintiff’s car caught fire in response to the defendant’s own testing. The defendant argues that it issued the recall letter after the plaintiff’s car caught fire in response to the plaintiff’s accident. The defendant offers affidavits from its chief safety officer and its marketing director in which the affiants assert that the recall letters were issued on February 16th, after the defendant learned about the plaintiff’s car.

What is the proper procedure to determine the admissibility of the recall letter?

A. The decision of whether the recall letter was issued before or after the plaintiff’s car caught fire is a jury question, so both the plaintiff and the defendant will present their evidence to the jury. The jury is allowed to consider the affidavits in making their decision, even though the affidavits are otherwise inadmissible hearsay.

B. The decision of whether the recall letter was issued before or after the plaintiff’s car caught fire is a jury question, so both the plaintiff and the defendant will present their evidence to the jury. The jury is not allowed to consider the affidavits in making their decision, because the affidavits are inadmissible hearsay.

C. The decision of whether the recall letter was issued before or after the plaintiff’s car caught fire is a question for the judge to decide, and the judge should do so outside the presence of the jury. The judge is allowed to consider the affidavits in making her decision, even though the affidavits are otherwise inadmissible hearsay.

D. The decision of whether the recall letter was issued before or after the plaintiff’s car caught fire is a question for the judge to decide, and the judge should do so outside the presence of the jury. The judge is not allowed to consider the affidavits in making her decision, because the affidavits are inadmissible hearsay.

C. The decision of whether the recall letter was issued before or after the plaintiff’s car caught fire is a question for the judge to decide, and the judge should do so outside the presence of the jury. The judge is allowed to consider the affidavits in making her decision, even though the affidavits are otherwise inadmissible hearsay.

Correct. Under Rule 104, all questions of admissibility are decided by the judge and not the jury, and Rule 104 also states that the judge is not bound by the rules of evidence (other than the privilege rules) in making those decisions.

A plaintiff in a civil case offers hearsay evidence against the defendant.  The defendant fails to object to the evidence at the time, and the evidence is admitted.  After the plaintiff wins the case, the defendant appeals.  One of the defendant’s grounds for appeal is that the hearsay evidence was improperly admitted at trial.  How should the appellate court proceed?

A. The appellate court should conduct a de novo review; that is, the appellate court should decide the hearsay issue with no deference to what happened at the trial court, and if the appellate court believes that the hearsay evidence should have been excluded, the appellate court should reverse the decision.

B. The appellate court should defer to the trial court and only reverse the decision if the trial court abused its discretion in admitting the evidence.  Even if there was an abuse of discretion, the appellate court should not reverse the decision if the error was harmless.

C. The appellate court should only reverse the decision if the admission of the hearsay evidence was an error that is clear and obvious under current law, that affects the defendant’s substantial rights, and that would seriously affect the fairness and integrity of the judicial proceedings if left uncorrected.

D. The appellate court cannot review the decision to admit the hearsay evidence because the defendant never objected to it at trial.

C. The appellate court should only reverse the decision if the admission of the hearsay evidence was an error that is clear and obvious under current law, that affects the defendant’s substantial rights, and that would seriously affect the fairness and integrity of the judicial proceedings if left uncorrected.

Correct. Rule 103(e) states that an appellate court may review a ruling that was plain error, even if the claim was not properly preserved.  The defendant in this case failed to object at trial, so he did not preserve his rights.  The definition given in this answer is the definition of plain error.

Bernard Stansfield’s wife mysteriously disappeared, and police suspected that Stansfield had killed her and hidden the body.  Two days after the disappearance, Stansfield called his friend Harry Gerson and talked to him on the phone for three hours.  Right after the phone call was over, Stansfield bought a one-way plane ticket to Australia for that evening and drove to the airport.  The police apprehended him just before he boarded the plane.  
 
Stansfield is now on trial for murdering his wife.  The police seek to call Gerson to the stand to force him to testify about what Stansfield told him during their three-hour conversation.  Stansfield files a motion in limine objecting to this testimony, arguing that Gerson is a trained psychologist and was providing psychological counseling to Stansfield during the course of the conversation.  Thus, Stansfield argues that the conversation is privileged under the psychotherapist-patient privilege.  Stansfield offers an affidavit signed by Gerson in which he describes his education and training as a psychologist and states that the sole purpose of the conversation was to counsel Stansfield.
 
The prosecutor argues that Stansfield and Gerson were only talking as friends.  She wishes to call Gerson to the stand in a preliminary hearing, and force him to testify about what the two of them discussed in order to determine whether Gerson was providing psychological counseling at the time.  
 
What evidence is the judge allowed to consider when deciding Stansfield’s motion in limine?

A. Neither the affidavit nor the testimony of Gerson.  The affidavit is hearsay and therefore inadmissible, and requiring Gerson to testify would potentially violate psychotherapist-patient privilege.

B. The judge may consider the affidavit, but may not require Gerson to testify.

C.The judge may require Gerson to testify, but may not consider the affidavit.

D.The judge may consider the affidavit and require Gerson to testify.

B. The judge may consider the affidavit, but may not require Gerson to testify.

Correct. Rule 104 states that a court is not bound by the rules of evidence in deciding whether a privilege exists, so the judge may consider Gerson’s affidavit in deciding whether the conversation is privileged.  However, requiring Gerson to testify without any further showing that the privilege is invalid is improper. United States v. Zolin (U.S. 1989) held that in deciding the privilege issue courts can consider potentially privileged information but should intrude cautiously, requiring a showing that the privilege has been breached, and conducting an in camera examination rather than a public adversarial one.

The state is prosecuting Derek for stock fraud. Before the trial begins, Derek’s attorney brings a motion in limine seeking to preclude the prosecutor from admitting evidence of Derek’s two prior convictions, one for insurance fraud and one for insider trading. Both the prosecutor and Derek’s attorney file motions on the issue. The judge ultimately rules that Derek’s conviction for insider trading is admissible in the prosecutor’s case-in-chief, but she withholds judgment on conviction for insurance fraud.

During the prosecutor’s case-in-chief, the prosecutor offers evidence of both the insider trading conviction and the insurance fraud conviction. At that time, Derek’s attorney does not object to either conviction, and they are both admitted.

Derek is convicted, and he is now appealing the conviction, arguing that the judge incorrectly admitted the two convictions. Is the appellate court allowed to review these two evidentiary rulings?

A. No, the appellate court cannot review the trial court’s decisions unless they affected Derek’s substantial rights and the trial judge’s decision was a plain error.

B. The appellate court can review the decision to admit the insider trading conviction, assuming the decision affected Derek’s substantial rights, but it can only review the decision to admit the insurance fraud if its admission affected Derek’s substantial rights and the trial judge’s decision was a plain error.

C. The appellate court can review the decision to admit the insider trading conviction, but it can only review the decision to admit the insurance fraud conviction if the conviction affected Derek’s substantial rights.

D. The appellate court can review both decisions as long as they affected Derek’s substantial rights.

B. The appellate court can review the decision to admit the insider trading conviction, assuming the decision affected Derek’s substantial rights, but it can only review the decision to admit the insurance fraud if its admission affected Derek’s substantial rights and the trial judge’s decision was a plain error.

Correct. Under Rule 103(b), when a judge “rules definitively” on an evidentiary issue, even before trial, the issue is preserved for appeal. Therefore, there is no need for Derek to show plain error before the appellate court reviews the conviction for insider trading, because the trial judge gave a definitive ruling on that issue. However, the judge did not make a definitive ruling on the admissibility of the conviction for insurance fraud, and so Derek’s attorney needed to object to that evidence when it was offered at trial in order to preserve his right to appeal. Under Rule 103(e), the appellate court can still review that decision (or any evidentiary issue that was not preserved), if the mistake was a plain error.

Mark underwent routine surgery at Riverside Hospital. Complications from the surgery arose, and Mark sued the hospital and the surgeon who conducted the surgery. The case went to trial with both the hospital and the surgeon as co-defendants.

At trial, Mark sought to admit a memo written by a hospital administrator in which the administrator admitted that the hospital made mistakes in prepping Mark for surgery. The judge decided that this memo was admissible against the hospital as a party-opponent statement, but inadmissible hearsay with regard to the surgeon. What should the judge do?

A. Preclude the memo entirely, since it would be unfairly prejudicial to the surgeon to admit the evidence.

B. Sever the trial and conduct one trial with the hospital as a defendant, in which the memo is admitted, and one trial with the surgeon as a defendant, in which the memo is precluded.

C. Admit the memo but give the jurors a limiting instruction telling them that they can only use the memo when determining whether the hospital is liable and that they should disregard the memo when determining whether the surgeon is liable.

D. Admit the memo, since any harm to the surgeon from admitting the memo is harmless error.

C. Admit the memo but give the jurors a limiting instruction telling them that they can only use the memo when determining whether the hospital is liable and that they should disregard the memo when determining whether the surgeon is liable.

Correct. Rule 105 states that if evidence is admissible against one party but not another, the judge should give a limiting instruction upon request directing the jury as to how to properly use the evidence.

Plaintiff is suing her former employer for breach of contract. During the trial, the defendant (plaintiff’s former employer) asked the plaintiff on cross-examination how she lost the job that she had prior to starting work for the defendant. Plaintiff’s attorney objected, but she did not give a reason for the objection, and her objection was overruled. The plaintiff testified that she had been fired from her previous job for drug use on the job. Plaintiff ultimately lost at trial, and is now appealing. She argues that the trial judge improperly allowed the defendant to ask about the reason she was fired from her previous job. What should the appellate court do?

A.The appellate court should affirm the judgment.

B. The appellate court should affirm the judgment unless the trial court judge abused her discretion and the error affected a substantial right of the plaintiff.

C. The appellate court should affirm the judgment unless the trial court made a plain error and the error affected a substantial right of the plaintiff.

D. The appellate court should affirm the judgment unless the trial court’s mistake affected a substantial right of the plaintiff.

C. The appellate court should affirm the judgment unless the trial court made a plain error and the error affected a substantial right of the plaintiff.

Correct. Since the plaintiff did not state the specific ground for the objection, and it was not apparent from the context, Rule 103(e) states that an appellate court can take notice of the trial judge’s mistake only if it was plain error.

On direct examination, the prosecutor asks a witness for information that would violate the attorney-client privilege. Before defense counsel can interject, the witness responds. What type of motion should defense counsel make?

A. Motion in limine.

B. An objection.

C. Motion to strike.

D. An exception.

C. Motion to strike.

Correct.  A motion to strike is the proper motion when inadmissible evidence has already entered the case.  Since the witness has already volunteered information that violates the privilege, defense counsel will move to strike that testimony from the record.  The judge may also give the jury a curative instruction, telling them to disregard the answer.

An injured taxi passenger files a negligence claim against both the taxi driver and company. At trial, the passenger offers evidence that is admissible against the driver but not the company. The trial judge admits the evidence, and the company's lawyer requests a limiting instruction. Which of the following is correct?

A. The judge should require an offer of proof before giving the instruction.

B. The judge must give the instruction.

C. The judge has discretion to give the instruction.

D. The judge should not give the instruction because these instructions do more harm than good.

B. The judge must give the instruction.

Correct.  The judge must give the requested limiting instruction.  Rule 105 requires the trial judge to give a limiting instruction if the affected party requests that action.  The rule differs from most Rules of Evidence by denying discretion to the trial judge.

With respect to most evidentiary errors, an appellate court will reverse the trial court's judgment only if:

A. The trial judge abused her discretion.

B. The error affects a party's substantial right.

C. The trial judge ruled with specificity.

D. The trial judge abused her discretion and the error affected a party's substantial right.

D. The trial judge abused her discretion and the error affected a party's substantial right.

Correct. Most evidentiary errors support reversal only if they (1) constitute an abuse of discretion and (2) affect a party's substantial right.