Hearsay Quiz

Front 1

Joe is a witness testifying for the State of Oklahoma in a murder trial. As the State’s first witness, Joe testifies that Sheila told him that she saw the defendant kill the victim of thecase. Sheila is not testifying at trial. The statement is being offered to show that thedefendant killed the victim. Hearsay?

Back 1

Yes, this is inadmissible hearsay that does not fall under any recognized exception to the hearsay rule. It is a statement offered into evidence made by an out ofcourt declarant (Sheila) that is being offered to prove the matter of what it asserts (that the defendant killed the victim).

Front 2

Joe is was in side a grocery store shopping when it was robbed.The assailants escape from the scene just as the police arrive. Joe runs up to the police and exclaims in a highly excited state, ”It was Linda Jones who robbed the store!!!” This statement is offered by thepolice officer to show that Linda Jones robbed the store. The declarant, Joe, died of a stroke ten days later. Hearsay?

Back 2

Yes, this is hearsay because it is an out-of-court statement offered to provethe matter that it asserts, that Linda Jones robbed the grocery store. However, it is admissible under the excited utterance exception to the hearsay rule.

Front 3

Joe is walking along a sidewalk with Martha in New York City. Jim White walks up behind them and says, “Look!! can you believe how fast that guy on the skateboard is moving?” The guy on the skateboard, the defendant Carl Culpable, runs right into Martha and Martha falls backward, cracks her head on the pavement and dies. Jim White is unavailable to testify at trial. The statement is offered by the State during the testimony of Joe in a prosecution for the negligent homicide of Martha. It is offered to show the guy of the skateboard was going really fast. Hearsay?

Back 3

Yes, this is hearsay because it is an out-of-court statement offered to prove the matter it asserts--that the guy on the skate board was going too fast. However, it is admissible under the present sense impression exception to the hearsay rule.

Front 4

Joe is arrested for possession of cocaine,which the prosecution asserts was contained in the “salt” shaker on Joe’s kitchen table. The prosecutor offers as evidence a lab reportstating, “The “salt” in the shaker is 90% cocaine.” Is the report Hearsay?

Back 4

Yes, the report is inadmissible hearsay, because it is an out-of-court statement being offered to prove that the “salt” is cocaine—Remember a statement need not be spoken to be hearsay; a document offered to prove the truth of an assertion in its contents can also be hearsay. The “statement” here is the lab report’s sentence, “the ‘salt’ in the salt shaker is 90% cocaine.” Since the report is being offered to show that the ‘salt’ was cocaine, it is hearsay.

Front 5

Carla enters Jill’s living room andsays,“I am marrying Jack.”Jack has been Jill’s boyfriend for five years. Jill takes a paper weight and smashes it on Carla’s head, killing her. At Jill’s trial for murder, Carla’s statement is offered by Jill’s attorney to show that the killing was provoked. Hearsay?

Back 5

No, this is not hearsay. It is an out of court statement, but it is not being offered to prove the truth of what it asserts, that Carla was marrying Jack, but that Jill was provoked by Carla—In other words, it is being offered to show its effect on the listener.

Front 6

The little pig runs away and the fox eats him. At the fox’s murder trial, the Mad Hatter, a witness, testifies; ”When they were searching for the “little pig”, Alice told me that the fox said he’d eaten the little pig.” The statement is offered by the prosecution to prove that fox ate the little pig. Is this admissible or is it hearsay?

Back 6

It is “multiple hearsay.” It is an out-of-court declaration which quotes another out-of-court declaration. The main out-of-court declarant is Alice whose statement is offered to show that fox ate the little pig. Even though the statement of fox to Alice may fit into an exception, admission of a party opponent, it doesn’t matter. For it to have been admissible,both out-of-court statements must have fit into an exception.

Front 7

The defendant, a policeman, is accused of attempting to kill his wife by shooting herewith a Nevermiss 1000 revolver from a distance of 1/8th of a mile. The defendant testifies that the shot was an accident, and that the Nevermiss is not accurate at more than 1/16th of a mile. The prosecution calls the defendant’s former classmate from the police academy, who testifies, “In weaponery class, which I and the defendant attended, the instructor told us that the Nevermiss was accurate up to 1⁄4th of a mile.” Is this hearsay?

Back 7

This is not hearsay because it is being offered to show that the defendant actually believed that the revolver would be accurate, not to show that the revolver actually was accurate at the 1/8th of a mile range.

Front 8

Joe is on trial for larceny for stealing a stereo. Joe defends himself on the grounds that he did not realize that the stereo was not his stereo. Alice, his neighbor, testifies: ”He told me the day afterwards, ‘I took the wrong stereo, I can’t believe it. I thought it was my stereo.’”The statement is offered to show Joe’s intent at the time he took the stereo. Is this statement Hearsay?

Back 8

This is inadmissible hearsay. It is offered to prove the matter that it asserts,which is that Joe at the moment of taking the stereo had an intent to take his own property.

Front 9

Same scenario as above except that Alice testifies , “just before Joe took the stereo, Joe told me, “I’m taking this stereo because it’s mine’” Is this Hearsay? Is this admissible?

Back 9

This is hearsay, but it is admissible under the “then existing state of mind” exception to the hearsay rule and would be admissible to show Joe’s lack of intent todeprive another of his property.

Front 10

Tweedledum and Tweedledee are sitting on their front porch one day when they see Christopher Robin zoom buy in his beat up BMW and run through the stop sign at the endof the street and hit the side of Allyson Legworth’s new Porsche. Tweedledum observes calmly, and comments, “there goes Christopher, watching the girls instead of the road again.” At a subsequent trial, Tweedledum’s comment is offered into evidence to prove that Christopher was not paying attention to the road. Is this an admissible statement? Is it hearsay?

Back 10

It is hearsay, an out-of-court statement offered to prove its truth, which is that Christopher was not watching the road. It is admissible under the present sense impression exception.

Front 11

John is injured when he is hit by Dan Defendant’s car. In a prosecution for negligent homicide, the prosecution offers testimony by Wanda Witness that she saw Dan Defendant driving at a speed of about 55 miles per hour. Is Wanda’s testimony relevant?

Back 11

Yes, it is relevant because Wanda’s testimony makes it more likely than not that Dan Defendant was traveling at 55 miles per hour.

Front 12

Same scenario as above except testimony is offered by Wanda Witness that she saw Dan Defendant going twenty miles over the speed limit two months prior to the accident?

Back 12

No, it is not relevant because the alleged speeding took place on a different day and had nothing to do with the accident. This testimony will not make the fact that Dan Defendant was going 55 miles per hour the day of the accident more or less probable.

Front 13

In a prosecution for larceny, the prosecution asks the defendant’s character witness oncross-examination, “Isn’t it true that you do not have custody of your children?” Is the testimony that this question illicits relevant?

Back 13

No, this question would not illicit any testimony that would make an issue inthe larceny case more or less likely. Whether or not a defense witness has custody of their children is completely irrelevant to this criminal prosecution

Front 14

In a prosecution for Driving Under the Influence, the prosecutor attempts to offer evidence that the defendant had been convicted of Driving Under the Influence. Is this evidence relevant?

Back 14

Although this evidence is probative, it is too prejudicial. There is too much danger that the defendant might be convicted not for the actual crime at issue but because he has committed this crime in the past. The danger of unfair prejudice outweighs the probative value of this prior conviction, and the evidence is not relevant. This violates the rule against admission of prior bad acts.

Front 15

Gary Goodegg is charged with selling alcohol to minors. At trial, the prosecutor seeks to open his case by introducing testimony form Gary’s neighbors that he is the neighborhood drunk who makes moonshine in his basement. Is this testimony relevant? Is it admissible?

Back 15

This evidence is not relevant. The fact that Gary may be the neighborhood drunk does not make any issue in the case more or less probable. Also, this is inadmissible character evidence, because there is every indication that this evidence being introduced solely to suggest that Gary is a no account drunk and is more likely to be guilty of selling alcohol to minors than if he wasn’t the local drunk.

Front 16

Bonnie Bluebonnet is charged with car theft. The prosecutor offers evidence that, two weeks before the theft, Bonnie had escaped form a jail 80 miles away. Is this relevant?

Back 16

The evidence of the jail escape is relevant to show motive for stealing the carand that she was more likely than not to have stolen the car than if she had motive to do so.Although prior bad acts are generally irrelevant and inadmissible, if they are offered to show knowledge, motive, intent, preparation, identity, opportunity and plan or absence of misstateor accident.

Front 17

The defendant, a short Asian man with long dark hair, is charged with robbing a bank. The prosecution offers a surveillance tape of the robbery, which shows that the robber is shortwith long dark hair but which does not show enough detail to demonstrate that the robberis or is not the defendant. Is the tape relevant?

Back 17

The tape is relevant and admissible , because it tends to show that the robber was a short man with long dark hair and this fact makes it more likely than not that the robber is the defendant than would be the case if the tape was not in evidence.

Front 18

In a criminal prosecution for assault and battery, the prosecution seeks to admit the testimony of a witness, who did not see the assault and battery, that one week later he saw the victim holding his jaw and crying from the apparent agony of his injury. Is this relevant?

Back 18

No, this is not relevant. It is not evidence that would make any issue regarding the guilt of the defendant, whether or not the defendant committed an assault and battery more or less likely. The testimony is also to inflammatory as likely to unfairly arouse an emotional response from the trier of fact.

Front 19

Dirk Digger is charged with murdering Viola Victim. The prosecutions first piece of evidence is that Dirk was the sole beneficiary of an insurance policy on Viola’s life. Is this evidence relevant?

Back 19

Yes, it is relevant evidence because it is of probative value. It could be concluded that someone who stands to gain financially from another person’s death is at least somewhat more likely to murder that person than someone with nothing to gain.

Front 20

The defendant is charged with fraud because he swindled an elderly widow out of herretirement money. The prosecutor wants to show that the defendant owed money to otherpeople and always failed pay these people back even when he had money to do so. Is thisevidence relevant to show that the defendant committed the crime at issue?

Back 20

This is improper evidence of other bad acts that is obviously being offered toshow that the defendant is a bad character who has the propensity to do bad things. Thisis highly prejudicial evidence and is not relevant to show that it was more or less likely thatthe defendant committed fraud. If the defendant took the stand, however, at the court’sdiscretion, this information might be used in the cross-examination of the defendant becauseit is a prior bad act that is “probative of the truthfulness or untruthfulness” of the defendant.

Front 21

In a personal injury accident for negligence arising out of a car accident, plaintiff seeks to put on a witness who will testify that he saw defendant speeding, and recklessly passed him, about 10 miles up the road from where the accident eventually occurred. Is this evidence relevant under Rule 401?

Back 21

Yes. Evidence is relevant if it has “any” probative value on a matter “of consequence” to the action. Here, the evidence of prior speeding does not conclusively show that defendant was negligent, and it does not even make it more likely than not that defendant was negligent. However, it does make his negligence more likely than it would have been in the absence of the evidence. Thus, it is relevant.

Front 22

Suppose the judge in question 1 strongly suspects that the witness is lying. May the judge exclude the evidence as being irrelevant?

Back 22

No. The judge may not consider the believability of a witness when he is making his preliminary finding that an offer of evidence is relevant. It is the job of the jury to determine whether the witness is lying. The judge is limited to determining whether the testimony, if believed, would tend to make the matter more or less probable.

Front 23

Plaintiff’s deceased was a passenger in a car that was hit from behind. The gas tank exploded, killing the deceased. Plaintiff brings a products liability action against the manufacturer for negligence in design of the car. The person who caused the accident has pleaded guilty to involuntary manslaughter, and has admitted to going about 68 mph. Should evidence of the faulty driver’s guilty plea be admissible in the civil action?

Back 23

No. The judge should exclude the evidence under FRE 403 because the danger of confusion of the issues substantially outweighs the probative value of the evidence. There is a danger that the jury will consider the guilty plea to be dispositive of the issue of fault in the civil case. Even if the driver was negligent, this does not have much probative value on the issue of liability of the manufacturer, who may also be at fault.

Front 24

A landlord mails a notice of eviction to a tenant. The landlord addresses the letter to “Bob & Steve.” Steve is subsequently arrested for selling drugs, and Bob is also arrested on a conspiracy to sell charge. Steve pleads guilty and refuses to testify against Bob. So the prosecution offers the letter addressed by the landlord as evidence that Bob and Steve lived in the same house, and therefore it was likely that Bob knew of the illegal activity. Bob objects to the letter as being inadmissible hearsay. Is the letter hearsay?

Back 24

No. Hearsay is an out of court statement offered to prove the matter asserted. Statements can be writings, however they must be an assertion to be hearsay under the definition of “statement” in 801(a). Here, the landlord is not trying to assert that Bob lived with Steve. He is merely doing the non-assertive act of addressing an envelope. Thus, the letter envelope is admissible to show the landlord’s belief that Bob and Steve lived together.

Front 25

At a trial for murder, the defendant puts on a witness who is willing to testify that she was with the victim after the defendant attacked the victim, and that the victim told her, “Please help me, I’m still alive.” The defendant offers this evidence to show that although he attacked the victim, he did not kill her, and so she must have die from some other cause. The prosecution objects on the grounds that the victim’s statement is hearsay. Is it hearsay?

Back 25

No. Although this is an out of court statement offered to prove the truth of the matter asserted in the statement, it is not hearsay because it is not dependent on the veracity or accuracy of the declarant for its value. The mere fact that the victim said anything is what is being proved. It does not matter that the victim happened to say “I’m alive” because her act of speaking is independent evidence of her being alive. It is the verbal act which has significance. It is only coincidence that the matter asserted in the statement is the matter sought to be proved.

Front 26

Two men conspire to rob a bank. As the first leaves the bank, he is arrested. As the second leaves the bank, the first says to him, “Don’t worry, I didn’t tell them about you.” At the second man’s trial, the prosecution offers this statement to prove that the second man was involved. Is this hearsay?

Back 26

Yes. Although it is not, by its terms, literally being used to prove the matter asserted by the words (i.e. whether the first man told the cops anything about the second man), it does support the clear inference that the first man was asserting that the second man was involved. The jury is very likely to adopt this assertion as the plain meaning of the statement. Thus, it is hearsay because the matter asserted is that the second man was involved.

Front 27

Bob and Ed are arrested for bank robbery. After arrest, and after being read his miranda warning, Bob confesses to the bank robbery. The confession states facts which implicate Ed. The prosecutor at Ed’s trial wishes to have the confession statements admitted to proved that Ed was involved in the bank robbery, claiming that they fall under the co-conspirator admission rule and are thus not hearsay. What result?

Back 27

The co-conspirator admission rule requires that the statement be made in furtherance of the conspiracy. The statement here is clearly hearsay because it was made out of court by a non-co-conspirator. Once a person is arrested, and begins to confess, the confession is clearly not in furtherance of the conspiracy.

Front 28

A nine-year old child is attacked by a dog while walking home from school. She manages to get away from the dog and runs 1 mile home to tell her parents. She tells her parents that “The big brown dog on the corner attacked me.” At the civil action by the parents on behalf of the child against the owners of the dog, the dog’s owner seeks to prevent the parent from testifying as to what her daughter told her on the grounds that it is hearsay, and does not fall within one of the exceptions. How should the court rule?

Back 28

The statement is clearly hearsay. However, it may fall under the exception 803(2) for excited utterances, which requires that the statement be made while under the stress or excitement caused by the event or condition. Given the child’s age, it is likely that she was still under the stress of the excitement of the attack when she got home (probably about 10 minutes later). Although the statement was not immediate, there was probably enough excitement to last until she got home, to prevent her from fabricating the story, particularly if she had serious injuries that were causing her pain.

Front 29

Husband comes home and tells wife, “This morning I hurt my back while lifting heavy boxes at work.” Later that evening, the husband dies from a heart attack. At trial to get death benefits, the wife seeks to prove that his death was caused by on the job injury by testifying as to what her husband told her. The defendant company objects on the basis of hearsay. How should the court rule?

Back 29

There is a hearsay exception for then existing physical condition. However, it does not cover statements of memory. Thus, the only way that this statement would fit the exception is if he was asserting that he was then in pain. If he were merely asserting that his back hurt earlier in the day, that would fall outside of the exception because it would be relaying his memory of past events. The rationale is that a person then experiencing pain is not likely to have the presence of mind to fabricate a story. However, a person remembering past pain would have the opportunity to lie.

Front 30

John says to his friends, “I am going to the airport to meet Jim, and we are both going to Hawaii together.” John thereafter disappears. Jim is unable to provide witnesses to account for his whereabouts during the time in question. At Jim’s trial for murder, he seeks to prevent John’s friends from testifying as to his statement concerning meeting Jim at the airport. What result?

Back 30

This is hearsay. However, it appears to fit the exception for then existing mental condition - i.e. intent of the declarant. The statement asserts that John intends to meet with Jim. Although the statement also implies the intent of Jim, that only makes the likelihood less of the meeting actually occurring. It does not make the reliability of John’s statement about his intent any less reliable (it is still free from memory lapse because it is being made at the time of intention being present). Thus, the statement fits under the exception, even though it implies action or intention of a second party as well.

Front 31

Eyewitness at bank robbery sees the license number of the getaway car. He quickly runs into the bank and tells the security guard, who immediately writes it down. At the bank robber’s trial, the defendant seeks to prevent the security guard from testifying as to the contents of the note where he wrote down the license plate claiming 1) the note is hearsay because it was written out of court, 2) the contents of the note are hearsay because the statement to the security guard was made out of court. The security guard is unable to remember the license number that he wrote down, but he testifies that he would not have written it down incorrectly. What result?

Back 31

The note could come in if it met the hearsay exceptions for both levels of hearsay: 1) the writing of the note, and 2) the telling of the license plate number. First of all, the present sense impression exception would probably apply to the eyewitness account of the license number of the car because he had personal knowledge, and he described the license number immediately after perceiving it. The note could come in under the past recollection recorded exception because the security guard 1) is unable to remember, 2) wrote it down while it was fresh in his memory, 3) he had personal knowledge that he was being told the number (but not that the number was correct), 4) he testified as to the accuracy and truthfulness of the content of the writing.

Front 32

Vicki wants to buy a condo. Before she does buy the condo, she hires an inspector to come out and take a look at the house. While the inspector is walking through the house, Vicki notes that one of the water faucets is dripping, and she tells him. He says, “thank you” and writes it down. However, he does not independently verify the leaky faucet; he merely takes her word for it. After Vicki moves in, she is killed when she slips on a wet floor. At trial for wrongful death, the previous owner seeks to prevent the record of the inspection report from being admitted, claiming that it is hearsay. What result?

Back 32

The record is hearsay, and it does not really fit the business records exception because the courts have interpreted that exception as requiring that the record be based on the personal knowledge of someone acting on behalf of the business. Here, Vicki is not acting on behalf of the business. She is a third party who made an independent statement, that the record keeper merely wrote down. Thus, the record created here does not concern the business activity of the inspector, per se.

Front 33

Jim is driving recklessly. He is pulled over by a police officer who performs a field sobriety test, which is videotaped from the officer’s car. Jim fails the test, and is arrested for drunk driving. At his criminal trial, Jim seeks to prevent the prosecutor from introducing the videotape as evidence, claiming that it is hearsay. Is it hearsay? If so, is there an available exception to admit it anyway?

Back 33

The videotape is recording conduct, and communication. Thus, the question is whether this conduct is an assertion. It probably is an assertion by Jim that he is not drunk (that is what he is trying to communicate to the officer), and an assertion by the police officer that he is drunk (that is what the prosecutor is trying to communicate to the jury). Thus, it probably is hearsay. There is a public records exception for matters observed pursuant to duty imposed by law as to which matters there was a duty to report. However, this exception excludes, in a criminal case, matters observed by police officers and other law enforcement personnel. But since the hearsay dangers involved in the presentation of a video tape are minimal, it is likely that it will come in anyway because the video tape does not represent a risk of faulty memory, or inability to cross-examine, as long as the police officer is present.

Front 34

The border patrol chases a truck full of illegal aliens. The truck swerves to hit the border patrol van, knocking the van off the highway and injuring the border patrol agents. The truck full of aliens is promptly captured by police, and the aliens are detained, deposed under oath at a preliminary hearing attended by counsel, and then they are deported. The government seeks to press charges against the driver of the truck for attempted murder. In several of the statements by the illegal aliens, there are statements to the effect that the driver intended to run the van off the road. The prosecutor seeks to have the statements read into evidence, and the defense objects on the grounds of hearsay. What result?

Back 34

The statements are hearsay. They do not fit under the public records exception because this is a criminal trial. They seem to fit under the 804(1) exception for former testimony, since they were given in a deposition taken in compliance with law in the course of a prior proceeding and cross-examinable by defendant’s counsel. However, the 804 exceptions require that the declarant be unavailable. Here the illegal aliens are beyond service of process. However, there is a question of whether they are legally “unavailable” because the proponent of the statement (the government) procured their absence by deporting them. Since there are procedures for bringing in foreign citizens to testify, the government probably has not made a “genuine and bona fide” effort to produce them. Thus, it is likely that the statements will be inadmissible hearsay.

Front 35

Jim is hit by a car. As he lays on the sidewalk bleeding, he tells a passerby, Steve, “I’m dying. I was on my way to testify in court against Big Eddie. Please tell the jury that I saw the Big Eddie kill his wife.” Then Jim dies. Steve finds the correct courtroom, and the prosecution wants him to take the stand in Jim’s place to relay the testimony. The defense immediately objects on the grounds of hearsay. What result?

Back 35

Clearly, the statement is hearsay. There is an exception for an unavailable defendant’s dying declaration. Here the statement was made under belief of impending death, and it is being used in a homicide case. However, it does not concern the circumstances surrounding Jim’s death. Thus, it does not fit the exception, and Jim’s testimony dies with him.

Front 36

Jim drank a bottle of what he thought was Coca-Cola. The bottle had the Coca-Cola label on it. However, Jim died, apparently from some sort of poisoning. At the products liability trial of Coca-Cola, Coca-Cola seeks to prevent Jim’s heirs from introducing the bottle into evidence in order to prove that the bottle was bottled at the Coca-Cola bottling company. Coca-Cola claims that the bottle is being used for a hearsay purpose. What ruling?

Back 36

The label on the bottle is technically hearsay because it is being offered to prove the truth of the matter asserted on it (that it was bottled at the Coca-Cola bottling plant) and it depends on the veracity (authenticity) of the label for its value. There appears to be no exception in the rules that directly applies to this situation. However, it does fit under the catch-all exception of either 803(24) or 804(b)(5) becuase it 1) has equivalent guarantees of trustworthiness as the listed exceptions, 2) it is probative on a material fact, 3) it is more probative than any other evidence available on that issue, and 4) it serves the general purposes of truth and justice to let it in. However, Jim must let Coca-Cola know sufficiently in advance of trial that it will be offered.

Front 37

Bob and Steve get into a violent fight at a bar. Steve is charged with battery. At his trial, the issue is who started the fight. Steve offers testimony as to his Bob’s bad character by putting on a witness who to say “Bob is an agressive fight picker.” The prosecution then offers a first witness to testify that “Steve is a bully,” and a second witness to testify that “Bob is a peaceable fellow.” Which, if any, of these statements are allowable character evidence?

Back 37

The general rule is that evidence of character is not allowable to prove conduct on a particular occasion. However, the accused may offer evidence of a pertinent character trait of the character of the victim, and then the prosecution may rebut that evidence. Here, Steve has offered evidence of a pertinent trait of the victim, Bob (fight picker) to prove that Bob started the fight. However, the only one of the pieces of testimony introduced by the prosecution rebuts that claim (Bob is peaceable). The other testimony directly attacks the accused’s character, which is disallowed unless the accused has put his character in issue. Here, the accused has only put the victim’s character in issue.

Front 38

In the same fight as above, Steve offers to testify that “Bob said he was going to punch me” in order to prove that Bob started the fight. Is this statement admissible?

Back 38

The statement is being used for a hearsay purpose. It is being offered to prove that Bob was going to punch Steve. However, it may be admissible for the purpose of showing that Steve was reasonable in his fear of Bob in order to support a claim of self-defense.

Front 39

Leslie claims to have been date raped by Fred after a fraternity party. Fred claims consent, and offers testimony that he and Leslie previously had sexual relations, testimony by a friend Greg that “Leslie is very sexually active” and “known as an easy mark”, and another friend Thomas, that he had sex with Leslie earlier on the night in question. Is the testimony of Fred, Greg and Thomas admissible?

Back 39

The testimony of Fred is admissible under 412(b)(1)(B) because it is evidence of “specific instances of sexual behavior” with the accused “offered to prove consent.” However, Greg’s testimony is barred under 412(a)(1) as being offered to prove that Leslie “engaged in other sexual behavior”, and 412(a)(2) as being offered to prove “sexual predisposition.” However, Fred might argue that at least Thomas’ remarks are admissible under 412(b)(1)(A) to prove that Thomas was “the source of semen, injury, or other physical evidence.”

Front 40

Same fight as above. At trial the defense offers testimony that the other other person “started at least six other fights in the last year or so, mostly in” the location of this place in order to prove that Bob started the fight. Is the testimony is admissible?

Back 40

No. FRE 405 allows testimony of specific instances of conduct only 1) on cross-examination, or 2) when character is “an essential element of a charge, claim, or defense.” Here, the victim’s character is not an essential element of a charge, claim or defense. However, if the defendant was claiming self-defense, he may be able to get the testimony admitted for the purpose of proving that he was reasonable in his fear of the victim (i.e. if the victim started 6 fights in one year, then the defendant was likely to know of the fights, and reasonably fear the victim.)

Front 41

A former roomate of the defendant approaches police as a volunteer informant, and sets up a deal with an undercover officer to buy a large amount of cocaine from the defendant. At the proposed exchange, the defendant does not sell cocaine to the undercover buyer, but he is carrying a small vial of cocaine. The defendant claims that the aborted sale was a scam between him and his former roomate to take the buyer’s cash without selling the cocaine. At trial, the prosecution offers testimony by the former roomate of numerous previous drug sales. Is testimony concerning the defendant’s prior drug sales admissible?

Back 41

Yes. The prior drug sales are admissible under 404(b), not to show the propensity of the defendant to sell drugs, but rather that he had the intent to sell drugs. In other words, it is not being offered to show that since he sold drugs in the past that he is a criminal, and that as a criminal he is more likely to have sold drugs in this instance. The issue here is whether he intended to sell drugs or just rip off the undercover agent for money. Proof of his prior drug sales tend to show that he had the intent to sell drugs; that it was his plan to sell drugs, rather than merely steal money.

Front 42

Jim brings a libel action against Charlie for Charlie’s statement in front of the PTA that “Jim beats his children.” At trial, Charlie seeks to introduce evidence that Jim was arrested for child abuse last year. Jim objects that this is improper use of prior bad acts as character evidence to show conduct on a particular occasion. What ruling?

Back 42

Overruled. Rule 405(b) allows specific instances of conduct to be admissible when the character of a person (here the defendant) is an essential element of the defense (here truth is a defense to libel).

Front 43

At his criminal trial for battery, defendant seeks to put on a witness to testify on direct examination that: 1) defendant donated $500 to charity last year, 2) defendant is a scoutmaster, 3) defendant volunteers at the local nursing home. Is any of this testimony admissible?

Back 43

No. Although rule 404(a)(1) states that a criminal defendant may offer evidence of his good character, 405(a) limits the manner in which that character may be proved. Specifically, 405(a) allows the proponent to offer opinion and reputation evidence of character only. Specific instances of conduct may only be inquired into on cross-examination (i.e. for the purpose of exposing any weaknesses in the basis for the opinion or reputation).

Front 44

Tim hits a pedestrian while driving his car. Tim visits the victim in the hospital, and when he finds out that the victim is uninsured, Tim offers to pay his medical expenses, stating, “I’ll pay your doctor bill because I feel bad about hitting you while I was speeding.” At the victim’s trial against Tim for personal injury, the victim seeks to introduce the statement to prove that Tim was, in fact, speeding, and was therefore negligent. Tim objects on the ground that offers to pay medical bills are inadmissible. What ruling?

Back 44

Rule 409 prohibits evidence of offers to pay medical bills from being used as evidence of liability. However, the statement made by Tim had two parts: 1) I’ll pay your doctor bills, and 2) I was speeding. The second part of the statement is unrelated to the offer to pay the medical bills, and is therefore collateral. As to collateral statements, the rule does not protect them just because they were made in the same breath as the offer to pay medical bills. Also, this does not fall under offers to settle, because there was no claim in dispute. Thus, the portion of the statement concerning Tim’s admission of speeding is admissible to prove that he was speeding.

Front 45

Gary is sued for negligence in an automobile accident. He calls to the stand his own insurance adjuster, from his own insurance company, to testify that the damages to the plaintiff’s car were less than what the plaintiff is claiming. On cross-examination, the plaintiff asks the insurance adjuster what his relationship with Gary is. Gary immediately objects, claiming that evidence of liability insurance is inadmissible. What result?

Back 45

Overruled. Here, Gary has chosen to put on his own insurance adjuster. The plaintiff is entitled to bring out any relationship that might implicate bias or prejudice of the witness. Since Gary has a business relationship with the adjuster, that is probative of bias. It does not matter that the questioning also reveals that Gary has liability insurance because it is not being offered to prove that Gary is liable, but that his witness is biased.

Front 46

Dennet is charged with bank robbery. He has a prior robbery conviction 6 years ago. The prime witness for the defense, and the prime witness for the prosecution both have prior robbery convictions, each 8 years ago. May evidence of the prior convictions be allowed as to each witness and the defendant to impeach their testimony if they choose to testify?

Back 46

Rule 609 provides that prior conviction for impeachment of a witness is admissible subject to Rule 403, as long as it was punishable by >1 yr imprisonment, and happened within the last 10 years. So the prior conviction of each of the witnesses should be allowed unless its probative value is “substantially outweighed” by its prejudicial effect (Rule 403). Here, there appears to be no great prejudicial effect, since the witnesses prior convictions do not implicate the defendant. However, with regard to the defendant himself, Rule 609 states that the probative value must “outweigh” the prejudicial effect. As such, the balancing standard is higher. Since the prior conviction was so similar to the present charge, there is great danger of prejudice. Thus, it should probably stay out unless it can be shown (under 404(b)) to be part of a common plan or evidence of a “signature” crime.

Front 47

Pratt sues Denko for personal injury damages from a car accident. After Pratt testifies, Denko seeks to impeach him by bringing out prior felony convictions for manslaughter and forgery. Are either of these prior convictions admissible for the purpose of impeachment?

Back 47

Certainly for the forgery. Rule 609(a)(2) provides that crimes involving dishonesty or false statement are admissible, regardless of the who they are offered against, and regardless of the level of punishment, unless they are more than 10 years old, and then if justice and the circumstances require. The prior manslaughter conviction will come in also unless it is excluded by rule 403, because this is a civil case and so the evidence is not subjected to the higher balancing standard of 609(a)(1). It may be excludable under Rule 403 as lacking sufficient probative value with regard to truthfulness.

Front 48

Durston is charged with assault, and testifies to an uncorroborated alibi at trial. He has 5 prior convictions. Which of the following convictions would be admissible to impeach his testimony

1. recent falsifying of motel register

2. recent drug sale

3. recent conviction for larceny

4. first degree armed assault

5. forging a bank application, released from prison >10 years ago

Back 48

1. recent falsifying of motel register - Yes. 609(a)(2) dishonesty.

2. recent drug sale - No. 609(a)(1) not very probative on veracity, and very prejudicial. Prejudice slightly outweighs probative value - it stays out since offered against an accused.

3. recent conviction for larceny - If it involved deceit in execution, it will come in. Depends on underlying facts. 609(a)(2). If it doesn’t involve deceit, it will probably be excluded as being less probative on veracity than it is prejudicial against character.

4. recent first degree armed assault - No. 609(a)(1) great danger of prejudice, very little probative value on veracity. Possible exception if prosecutor can show a common plan or intent, or “signature”.

5. forging a bank application, released from prison >10 years ago - No. 609(b) time limit. But, depends on underlying facts, may be admissible if, “in the interest of justice”, and considering the circumstances, if the probative value “substantially” outweighs prejudice (reverse 403).

Front 49

Welch testifies on direct that Plimpton’s attack on Dirk was unprovoked. During cross-examination, adverse counsel makes no inquiry into any prior statements of Welch. Welch is then dismissed and goes to Singapore (beyond service). Adverse counsel then calls a police officer to testify that Welch told him that the attack may have been provoked. Is the police officer’s statement admissible?

Back 49

No. 613(b) allows extrinsic evidence [here, the police officer’s testimony] of a prior inconsistent statement at any time, as long as the witness is afforded an opportunity to explain or deny it, or if the interests of justice otherwise require. Since the witness is not available to explain or deny the prior inconsistent statement, and since the adverse counsel had a chance to cross-examine him, it is probably not in the interest of justice that the statement be let in. Note that there is not a hearsay problem here because the prior inconsistent statement is being used to impeach (non-hearsay purpose), not for the truth of the matter asserted (although the jury might not be able to tell the difference, even with a limiting instruction).

Front 50

During a personal injury trial, William testifies that he saw the accident from the window of the USD law school building. He also testifies that he is a 2L (when in fact he is only a 1L). Adverse counsel knows for a fact that William is lying as to his class standing, and confronts him with it on cross-examination. William again asserts that he is a 2L. May adverse counsel then put on the school record administrator to testify that he is only a 1L?

Back 50

No. Although the statement is false, it is only a lie as to a collateral matter. As such, extrinsic evidence of its falsity neither desired nor admissible.

Front 51

Oswald is charged with a robbery. Ardiss, the owner of a local restaurant, testifies that Oswald was at the restaurant on the night in question. On cross, the prosecutor gets Ardiss to testify that Oswald was in the restaurant every day for a month prior to the robbery. He then offers testimony by a Police Officer that the police officer saw Oswald elsewhere 2 weeks prior to the robbery, in order to impeach Ardiss. Is this allowable?

Back 51

No. Counsel may not contradict as to a collateral matter. The police officer’s testimony is collateral because there is no substantive issue of where Oswald was 2 weeks before the robbery. However, if this fault in his alibi were viewed as a “linchpin” (i.e. if it is not true, the whole story seems to fall apart) then it might be admissible at the discretion of the judge.

Front 52

Charlie is on trial for bank robbery. Walter, his star witness, testifies that Charlie did not do it because they were together on that day. On cross-examination, the prosecutor asks, “Didn’t you tell the police that you and Charlie had robbed a bank 13 years ago?” The prosecutor knows that this is true. If Walter denies it, would the prosecutor be able to prove it by introducing the police officer to testify that it was true?

Back 52

No. The prosecutor may not “open his own door” by eliciting a lie from a witness, solely for the purposes of impeaching him with evidence that would not otherwise be admissible. Here, the prior statement would have been otherwise inadmissible hearsay, and also prejudicial to the defendant as a prior bad act that may not normally be proved by extrinsic evidence (608(b)). Thus, the prosecutor may not “trick” the witness into giving him an opportunity to get it in for impeachment purposes because he did not offer it on direct.

Front 53

Chauncy is charged with bank robbery. At trial, the prosecutor shows a videotape of the robbery, in which a person resembling Chauncy is seen robbing the bank (same physical size, skin color). The prosecutor then puts on a witness who states that she was at the bank during the hold up, and that she saw the bank robber, and that the man on the videotape looks a lot like the defendant. Is this testimony proper?

Back 53

No. Although the witness may testify as to other matters within her personal knowledge, rule 701(b) requires that the witness’ opinion testimony be “helpful” to the trier of fact. Here, the testimony that she thinks that the man on the video looks a lot like the defendant does not help the jury, because they can see the video themselves, and so they can draw their own conclusions as to who the defendant resembles.

Front 54

Plaintiff was injured due to complications arising after an open heart surgery. The π brings on an expert witness doctor to testify that, on the basis of reading what a resident (not present) wrote on the chart about the tube falling out during surgery, that the tube falling out caused air to enter the Plaintiff’s bloodstream, injuring him. May the expert witness may testify as to what was written on the chart in explaining the basis for her opinion?

Back 54

Yes. Under Rule 703, an expert witness may rely on information reasonably relied upon by her profession, and resident’s notes on a medical chart fall into that category. The fact that it is hearsay does not prevent an expert from relying on it. Anyway, the medical record itself may be admissible under the business records exception

Front 55

At Sally’s criminal trial for tax evasion, a witness who is a tax auditor is put on the stand. The tax auditor testifies that the signature on a particular tax return appears to belong to Sally. When questioned on the basis for her opinion, the tax auditor states that “since I started the investigation of this case, I have seen the defendant’s signature hundreds of times, and so I am familiar with it.” Is this proper authentication of the testimonial evidence of the signature?

Back 55

Maybe. Rule 901 provides that a non-expert may testify as to the genuineness of handwriting, based upon familiarity. Here, the tax auditor has personal knowledge of the handwriting, and is familiar with it. However, the familiarity must not have been acquired for the purpose of litigation. It is arguable here that the tax auditor’s sole purpose in examining the signature was to prepare for litigation. After all, she was conducting a criminal investigation.

Front 56

What if the testimony in the above example were given by an expert on handwriting who had been called in solely for the purpose of comparing the signatures?

Back 56

Then the testimony would be properly authenticated under 901(b)(3) as a comparison by an expert witness. Note also that the document with the signature may be given to the jury for their own comparison.

Front 57

A mayor sues a reporter and a private citizen for libel based on an article published in the newspaper, allegedly written by the reporter, and a letter to the editor, allegedly written by the private citizen. May the newpaper may be offered into evidence as self-authenticating?

Back 57

Yes. FRE 902(6) provides that newpapers are self-authenticating. However, this does not conclusively establish that the content of the article or the letter was actually written by the persons attributed as the authors. It only establishes that the newspaper is who it claims to be. They may still introduce evidence that they were not the authors.

Front 58

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

Back 58

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

Front 59

Henry Handler was driving south on High Street. As he was approaching the light at 24th and High, Wally Witness, who was driving in the car next to Henry, observed Henry talking on his cell phone, drinking coffee, and looking down at his CD player in the car. Two minutes later, at 12th and High, Henry turned right on green, accidentally striking Paula Peddler on her bike. Paula sues Henry for negligence. Paula's attorney wants to call Wally to testify as to Henry's behavior at 24th and High. Is this evidence relevant?

Back 59

Yes, because Henry's actions while driving at 24th and High tend to prove, however slightly, that Henry was not paying close attention to his driving two minutes later.

Under Rule 401, for evidence to be deemed relevant and therefore admissible, it only has to make a fact 'of consequence' 'more or less probable.' Under this low threshold, Henry's multitasking at 24th and High makes it a little more probable that he was multitasking during the accident two minutes later, and tends to show him to be an inattentive and careless driver, both of which are 'facts of consequence.'

Front 60

Dozens of women are suing Farnsworth Pharmaceuticals, claiming that its new anti-depressant drug Serenity caused birth defects in their children. Under the applicable state law, Farnsworth is strictly liable for any injuries caused by products that it manufactured, but it claims that the chemicals in the drug could not possibly have been the cause of the birth defects.Which of the following pieces of evidence would be relevant to the case?

Back 60

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

Front 61

A group of veterans from the Korean War are suing the United States government for exposure to Code Blue, a chemical defoliant used by the United States Army during that conflict. The veterans claim that their exposure to Code Blue caused them to develop lung cancer. The United States concedes that the veterans were exposed to Code Blue, but argues that there the chemical was perfectly safe and could not possibly have caused the injury.The veterans intend to call Dr. Benjamin Pierce, a world-famous physician and author of many scholarly articles on cancer and its causes. Dr. Pierce has devised a new laboratory test for studying chemicals to determine whether or not they cause cancer. This test has only been accepted by a handful of researchers around the country, but the judge is convinced that it is reliable, since it has undergone peer review and has very low error rates. Dr. Pierce has not personally tested Code Blue, but he has seen the results of various tests performed by lab technicians who applied his new technique. He will testify that it is standard for physicians and epidemiologists to rely on the work of trained lab technicians when conducting studies and reaching conclusions. Based on the results of the tests that he has seen, he is willing to testify that Code Blue can in fact cause lung cancer.

Back 61

His testimony about his conclusions should be allowed, but he cannot testify about the underlying data on direct unless the court determines that the probative value in assisting the jury to evaluate his opinion substantially outweighs the prejudicial effect of the hearsay data.

The expert testimony is admissible under the Daubert test, since the judge has concluded after considering all of the Daubert factors that the scientific technique is reliable. Since the Frye test has been overruled, the fact that the technique has not been generally accepted is not dispositive.

Front 62

Charles Murphy died from an overdose of sleeping pills. The insurance company claimed that Charles committed suicide, and refused to make payment on his life insurance policy. Charles’s wife argued that the overdose was accidental, and sued the insurance company for non-payment. At trial, the insurance company called Dr. Mears, a clinical psychiatrist who was a close friend of Charles. Dr. Mears never examined Charles as a patient, but she did have lunch with Charles two days before he died. The insurance company did not attempt to qualify Dr. Mears as an expert. Mears testified that on the day she saw Charles, he “seemed very depressed; in fact, it appeared to me that he displayed all the symptoms of bipolar affective disorder.” Charles’s wife objects to this testimony. How should the court rule?

Back 62

The statement “He seemed very depressed” is admissible, but the rest of the statement is not.

Even though she could be qualified as an expert, Mears can still testify as a lay witness, as long as she gives opinions which are helpful to the jury, rationally based on her personal observation, and do not require technical knowledge or specialized process of reasoning.

Front 63

Doris is a prosecution witness in a bank robbery/murder trial. She testifies that she saw the defendant enter the bank and yell for everyone to get down on the floor. She then testifies that as she was lying on the floor with her head down, she “heard a noise that sounded like a gunshot.” When she looked up, she saw the security guard lying on the ground nearby bleeding from the chest. The defense attorney objects to this evidence.Should the judge allow Doris to testify that she heard “a noise that sounded like a gunshot?”

Back 63

Probably, but the judge may require evidence that Doris has heard a gunshot in her life on some prior occasion.

Witnesses can testify to opinions to describe what they perceived. This is a proper lay opinion, since it requires no technical knowledge or specialized process of reasoning.

Front 64

Dr. Pierce is an expert who testified on direct that in his opinion the defendant's defoliant, known as "Code Blue," caused the cancer which the plaintiff was suffering from. On cross-examination, the defense attorney asks Dr. Pierce if he is familiar with 'A Study of the Causes and Treatments of Cancer,' a medical textbook written by Charles Winchester. Pierce says he has and he agrees that Winchester's book is well-respected in the medical field. The defense attorney then directs Pierce's attention to a footnote in Winchester's book which states: 'It is well-known that most defoliants, such as Code Blue and Undertaker, pose absolutely no danger of cancer due to the inert molecular structure of their ingredients.' The plaintiffs object to any reference to the Winchester book. What is the proper ruling?

Back 64

The passage in the textbook may be read to the jury, and considered for the truth of the matter asserted, but the book itself may not be admitted into evidence.

Dr. Winchester's book is admissible under the learned treatise exception to the hearsay rule, which allows text from a learned treatise to be read into evidence and considered for the truth of the matter asserted, but not for the treatise to be admitted into evidence.A text will be considered a "learned treatise" if a qualified expert such as Dr. Pierce has certified it as such.

Front 65

Frederick Dawson is a controversial documentary maker, and his latest piece purported to show evidence that the mayor of the city was having an affair with a sixteen year old girl. The documentary was aired on a local television station which is owned by Steve Keaton. The mayor sues both Keaton and Dawson for libel, and Keaton settles the case before trial. At Dawson's trial, the mayor calls Mallory to the stand. Mallory is Steve Keaton's daughter, and she will testify that the night before Steve ran the documentary, he told Mallory: "You know how our local news ratings have been suffering recently? Well, tomorrow we're running this piece by Dawson that should really get people's attention. Dawson tells me it's all fiction, but I'll run whatever it takes to get people to watch,"Mallory's testimony is most likely:

Back 65

Steve's statement involves double hearsay. Dawson's statement to Steve is a party-opponent admission, since it is being offered against Dawson. When Steve reported Dawson's statement to Mallory, he was making a statement against interest, since it tended to expose him to civil liability, and thus it is admissible under 804(b)(3) only if Steve is unavailable. If Steve is available, 804(b)(3) does not apply.

Front 66

Lou is accused of sexually assaulting his co-worker Mary during the lunch break at their workplace. Mary called the police immediately after the incident. The police arrived at the front door of the office suite ten minutes after Mary's call and one of the secretaries called out: “Hey, look, the police are here!” A minute later, the police entered Lou's office. The office appeared to be empty, but the police searched the office and found Lou curled up under his desk. At trial, the prosecution calls the arresting officer to testify that Lou was hiding under his desk when he was arrested. The defense attorney objects, arguing that there are a number of possible explanations consistent with innocence that explain why Lou might have been sitting under his desk, and that even if he were hiding it certainly does not prove that Lou was guilty, only that he didn’t want to be arrested. What is the proper analysis?

Back 66

Courts frequently admit evidence of flight to suggest that a defendant had a guilty state of mind. Evidence of flight almost always is relevant, and the probative value of the evidence usually outweighs any unfair prejudice. The same analysis should apply to hiding from the police. If anything, the probative value of hiding is higher than that of flight, because there are fewer innocent explanations for hiding (as opposed to travel).

Front 67

Louie De Palma is accused of killing Latka, one of his employees, by hitting him on the head with a blunt heavy object. No murder weapon is ever recovered, so the prosecutor seeks to introduce into evidence a tire iron that was found in the garage where De Palma works. There is no evidence that DePalma ever possessed this tire iron, and no evidence that a tire iron was the murder weapon (though it might have been). The prosecution's tire iron is:

Back 67

Relevant but probably barred under Rule 403.

The tire iron has some slight probative value, since it (along with hundreds of other items) might have been the murder weapon

Front 68

Jenny, a school principal in Chicago, has been sued for employment discrimination. The plaintiffs claim that she has promoted white teachers ahead of more qualified non-white teachers. The plaintiffs' attorney wants to admit evidence that Jenny's husband is active in a white supremacist group. Is this evidence admissible?

Back 68

Perhaps, but only if the trial judge concludes that the probative value of the evidence as to proving Jenny's racial bias is not substantially outweighed by its unfair prejudice to Jenny.
The legal test for admissibility under Rule 403. The evidence is relevant, but because it concerns her husband, it has a low probative value. It also carries a very high risk of unfair prejudice, so the judge will have to determine whether the unfair prejudice substantially outweighs the probative value.