Evidence 2 Flashcards
(339 cards)
1
Q
Don is prosecuted for larceny. At trial, Juan testifies that Shaun said he saw Don leave a store without paying for the item in his hand. Whose out of court statement, if any, is repeated by Juan’s testimony?
a) Don
b) Juan
c) Shaun
d) None of the above
A
c) Shaun
2
Q
Don is prosecuted for larceny. At trial, Juan testifies that Shaun said he saw Don leave a store without paying for the item in his hand. What fact, if any, is asserted by the out of court statement?
a) Don walked out of the store without paying for the item in his hand.
b) Shaun walked out of the store without paying for the item in his hand.
c) Shaun believes Don is guilty of larceny.
d) None of the above.
A
a) Don walked out of the store without paying for the item in his hand.
3
Q
Don is prosecuted for larceny. At trial, Juan testifies that Shaun said he saw Don leave a store without paying for the item in his hand. To what issue, if any, is the fact asserted by the out of court statement relevant?
a) Whether Juan was in a position to see the larceny occur.
b) Whether Don committed the actus reus of larceny.
c) Whether Shaun believes Don is guilty of larceny.
d) None of the above.
A
b) Whether Don committed the actus reus of larceny.
4
Q
Don is prosecuted for larceny. At trial, Juan testifies that Shaun said he saw Don leave a store without paying for the item in his hand. Is the out of court statement offered for the truth of the matter asserted?
a) Yes, because it proves that Don is guilty.
b) Yes, because we are asked to consider whether the factual assertion is true for it to be relevant.
c) No, because it is offered to show only what Shaun believes, not what actually happened.
d) No, because it is an out-of-court statement.
A
b) Yes, because we are asked to consider whether the factual assertion is true for it to be relevant.
5
Q
On the issue of identity of V’s shooter, testimony as to V’s statement, “D shot me, as he often threatened to do.”
a) Hearsay
b) Not Hearsay
A
a) Hearsay
6
Q
On the issue whether D made threats to shoot V, testimony as to V’s statement, “D shot me, as he often threatened to do.”
a) Hearsay
b) Not Hearsay
A
a) Hearsay
7
Q
On the issue of V’s consciousness after the attack, testimony as to V’s statement, “D shot me, as he often threatened to do.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
8
Q
On the issue of whether Y raped V, testimony as to V’s statement to X, her husband, “Y ravished me.”
a) Hearsay
b) Not Hearsay
A
a) Hearsay
9
Q
On the issue of X’s provocation for assaulting Y, testimony as to V’s statement to X, her husband, “Y ravished me.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
10
Q
On the issue of X’s sanity, the testimony of X’s psychiatrist, “X has been confined in an insane asylum.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
11
Q
On the issue of X’s knowledge of his impending death, testimony as to W’s statement to X, “You have only a few minutes to live.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
12
Q
On the issue of X’s knowledge of his impending death, testimony as to X’s statement, “I realize that I am dying.”
a) Hearsay
b) Not Hearsay
A
a) Hearsay
13
Q
On the issue whether X and D were engaged to be married, testimony as to D’s statement to X, “I promise to marry you on June 1, 2020.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
14
Q
On the issue of D’s ill feeling toward X, testimony as to D’s statement, “X is a liar and a hypocrite.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
15
Q
On the issue of reasonableness of D’s conduct in shooting V, testimony as to W’s statement to D prior to the shooting, “V has threatened to kill you on sight.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
16
Q
On the issue of whether D killed X, testimony by Y, “D fled immediately after X’s murder.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
17
Q
On the issue of whether D killed X, testimony by Y, “Z saw D flee immediately after X’s murder.”
a) Hearsay
b) Not Hearsay
A
a) Hearsay
18
Q
In an action for personal injuries, on the defense of assumption of risk, testimony by W that an hour before the accident, in the presence of plaintiff, a mechanic said, “The spindle on that front wheel may break at any moment.”
a) Hearsay
b) Not Hearsay
A
b) Not Hearsay
19
Q
Out-of court statements that fall within a hearsay exception may be used for the truth of the matter asserted, whereas out-of-court statements that fall within a hearsay exclusion may only be used for some other purpose.
a) True.
b) False.
A
b) False.
20
Q
It is more important to distinguish whether an out-of-court statement falls within a hearsay exception or exclusion than it is to determine whether the statement is admissible for the truth of the matter asserted.
a) True.
b) False.
A
b) False.
21
Q
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. In his case-in-chief, Dion calls Xavier, who testifies that Warren told him that Pia drafted the contract. Pia objects on hearsay grounds. In federal court, the testimony is:
a) Admissible for the truth of the matter asserted and to impeach.
b) Admissible for the truth of the matter asserted but not to impeach.
c) Not admissible for the truth, but admissible to impeach.
d) Not admissible for the truth or to impeach.
A
c) Not admissible for the truth, but admissible to impeach.
22
Q
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination of Warren, Dion offers Warren’s deposition testimony, in which he claimed Pia drafted the contract. Pia objects on hearsay grounds. In federal court, the evidence is:
a) Admissible for the truth of the matter asserted and to impeach.
b) Admissible for the truth of the matter asserted but not to impeach.
c) Not admissible for the truth but admissible to impeach.
d) Not admissible for the truth or to impeach.
A
a) Admissible for the truth of the matter asserted and to impeach.
23
Q
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. In his case-in-chief, Dion calls Xavier, who testifies that Warren told him that he had no idea who drafted the contract. Pia objects on hearsay grounds. In federal court, the testimony is:
a) Admissible for the truth of the matter asserted and to impeach.
b) Admissible for the truth of the matter asserted but not to impeach.
c) Not admissible for the truth, but admissible to impeach.
d) Not admissible for the truth or to impeach, because the statement is not inconsistent.
A
c) Not admissible for the truth, but admissible to impeach.
24
Q
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination of Warren, Dion offers Xavier’s deposition testimony, in which he testified that Warren claimed he had no idea who drafted the contract. Pia objects on hearsay grounds. In federal court, the evidence is:
a) Admissible for the truth of the matter asserted and to impeach.
b) Admissible for the truth of the matter asserted but not to impeach.
c) Not admissible for the truth but admissible to impeach.
d) Not admissible for the truth or to impeach.
A
d) Not admissible for the truth or to impeach.
25
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. In his case-in-chief, Dion calls Xavier, who testifies that Warren told him Pia drafted the contract. In closing argument, Dion’s attorney argues, “We know that what really happened was that Pia drafted the contract, because that’s what Warren said to Xavier back when events were fresher in his memory.” Pia’s attorney objects as improper argument. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
26
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination, Dion asks, “Isn’t it true you told Xavier that you had no idea who drafted the contract?” Warren admits that is true. On re-direct, Pia asks, “Prior to telling Xavier that, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, a month before I told that to Xavier, I told my boss that Dion drafted the contract.” Dion objects on hearsay grounds. In federal court, the testimony is:
a) Admissible for the truth and to rehabilitate credibility.
b) Admissible for the truth but not to rehabilitate credibility.
c) Not admissible for the truth but admissible to rehabilitate credibility.
d) Not admissible for the truth or to rehabilitate credibility.
a) Admissible for the truth and to rehabilitate credibility.
27
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. Pia’s attorney then asks, “Shortly after the contract was signed, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, about a week later, I told my boss that Dion drafted the contract.” Dion objects on hearsay grounds. In federal court, the objection is:
a) Sustained, because the prior statement was not under oath.
b) Sustained, because the prior statement is not being used to rehabilitate credibility.
c) Overruled, because prior consistent statements do not need to be under oath.
d) Overruled, because because the prior statement need not relate to credibility.
b) Sustained, because the prior statement is not being used to rehabilitate credibility.
28
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination, Dion asks, “Isn’t it true you told Xavier that you had no idea who drafted the contract?” Warren admits that is true. On re-direct, Pia asks, “Prior to testifying, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, I told my boss that Dion drafted the contract.” Dion objects on hearsay grounds. In federal court, the objection is:
a) Sustained, because the prior consistent statement was under oath.
b) Sustained, because the prior statement does not predate the prior inconsistent statement.
c) Overruled, because there need not be an attack on credibility to use a prior consistent statement.
d) Overruled, because there has been no express or implied charge of improper influence or motive, but credibility has otherwise been attacked.
d) Overruled, because there has been no express or implied charge of improper influence or motive, but credibility has otherwise been attacked.
29
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination, Dion asks, “Isn’t it true that you used to work for Dion but he fired you three months ago?” Warren admits that is true. On re-direct, Pia asks, “Just prior to testifying, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, I told my new boss that Dion drafted the contract.” Dion objects on hearsay grounds. In federal court, the objection is:
a) Admissible for the truth and to rehabilitate credibility.
b) Admissible for the truth but not to rehabilitate credibility.
c) Not admissible for the truth but admissible to rehabilitate credibility.
d) Not admissible for the truth or to rehabilitate credibility.
d) Not admissible for the truth or to rehabilitate credibility.
30
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination, Dion asks, “This contract was drafted almost two years ago?” Warren admits that is true. On re-direct, Pia asks, “Prior to testifying, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, I told my boss that Dion drafted the contract.” Dion objects on hearsay grounds. In federal court, the testimony is:
a) Admissible for the truth and to rehabilitate credibility.
b) Admissible for the truth but not to rehabilitate credibility.
c) Not admissible for the truth but admissible to rehabilitate credibility.
d) Not admissible for the truth or to rehabilitate credibility.
d) Not admissible for the truth or to rehabilitate credibility.
31
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. On cross-examination, Dion asks, “Isn’t it true you told Xavier that you had no idea who drafted the contract?” Warren admits that is true. On re-direct, Pia asks, “Prior to telling Xavier that, did you tell anyone else that Dion drafted the contract?” Warren answers, “Yes, a month before I told that to Xavier, I told my boss that Dion drafted the contract.” In closing argument, Pia argues, “We know the truth is that Dion drafted the contract, because Warren not only testified to that in court, but because he said the same thing to his boss a month before he spoke to Xavier.” Dion objects as improper argument, asserting that it is unfair that Pia should be permitted to use the prior consistent statement not under oath for the truth, when Dion himself is not permitted to use the prior inconsistent statement not under oath for the truth. In federal court, the objection is:
a) Sustained.
b) Overruled.
b) Overruled.
32
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he saw Dion draft up the contract. He also testifies that two days later, he was walking down the street and saw Dion, and said, “There’s the guy who drafted the contract.” Dion objects on hearsay grounds, arguing that there has been no attack on credibility and so this is impermissible bolstering with a prior consistent statement. In federal court, the objection is:
a) Sustained.
b) Overruled.
b) Overruled.
33
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia first calls Xavier, who testifies that he was walking down the street with Warren and saw Dion, and Warren said, “There’s the guy who drafted the contract.” Dion objects on hearsay grounds. Pia responds that it is a statement of identification. In federal court, the objection is:
a) Sustained.
b) Overruled.
a) Sustained.
34
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, and never asks him about who drafted up the contract. As her next witness, Pia calls Xavier, who testifies that he was walking down the street with Warren and saw Dion, and Warren said, “There’s the guy who drafted the contract.” Dion objects on hearsay grounds. Pia responds that it is a statement of identification. In federal court, the objection is:
a) Sustained.
b) Overruled.
b) Overruled.
35
Pia sues Dion for breach of contract. At trial, in her case-in-chief, Pia calls Warren, who testifies that he Dion drafted the contract. He also testifies that a week later, he told his boss that Dion drafted the contract. Dion objects on hearsay grounds. Pia responds that it is a statement of identification. In federal court, the objection is:
a) Sustained.
b) Overruled.
a) Sustained.
36
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, Dan jumped out of his car and said, "It was all my fault." Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
b) Overruled
37
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam calls Will, an eyewitness, who testifies that after the accident, Dan jumped out of his car and said, "It was all my fault." Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
b) Overruled
38
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, Will said, "It was all Dan's fault." Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
a) Sustained
39
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident Dan jumped out of his car and said, "I can't get this blindfold off." Dan’s attorney objects on hearsay grounds, arguing that it is not a party-opponent admission because Dan is not "admitting" to anything. What ruling?
a) Sustained
b) Overruled
b) Overruled
40
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam's attorney cross-examines Dan and asks, "Isn't it true that after the accident you jumped out of your car and said that it was all your fault?" Dan’s attorney objects that the question calls for hearsay. What ruling?
a) Sustained
b) Overruled
b) Overruled
41
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam's attorney cross-examines Dan and asks, "Isn't it true that after the accident, Pam jumped out of her car and said that it was all your fault?" Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
a) Sustained
42
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that Will informed her that after the accident, Dan jumped out of his car and said, "It was all my fault!" Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
a) Sustained
43
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, Dan jumped out of his car and said, "It was all my fault." Dan’s attorney objects on hearsay grounds, arguing that the statement is not admissible because Dan has not yet testified. What ruling?
a) Sustained
b) Overruled
b) Overruled
44
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, Dan jumped out of his car and said, "I would say your injuries are going to be permanent." Dan’s attorney objects on hearsay grounds, arguing that the statement is not admissible because Dan has no expertise or basis in personal knowledge to make this statement. What ruling?
a) Sustained
b) Overruled
b) Overruled
45
Dan is prosecuted for reckless driving when he struck Pam with his car while crossing an intersection. Dan testifies that after the accident, Pam said, “I guess I shouldn’t have been texting.” The prosecution object on hearsay grounds. Defense counsel responds that it is a statement of a party opponent. What ruling?
a) Sustained
b) Overruled
a) Sustained
46
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, she jumped out of her car and said, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan said nothing in response. Dan’s attorney objects on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
b) Overruled
47
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, she jumped out of her car and said, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan responded, "You got me." Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
b) Overruled
48
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, as Dan was being wheeled on a stretcher into an ambulance by paramedics, Pam said to him, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan said nothing in response. Dan’s attorney objects on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
a) Sustained
49
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, after hearing Dan’s passenger, Ed, say to Dan, “Whatever you do, don’t say a word to anyone until the police arrive,” Pam said to Dan, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan said nothing in response. Dan’s attorney objects on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
a) Sustained
50
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Dan testifies that after the accident, Pam jumped out of her car and said, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan said, “No I didn’t.” Pam’s attorney objects to the admission of Dan’s response on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
a) Sustained
51
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Dan testifies that Pam caused the accident. On cross-examination, Pam’s attorney gets Dan to admit that he did not tell the police who caused the accident. On re-direct examination, Dan testifies that immediately after the accident, Pam jumped out of her car and said, "I can't believe you did that! Why weren't you looking where you were going?" and that Dan said, “No I didn’t.” Pam’s attorney objects to the admission of Dan’s response on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
b) Overruled
52
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that after the accident, she jumped out of her car and said, "I can't believe you did that! Why weren't you looking where you were going?" and that an eyewitness, Fred, responded, "You can say that again." Dan’s attorney objects on hearsay grounds. What ruling?
a) Sustained
b) Overruled
a) Sustained
53
Patty sues OT&T for breach of contract. At trial, Patty testifies that when she called the phone number listed on OT&T's website, a woman answered the phone and said, "This is Angie with OT&T Customer Service. Tell us what you're paying for monthly phone service and we can beat it by 50%," but that afterwards, OT&T starting sending her monthly bills 20% higher than what she was paying before. OT&T objects on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
b) Overruled
54
In support of its hearsay objection in the previous question, OT&T makes an offer of proof that Angie's supervisor instructed her to inquire as to potential customer's current rates, but did not authorize her to bind the company to any discount offers. In light of this, what is a judge's likely ruling?
a) Sustained
b) Overruled
b) Overruled
55
Patty sues OT&T for breach of contract. At trial, Patty testifies that while at a nightclub, she met a man who claimed that he was a human resources assistant for OT&T, and that he assured her would get her a rate with OT&T that was 50% lower than her current rate. OT&T objects on hearsay grounds. What is a judge's likely ruling?
a) Sustained
b) Overruled
a) Sustained
56
D'Angelo is prosecuted for possession of narcotics with intent to distribute. D'Angelo testifies that he ran errands for Stringer Bell (who had been convicted of overseeing a drug smuggling operation), but denied that the work involved dealing drugs. The prosecution then calls Wallace and Bodie, two errand-runners for Stringer Bell, who both admit that they sold drugs for Bell. Wallace also testifies that Bell said, "There's only one errand I ever need run for me: selling my drugs. Everyone who works for me knows that." D'Angelo’s attorney objects on hearsay grounds. What is a judge's likely ruling?
Question options:
a) Sustained
b) Overruled
b) Overruled
57
Dan is prosecuted for illegal possession of narcotics. At trial, the prosecution calls Al, who testifies that when the police approached Dan and him, he saw Dan toss a baggie of white powder into a nearby trashcan. Dan’s attorney objects on hearsay. How should the judge rule?
Question options:
a) Overrule.
b) Sustain.
a) Overrule.
58
Which of the following statement is true?
Question options:
a) A party is not generally bound by an admission in response to a request for admissions, since those documents are generally prepared by counsel, not the client.
b) A party may not be impeached by the fact that they amended an unverified answer to a complaint.
c) A party may not present evidence that contradicts an admission in a verified answer to a complaint.
d) A party may present evidence that contradicts a stipulation to a fact.
c) A party may not present evidence that contradicts an admission in a verified answer to a complaint.
59
Pam sued Dan for injuries allegedly sustained in a car accident between them. Al witnessed the accident, but died prior to trial. Pam testifies that when Dan heard that Al died, Dan said, “Good, I’m glad he’s dead, I would have done it myself if I could have.” Pam then wants to introduce a statement she heard Al say shortly after the accident, “Dan ran the red light.” Dan’s attorney objects to the latter statement on hearsay grounds. What ruling?
Question options:
a) Overruled.
b) Sustained.
b) Sustained.
60
Pam sues Dan for negligence for injuries sustained in a car accident. At trial, Pam testifies that during the mediation, Dan said, "It was all my fault." Over proper objection by the defense, should the statement be admitted?
Question options:
a) Yes.
b) No.
b) No.
61
In a sexual harassment suit by Typist against Boss, Typist alleged that promotions went to those who granted sexual favors to Boss and were denied to those who refused him such favors. On the question whether a former employee who was promoted, Secretary, had had sexual intercourse with Boss, Typist calls W to testify that Typist had said to Secretary in W's presence, “Of course you were promoted instead of me. I didn't sleep with Boss, like you did.” The evidence is
a) Not hearsay.
b) Hearsay but admissible as an adoptive admission.
c) Hearsay but admissible as an agent admission.
d) Hearsay, not within any exception or exclusion.
d) Hearsay, not within any exception or exclusion.
62
In a sexual harassment suit by Typist against Boss, Typist alleged that promotions went to those who granted sexual favors to Boss and were denied to those who refused him such favors. On the question whether Secretary had had sexual intercourse with Boss, W is offered to testify that when Typist made the statement, “Of course you were promoted instead of me. I didn't sleep with Boss, like you did,” Secretary heard the statement and did not respond. Assume Secretary was no longer employed by Boss at the time. The evidence is
a) Not hearsay.
b) Hearsay not within any exception or exclusion.
c) Hearsay but admissible as an admission.
d) Hearsay, admissible as a prior inconsistent statement.
b) Hearsay not within any exception or exclusion.
63
In a sexual harassment suit by Typist against Boss, Typist alleged that promotions went to those who granted sexual favors to Boss and were denied to those who refused him such favors. On the question whether a former employee, Secretary, had had sexual intercourse with Boss, Y is offered to testify that when Boss heard about the discussion between Typist and Secretary referenced in the prior question, Boss had mused, “I wonder how Typist found out.” The evidence is
a) Not hearsay.
b) Hearsay, but admissible as an admission.
c) Hearsay, but admissible as a prior inconsistent statement.
d) Hearsay, not within any exception.
b) Hearsay, but admissible as an admission.
64
In a sexual harassment suit by Typist against Boss, Typist alleged that promotions went to those who granted sexual favors to Boss and were denied to those who refused him such favors. At trial, Boss denies having ever demanded sex from Typist. Typist then offers testimony that, at a settlement conference, Boss stated, “Look, I see you’re upset. Why don’t I pay you $10,000 and we can just forget about your turning me down or how badly I reacted at work, ok?”
a) Hearsay, but admissible as an admission by a party opponent.
b) Hearsay, but admissible as a prior inconsistent statement.
c) Hearsay, not within any exception or exemption.
d) Inadmissible for reasons of public policy.
d) Inadmissible for reasons of public policy.
65
Joe tried to convince Vince to let him join Vince’s high-stakes poker game by telling Vince (falsely) that he had an original Delorean car that was worth six figures. Joe lost all his money in the game and subsequently filed for bankruptcy. In a hearing to determine the validity of Joe’s claim of insolvency, a creditor sought to introduce Joe’s claim to Vince that had an original Delorean car that was worth six figures. Over a hearsay objection by Joe’s counsel, the statement is
a) Admissible because it is not offered for its truth, but rather for its falsity.
b) Admissible for its truth.
c) Not admissible because Joe believed the statement was in his interest when he made it.
d) Not admissible because Joe lacked personal knowledge of the value of an original Delorean.
b) Admissible for its truth.
66
Deakins, an accountant, is on trial for money laundering. At trial, the prosecution calls Ward, who testifies, “I spoke to Eddie, who told me that Deakins had fired him a month earlier. He said that Deakins was a notorious money launderer, and that back when he worked for Deakins, Deakins routinely asked him to ‘cook the books.’” Over a hearsay objection by defense counsel, the testimony is:
a) Admissible as a coconspirator admission.
b) Admissible as an agent admission.
c) Inadmissible if offered for its truth.
d) Inadmissible because, as an ex-employee of Deakins, his statement against Deakins is suspect.
c) Inadmissible if offered for its truth.
67
Sampson is on trial for murder. In its case in chief, the prosecution calls Park to the stand. Park lives next door to where the murders occurred. Park offers to testify that he heard the dog that lives in the house where the murders occurred howling at 10:15 on the night of the murders. The prosecution is offering the evidence to establish that the time of death was at 10:15 p.m. Sampson’s attorney objects. The court should:
a) Sustain the objection because Sampson’s attorney cannot cross-examine the dog.
b) Sustain the objection because the dog howling is an out-of court statement that does not fit within any hearsay exception.
c) Overrule the objection as an adoptive admission.
d) Overrule the objection as non-hearsay.
d) Overrule the objection as non-hearsay.
68
P Corp. sues D Corp. for breach of contract. To prove the intent of the parties to the contract, S, sales manager of P Corp., testifies extensively as to the negotiations. When asked by P Corp.'s attorney whether there had been any discussion of a discount for early delivery, S responded, “Yes, but I don’t recall all the details. I would have to check my negotiation notes to be sure of some of the details.” At this stage of the examination of the witness, to prove the details of the negotiations about the discount:
a) S must testify from his unaided memory.
b) S may read the relevant portion of his negotiation notes aloud but the notes may not be offered into evidence by P Corp.
c) The relevant portion of S's negotiation notes may be offered into evidence if S first examines them, and identifies them as his own.
d) S may silently examine his negotiation notes, return them to the attorney, and testify from memory.
d) S may silently examine his negotiation notes, return them to the attorney, and testify from memory.
69
Suit by A Corp. against B Corp. for failure to deliver some of the items purchased by A Corp. under a contract. To prove delivery, B Corp. offers B Corp’s file copy of its invoice for the items, which contains the handwritten notation, “Received 8199. Ed Clark.” B Corp.'s truck driver, T, testified that Ed Clark, A Corp's receiving clerk, made the handwritten notation on the invoice at the time T delivered the goods. On this foundation,
a) The copy of the invoice, including the handwritten notation, is admissible as a prior inconsistent statement.
b) The copy of the invoice, including the handwritten notation, is admissible as an admission.
c) The copy of the invoice, including the handwritten notation, is admissible as a prior recorded recollection of Clark.
d) The copy of the invoice is inadmissible unless the handwritten notation is masked out so the jury cannot see it.
b) The copy of the invoice, including the handwritten notation, is admissible as an admission.
70
To prove the temperature on May 10, 2018, D offers the detailed handwritten records of his friend E, a climatologist, of temperatures as measured by E’s sophisticated equipment, which E regularly keeps as a hobby. D does not call E. P objects on hearsay grounds. The records
a) Are hearsay and not within any exception.
b) Are not hearsay because inanimate equipment cannot make a "statement" within the meaning of the federal hearsay rule.
c) Are hearsay but within the exception for past recollection recorded.
d) Are not hearsay because they represent D’s present recollection refreshed.
a) Are hearsay and not within any exception
71
H and W were husband and wife, and their wills left everything to the other spouse if that spouse survived them, but in the event that the other did predecease, each left everything to their alma mater. H’s alma mater was UCLa. W’s alma mater was USc. H and W were killed in a car crash. In a petition to determine distribution of W’s estate, to prove that W survived H (and thus succeeded to H’s property, rather than it going to UCLa), USc introduces the testimony of the rescue worker who testifies that she first checked H, who had no pulse, and then checked W, who said, “Fight on, Trojans!” The evidence:
a) Is hearsay and not within any exception.
b) Is hearsay but admissible as an admission.
c) Is not hearsay.
d) Is not relevant to any material issue.
c) Is not hearsay.
72
Defamation suit by Secretary against Typist. On the issue of defamation, Secretary proffers W to testify that Typist had said to Secretary in W's presence, “Of course you were promoted instead of me. I didn't sleep with Boss, like you did.” The evidence is
a) Not hearsay.
b) Hearsay, but admissible as an admission.
c) Hearsay, admissible as a prior inconsistent statement.
d) Hearsay, not within any exception.
a) Not hearsay.
73
W took a photo of the getaway car as it sped away from a robbery. At D's trial for robbery, the prosecution offers the photo to prove that the car's license number was XQZ 478. (Other evidence shows that D owned a car with that license number.) D objects on the ground of hearsay. The objection should be
a) Sustained.
b) Overruled as the evidence is not hearsay.
c) Overruled as the evidence is hearsay, but admissible as a prior recorded recollection.
d) Overruled as the evidence is hearsay, but admissible as present recollection refreshed.
b) Overruled as the evidence is not hearsay.
74
W observes the getaway car as it sped away from a robbery. W wrote the getaway car’s license plate down on a notepad as the car sped away to make sure he would have the information handy. At D’s trial for the robbery, W testifies but has no idea what the car’s license plate number was anymore. P offers to read the notation on W’s notepad into evidence. D objects on the ground of hearsay. The objection should be:
a) Sustained. The evidence is hearsay and not within any exception.
b) Overruled. The evidence is hearsay but admissible as a prior consistent statements.
c) Overruled. The evidence is hearsay but admissible as a prior recorded recollection.
d) Overruled. The evidence is hearsay but admissible as a statement of identification.
c) Overruled. The evidence is hearsay but admissible as a prior recorded recollection.
75
Action by S, former police sergeant of City, for wrongful termination. The City’s defense is that dismissal was justified by S's failure to maintain proper control over officers under his command. To prove that the police chief acted reasonably in firing S, City proffers a report received by the police chief from the State Municipal Practices Board prior to the firing. According to the report, the Board had held hearings on citizen complaints of beatings by City's police officers. The report says, in pertinent part, that after hearing from 15 witnesses the Board found that officers under S's command made a regular practice of administering “street justice” (beatings) to persons suspected of, but not charged with, petty crimes. S objects on the ground that the report is hearsay. The objection should be
a) Sustained as the report is single hearsay and not within any exception.
b) Sustained as the report is double hearsay, only half of which is admissible.
c) Overruled as the report is not offered for a hearsay purpose.
d) Overruled as the report is multiple hearsay, all of which is admissible as an admission and as a prior consistent statement.
c) Overruled as the report is not offered for a hearsay purpose.
76
In a prosecution of Winston Wolfe for threatening to destroy a dwelling house, to prove the making of the threat, the prosecutor proffers First L. Pigg, the owner of the house, to testify that Wolfe said, “Let me in or I’ll huff and I’ll puff and I’ll blow your house down!” The proffered evidence is:
a) Hearsay and not within any exception.
b) Hearsay but admissible as a prior inconsistent statement.
c) Hearsay but admissible as an admission.
d) Not hearsay.
d) Not hearsay.
77
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that a teenager named Zeke, who since died of a drug overdose, told him the day after the accident, “I feel so bad that I shone my pen laser into your eyes on purpose and caused you to swerve into oncoming traffic.” In federal court, the testimony is:
a) Inadmissible because it is offered by the party proponent.
b) Inadmissible because there is no corroborating evidence.
c) Admissible as a statement against interest.
d) Admissible as a party-opponent admission.
c) Admissible as a statement against interest.
78
Dime is prosecuted for reckless driving in connection with an incident in which Dime’s car allegedly veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that a teenager named Zeke, who since died of a drug overdose, told him the day after the accident, “I feel so bad that I shone my pen laser into your eyes on purpose and caused you to swerve into oncoming traffic.” In federal court, the testimony is:
a) Inadmissible because it is self-serving.
b) Inadmissible because there is no corroborating evidence.
c) Admissible as a statement against interest.
d) Admissible as a party-opponent admission.
b) Inadmissible because there is no corroborating evidence.
79
Dime is prosecuted for reckless driving in connection with an incident in which Dime’s car allegedly veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime calls Wayne, a teenager who did not know Dime, who testifies that his friend Zeke, who since died of a drug overdose, told him an hour after the accident, “I feel so bad that I shone my pen laser into that man’s eyes on purpose and caused him to swerve into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a prior inconsistent statement.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
b) Admissible as a statement against interest.
80
Dime is prosecuted for reckless driving in connection with an incident in which Dime’s car allegedly veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that Wayne told Dime that his (Wayne’s) friend Zeke, who since died of a drug overdose, told Wayne two hours after the accident, “I feel so bad that I shone my pen laser into that man’s eyes on purpose and caused him to swerve into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a prior inconsistent statement.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
d) Inadmissible.
81
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that Zeke, who since died of a drug overdose, told Dime, “The accident was not your fault.” In federal court, the testimony is:
a) Admissible as a prior inconsistent statement.
b) Admissible as a statement against interest.
c) Admissible as a statement of identification.
d) Inadmissible.
d) Inadmissible.
82
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny testifies that Dime’s passenger, Ed, who is now unavailable, told her, “Dime should not have been driving with his eyes closed.” In federal court, the testimony is:
a) Admissible as a prior inconsistent statement.
b) Admissible as a statement against interest.
c) Admissible as a statement of identification.
d) Inadmissible.
d) Inadmissible.
83
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny calls Yale, who testifies when he saw Dime get out of his car after the accident, he said, “That’s the guy I saw driving with his eyes closed who then swerved into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a prior consistent statement.
b) Admissible as a statement against interest.
c) Admissible as a statement of identification.
d) Inadmissible.
c) Admissible as a statement of identification.
84
Pam sues Dan for breach of contract. In her case in chief, Pam calls Will, who testifies that Dan told him, "Pam was only paying 30 cents per widget, whereas I could get at least 50 cents elsewhere, so it made sense to roll the dice and cut her loose." In federal court, the testimony is:
a) Admissible as a party-opponent admission.
b) Admissible as a prior inconsistent statement.
c) Admissible as a statement against interest.
d) Inadmissible.
a) Admissible as a party-opponent admission.
85
Dan is charged with murdering Vera, whose body was cut up with a wood chipper. In his case in chief, Dan calls Gina, the girlfriend of Earl, who has left the country. Gina testifies that when she confronted Earl about coming home late that night of the murder and accused him of having an affair with Misty, Earl responded, “Honey, I wasn’t out sleeping with Misty. I was busy chopping up Vera’s body with a wood chipper.” In federal court, the testimony is:
a) Inadmissible, because it was not against Earl’s interest to make the statement.
b) Inadmissible, because a reasonable person would not believe it was against their interest to make the statement.
c) Admissible, because a reasonable person would believe it was against their interest to make the statement.
d) Admissible, because it was against Earl’s interest to make the statement.
c) Admissible, because a reasonable person would believe it was against their interest to make the statement.
86
Dime is prosecuted for reckless driving in connection with an incident in which Dime’s car allegedly veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that his passenger, Ed, who died minutes after the accident as a result of his injuries, told Dime as he lay on the pavement, “I’m sorry I grabbed the steering wheel and caused you to swerve into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
d) Inadmissible.
87
Dime is prosecuted for the negligent homicide of his passenger, Ed, in connection with an incident in which Dime’s car allegedly veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that Ed, who died minutes after the accident as a result of his injuries, told Dime as he lay on the pavement, “I’m sorry I grabbed the steering wheel and caused you to swerve into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
a) Admissible as a dying declaration.
88
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that his passenger, Ed, who died minutes after the accident as a result of his injuries, told Dime as he lay on the pavement, “I’m sorry I grabbed the steering wheel and caused you to swerve into oncoming traffic.” In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
a) Admissible as a dying declaration.
89
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that his passenger, Ed, told Dime as he lay dying on the pavement, “I’m sorry I grabbed the steering wheel and caused you to swerve into oncoming traffic.” Miraculously, Ed recovered from his injuries. In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
d) Inadmissible.
90
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that his passenger, Ed, told Dime as he lay dying on the pavement, “I’m sorry I grabbed the steering wheel and caused you to swerve into oncoming traffic.” Miraculously, Ed recovered from his injuries, but had moved out of the country by the time of the trial and before he could be deposed. In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
a) Admissible as a dying declaration
91
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In his case in chief, Dime testifies that his passenger, Ed, who died minutes after the accident as a result of his injuries, told Dime as he lay on the pavement, “My dying wish is that you don’t face any legal liability after I’m gone.” In federal court, the testimony is:
a) Admissible as a dying declaration.
b) Admissible as a statement against interest.
c) Admissible as a party-opponent admission.
d) Inadmissible.
d) Inadmissible.
92
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny calls Yale, who testifies when he saw Dime get out of his car after the accident, he said, “That’s the guy I saw driving with his eyes closed who then swerved into oncoming traffic!” In federal court, the testimony is:
a) Inadmissible because there has been no express or implied charge of recent fabrication or improper influence or motive.
b) Inadmissible because it was not against Yale’s interest to make the statement.
c) Inadmissible because Yale is not unavailable.
d) Admissible.
d) Admissible.
93
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny testifies that when Dime got out of his car after the accident, she heard someone shout, “That’s the guy I saw driving with his eyes closed who then swerved into oncoming traffic!” In federal court, the testimony is:
a) Inadmissible because she cannot identify the person who made the statement.
b) Inadmissible because the declarant was not under belief of impending death at the time.
c) Inadmissible because she has not established the declarant’s unavailability.
d) Admissible.
d) Admissible.
94
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny testifies that when she got home that night, she told her boyfriend, “You won’t believe what happened to me. A guy swerved into my lane and hit me.” In federal court, the testimony is:
a) Inadmissible because the statement does not relate to the exciting event.
b) Inadmissible because Penny is not still under the stress of excitement from the exciting event.
c) Inadmissible as an excited utterance because she did not identify the person who hit her.
d) Admissible.
b) Inadmissible because Penny is not still under the stress of excitement from the exciting event.
95
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny calls Yale, who testifies that when he saw Dime get out of his car after the accident moments after the accident, he said, “That’s the guy I just saw driving with his eyes closed who then swerved into oncoming traffic!” The testimony is:
a) Admissible as a statement of identification.
b) Admissible as an excited utterance.
c) Admissible as a present sense impression.
d) All of the above.
d) All of the above.
96
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car and nearly killing her. In her case in chief, Penny testifies that when she got home later that night, she told her boyfriend, “Get me my valium! You won’t believe what happened to me. A guy swerved into my lane and hit me; I almost died!” In federal court, the testimony is:
a) Admissible as a statement of identification.
b) Admissible as an excited utterance.
c) Admissible as a present sense impression.
d) All of the above.
b) Admissible as an excited utterance.
97
Penny sues Dime for personal injuries allegedly sustained when Dime’s car veered into oncoming traffic, striking Penny’s car. In her case in chief, Penny calls Yale, who testifies that, moments after the accident, he said, “I hope that guy has insurance.” The testimony is:
a) Admissible as a statement of identification.
b) Admissible as an excited utterance.
c) Admissible as a present sense impression.
d) Inadmissible.
d) Inadmissible.
98
Avon is charged with possession of narcotics with intent to distribute. At trial, Avon testifies that Marlo, who has since fled the country, told him, “That brick of heroin they found in your office was really mine.” The prosecution objects on hearsay grounds and the defense responded that it falls within the exception for statements against interest. The prosecution’s strongest argument in support of their objection is:
a) That the statement is not against the declarant’s interest.
b) That the statement is not against the party’s interest.
c) That the declarant is not unavailable.
d) That there are no corroborating circumstances indicating its trustworthiness.
d) That there are no corroborating circumstances indicating its trustworthiness.
98
Joey Batz is charged with attempted murder of Luca Brasi. Brasi recovered from the stab wound inflicted on him, but then died of a heart attack two weeks before trial. The prosecution seeks to introduce the testimony of a paramedic who treated Brasi at the scene of the stabbing, to the effect that Brasi said while lying in a pool of blood, “It’s curtains for me because that ratfink Joey B. stuck a shiv in me.” The defense objects on hearsay grounds, and the prosecution respond that it falls within the hearsay exception for “dying declarations.” The defense’s strongest argument in support of their objection is:
a) The statement was not made under belief of impending death.
b) The statement is not available in a criminal prosecution for attempted murder.
c) The declarant is not unavailable because he did not die as a result of the stabbing.
d) The statement identifying Joey Batz as his attacker is not admissible because Brasi did not testify.
b) The statement is not available in a criminal prosecution for attempted murder.
99
Five Fingered Freddy, a redhead, is prosecuted for robbery for allegedly yanking a purse off of Vera’s shoulder on a crowded street. At trial, the prosecution calls a witness, Chet, who testifies that he heard his wife, Roweena, yell, “That redheaded man just took that lady’s purse!”, and then he turned around to see Freddy running away. Over a hearsay objection by the defense, the testimony about Roweena’s statement is
a) Admissible as an excited utterance.
b) Admissible as a present sense impression.
c) Both a and b.
d) Neither a nor b.
c) Both a and b.
100
Five Fingered Freddy, a redhead, is prosecuted for robbery for allegedly yanking a purse off of Vera’s shoulder on a crowded street. At trial, the prosecution calls Roweena, who testifies that when she saw Freddie yank the purse off of Vera’s shoulder, she shouted, “That redheaded man just took that lady’s purse!” Over a hearsay objection by the defense, the testimony about Roweena’s statement is
a) Admissible as a statement against interest.
b) Admissible as a statement of identification.
c) Inadmissible, because Roweena is not unavailable to testify.
d) Inadmissible, because a reasonable person would not have been excited by a purse snatching.
b) Admissible as a statement of identification.
101
Avon is charged with possession of narcotics with intent to distribute. At trial, Avon denies having possessed the drugs. In rebuttal, the prosecution calls Marlo, who testifies that Avon told him, “That brick of heroin they found in your office was really mine.” Over a hearsay objection by the defense, the testimony a is
a) Admissible as a party-opponent admission.
b) Admissible as a statement against interest.
c) Both a and b.
d) Neither a nor b.
a) Admissible as a party-opponent admission.
102
Five Fingered Freddy, a redhead, is prosecuted for robbery for allegedly yanking a purse off of Vera’s shoulder on a crowded street. At trial, the prosecution calls a witness, Chet, who testifies that he told the police during an interview later that day that he had heard his wife, Roweena, yell, “That redheaded man just took that lady’s purse!”, and then he turned around to see Freddy running away. The defense objects on hearsay grounds, and the prosecution respond that it falls within the hearsay exception for excited utterances. The defense’s strongest argument in support of their objection is:
a) Chet was not under the stress of excitement when he made his statement.
b) Chet did not make the statement at or immediately after the events.
c) Chet’s statement relates to but does not describe the events.
d) Roweena was not under the stress of excitement when she made her statement.
a) Chet was not under the stress of excitement when he made his statement.
103
Five Fingered Freddy, a redhead, is prosecuted for robbery for allegedly yanking a purse off of Vera’s shoulder on a crowded street. At trial, the prosecution calls a witness, Chet, who testifies that he heard his wife, Roweena, say, “Huh. Guess that lady’s gonna need to go purse shopping. Oh well, maybe I should, too,” and then he turned around to see Freddy running away. Over a hearsay objection by the defense, the testimony is
a) Admissible as an excited utterance.
b) Admissible as a present sense impression.
c) Both a and b.
d) Neither a nor b.
d) Neither a nor b.
104
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that the first time Pauline took a shower after moving into their new home, she said, “I feel nauseous.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Inadmissible.
b) Admissible as a statement of then-existing state.
105
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that after the first time Pauline took a shower after moving into their new home, he took one look at her and said, “You don’t look so good, honey.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Inadmissible.
c) Admissible as a present sense impression.
106
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that the first time Pauline took a shower after moving into their new home, she said, “I think I’m going to throw up!” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Both a and b.
d) Both a and b.
107
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula testified that a week after moving into their new home, she told her boss, “I’ve felt nauseous after taking showers here.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Inadmissible.
d) Inadmissible.
108
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that the day before Paula’s first blackout, she said, “I think I’ll go for a dip in the community pool tomorrow morning.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Inadmissible.
b) Admissible as a statement of then-existing state.
109
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that the day before Paula’s first blackout, he told his friend, “I think Paula and I are going to go for a dip in the community pool tomorrow morning.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a present sense impression.
d) Inadmissible.
d) Inadmissible.
110
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, her husband testified that after the first time Pauline took a shower after moving into their new home, she said, “Call a doctor; I think I’m going to throw up!” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) All of the above.
d) All of the above.
111
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula testifies that a week after moving into their new home, she told her doctor, “I’ve felt nauseous after taking showers here.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) Inadmissible.
c) Admissible as a statement for medical diagnosis or treatment.
112
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula calls her doctor, who testifies that a week after moving into their new home, she told him, “I’ve felt nauseous after taking showers here.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) Inadmissible.
c) Admissible as a statement for medical diagnosis or treatment.
113
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula calls her doctor, who testifies that a week after moving into their new home, she told him, “I’ve been feeling nauseous after taking showers here, because Chemical Co. is carelessly letting its waste run off into the reservoir.” The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) Inadmissible.
d) Inadmissible.
114
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, in its case in chief, Chemical Co. calls Paula’s doctor, who testifies that after Paula complained about nausea after showers, he responded, “I think this is likely all in your head. You should try taking anti-anxiety medication.” The testimony is:
a) Admissible as a prior inconsistent statement
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) Inadmissible.
d) Inadmissible.
C is incorrect because it is a statement OF diagnosis, not a statement FOR diagnosis or treatment.
115
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula calls Nurse, who testifies that when Paula woke up in the hospital after having blacked out, she said to Nurse, “Excuse me, nurse, could you please help me? The pain in my joints is killing me.” Which of the following hearsay exceptions would NOT apply?
a) Excited utterances.
b) Statements of then-existing state.
c) Statements for medical diagnosis or treatment.
d) None (they would all apply).
a) Excited utterances.
116
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula calls Nurse, who testifies that the moment Paula woke up in the hospital after having blacked out, she shrieked in pain. The testimony is admissible as:
a) An excited utterance.
b) A statement of then-existing state.
c) A statement for medical diagnosis or treatment.
d) Non-hearsay.
d) Non-hearsay.
117
Pauline sued for damages allegedly suffered as a result of Chemical Co. negligently allowing its waste products to poison the local water supply. At trial, Paula calls Expert, who testifies that when he examined Paula the month before trial, she told him that she had gradually been losing peripheral vision ever since she moved into her new home. The testimony is:
a) Admissible as an excited utterance.
b) Admissible as a statement of then-existing state.
c) Admissible as a statement for medical diagnosis or treatment.
d) Inadmissible.
c) Admissible as a statement for medical diagnosis or treatment.
118
At the trial of a personal injury action, the plaintiff claimed that he had sustained a shattered elbow when he was knocked from his bicycle by the defendant's car. Dr. Withey testified for the plaintiff, stating that she examined him for the first time on the morning of trial and that her examination was made specifically in preparation for her testimony regarding his diagnosis. Dr. Withey stated that during the course of the examination, the plaintiff said, "When I was struck by the car my right elbow struck the ground so hard that I heard a sound like a gunshot." If the defendant objects to this testimony, the court should
a) Sustain the objection, since the statement is hearsay.
b) Sustain the objection, since the examination was not performed for the purpose of diagnosis or treatment.
c) Overrule the objection, since the statement was part of a pertinent medical history.
d) Overrule the objection, since the statement described a former sense impression.
c) Overrule the objection, since the statement was part of a pertinent medical history.
119
At the trial of a personal injury action, the plaintiff claimed that he had sustained a shattered elbow when he was knocked from his bicycle by the defendant's car. Dr. Withey testified for the plaintiff, stating that she examined him for the first time on the morning of trial and that her examination was made specifically in preparation for her testimony regarding his diagnosis. Dr. Withey stated that during the course of the examination, the plaintiff said, "Ever since I was struck by the car my arm has hurt so much that I don't see how I'll ever be able to go back to work; my life will never be the same." Which of the following would be the defendant's strongest argument in support of a motion to strike the testimony?
a) The plaintiff’s statement was made in contemplation of litigation.
b) The doctor was not examining the plaintiff for the purpose of treatment.
c) The plaintiff’s statement was self-serving.
d) Evidence of the plaintiff’s statement is substantially more prejudicial than probative.
d) Evidence of the plaintiff’s statement is substantially more prejudicial than probative.
120
Pastor was the spiritual leader of the First Drive-in Church of the Lord and conducted religious services in a drive-in theater every Sunday morning, with members of the congregation remaining in their cars during the entire service. Occasionally the services were televised. Pastor was a frequent guest on television talk shows, where he was known as a witty and entertaining speaker. Pastor usually spoke about what he termed "popular religion," entreating television viewers to "Go to church for the fun of it!" which was the slogan of his congregation. Tribune, the publisher of a large daily newspaper, printed an article by Wright, one if its journalist. The article accused Pastor of misusing church funds. Pastor commenced a defamation action against Tribune. In its answer, Tribune affirmatively pleaded that Pastor was a public figure, asserting a constitutional privilege to print defamatory statements about him in the absence of malice. At the trial of the defamation action, Tribune's attorney called Tender, who worked in a bar near the Tribune office. Tender stated that on the day after Wright's article appeared in the Tribune, Wright told him, "When I wrote that piece on Pastor, I believed every word of it." On objection by Pastor's attorney, Tender's testimony should be
a) admitted as evidence that the article was published without malice.
b) admitted as a declaration of Wright's state of mind.
c) admitted as a self-serving declaration.
d) excluded as hearsay.
d) excluded as hearsay.
121
Pima sued Damian for fraud in connection with the sale of a defective car. At trial, in her case-in-chief, Pima calls Walenda, who testifies that on the morning of the transaction in question, he heard Damian say, “Gotta go. I’m gonna unload one of our worst lemons on this sucker I met.” Upon proper objection by the defendant, this testimony should be
a) Admitted as a statement of present state of mind.
b) Admitted as a statement of a party-opponent.
c) Both a and b.
d) Excluded as hearsay.
c) Both a and b.
122
Pert was injured when the ladder on which she was standing collapsed without warning. Immediately following the accident, Pert was taken to County Hospital, where she remained for approximately six hours. At the trial of Pert's action against the manufacturer of the ladder, Nathan, a nurse employed by County Hospital, was called to the stand by Pert's counsel. Nathan testified that he was on duty when Pert was brought into the hospital, and that Pert moaned and complained of pain almost continually from the time she arrived until the time she left. Upon proper objection by the defendant, this testimony should be
a) Admitted as a statement made for purposes of medical diagnosis or treatment.
b) Admitted as a statement of present physical sensation.
c) Not admitted, since pain is a purely subjective matter, and not a proper subject of testimony by anyone but the injured party.
d) Not admitted, since it is hearsay.
b) Admitted as a statement of present physical sensation.
123
In an action by Peterson against Docker for personal injuries resulting from negligence, Peterson's attorney called Melba as a witness on Peterson's direct case. Melba testified that she was Peterson's mother and that during the weeks following the accident, she observed Peterson taking pink pills on several occasions. Peterson's attorney then asked Melba if she knew why Peterson was taking the pink pills. When Docker's attorney objected, Peterson's attorney withdrew the question and asked whether Melba was present when Dr. Treat examined Peterson the day after the accident. Melba responded that she heard Peterson say, "My neck hurts," and that Dr. Treat handed Peterson the pink pills and said, "These pink pills are very effective for pain." If Docker's attorney moves to exclude Melba's testimony about what Dr. Treat said, that testimony should be
a) Admitted as a declaration of present physical sensation.
b) Admitted as a declaration of past physical sensation.
c) Excluded as hearsay, not within any exception to the hearsay rule.
d) Admitted as evidence of a medical history.
c) Excluded as hearsay, not within any exception to the hearsay rule.
124
Sy was a sole-proprietor professional psychiatrist who sued a former client for failure to pay his bills. At trial, Sy sought to introduce his monthly billing statements for the client. Sy testified that at the end of each month, he would think back to how many sessions he had with each client over the prior month and generate the billing statement on that basis. What would be the defendant client’s best argument that the billing statements for his account do not meet the business records exception?
Question options:
a) The billing records were not the records of an organization.
b) The billing records were not made in the ordinary course of business.
c) The billing records were not made by someone within the business with knowledge.
d) The billing records were not made at or near the time of the events they recorded.
d) The billing records were not made at or near the time of the events they recorded.
125
Sy was a sole-proprietor professional psychiatrist who sued a former client for failure to pay his bills. At trial, Sy sought to introduce his monthly billing statements for the client. Sy’s attorney called Sy’s secretary, Seth, to lay the foundation for the billing statements as business records. The defense objects that Seth is not qualified to lay the foundation because Seth had no personal knowledge that the entries in the billing statements were accurate. How should the judge rule on the objection?
Question options:
a) Sustain.
b) Overrule.
b) Overrule.
126
Sy was a sole-proprietor professional psychiatrist who sued a former client for failure to pay his bills. At trial, Sy sought to introduce his monthly billing statements for the client. Sy’s attorney called Sy’s secretary, Seth, to lay the foundation for the billing statements as business records. Seth testified that he would review Sy’s appointment calendar at the end of the month, on which Sy would contemporaneously note whether a client had cancelled or showed up, and would use that to generate billing statements for each client. The defense objects that the billing statements are double hearsay, because they reflect information obtained from Sy’s appointment calendar. How should the judge rule on the objection?
Question options:
a) Sustain.
b) Overrule.
b) Overrule.
127
Sy was a sole-proprietor professional psychiatrist who sued a former client for failure to pay his bills. At trial, Sy sought to introduce his monthly billing statements for the client. Sy’s attorney called Sy’s secretary, Seth, to lay the foundation for the billing statements as business records. Seth testified that he would review Sy’s appointment calendar at the end of the month, on which Sy would contemporaneously note whether a client had cancelled or showed up, and would use that to generate billing statements for each client. The defense objects that Sy has not met his burden of showing that the billing statements do not lack trustworthiness. How should the judge rule on the objection?
Question options:
a) Sustain.
b) Overrule.
b) Overrule.
128
Sy was a sole-proprietor professional psychiatrist who sued a former client for failure to pay his bills. At trial, the client sought to introduce the monthly billing statements he had received from Sy, to prove that he was only billed at $100 per session, not $250 as Sy had claimed. Sy objects on hearsay grounds, arguing that the client is not a custodian or qualified witness for purposes of the hearsay rule. How should the judge rule on the objection?
Question options:
a) Sustain.
b) Overrule.
b) Overrule.
129
Paul, who was assaulted by Clint, sued Sy, Clint’s psychiatrist, for negligence for failing to warn Paul that Clint posed a dangerous of serious bodily injury to him. At trial, to prove that he was not negligent, Sy sought to introduce notes of one of his sessions with Clint, in which Sy wrote: “Patient reports having vivid dreams of pummeling Paul, and wants to know if relaxation techniques will be sufficient to quell his anger.” Sy testifies that he is obligated to promptly record anything related to potential criminal or dangerous conduct in his sessions notes, and that it is his routine practice to make and keep such notes. Paul objects to the admission of the session notes on hearsay grounds. (Assume there are no issues regarding privilege.) How should the judge rule on the objection?
Question options:
a) Sustain the objection, because a psychiatrist’s notes regarding a session with an individual client cannot be admitted as business records.
b) Sustain the objection, because the source of information did not have a business duty to report accurately.
c) Overrule the objection, because the source of information is trustworthy since it meets its own hearsay exception.
d) Overrule the objection, because it was made and kept in the ordinary course of business.
c) Overrule the objection, because the source of information is trustworthy since it meets its own hearsay exception.
130
Pam sues Dan for negligence for injuries allegedly sustained when Dan’s car crashed into Pam’s. At trial, Pam calls Officer Alpha, who testifies that he wrote up an incident report based on what another responding officer, Officer Beta, reported to him. Included in the report is the following: “Ofcr. Beta reports that in an eyewit, interview, 3d party Gamma noted that vehicle #2 (Dan) crashed into vehicle #1 (Pam).” If Dan objects to the admission of the incident report on hearsay grounds, and Pam argues it falls under the business records exception, which of the following would be Dan’s strongest argument in support of exclusion?
Question options:
a) Gamma reported the information to Beta minutes after the crash and was not excited.
b) The officer who reported the information (Beta) is not the same officer who recorded the information (Alpha).
c) The officer who recorded the information (Alpha) did not have personal knowledge of the events recorded.
d) Alpha did not testify to lacking recollection about the events in question.
a) Gamma reported the information to Beta minutes after the crash and was not excited.
131
Borizon, Inc. sues Doris for failure to pay her phone bill. At trial, during direct-examination of one of Borizon’s billing manager, Borizon offers into evidence their billing statement for Doris. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
b) Admissible as a business record.
132
California Deadison (“Cal”), a state public utility, sues Doris for failure to pay her electric bill. At trial, during direct-examination of one of Cal’s billing manager, Cal offers into evidence their billing statement for Doris. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
c) Both a and b.
133
California Deadison (“Cal”), a public utility, sues Doris for failure to pay her electric bill. At trial, Cal offers into evidence their billing statement for Doris. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
a) Admissible as a public record.
134
California Deadison (“Cal”), a public utility, sues Doris for failure to pay her electric bill. At trial, Cal offers into evidence their billing statement for Doris. Over an authentication objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
135
California Deadison (“Cal”), a public utility, sues Doris for failure to pay her electric bill. At trial, Cal offers into evidence their billing statement for Doris, which is certified by a Cal billing manager as a correct copy. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
a) Admissible as a public record.
136
Doris is prosecuted in federal court for transporting a tampered utility meter across state lines. At trial, the prosecution offers into evidence a certified copy of a Cal Deadison utility billing statement for Doris. The defense objects on hearsay grounds, and the prosecution argues it is admissible as a public record. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
137
Doris is prosecuted in federal court for transporting a tampered utility meter across state lines. At trial, the prosecution offers into evidence a report issued by the Department of Treasury’s fraud investigation unit that concluded that Doris had made eight trips across state lines in a period of two months carrying tampered utility meters. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
d) Neither a nor b.
138
California Deadison (“Cal”), a public utility, sues Doris for failure to pay her electric bill. At trial, Cal offers into evidence a report issued by the Department of Treasury’s fraud investigation, which includes a statement by Doris’ neighbor that he had seen Doris make eight trips across state lines in a period of two months carrying tampered utility meters. Over a hearsay objection, the document could be:
a) Admissible as a public record.
b) Admissible as a business record.
c) Both a and b.
d) Neither a nor b.
d) Neither a nor b.
139
Doris is prosecuted in federal court for transporting a tampered utility meter across state lines. At trial, the prosecution calls an investigator employed by the Department of Treasury’s fraud investigation unit. The investigator cannot recall how many times Doris made trips across state lines carrying tampered utility meters, and so refers to an investigator report, and then testifies that it was eight times. Over a hearsay objection, the testimony should be:
a) Allowed.
b) Stricken.
a) Allowed.
140
Bank sues Borrower for fraud in connection with a loan application. Bank alleges that on the application, Borrower represented that his primary collateral, his property, was worth $8,000,000, when in fact it was only worth $3,500,000. At trial, Bank offers a certified copy of a report prepared by the state surveyor general’s office several months before Borrower completed his loan application analyzing Borrower’s property and subsurface mineral deposits and concluding it was worth $3,500,000. Over Borrower’s hearsay objection, the document should be
a) Excluded, because it is being used against the defendant.
b) Excluded, because no custodian or qualified witness testified to its foundation.
c) Admitted, since it sets forth factual findings pursuant to a lawful investigation.
d) Admitted, as a party-opponent admission.
c) Admitted, since it sets forth factual findings pursuant to a lawful investigation.
141
Donnie was charged with murdering Vic by throwing him off the roof of an office building. At Donnie's trial, the prosecution offered the testimony of Onder, a police officer who arrived at the scene the night of Vics death. The prosecutor asked Onder whether he interviewed any of the people in the crowd. Onder replied that he interviewed an eyewitness, but that he no longer remembered her name or what she told him. He then said that he had accurately recorded the contents of the eyewitness's statement in his notebook as she was making the statement, and that he had brought the notebook to court with him. The Prosecuting attorney asked Onder to read the contents of the statement to the jury. If Donnie's attorney objected, the court should
a) Sustain the objection, since the statement of the eyewitness is hearsay, not within any exception to the hearsay rule.
b) Overrule the objection, since the statement is a past recollection recorded.
c) Overrule the objection, since the statement is an official/public record.
d) Overrule the objection, since the officer’s notebook is a business record.
a) Sustain the objection, since the statement of the eyewitness is hearsay, not within any exception to the hearsay rule.
142
After the crash of Wing Airlines Flight 123, an action for wrongful death was brought by the husband of a passenger killed in the crash. During the trial, the plaintiff called Weston, an employee of the State Aviation Agency, which investigated the circumstances surrounding the crash. Weston read aloud from an investigation report which quoted an unidentified witness to the crash as stating that she heard an explosion several seconds before she saw the plane burst into flames. He testified that the report from which he was reading was one kept in the regular course of business by the State Aviation Agency, that the entry from which he was reading had been made by another investigator who worked for the Agency, that the investigator who made the entry was sworn to investigate airplane crashes and to keep honest and accurate records of the results of those investigations, and that the investigator who made the entry was now dead. Upon appropriate objection, the evidence should be ruled
a) Admissible as a business record.
b) Admissible as an official record.
c) Admissible as past recollection recorded.
d) Inadmissible as hearsay not within any exception.
d) Inadmissible as hearsay not within any exception.
143
Dessel, a student at a private college, was charged with the attempted murder of Victorio, a fellow student, outside of one of the college classrooms. At trial, the prosecutor called Fran, the school's dean of students, as a witness. Fran testified that immediately following the stabbing which led to the prosecution, she interviewed Dessel, and that he stated that when Victorio insulted him, he stabbed Victorio in anger. She testified further that she had taken notes of the conversation, which she then placed in Dessel's student file. If the prosecutor offered Dessel's student file in evidence as a business record, which of the following would be Dessel's most effective argument in support of an objection to the admission of the file?
a) Fran had an independent recollection of events and was present in court to testify.
b) Investigation of crimes is not a regularly conducted business activity for the college.
c) The business record exception to the hearsay rule does not apply in criminal trials.
d) Dessel's statement is second level hearsay
b) Investigation of crimes is not a regularly conducted business activity for the college.
144
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” At trial, after Witness testifies that Deke had the green light, Pete offers the relevant portion of Witness’ deposition testimony. In federal court, over a hearsay objection, the deposition testimony is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
b) Admissible as a prior inconsistent statement.
145
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. In a letter to a friend, Willy Witness stated that when Deke entered the intersection, “Deke had the red light.” At trial, after Witness testifies that Deke had the green light, Pete offers Witness’ letter. In federal court, over a hearsay objection, the letter is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
c) Admissible only for impeachment.
146
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. In a letter to a friend, Willy Witness stated that when Deke entered the intersection, “Deke had the red light.” At trial, since Witness is in a coma, Pete offers Witness’ letter. In federal court, over a hearsay objection, the letter is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
d) Inadmissible.
147
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” At trial, instead of calling Witness, Pete offers the relevant portion of Witness’ deposition testimony. In federal court, over a hearsay objection, the deposition testimony is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
d) Inadmissible.
148
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” At trial, since Witness is in a coma, Pete offers the relevant portion of Witness’ deposition testimony. In federal court, over a hearsay objection, the deposition testimony is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
a) Admissible as former testimony.
149
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” At trial, since Witness is in a coma, Pete calls Cora, the court reporter at Willy’s deposition, to testify that at his deposition, Witness had said, “Deke had the red light.” In federal court, over a hearsay objection, Cora’s testimony is:
a) Admissible as former testimony.
b) Admissible as a prior consistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
a) Admissible as former testimony.
150
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At the first trial, Pete calls Willy Witness, who testifies that when Deke entered the intersection, “Deke had the red light.” Witness also testifies that Pete had paid him $500 to say that. The first trial results in a hung jury. At the second trial, since Witness is in a coma, Deke offers the portion of Witness’ prior trial testimony where he admits that Pete paid him $500 for his testimony. Pete objects on hearsay grounds, arguing that the former testimony exception cannot apply, because as the party who previously called Witness, he never had the opportunity to cross examine him. This objection should be
a) Sustained.
b) Overruled.
b) Overruled.
151
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. In a sworn statement to the police, Willy Witness stated that when Deke entered the intersection, “Deke had the red light.” At trial, since Witness is in a coma, Pete offers Witness’ sworn statement. In federal court, over a hearsay objection, the statement is:
a) Admissible as former testimony.
b) Admissible as a prior consistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
d) Inadmissible.
152
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” After Deke files for bankruptcy, Pete sues Dumino’s Pizza, Inc., Deke’s employer, in connection with the accident. At trial, since Witness is in a coma, Pete offers the relevant portion of Witness’ deposition testimony. In federal court, over a hearsay objection by Dumino’s, the deposition testimony is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
a) Admissible as former testimony.
153
Pete sues Deke for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. At his deposition, Willy Witness testifies that when Deke entered the intersection, “Deke had the red light.” Deke is then prosecuted for criminal negligence in connection with the accident. At trial, since Witness is in a coma, the prosecution offers the relevant portion of Witness’ deposition testimony from the civil suit. In federal court, over a hearsay objection, the statement is:
a) Admissible as former testimony.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
a) Admissible as former testimony.
154
Pete sues Deke in federal court for injuries allegedly sustained when Deke’s pizza delivery truck struck Pete’s car. In order to show that Deke was driving negligently, Pete offers into evidence a record from the date in question showing that Deke was convicted of a felony violation of Vehicle Code section 21350. Vehicle Code section 21350 provides that a person was driving with a blood alcohol level of .08 or higher, and/or was driving while under the influence of alcohol. In federal court, over a hearsay objection, the record is:
a) Admissible as a business record.
b) Admissible as an official record.
c) Admissible as a prior judgment.
d) Inadmissible.
c) Admissible as a prior judgment.
155
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On direct examination, Expert states that in forming his opinion, he relied in part on Dr. McJohnson’s “Pediatric Pathology.” The prosecution then seeks to admit that book into evidence. In federal court, over a hearsay objection, the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior consistent statement.
c) Admissible as a business record.
d) Inadmissible.
d) Inadmissible.
156
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On direct examination, Expert states that in forming his opinion, he relied in part on Dr. McJohnson’s “Pediatric Pathology.” The prosecution then seeks to read into evidence the portion of the book that states, “With Shaken Baby Syndrome, one invariably finds burst retinal capillaries, which is not found with other forms of accidental head trauma.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior consistent statement.
c) Admissible as a business record.
d) Inadmissible.
a) Admissible as a learned treatise.
157
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On direct examination, Expert states that in forming his opinion, he did not rely in part on Dr. McJohnson’s “Pediatric Pathology,” but he is well aware of it and knows that it is considered one of the authoritative texts in the field. The prosecution then seeks to read into evidence the portion of the book that states, “With Shaken Baby Syndrome, one invariably finds burst retinal capillaries, which is not found with other forms of accidental head trauma.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior consistent statement.
c) Admissible as a business record.
d) Inadmissible.
a) Admissible as a learned treatise.
158
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. The prosecutor asks the judge to take judicial notice that Dr. McJohnson’s “Pediatric Pathology” is considered one of the authoritative texts in the field, and the judge does so. The prosecution then seeks to read into evidence the portion of the book that states, “With Shaken Baby Syndrome, one invariably finds burst retinal capillaries, which is not found with other forms of accidental head trauma.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior consistent statement.
c) Admissible as a business record.
d) Inadmissible.
a) Admissible as a learned treatise.
159
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On cross-examination, defense counsel asks Expert to admit that in forming his opinion, he also considered Dr. Chezmo’s “Modern Neonatal Forensics,” and Expert does so admit. Defense counsel then seeks to read into the record the portion of that text which provides, “The notion that retinal capillary rupture is a signature sign of Shaken Baby Syndrome has been thoroughly discredited over the last decade.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior inconsistent statement.
c) Admissible as a business record.
d) Inadmissible.
a) Admissible as a learned treatise.
160
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On cross-examination, defense counsel asks Expert to admit that in forming his opinion, he also considered Dr. Chezmo’s “Modern Neonatal Forensics.” Expert denies that he relied on it, and further denies that it is relied upon in the field. Defense counsel then seeks to read into the record the portion of that text which provides, “The notion that retinal capillary rupture is a signature sign of Shaken Baby Syndrome has been thoroughly discredited over the last decade.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior inconsistent statement.
c) Admissible for impeachment.
d) Inadmissible.
d) Inadmissible.
161
Mom is prosecuted for child endangerment. At trial, the prosecution calls Expert, who testifies that Child had burst capillaries in his retinas, which is a classic sign of shaken baby syndrome. On cross-examination, defense counsel asks Expert to admit that in forming his opinion, he also considered Dr. Chezmo’s “Modern Neonatal Forensics.” Expert denies that he relied on it, and further denies that it is relied upon in the field. In the case in chief, defense counsel calls its own Defense Expert, who testifies that Dr. Chezmo’s treatise is indeed deemed reliable in the field and is widely relied upon. Defense counsel then seeks to read into the record the portion of that text which provides, “The notion that retinal capillary rupture is a signature sign of Shaken Baby Syndrome has been thoroughly discredited over the last decade.” In federal court, over a hearsay objection, the passage from the book is:
a) Admissible as a learned treatise.
b) Admissible as a prior inconsistent statement.
c) Admissible only for impeachment.
d) Inadmissible.
a) Admissible as a learned treatise.
162
Damien is prosecuted for murder for the killing of Vanessa. At the criminal trial, Wes testifies that Damien could not have committed the killing because Damien was with him on the night in question. After the trial, Wes moves to a tiny village in a southeast Asian country. Vanessa’s husband, Hunter, then initiates a civil wrongful death suit against Damien. At the civil trial, Damien seeks to introduce Wes’ testimony from the criminal trial. If Hunter objects on hearsay grounds, and Damien claims it falls within the hearsay exception for former testimony, which of the following is the best argument in response in support of Hunter’s objection?
a) Wes does not meet the definition of an “unavailable” declarant because his location is known.
b) The prior motive to cross-examine was not similar because the prior trial was criminal.
c) Hunter is not a successor in interest to the prosecution in the criminal case.
d) Damien did not have an opportunity to cross-examine Wes during the criminal trial.
c) Hunter is not a successor in interest to the prosecution in the criminal case.
163
Dieter is prosecuted for violating a law that makes it a misdemeanor for a convicted felon to possess a firearm. Which of the following would be admissible to prove Dieter’s prior conviction over a hearsay objection?
a) A record of judgment of conviction for felony child abuse upon a plea of guilty.
b) A record of judgment of conviction for misdemeanor assault.
c) A record of judgment of conviction for felony murder upon plea of nolo contendere.
d) None of the above would be admissible, because the current charge is for a misdemeanor.
a) A record of judgment of conviction for felony child abuse upon a plea of guilty.
164
Piotr sued DonutCo. in connection with a donut making machine that DonutCo. sold to Piotr which Piotr claims was defective and ruined his business. At trial, Piotr called Walters, a valuation expert, who stated that Piotr’s net sales the year before buying the machine were $100,000, and thus that his damages for lost profits were $1 million. Piotr’s attorney then seeks to introduce a textbook on business valuation, which Walters testified was well-established in the fields of economics and business management. The textbook contains the statement: “The standard measure of damages for lost profits for a retail business in the foodservice industry is ten times the last year’s net sales.” DonutCo.’s counsel objects on hearsay grounds. How should the judge rule?
a) Sustain, because Walters did not testify that he actually relied upon the text in forming his opinion.
b) Sustain, because Walter’s credibility has not yet been attacked.
c) Overrule, as long as Piotr’s counsel limits himself to reading the above passage into the record.
d) Overrule, if Walters can establish it was made and kept in the ordinary course by a reliable source.
c) Overrule, as long as Piotr’s counsel limits himself to reading the above passage into the record.
165
Doobie is prosecuted on drug charges. At the preliminary hearing, Officer Owens testified that he did not recall the quantity of narcotics found in Doobie’s possession. At trial, Officer Owens recalls that it was 9.25 ounces. Doobie’s counsel seeks to introduce Officer Owen’s testimony from the preliminary hearing. On which theory, if any, could Doobie’s counsel rely?
a) Former testimony exception.
b) Exemption for prior inconsistent statements.
c) Both a and b.
d) Neither a nor b.
b) Exemption for prior inconsistent statements.
166
Paul sues NavCo., a publisher of vacation guides, for negligence for allegedly releasing an erroneous listing of the dates of operation for a tourist attraction, which ruined his vacation and cost him thousands of dollars. At trial, in Paul’s case-in-chief, Paul is the first witness. During the direct examination of Paul, Paul’s counsel introduces the guide in question. NavCo.’s counsel objects on hearsay grounds. Which theory of admissibility would not apply to this evidence?
a) Non-hearsay.
b) Party-opponent admissions.
c) Business records.
d) Commercial lists.
c) Business records.
167
Which of the following out of court statements offered in evidence presents the base case for a party to try to invoke the “residual exception” (assume sufficient advance notice was provided)?
a) A record of a civil judgment for fraud against the plaintiff entered twelve years ago, to impeach plaintiff’s credibility as a testifying witness in a negligence action.
b) In an assault trial, a statement made by an eyewitness a half hour after witnessing a street fight, to prove what occurred during the fight.
c) The receipt in a breach of contract case proving that the defendant made payment, for which the defendant fails to call a custodian or other qualified witness because both the employee who created the record and the secretary who kept the receipt have died.
d) A statement by the defendant in a civil fraud case that another person made the misrepresentation that the defendant is accused of making, where the defendant lacks sufficient information to establish the declarant’s unavailability.
c) The receipt in a breach of contract case proving that the defendant made payment, for which the defendant fails to call a custodian or other qualified witness because both the employee who created the record and the secretary who kept the receipt have died.
168
The plaintiff offers in evidence an excited utterance in which the declarant, who did not appear as a witness, stated, “The defendant is running the light!” To impeach the declarant, the defendant offers a declaration made later in the day by the declarant in which he stated to a friend, “I’m not so sure that the defendant was the person whom I saw running the light.” The plaintiff objects on hearsay grounds. The defense responds that it is admissible for the non-hearsay purpose of impeachment. How should the judge rule?
a) Sustain.
b) Overrule.
b) Overrule.
169
Dean is prosecuted for murder. At trial, the prosecution calls Witness, who testifies that when he spoke to the victim as she was laying there with a knife in her chest, she gasped, “Dean must pay for what he has done to me!” In federal court, a hearsay objection would be:
a) Overruled
b) Sustained
a) Overruled
170
Dean is prosecuted for murder. At trial, the prosecution calls Officer, who testifies that when he spoke to the victim has she was laying there with a knife in her chest, she gasped, “Dean must pay for what he has done to me!” In federal court, over a Confrontation Clause objection, the statement is:
a) Admissible, because the declarant is unavailable.
b) Admissible, because the statement falls within a firmly rooted hearsay exception.
c) Inadmissible, because the statement lacks equivalent circumstantial guarantees of trustworthiness.
d) Inadmissible, because the defendant never had a prior opportunity to cross-examine the declarant.
b) Admissible, because the statement falls within a firmly rooted hearsay exception.
171
Dean is prosecuted for attempted murder. At trial, the prosecution calls Victim, who testifies that when she was laying there with a knife in her chest, she gasped, “Dean must pay for what he has done to me!” In federal court, a Confrontation Clause objection would be:
a) Overruled
b) Sustained
a) Overruled
172
Dean is prosecuted for murder. At trial, the prosecution calls Officer, who testifies that when he spoke to the victim has she was laying there with a knife in her chest, she gasped, “Dean must pay for what he has done to me!” On cross-examination of Officer, defense counsel asks, “Isn’t it true that Victim said, ‘Dean must pay because he cheated me of my money.’?” In federal court, a hearsay objection by the prosecution would be:
a) Overruled
b) Sustained
a) Overruled
173
Dean is prosecuted for murder. At trial, on cross-examination of Officer, defense counsel asks, “Isn’t it true that Victim said, ‘Dean must pay because he cheated me of my money.’?” In federal court, a Confrontation Clause objection by the prosecution would be:
a) Overruled
b) Sustained
a) Overruled
174
Dean is sued for wrongful death. At trial, plaintiff calls Officer, who testifies that when he spoke to the victim has she was laying there with a knife in her chest, she gasped, “Dean must pay for what he has done to me!” In federal court, a Confrontation Clause objection would be:
a) Overruled
b) Sustained
a) Overruled
175
Dean is prosecuted for murder. At trial, the prosecution calls Officer, who testifies that he spoke to an eyewitness who told him that she saw someone matching Dean’s description running away from the crime scene. In federal court, a hearsay objection would be:
a) Overruled
b) Sustained
b) Sustained
176
Dean is prosecuted for murder. At trial, the prosecution calls Officer, who testifies that he spoke to an eyewitness who told him that she saw someone matching Dean’s description running away from the crime scene. In federal court, a Confrontation Clause objection would be:
a) Overruled
b) Sustained
b) Sustained
177
Dean is prosecuted for murder. At trial, during the direct examination of Officer, the prosecution introduces the lab report which found that DNA at the crime scene matched Dean’s. In federal court, a hearsay objection to the report would be:
a) Overruled, as the report is a business record.
b) Overruled, as the report is an official record.
c) Overruled, as the report falls within the residual exception.
d) Sustained.
d) Sustained.
178
Dean is prosecuted for murder. At trial, during the direct examination of Officer, the prosecution introduces the lab report which found that DNA at the crime scene matched Dean’s. In federal court, a Confrontation Clause objection would be:
a) Overruled
b) Sustained
b) Sustained
179
Which of the following would be most likely to be admissible over a hearsay objection under the residual exception (assume advance notice was provided)?
a) In an attempted murder prosecution of Dean, testimony from a police officer that as the victim was lying in a pool of blood, he stated, “Dean and I got into an argument earlier and he just sliced me open with a paring knife,” where the victim recovered from his injuries and soon thereafter moved out of the country.
b) In an attempted murder prosecution of Dean, testimony from a police officer that when he arrested and Mirandized Dean, Dean said, “The victim and I got into an argument and I just sliced him open with a paring knife.”
c) In an attempted murder prosecution of Dean, testimony from a police officer that after thirteen straight hours of interrogation, Dean said, “The victim and I got into an argument and I just sliced him open with a paring knife.”
d) In an attempted murder prosecution of Dean, testimony by Dean that the victim’s former girlfriend, who is unavailable, admitted to him that “The victim and I got into an argument and I just sliced him open with a paring knife.”
a) In an attempted murder prosecution of Dean, testimony from a police officer that as the victim was lying in a pool of blood, he stated, “Dean and I got into an argument earlier and he just sliced me open with a paring knife,” where the victim recovered from his injuries and soon thereafter moved out of the country.
180
Dan is prosecuted for vandalism for allegedly spray painting graffiti on the wall of a store. At trial, on cross-examination of the arresting officer, defense counsel gets the officer to admit that Eric, who is now unavailable, told the officer that he (Eric), not Dan, had spray painted the wall, and that Eric was able to accurately relate the exact color and words used in the graffiti. In their rebuttal case, the prosecution calls Fred to testify that Eric told him that Dan had told Eric the details about what he (Dan) had spray painted, and put Eric up to falsely admitting to the officer that he (Eric) did the painting. Over objection by the defense, which of the following is correct?
a) Fred’s testimony about Eric’s statement is admissible for impeachment and for the truth.
b) Fred’s testimony about Eric’s statement is admissible for impeachment but not for the truth.
c) Fred’s testimony about Eric’s statement is admissible for the truth but not for impeachment.
d) Fred’s testimony about Eric’s statement is not admissible for impeachment or for the truth.
b) Fred’s testimony about Eric’s statement is admissible for impeachment but not for the truth.
180
Dan is prosecuted for vandalism for allegedly spray painting graffiti on the wall of a store. At trial, on cross-examination of the arresting officer, defense counsel gets the officer to admit that Eric, who is now unavailable, told the officer that he, not Dan, had spray painted the wall, and that Eric was able to accurately relate the exact color and words used in the graffiti. In their rebuttal case, the prosecution calls Fred to testify that Eric told him that Dan had told Eric the details about what he (Dan) had spray painted, and put Eric up to falsely admitting to the officer that he (Eric) did the painting. Over objection by the defense, which of the following is correct?
a) Fred’s testimony about Eric’s statement does not implicate the Confrontation Clause.
b) Fred’s testimony about Eric’s statement does not implicate the Confrontation Clause, but the Confrontation Clause is violated.
c) Fred’s testimony about Eric’s statement implicates the Confrontation Clause, but the Confrontation Clause is not violated because the defense can cross-examine Fred.
d) Fred’s testimony about Eric’s statement implicates the Confrontation Clause, and the Confrontation Clause is violated.
a) Fred’s testimony about Eric’s statement does not implicate the Confrontation Clause.
181
Joe is prosecuted for murder. At trial, the prosecution calls a forensic DNA expert, who testifies that based on upon the analysis performed by the county crime lab, which found that there were seventeen separate “markers” in a blood sample found at the scene that matched the defendant’s, it her opinion that there is a one in 7 billion chance that that blood came from anyone other than the defendant. The defense objects on Confrontation Clause grounds. Which of the following would be the prosecution’s strongest response?
a) The report is nontestimonial because the lab technician is not testifying.
b) The Confrontation Clause does not apply to scientific evidence.
c) The defendant had a prior opportunity to cross-examine the lab technician during the preliminary hearing.
d) The defendant’s Confrontation Clause rights are satisfied by the opportunity to cross-examine the expert witness whose opinion is based in part on the lab report.
d) The defendant’s Confrontation Clause rights are satisfied by the opportunity to cross-examine the expert witness whose opinion is based in part on the lab report.
182
Paulina sues Dmitri for negligence for injuries allegedly sustained in a boating accident. Paula claims that her right hand was severely injured in the accident. Dmitri claims that Paulina’s injury was completely unrelated to the boating accident and was the result of carpal tunnel syndrome from which she suffered due to her job as a seamstress. The previous year, five months before the accident, Paulina had visited the doctor for her yearly check-up. At trial, Paulina’s counsel called the doctor to the stand to testify that Paulina had told him during the annual exam that her prior hand problems had gone away. Dmitri’s attorney objects to the introduction of the doctor's testimony. Will the court admit the doctor’s statement?
a) Yes, as a party-opponent admission.
b) Yes, because Paulina made the statement for purposes of medical diagnosis or treatment.
c) No, because Paulina did not make the statement for purposes of medical diagnosis or treatment since she said she was not in pain anymore.
d) No, because it related to a past condition, not a then-existing one.
b) Yes, because Paulina made the statement for purposes of medical diagnosis or treatment.
183
Pablo sued Desiree for damages for personal injuries sustained in a car accident. During discovery, Pablo’s attorney found out that Colleen, a bystander who had seen the accident and was a key witness for Pablo’s case, was terminally ill. Pablo’s attorney deposed Colleen. Desiree’s attorney attended the deposition but did not cross-examine Colleen. If Colleen dies prior to trial, is Colleen’s deposition testimony admissible as substantive evidence?
a) No, because Desiree's attorney did not cross-examine Colleen.
b) No, because it is hearsay not falling within any exception.
c) Yes, because Colleen gave her testimony under belief of impending death.
d) Yes, under the former testimony exception.
d) Yes, under the former testimony exception.
184
Don is tried for murder of his friend Peggy, who was found stabbed in her apartment. Don has unique facial features: his jaw had been broken several times in boxing matches and was noticeably swollen and displaced as a result, and he had a prominent scar on the right side of his forehead. At trial, in its case-in-chief, the prosecution calls a police officer who testifies that he found Peggy lying bleeding on the floor of her dining room, and that when he asked her who had done this to her, she could not answer because she had a punctured lung, so she grabbed a pencil and a newspaper lying nearby and started sketching a man with a swollen jaw and forehead scar. If the defense objects on hearsay grounds to the testimony about Peggy’s sketch, the court should
a) Overrule the objection, since it is non-hearsay.
b) Overrule the objection, because it is a statement of identification.
c) Overrule the objection, because it is a dying declaration.
d) Sustain the objection, because it is hearsay not within any exception.
c) Overrule the objection, because it is a dying declaration.
185
Deckham sued Cleats’R’Us for injuries he allegedly sustained from defective soccer shoes. At trial, Deckham’s attorney called Orly, a sports injury specialist, to give her opinion concerning Deckham’s injury. On cross-examination, Cleats’R’Us’s attorney read a passage from a medical text, Sports and Recreation Uniforms and Equipment, that Orly had described as being authoritative. This passage directly contradicted an assertion Orly had made during he direct examination testimony. Orly testified that she did not agree with this particular passage. How should the court rule as to the admissibility of the quoted passage?
a) Admissible, only to impeach the specialist's testimony.
b) Admissible, as substantive evidence.
c) Inadmissible, because the witness disagrees with the passage.
d) Inadmissible, as hearsay not within any exception.
b) Admissible, as substantive evidence.
186
Peter sued Dana in federal court for an assault that occurred in New York City on New Year’s Day. Dana claimed that it was a case of mistaken identity, and denied that she was in the vicinity on the date in question. At trial, Peter introduced an authenticated letter to Dana from her boyfriend, in which he stated that he was looking forward to ringing in the new year with her in the Big Apple. Is the letter admissible?
a) Yes, because it is a statement of a party-opponent.
b) Yes, because it represents a statement of the girlfriend's intent.
c) No, because Dana has denied being in the vicinity.
d) No, because it is hearsay not within any exception.
d) No, because it is hearsay not within any exception.
187
Derek is on trial for shoplifting a gold necklace from a jewelry store. The prosecution offers the testimony of Nate, Derek’s neighbor, who testifies that several days after the jewelry store was stolen from, Nate noticed Derek’s necklace and asked him, "Where did you get that necklace? You can’t afford something like that. I’m guessing you stole it." Derek did not respond. Should this evidence be admitted?
a) Yes, as a statement against interest.
b) Yes, as a statement of a party-opponent.
c) No, because Derek had no reason to respond to his neighbor's inquiry.
d) No, because there are no corroborating circumstances that show the statement's trustworthiness.
c) No, because Derek had no reason to respond to his neighbor's inquiry.
188
BuyCo. ordered four crates of widgets from SellCo. BuyCo. later sued SellCo. for breach of contract, claiming failure to deliver. SellCo. asserted that the widgets had in fact been delivered, and filed a counter-claim against BuyCo. for the price of the widgets and delivery costs. At trial, SellCo.’s lawyer called the company’s accountant to testify. He testified that his accounting entries were accurate and that the entries were properly and timely made by SellCo. employees. SellCo.'s lawyer then offered the financial books into evidence as proof the widgets were manufactured and delivered. The evidence
a) Is admissible, since the books qualify under the business records exception to the hearsay rule.
b) May only be read into the record but not admitted into evidence, since the accountant lacks knowledge of the manufacture and delivery.
c) Is inadmissible, unless the accountant had personal knowledge of the manufacture and delivery.
d) Is inadmissible, since the books are hearsay not within any exception.
a) Is admissible, since the books qualify under the business records exception to the hearsay rule.
189
Pia sues DeliveryDash for personal injuries. At trial, Pia testifies that she was crossing an intersection at a crosswalk when a truck owned by the defendant ran a red light and struck her. Pia’s attorney then calls Will, who testifies that he was driving by and saw Pia lying in the intersection after she was struck and stopped to assist her until paramedics arrived. As Will was helping, he heard Pia state, "I am going to die! I can't believe that truck just ran right over me." Will’s testimony is
a) Admissible, because Pia believed she was about to die.
b) Admissible, because Pia's statement constitutes an excited utterance.
c) Inadmissible, because the credibility of Pia's testimony on direct examination has not yet been attacked.
d) Inadmissible, because it is hearsay not falling within any exception.
b) Admissible, because Pia's statement constitutes an excited utterance.
190
Dabny is charged with armed robbery of a convenience store. During pretrial plea negotiations, the prosecution gives Dabny’s attorney notice of her intent to introduce several statements at trial to prove the elements of armed robbery. Dabny’s attorney files a pretrial motion asking the court to exclude all of the statements. Which of the following is admissible against Dabny at trial over a Confrontation Clause objection?
a) Testimony from a witness questioned by the prosecutor in a closed grand jury proceeding to determine if there was probable cause for an indictment to issue against Dabny.
b) An audiotape of a 911 call made by a customer to a police dispatcher while the armed robbery was in progress.
c) An audiotape of the police interview of a witness after the armed robbery.
d) Testimony from a prior unrelated civil trial in which one of the victims of the robbery was a party.
b) An audiotape of a 911 call made by a customer to a police dispatcher while the armed robbery was in progress.
191
The best evidence rule does not apply to
a) Recordings.
b) Statements.
c) Photographs.
d) Writings.
b) Statements.
192
The best evidence rule is implicated when a party is trying to ________ a writing, recording, or photograph. The best evidence rule is a purpose driven rule that is only implicated where a party is trying to prove the contents of evidence preserved in a tangible medium.
a) admit into evidence.
b) lay the foundation for.
c) duplicate.
d) prove the contents of.
d) prove the contents of.
193
Which of the following would not be an “original” for purposes of the best evidence rule?
a) A Xerox copy of a lease.
b) A print from film negative.
c) One of three contracts signed in triplicate.
d) A printout of a computerized spreadsheet.
a) A Xerox copy of a lease.
194
A duplicate may be offered in lieu of an original unless
a) There is a genuine dispute as to authenticity of the original.
b) It would be unfair under the circumstances to admit a duplicate.
c) Either a or b.
d) Neither a nor b.
c) Either a or b.
195
A party trying to prove the contents of a writing satisfies the best evidence rule by ________ the original writing.
a) marking for identification.
b) laying the foundation for.
c) moving into evidence.
d) discussing the contents of.
c) moving into evidence.
196
P sues D for negligence for injuries allegedly sustained in a car accident. At trial, P calls W, who testifies that he saw the crash and then took photographs of the scene. P asks W to describe the accident. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
197
P sues D for negligence for injuries allegedly sustained in a car accident. At trial, P calls W, and shows him photographs of the scene. P asks W to describe the accident as depicted in the photos. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
198
P sues D for negligence for injuries allegedly sustained in a car accident. At trial, P calls W, who testifies that he saw the crash and then took photographs of the scene. P asks W to describe what the photos depict about the accident scene. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
199
P sues D for negligence for injuries allegedly sustained in a car accident. At deposition, at which a stenographer transcribed the testimony, W testified that D had the red light when he entered the intersection. P calls W as a witness at trial, and W surprises P and testifies that D had the green light when he entered the intersection. P then declares W a “hostile” witness and asks, “Isn’t it true that at deposition, you said defendant had the red light when he entered the intersection?”D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
200
P sues D for negligence for injuries allegedly sustained in a car accident. At deposition, at which a stenographer transcribed the testimony, W testified that D had the red light when he entered the intersection. P calls W as a witness at trial, and W surprises P and testifies that D had the green light when he entered the intersection. P then declares W a “hostile” witness and asks, “Isn’t it true that at deposition, you said defendant had the red light when he entered the intersection?” W denies that he said that. P then asks, “Well isn’t it true that your deposition transcript says that you said D had the red light when he entered the intersection?” D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
201
Exceptions to the best evidence rule allow a party to
a) Use a document for something other than to prove the original’s contents.
b) Use something other than an original to prove the original’s contents.
c) Use an original to prove the original’s contents.
d) Use something other than an original to prove something other than the original’s contents.
b) Use something other than an original to prove the original’s contents.
202
P sues D for breach of a lease agreement. Two iterations of the agreement were signed, and a photocopy was made. At trial, P seeks to offer the photocopy in evidence to prove the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
203
P sues D for breach of a lease agreement. Two iterations of the agreement were signed, and a photocopy was made. At trial, P testifies that one of the originals was destroyed, and seeks to offer the photocopy in evidence to prove the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
204
P sues D for breach of a lease agreement. Two iterations of the agreement were signed. At trial, P testifies that one of the originals was destroyed, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
205
P sues D for breach of a lease agreement. Two iterations of the agreement were signed. At trial, P testifies that both of the originals was destroyed in a fire, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
206
P sues D for breach of a lease agreement. Two iterations of the agreement were signed. At trial, P testifies that he tore up both of the originals because they contained unfavorable terms, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
207
P sues D for breach of a lease agreement. Two iterations of the agreement were signed. At trial, P testifies that he saw D tear up both of the originals shortly after the lawsuit was filed, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
208
P sues D for breach of a lease agreement. At trial, P testifies that both of the originals was destroyed in a fire, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds, arguing that P is required to offer his handwritten notes summarizing the terms of the agreement rather than give oral testimony. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
209
P sues D for breach of a lease agreement. At trial, P testifies that D admitted that the agreement required him to pay his rent by the fifth day of each month. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
210
P sues D for breach of a lease agreement. At trial, P introduced a note written by D stating, “Sorry I’m late! I know the lease agreement requires me to pay my rent by the fifth day of each month.” D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
211
P sues D for breach of a lease agreement. At trial, D claimed that P had waived strict adherence to the monthly due date by repeatedly accepting checks weeks after the deadline. In his rebuttal case, P introduces a chart which shows the day of the month on which P had accepted rent from D over the last five years, which shows that P had always received D’s rent by the 5th of the month, except for one month two years earlier where he accepted it on the 6th. The chart is based on nearly sixty rent checks D had provided to P, each with a stamp showing the date it was received. P produced copies of all such checks to D during discovery. D objects to admission of the chart on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
b) Overruled.
212
P sues D in federal court in California for breach of a lease agreement. At trial, P claims that the original is held by a document repository company located in Arizona, and seeks to testify to the contents of the lease agreement. D objects on best evidence rule grounds. How should the judge rule?
a) Sustained.
b) Overruled.
a) Sustained.
213
P sues D for breach of contract. At trial, in P’s case-in-chief, P’s attorney shows him a document and asks him if he recognizes it. P says it is the contract he signed with D. Which, if any, of the following objections raised by D at this point would be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) None of the above.
d) None of the above.
214
P sues D for breach of contract. At trial, in P’s case-in-chief, P’s attorney shows him a document that P says is the contract he signed with D. P then testifies that the contract states that D will buy P’s house for $100,000. Which of the following objections raised by D at this point would likely be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) Both b and c.
b) Best evidence rule.
215
P sues D for breach of contract. At trial, in P’s case-in-chief, P’s attorney shows him a document and asks him if he recognizes it. P says it is the contract he signed with D. P’s attorney then offers it in evidence. Which, if any, of the following objections raised by D at this point would be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) None of the above.
d) None of the above.
216
P sues D for breach of contract. At trial, P offers into evidence his handwritten notes that summarized the terms of the contract. Which of the following objections raised by D at this point would likely be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) Both b and c.
d) Both b and c.
217
P sues D for breach of a contract. At trial, P testifies that D admitted that the agreement required him to pay his rent by the fifth day of each month. Which, if any, of the following objections raised by D at this point would be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) None of the above.
b) Best evidence rule.
218
P sues D for breach of contract. The contract indicated that P would buy D’s three-story home for $100,000. At trial, P’s lawyer shows P a photograph, which P testifies he has never seen but which appears to show D’s home. Which of the following objections raised by D at this point would likely be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) None of the above.
d) None of the above.
219
P sues D for breach of contract. The contract indicated that P would buy D’s three-story home for $100,000. At trial, P’s lawyer shows P a photograph, which P testifies he has never seen but which appears to show D’s home. P’s lawyer moves the photo in evidence. Which of the following objections raised by D at this point would likely be successful?
a) Authentication.
b) Best evidence rule.
c) Hearsay.
d) None of the above.
a) Authentication.
220
Plaintiff sues defendant for negligence for injuries allegedly sustained in a car accident. At trial, plaintiff introduced a print out of an email from defendant that reads, “Sorry I ran the red light and crashed into you.” Defense wants to introduce the second page of the email, which reads: “It was unavoidable since my brakes, which I had just had checked, unexpectedly failed.” Which of the following is correct?
a) Defendant may insist that plaintiff introduce the second page at the same time as the first page.
b) Defendant must cross-examine plaintiff about the initial failure to introduce the second page.
c) Defendant must wait until his case-in-chief to introduce the second page.
d) Defendant may not introduce the second page at any point.
a) Defendant may insist that plaintiff introduce the second page at the same time as the first page.
221
Plaintiff sues defendant for negligence for injuries allegedly sustained in a car accident. At trial, plaintiff testifies that defendant said, “Sorry I ran the red light and crashed into you.” Defense wants to introduce the fact that defendant also said: “It was unavoidable since my brakes, which I had just had checked, unexpectedly failed.” Which of the following is correct?
a) Defendant may insist that plaintiff introduce the second statement at the same time as the first. statement.
b) Defendant may cross-examine plaintiff about the initial failure to mention the second statement.
c) Defendant can interrupt the plaintiff’s direct examination testimony to testify to the second statement.
d) Defendant may not introduce the second statement at any point.
b) Defendant may cross-examine plaintiff about the initial failure to mention the second statement.
222
Plaintiff sues defendant for negligence for injuries allegedly sustained in a car accident. At trial, plaintiff introduced a print out of an email from defendant that reads, “Sorry I ran the red light and crashed into you.” Defense wants to introduce another email from the defendant to the plaintiff that reads, “I don’t think your damages are nearly as high as you’re claiming.” Defense asserts that they can insist that the second email be introduced at the same time as the first. Are they correct?
a) Yes.
b) No.
b) No.
223
Which of the statements are correct regarding when a court may and/or must take judicial notice?
a) The court must take judicial notice on its own motion or when a party requests it and supplies the necessary information.
b) The court must take judicial notice on its own motion and may take it when a party requests it and supplies the necessary information.
c) The court may take judicial notice on its own motion and must take it when a party requests it and supplies the necessary information.
d) The court may take judicial notice on its own motion or when a party requests it and supplies the necessary information.
c) The court may take judicial notice on its own motion and must take it when a party requests it and supplies the necessary information.
223
Of which of the following facts may a court take judicial notice?
a) Facts that can be can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
b) Facts that the judge finds to be true by a preponderance of the evidence.
c) generally known within the trial court’s territorial jurisdiction.
d) Both a and c.
d) Both a and c.
224
Which of the following correctly states the effect of a court taking judicial notice?
a) It is conclusive in both civil and criminal cases.
b) It is conclusive in civil cases but not in criminal ones.
c) It is conclusive in criminal cases but not in civil ones.
d) It is not conclusive in either civil or criminal cases.
b) It is conclusive in civil cases but not in criminal ones.
225
Of which of the following facts is a court most likely to take judicial notice?
a) That the Dodgers won the World Series in 1988.
b) That it usually takes about 20 minutes to get to the beach from downtown during rush hour.
c) That the most efficient way to get from the city to the valley is the freeway.
d) That a low fat diet is more likely to help someone lose weight than a low carbohydrate diet.
a) That the Dodgers won the World Series in 1988.
226
Of which of the following facts is a court most likely to take judicial notice?
a) Defendant possessed cocaine for the purpose of selling it.
b) That the cocaine defendant possessed was obtained from Colombia.
c) That the defendant had been previously convicted of possession of cocaine by the court.
d) That the defendant knew that the powder he possessed was cocaine because he was previously convicted of the same crime.
c) That the defendant had been previously convicted of possession of cocaine by the court.
227
Dane is prosecuted for drunk driving. At trial, Witness testified that after the accident she spoke to Dane and he “seemed confused.” Dane’s attorney objects on speculation grounds. The objection should be:
a) Sustained
b) Overruled
b) Overruled
228
Dane is prosecuted for drunk driving. At trial, Witness testified that after the accident she spoke to Dane and he “was confused.” Dane’s attorney objects on speculation grounds. The objection should be:
a) Sustained
b) Overruled
a) Sustained
229
Dane is prosecuted for drunk driving. At trial, Witness testified that just before the accident she saw Dane doing “about 60” on a residential street. Dane’s attorney objects on the grounds that Witness is not an expert. The objection should be:
a) Sustained
b) Overruled
b) Overruled
230
Dane is prosecuted for drunk driving. At trial, Witness testified that just before the accident she saw Dane doing “about 60” on a residential street. Dane’s attorney objects on the grounds that Witness is testifying to an estimate, and the law prefers precision. The objection should be:
a) Sustained
b) Overruled
b) Overruled
231
Dane is prosecuted for drunk driving. At trial, Witness testified that “she would guess Dane was doing 60” on a residential street. Dane’s attorney objects on speculation. The objection should be:
a) Sustained
b) Overruled
a) Sustained
232
Dane is prosecuted for drunk driving. At trial, Witness testified that “Dane was driving recklessly.” Dane’s attorney objects on improper opinion grounds. The objection should be:
a) Sustained
b) Overruled
a) Sustained
233
Dane is prosecuted for drunk driving. At trial, Witness testified that “Dane was driving much faster than would be safe given that he was on a residential street.” Dane’s attorney objects on improper opinion grounds. The objection should be:
a) Sustained
b) Overruled
b) Overruled
234
Dane is prosecuted for drunk driving. At trial, Witness testified that “Dane was driving like a drunk driver.” Dane’s attorney objects on improper opinion grounds. The objection should be:
a) Sustained
b) Overruled
a) Sustained
235
Dane is prosecuted for drunk driving. At trial, Witness testified that “Dane was swerving erratically between lanes and took a corner so fast his tires screeched and his car titled to the side.” Dane’s attorney objects on improper opinion grounds. The objection should be:
a) Sustained
b) Overruled
b) Overruled
236
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. On direct examination, Expert states that he has an MD and PhD in Medicine from Yale, is board certified by the American Association of Pediatric Pathologists, has served as a consultant for law enforcement in over 300 juvenile abuse cases, and has testified as an expert in court over 40 times. Expert testifies that in this case, the lead prosecution reviewed the medical reports and summarized them for him over the phone during a five minute call, and on that basis alone he formed an opinion as to whether the victim suffered from shaken baby syndrome. Expert has not reviewed any documents or images himself, nor examined Child. Mom’s attorney objects on improper opinion testimony grounds, arguing that the evidence relied upon is not a reasonable basis for an opinion. In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
a) Sustained
236
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. On direct examination, Expert states that his expertise consists of having read “Pediatric Pathology for Dummies.” When Expert attempts to give his opinion, Mom’s attorney objects on improper opinion testimony grounds, arguing that Expert lacks sufficient skill, training, or experience to qualify. The prosecution responds that no formal degree or specific type of training is required. In federal court, Mom’s objection would be
a) Sustained
b) Overruled
a) Sustained
237
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. Mom’s attorney objects on the grounds that many of the jurors are parents, and therefore are not in need of expert testimony on the topic of whether a baby was shaken or not. In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
b) Overruled
238
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. Expert testifies that although there is no published article that established that burst retinal capillaries are a telltale sign of shaken baby syndrome, it has been commonly accepted among pediatric pathologists that burst retinal capillaries are a strong indicator of shaken baby syndrome for at least the last forty years. Mom’s attorney objects on the grounds that in the absence of publication of the theory in a peer reviewed journal, the expert testimony is per se unreasonable. In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
b) Overruled
239
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. Expert testifies that his theory about the correlation between burst retinal capillaries and shaken baby syndrome is his own, and that it has not been adopted by other pediatric pathologists or referenced in any publication. Mom’s attorney objects on the grounds that the prosecution has not met its burden of persuading the court that the expert opinion is sufficiently reliable. The prosecution responds that the court need not exercise a gatekeeping function where the testimony is not “scientific or technical.” In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
a) Sustained
240
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. Expert testifies that his theory about the correlation between burst retinal capillaries and shaken baby syndrome is his own, and that it has not been adopted by other pediatric pathologists or referenced in any publication. Mom’s attorney objects on the grounds that the prosecution has not met its burden of persuading the court that the expert opinion is correct. In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
b) Overruled
241
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. Expert testifies that his theory about the correlation between burst retinal capillaries and shaken baby syndrome is his own, and that it has not been adopted by other pediatric pathologists or referenced in any publication. Mom’s attorney objects on the grounds that the prosecution has not met its burden of persuading the court that the expert opinion is reliable. The prosecution responds that for the court to substitute its judgment of reliability would usurp the role of the jury, and that the court must allow the jury to hear it. In federal court, Mom’s objection would likely be
a) Sustained
b) Overruled
a) Sustained
242
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. On direct examination, Expert states that he has an MD and PhD in Medicine from Yale, is board certified by the American Association of Pediatric Pathologists, has served as a consultant for law enforcement in over 300 juvenile abuse cases, and has testified as an expert in court over 40 times. Expert then testifies based on his education, training, and experience, and on his review of materials in the case, he has formed an opinion as to whether the victim suffered from shaken baby syndrome. Mom’s attorney objects and seeks to prevent him from testifying as to his opinion, on the grounds that he has not disclosed the materials on which he has relied. In federal court, Mom’s objection should be:
a) Sustained
b) Overruled
b) Overruled
243
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. On direct examination, Expert states that he has an MD and PhD in Medicine from Yale, is board certified by the American Association of Pediatric Pathologists, has served as a consultant for law enforcement in over 300 juvenile abuse cases, and has testified as an expert in court over 40 times. Expert then testifies based on his education, training, and experience, and on his review of materials in the case, he has formed an opinion as to whether the victim suffered from shaken baby syndrome. Mom’s attorney objects and seeks to prevent him from testifying as to his opinion, on the grounds that whether the baby suffered from Shaken Baby Syndrome is the ultimate issue in the case. In federal court, Mom’s objection should be:
a) Sustained
b) Overruled
b) Overruled
244
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, seeking to have him testify that the fact that Child had burst capillaries in his retinas is a classic sign of shaken baby syndrome. On direct examination, Expert states that he has an MD and PhD in Medicine from Yale, is board certified by the American Association of Pediatric Pathologists, has served as a consultant for law enforcement in over 300 juvenile abuse cases, and has testified as an expert in court over 40 times. Expert then testifies based on his education, training, and experience, and on his review of the medical reports in the case, he has formed an opinion as to whether the victim suffered from shaken baby syndrome. Mom’s attorney objects and seeks to prevent him from testifying as to his opinion, on the grounds that the medical reports are not in evidence and so are inadmissible hearsay. In federal court, Mom’s objection should be:
a) Sustained
b) Overruled
b) Overruled
245
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, who testifies that based on his education, training, and experience, and on his review of the medical report in the case (which is not in evidence), he has formed the opinion that the victim suffered from shaken baby syndrome. Expert further testifies that the reason why the medical report led him to this conclusion is because it indicated that the baby had burst capillaries in his retinas, which Expert knows to be a classic and distinctive sign of shaken baby syndrome. Mom’s attorney objects on hearsay grounds. In federal court, Mom’s objection would likely be:
a) Sustained
b) Overruled
b) Overruled
246
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, who testifies that based on his education, training, and experience, and on his review of the medical report in the case (which is not in evidence), he has formed the opinion that the victim suffered from shaken baby syndrome. On cross-examination, Mom’s attorney asks, “Isn’t it true that the author of the medical report itself indicates that she cannot reach a definitive conclusion as to the origin of the baby’s trauma.” The prosecution objects that the question calls for hearsay. In federal court, the objection would likely be:
a) Sustained
b) Overruled
b) Overruled
247
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, who testifies that based on his education, training, and experience, and on his review of the medical report in the case (which is not in evidence), he has formed the opinion that the victim suffered from shaken baby syndrome. On cross-examination, Mom’s attorney asks, “Isn’t it true that the author of the medical report itself indicates that she cannot reach a definitive conclusion as to the origin of the baby’s trauma.” On re-direct examination, Expert testifies that the reason why the medical report led him to his conclusion is because it indicated that the baby had burst capillaries in his retinas, which Expert knows to be a classic and distinctive sign of shaken baby syndrome. The defense objects that the question calls for hearsay. In federal court, the objection would likely be:
a) Sustained
b) Overruled
b) Overruled
248
Mom is prosecuted for child endangerment. At trial, the prosecution calls Edgar Expert, who testifies that based on his education, training, and experience, and on his conversation with Mom’s neighbor (who has not testified), he has formed the opinion that the victim suffered from shaken baby syndrome. Expert further testifies that the reason why the neighbor’s statement led him to this conclusion is because she had often seen Mom yelling at Child. Mom’s attorney objects on hearsay grounds. In federal court, Mom’s objection would likely be:
a) Sustained
b) Overruled
a) Sustained
249
In the absence of a special rule on point, the default probity/prejudice test you will apply requires that
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
250
Pam sues Dan for injuries sustained in a car accident. At trial, Pam calls Dr. X. Aminer, who testifies that in her expert opinion, Pam’s injuries are permanent. Dr. Aminer states that she bases her opinion largely on the report of Pam’s primary care physician, which is not in evidence. On the issue of whether Dr. may testify to the contents of the primary care physician’s report,
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
251
Pam sues Dan for sexual assault. At trial, Dan seeks to introduce evidence that Pam is a member of an online Masochist Club for people who like to be physically hurt during sex. On the issue of whether Dan may introduce this evidence,
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
252
Dan is prosecuted for sexual assault of Pam. At trial, Pam testifies. Dan seeks to impeach her credibility with evidence of a fifteen-year-old conviction for possession with intent to distribute. On the issue of whether Dan may introduce this evidence,
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
253
Dan is prosecuted for sexual assault of Pam. At trial, Pam testifies. Dan seeks to impeach her credibility with evidence of a five-year-old conviction for possession with intent to distribute. On the issue of whether Dan may introduce this evidence,
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
254
Dan is prosecuted for sexual assault of Pam. At trial, Dan testifies. The prosecution seeks to impeach his credibility with evidence of a five-year-old conviction for possession with intent to distribute. On the issue of whether the prosecution may introduce this evidence,
a) The probative value must substantially outweigh the prejudicial effect before the evidence will be admitted.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
c) The prejudicial effect must outweigh the probative value before the evidence will be excluded.
d) The prejudicial effect must substantially outweigh the probative value before the evidence will be excluded.
b) The probative value must outweigh the prejudicial effect before the evidence will be admitted.
255
Pam’s car skidded on a snowy rural road and crashed into a tree. It was some time before the emergency crew was able to remove her from the car and transport her to a hospital. Pam later sued the hospital for malpractice, claiming that she did not receive prompt attention from the emergency teams. An intake coordinator who worked in hospital admissions testified that Pam was not conscious when she arrived at the hospital. Pam’s attorney objected. The objection should be
a) Sustained, because the intake coordinator is not qualified to give expert medical testimony.
b) Sustained, because it goes to an ultimate issue in the case.
c) Overruled, because a lay opinion as to someone’s physical state is admissible.
d) Overruled, because an expert need not have formal training to be qualified to testify.
c) Overruled, because a lay opinion as to someone’s physical state is admissible.
256
The defendant is charged with killing eight prostitutes over a span of two years. At trial, both the prosecution and defense present expert witnesses to testify regarding the defendant's mental state. Both experts spent several hours interviewing the defendant prior to testifying and reviewing standard psychological assessments. The prosecution witness testifies to her opinion that the defendant understood that his actions were wrongful despite the defendant's childhood history of trauma and abuse and relatively low IQ. The defense witness testifies that the defendant was severely impacted by prior trauma and abuse, has low cognitive function, has a long history of drug abuse, and therefore could not have formed the intent required for the commission of these crimes because, in the witness's opinion, he was insane at the time the crimes were committed. Which is admissible?
a) Both the prosecution expert’s and defense expert’s testimony.
b) The prosecution expert’s testimony but not the defense expert’s testimony.
c) The defense expert’s testimony but not the prosecution expert’s testimony.
d) Neither the prosecution expert’s testimony nor the defense expert’s testimony.
b) The prosecution expert’s testimony but not the defense expert’s testimony.
257
Pedro sued CarCo. for manufacturing and design defects when his transmission in his new car caught fire while driving down a steep incline. At trial, Pedro called a mechanical engineer as an expert witness. Pedro’s attorney asked the witness for her opinion as to whether the transmission could have started the fire. The engineer testified in part about standard industry laboratory flammability tests regarding car components that she was aware of. CarCo.’s lawyer objects to the admission of the witness's testimony. The objection should be
a) Sustained, because the witness has not indicated that she conducted the tests herself.
b) Sustained, because the laboratory tests are hearsay not within any exception.
c) Overruled, because mechanical engineers can reasonably rely on laboratory tests in the course of their professional work.
d) Overruled, because the witness has copies of the tests and is willing to enter them into evidence.
c) Overruled, because mechanical engineers can reasonably rely on laboratory tests in the course of their professional work.
258
Twenty years ago, Tito properly executed a formal will. The will left the entirety of the Tito's estate to his homeopathic specialist. Tito’s son, Sam, who was also his sole heir, challenged the will. At trial, Warren testified that he was one of the two subscribing witnesses for Tito’s will. Warren testified that based on his observations of Tito during the will signing ceremony, Tito lacked capacity to make a will. Over objection, Warren’s testimony is
a) Inadmissible, because mental state is beyond the scope of lay opinion.
b) Inadmissible, because lack of capacity to make a will is a legal conclusion.
c) Admissible, because it would assist the trier of fact.
d) Admissible, because Warren personally observed Tito executing the will.
b) Inadmissible, because lack of capacity to make a will is a legal conclusion.
259
Paco sued Dr. Foreleg after calf implant surgery led to infection and left him with a permanent limp. Dr. Shin, a sports surgeon and one of the leaders in muscular implant surgery, sat in court while Paco, who was awake throughout the procedure, testified about the calf surgery. Paco’s attorney then called Dr. Shin to the stand to question her as to whether, if the procedure had occurred as Paco described it, Dr. Foreleg should have known that the procedure used was likely to lead to an infection. Dr. Foreleg’s attorney objects. The objection should be
a) Overruled, because an expert may testify to her opinion based upon a hypothetical question.
b) Overruled, because Dr. Shin’s testimony would corroborate Paco’s testimony.
c) Sustained, because Dr. Shin’s opinion is based on the lay opinion of another witness, Paco.
d) Sustained, if Dr. Shin is basing her opinion entirely on what she learned in court.
a) Overruled, because an expert may testify to her opinion based upon a hypothetical question.
260
Dick is prosecuted for murdering his wife, Vera. At trial, the prosecution presents evidence that the victim died from ingesting a large quantity of bitter almonds. The defense calls a toxicologist who testifies that a woman of Vera's height and weight would not be able to ingest a sufficient amount of bitter almonds to result in death. On cross-examination, the toxicologist admits her findings are contrary to universally accepted medical opinion. She also admits her methods are presently experimental and incomplete. The prosecutor then moves to strike the toxicologist's testimony regarding the effects of bitter almonds. The motion should be
a) Granted, because the toxicologist was not qualified as an expert.
b) Granted, because the basis of the toxicologist’s opinion was insufficient.
c) Denied, because the toxicologist was a qualified expert.
d) Denied, because the basis of the toxicologist’s opinion was insufficient.
b) Granted, because the basis of the toxicologist’s opinion was insufficient.
261
Dick is prosecuted for murdering his wife, Vera. At trial, the prosecution presents evidence that the victim died from ingesting a large quantity of bitter almonds. The defense calls a toxicologist who testifies that a woman of Vera's height and weight would not be able to ingest a sufficient amount of bitter almonds to result in death. On cross-examination, the toxicologist admits that the “Toxicology Desk Reference” is generally relied upon within the field, even though she herself did not rely on it in forming her opinion. The prosecution then seeks to read into the record a passage from the Toxicology Desk Reference that reads: “Because of individuals’ variable reactions to the toxins contained in bitter almonds, there is no reliable way to correlate height or weight with fatal quantities of bitter almonds.” Over objection by the defense, this is admissible
a) Both as substantive evidence and to impeach the credibility of the defense expert’s opinion testimony.
b) As substantive evidence but not to impeach the credibility of the defense expert’s opinion testimony.
c) Not as substantive evidence but to impeach the credibility of the defense expert’s opinion testimony.
d) Neither as substantive evidence nor to impeach the credibility of the defense expert’s opinion testimony.
a) Both as substantive evidence and to impeach the credibility of the defense expert’s opinion testimony.
262
Dick is prosecuted for murdering his wife, Vera. At trial, the prosecution presents evidence that the victim died from ingesting a large quantity of bitter almonds. The defense calls a toxicologist who testifies that a woman of Vera's height and weight would not be able to ingest a sufficient amount of bitter almonds to result in death. On cross-examination, the prosecutor asks the toxicologist to admit that she was convicted three years ago of felony arson. Over objection, the question is
a) Permissible if the probative value of the question substantially outweighs the prejudicial effect.
b) Permissible if the prejudicial effect does not substantially outweigh the probative value.
c) Impermissible unless the probative value of the question outweighs the prejudicial effect.
d) Impermissible, because the prior conviction of the expert witness for arson is irrelevant to the murder prosecution of Dick.
b) Permissible if the prejudicial effect does not substantially outweigh the probative value.
263
A criminal defendant can waive his privilege against self-incrimination and take the stand as witness in his own case-in-chief.
a) True
b) False
a) True
264
The failure by a party to object to a question calling for the disclosure of information he provided in confidence to his lawyer can waive the attorney-client privilege.
a) True
b) False
a) True
265
Telling your best friend what you told your lawyer in confidence can waive the attorney-client privilege even if you intended your communication to your friend to be confidential.
a) True
b) False
a) True
266
The mere fact that conversations with others may involve the same subject matter as your confidential communications with your lawyer will result in the waiver of the attorney-client privilege.
a) True
b) False
b) False
267
Telling your friend that you have discussed your case with your lawyer will waive the privilege protecting confidential communications between clients and their lawyers.
a) True
b) False
268
If at the request of your lawyer you tell her paralegal about the circumstances attending the accident about which you consulted the lawyer, that disclosure will result in the waiver of the attorney-client privilege.
a) True
b) False
b) False
269
Wrongful interceptors of privileged information may disclose such information irrespective of the communicants’ desire to keep their communications confidential.
a) True
b) False
b) False
270
If the holder of a privilege is aware that the means chosen for transmitting the privileged information discloses it to third persons who are not authorized to be present, the communication will not be deemed to be confidential and can be disclosed over objection.
a) True
b) False
a) True
271
Transmitting confidential communications by electronic means results in the loss of the privileges for such communications because today anyone is aware that persons involved in the delivery, facilitation, or storage of electronic communications might have access to their content.
a) True
b) False
b) False
272
The presence of some third persons does not destroy the privilege if they are present to further the interests of the client. Such third persons can include interpreters as well as others the client needs in consulting the lawyer.
a) True
b) False
a) True
273
Pam sues Dan for breach of contract. At trial, Dan calls his attorney to testify, “I told Dan he could cancel the deal and he wouldn’t face any sort of penalty.” This is an example of:
a) Waiver by consent.
b) Negligent waiver.
c) Conscious waiver.
d) Waiver by disclosure to third parties.
a) Waiver by consent.
274
Pam sues Dan for breach of contract. At trial, Dan calls his attorney to testify, “I told Dan he could cancel the deal and he wouldn’t face any sort of penalty.” If Pam objects on hearsay grounds, the objection would be:
a) Overruled
b) Sustained
a) Overruled
275
Pam sues Dan for breach of contract. At trial, Dan testifies, “My attorney told me I could cancel the deal and I wouldn’t face any sort of penalty.” This is an example of:
a) Waiver by consent.
b) Negligent waiver.
c) Conscious waiver.
d) Waiver by disclosure to third parties.
c) Conscious waiver.
276
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true you told your boss that your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” This is an example of:
a) Waiver by consent.
b) Negligent waiver.
c) Conscious waiver.
d) Waiver by disclosure to third parties.
d) Waiver by disclosure to third parties.
277
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true you told your boss that your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” If Dan objects on hearsay grounds, the objection would be:
a) Overruled
b) Sustained
a) Overruled
278
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” If Dan fails to refuse to answer the question, this is an example of:
a) Waiver by consent.
b) Negligent waiver.
c) Conscious waiver.
d) Waiver by disclosure to third parties.
b) Negligent waiver.
279
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” Other evidence has already established that, unbeknownst to Dan, his attorney’s license to practice had been suspended three months prior to the conversation in question for failure to pay his bar dues. If Dan objects on attorney-client privilege grounds, the objection will be
a) Overruled
b) Sustained
b) Sustained
280
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that you initially consulted a different attorney to see if he would take your case, and told him that you had backed out of the deal with Pam because you had gotten a better offer elsewhere?” Dan’s objection on attorney-client privilege grounds will be
a) Overruled
b) Sustained
b) Sustained
281
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that you told your attorney you wanted him to figure out a way to help you get away with having breached your contract with Pam?” Dan’s objection on attorney-client privilege grounds will be
a) Overruled
b) Sustained
b) Sustained
282
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that you told your attorney you wanted him to doctor evidence to help you get away with having breached your contract with Pam?” Dan’s objection on attorney-client privilege grounds will be
a) Overruled
b) Sustained
a) Overruled
283
Pam sues Dan for breach of contract. At trial, on cross-examination of Pam, Dan’s attorney asks, “Although you claimed on direct examination that you never even considered suing Dan until after he sent his termination letter, isn’t it true that you met with your litigation counsel for two hours the week before he sent that letter?” Pam’s objection on attorney-client privilege grounds will be
a) Overruled
b) Sustained
a) Overruled
284
Pam sues Dan for breach of contract. At trial, Pam calls Larry, the lawyer who had previously drafted the contract on behalf of both Pam and Dan, to testify that Dan had told Larry shortly after the contract was signed that he planned on bailing out on the deal with Pam the moment a better deal came along. Dan’s objection on attorney-client privilege grounds will be
a) Overruled
b) Sustained
a) Overruled
285
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true you told your boss that your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” Dan’s attorney objects on attorney-client privilege grounds. Pam’s attorney responds that only Dan himself can object because Dan is the holder of the privilege. The objection would be:
a) Overruled
b) Sustained
b) Sustained
286
Pam sues Dan for breach of contract. At trial, Pam calls Friend to testify that Dan’s attorney told Friend that he had a client who was eager to help him find a way to get away with breaching his contract with a woman named Pam. Dan’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
b) Sustained
287
Pam sues Dan for breach of contract. At trial, Pam calls Friend to testify that Dan told Friend that his attorney was going to help him find a way to get away with breaching his contract with a woman named Pam. Dan’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
a) Overruled
288
After Dan loses Pam’s breach of contract suit, Dan sues his attorney for malpractice. At trial, Dan testifies, “My attorney told me I could cancel my deal with Pam and I wouldn’t face any sort of penalty.” The attorney’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
a) Overruled
289
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that in the presence of his secretary, your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” Dan’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
b) Sustained
290
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true that in the presence of your girlfriend, your attorney told you that you could cancel the deal and you wouldn’t face any sort of penalty?” Dan’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
a) Overruled
291
Pam sues Dan Co. for breach of contract. At trial, on cross-examination of Dan, the president and CEO of Dan Co., Pam’s attorney asks, “Isn’t it true your attorney told you that Dan Co. could cancel the deal and you wouldn’t face any sort of penalty?” Dan Co.’s attorney objects on attorney-client privilege grounds. Pam’s attorney responds that no privilege applies because Dan Co., not Dan, is the client. The objection would be:
a) Overruled
b) Sustained
b) Sustained
292
Pam sues Dan for breach of contract. At trial, on cross-examination of Dan, Pam’s attorney asks, “Isn’t it true you told your attorney you were planning to ‘off’ Pam so you wouldn’t have to deal with her lawsuit anymore?” Dan’s objection on attorney-client privilege grounds would be:
a) Overruled
b) Sustained
a) Overruled
293
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains Expert to advise him. During P’s deposition, he testifies that he attended a meeting with his attorney and Expert. D’s attorney asks about the substance of the meeting and whether any notes were generated as a result. The conversation is protected from disclosure by:
Question options:
a) Both the attorney-client privilege and the work-product privilege.
b) The attorney-client privilege but not the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
a) Both the attorney-client privilege and the work-product privilege.
294
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains Expert to advise him. P designates Expert as an expert witness to testify at trial, and D notices his deposition. Before the deposition takes place, P de-designates Expert as a trial witness. D then seeks to compel production of Expert’s report. The report is protected from disclosure by:
Question options:
a) Both the attorney-client privilege and the work-product privilege.
b) The attorney-client privilege but not the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
295
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains Expert to advise him. P designates Expert as an expert witness to testify at trial, and D notices his deposition. After the deposition, D seeks to compel production of Expert’s report. The report is protected from disclosure by:
Question options:
a) Both the attorney-client privilege and the work-product privilege.
b) The attorney-client privilege but not the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
296
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains Expert to advise him. P calls Expert to testify at trial. On cross-examination, D’s attorney asks Expert what P’s attorney told him about the facts of the case. This information is protected from disclosure by:
Question options:
a) Both the attorney-client privilege and the work-product privilege.
b) The attorney-client privilege but not the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
297
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains Expert to advise him. P designates Expert as an expert witness to testify at trial, and D deposes Expert. D seeks to compel production of P’s attorney’s notes of any and all meetings with Expert. The notes are protected from disclosure by:
Question options:
a) Both the attorney-client privilege and the work-product privilege.
b) The attorney-client privilege but not the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
d) Neither the attorney-client privilege nor the work-product privilege.
c) The work-product privilege but not the attorney-client privilege.
298
Pete was injured when the Electrocar which he was driving exploded after striking another vehicle in the rear. Pete brought an action against ElectroCo Motor Corp. for personal injuries. Pursuant to a subpoena which had been served on ElectroCo, Pete's attorney called upon ElectroCo to produce records of tests which it had performed on the Electrocar before marketing it. ElectroCo's attorney objected, on the ground that ElectroCo had turned the test records over to its attorney in preparation for trial. Should the trial court require production of the records?
a) No, since they are privileged as an attorney's work product.
b) No, since they are privileged as materials prepared for litigation.
c) No, since they are privileged as a confidential communication to an attorney.
d) Yes, since they are relevant to the issues and not protected by privilege.
d) Yes, since they are relevant to the issues and not protected by privilege.
299
At the trial of Darien for receiving stolen property, the prosecution called Wescott, who testified that in a conversation he had with Darien in jail shortly after Darien's arrest, Darien admitted that he knew that the car that he had been driving was stolen. Which of the following facts or inferences would best support Darien's motion to exclude Wescott's testimony?
a) At the time of their conversation, Wescott told Darien that he was an attorney.
b) At the time of their conversation, Darien reasonably believed that Wescott was employed as an investigator for Darien’s attorney.
c) Wescott had offered to recommend an attorney to Darien, and had asked Darien to tell him all the facts of the case.
d) Wescott had been charged with a crime and on the day of Darien's trial had negotiated a favorable plea-bargain in return for his testimony.
b) At the time of their conversation, Darien reasonably believed that Wescott was employed as an investigator for Darien’s attorney.
300
Alicia and Benton, both attorneys, had been dating for several months. Benton was driving Alicia home from a party when his car collided with a car operated by Pentel. Police who arrived at the scene of the accident moments later arrested Benton and charged him with driving while intoxicated. Alicia immediately advised the arresting officers that she was Benton's attorney, accompanied them to the police station, and arranged for Benton's bail. Benton was eventually tried and acquitted, with Alicia representing him at the trial. Several months after the trial, Pentel instituted an action against Benton for personal injuries resulting from the accident. Benton retained a different attorney to defend him in the civil action. At the civil trial, Pentel's attorney called Alicia as a witness. After Alicia testified that she had been in the car with Benton at the time of the accident, Pentel's attorney asked her whether Benton appeared to be intoxicated immediately following the accident. Benton's civil attorney objected on the ground of attorney-client privilege. The objection should be
a) Sustained, since Alicia defended Benton against the charge of driving while intoxicated.
b) Sustained, unless Alicia qualifies as an expert on intoxication.
c) Overruled, unless Alicia objects and asserts the privilege.
d) Overruled, since the question does not require Alicia to testify to a confidential communication.
d) Overruled, since the question does not require Alicia to testify to a confidential communication.
301
Pelton sued Transport Inc. for damage from a collision between Pelton's motorcycle and one of Transport's trucks. After receiving the summons, Thomas, the president and sole stockholder of Transport Inc., notified Lottie, the company attorney. Lottie said she wanted to meet with Thomas and the truck driver (Darla) who was directly involved in the accident. At Lottie's request, Thomas went to Lottie's office with Darla. While discussing the case with Lottie and Darla, Thomas said that on the day before the accident he was aware the truck's brakes were not working properly, but that because of a heavy workload he postponed making the necessary repairs. At trial, Pelton attempted to have Darla testify to the statement that Thomas made to Lottie about the brakes. Transport's objection attorney-client privilege grounds should be:
a) Overruled, because the attorney-client privilege does not apply to testimony by one who does not stand in a confidential relationship with the person against whom the evidence is offered.
b) Overruled, because it is presumed that a communication made in the presence of third persons is not confidential.
c)Overruled because communications made by corporations are not privileged.
d) Sustained.
d) Sustained.
302
Callahan retained Lewis, an attorney, to represent him in connection with a boundary dispute with his neighbor. Subsequently, Callahan sued Lewis for malpractice, alleging that Lewis negligently failed to institute an action to quiet title before such action was barred by the statute of limitations. At trial, Lewis testified that he advised Callahan to commence an action to quiet title, but that Callahan instructed Lewis not to do so, stating that he feared that because of the litigation his neighbor might find out that Callahan had once been convicted of a felony. Callahan’s attorney-client privilege objection should be
a) Sustained, because Callahan’s statement was related to the reason for his consultation with Lewis.
b) Sustained, only if Callahan’s statement was necessary to his consultation with Lewis.
c) Overruled, if Lewis’ testimony is relevant to the issue of Lewis’ negligence.
d) Overruled, because termination of the attorney-client representation terminates the confidential relationship between them.
c) Overruled, if Lewis’ testimony is relevant to the issue of Lewis’ negligence.
303
Dorah, a sixteen-year-old, was involved in an accident while driving a friend's car. At the request of Prawley, who was injured in the accident, a court designated Dorah's father Felton as Dorah's legal guardian for the purpose of defending Prawley's lawsuit against Dorah. Prawley then sued Dorah. Dorah and Felton consulted Watt, an attorney, about the lawsuit. Felton was present when Dorah told Watt that she had been driving over the speed limit at the time of the accident. Watt refused to represent Dorah, and Felton thereafter retained another attorney. At trial, Prawley calls Watt to testify to the conversation he had with Dorah. Dorah's attorney-client privilege objection should be:
a) Sustained, because Felton's designation as Dorah's legal guardian made his presence at the consultation necessary.
b) Sustained, because anything said by a potential client to an attorney while seeking advice is privileged under all circumstances.
c) Overruled, because Dorah and Felton are joint defendants.
d) Overruled, because Watt never agreed to represent Dorah and Felton.
a) Sustained, because Felton's designation as Dorah's legal guardian made his presence at the consultation necessary.
304
Oren is charged with murder. Oren confesses to his attorney, Art, at Art’s office that he brutally murdered his ex-wife. Parnell, a paralegal who was present at the meeting between Oren and Art, is convinced that Oren poses a menace to society, and so he reports the conversation to the prosecutors. At trial, the prosecutor calls Parnell as a witness to have him testify to Oren’s confession to Art. Art’s attorney-client privilege objection should be
a) Sustained, because Parnell’s presence was not necessary to the representation.
b) Sustained, because Parnell’s disclosure to the prosecution did not waive the privilege.
c) Overruled, because Oren’s statement to Art falls within the crime-fraud exception.
d) Overruled, because Parnell believed disclosure was necessary to prevent future death or bodily harm.
b) Sustained, because Parnell’s disclosure to the prosecution did not waive the privilege.
305
P sues D for personal injuries allegedly sustained a car accident. In order to help determine the extent of P’s injuries, P’s attorney retains a doctor, Expert, to advise him. Expert’s report regarding his assessment of P’s condition is protected from disclosure by:
a) The attorney-client privilege.
b) The work-product privilege.
c) The psychotherapist-patient privilege.
d) The doctor-patient privilege.
b) The work-product privilege.
306
P sues D for personal injuries allegedly sustained a car accident. At trial, D calls Doctor, the emergency room doctor who treated P immediately after the accident. P objects on privilege grounds to Doctor’s testifying to any conversations he had with P. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The work-product privilege.
c) The doctor-patient privilege.
d) None of the above.
d) None of the above.
307
P sues D for personal injuries allegedly sustained a car accident. At trial, D calls P’s Psychiatrist. P objects on privilege grounds to Psychiatrist’s testifying to any conversations he had with P. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The psychotherapist-patient privilege.
c) The doctor-patient privilege.
d) None of the above.
b) The psychotherapist-patient privilege.
308
P sues D for personal injuries allegedly sustained a car accident, and asserts damages for treatment of post traumatic stress disorder, among other things. At trial, D calls Psychiatrist, who treated P in the weeks after the accident. P objects on privilege grounds to Psychiatrist’s testifying to any conversations he had with P. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The psychotherapist-patient privilege.
c) The doctor-patient privilege.
d) None of the above.
d) None of the above.
309
D is prosecuted for murder, and asserts a defense of insanity. The court appoints a psychiatrist to evaluate D to assess his mental condition. At trial, the prosecution calls the psychiatrist to testify. D objects on privilege grounds to the psychiatrist’s testifying to any conversations he had with D. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The psychotherapist-patient privilege.
c) The doctor-patient privilege.
d) None of the above.
d) None of the above.
310
D is prosecuted for murder, and asserts a defense of insanity. At trial, the prosecution calls D’s personal psychiatrist to testify. D objects on privilege grounds to the psychiatrist’s testifying to any conversations he had with D. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The psychotherapist-patient privilege.
c) The doctor-patient privilege.
d) None of the above.
d) None of the above.
311
D is prosecuted for murder. In order to help her determine whether to assert an insanity defense, D’s attorney retains Psychiatrist to assess D’s mental condition. After receiving the report, D decides not to raise an insanity defense. At trial, the prosecution calls Psychiatrist to testify. D objects on privilege grounds to the psychiatrist’s testifying to any conversations he had with D. Their conversations are protected from disclosure by:
a) The attorney-client privilege.
b) The work-product privilege.
c) The psychotherapist-patient privilege.
d) All of the above.
d) All of the above
312
D is prosecuted for murder. D admits to his psychiatrist that he got sexual satisfaction by killing the victim. The prosecution seeks to introduce this statement at trial through the psychiatrist’s testimony. A psychotherapist-patient privilege objection raised by D would be:
a) Overruled.
b) Sustained.
b) Sustained.
313
H is sued by P for fraud in connection with his sale of counterfeit iPhones. At trial, P calls E, H’s ex-wife, to testify that she saw H filling iPhone shells with sand. H can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
d) Neither the confidential marital communications privilege nor the spousal privileges.
314
H is sued by P for fraud in connection with his sale of counterfeit iPhones. At trial, P calls E, H’s ex-wife, to testify that while married, he told her he routinely filled iPhone shells with sand. H can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
315
H is sued by P for fraud in connection with his sale of counterfeit iPhones. At trial, P calls W, H’s wife, to testify that he asked her to help him fill iPhone shells with sand. If W does not want to testify, H can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications privilege.
d) Neither the confidential marital communications privilege nor the spousal privileges.
c) The spousal privileges but not the confidential marital communications privilege.
316
H is sued by P for fraud in connection with his sale of counterfeit iPhones. At trial, P calls W, H’s wife, to testify that he asked her to help him fill iPhone shells with sand. If W wants to testify, H can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
d) Neither the confidential marital communications privilege nor the spousal privileges.
317
H is sued by P for fraud in connection with his sale of counterfeit iPhones. At trial, P calls E, H’s ex-wife, to testify that while married, he told her in the presence of their teenage son that he routinely filled iPhone shells with sand. H can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
d) Neither the confidential marital communications privilege nor the spousal privileges.
318
H and W file for divorce. At trial, W seeks to testify that he asked her to help him fill iPhone shells with sand. D can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
d) Neither the confidential marital communications privilege nor the spousal privileges.
319
H is prosecuted for committing domestic violence against W. At trial, the prosecution calls W to testify that H hit her. D can preclude this testimony on the basis of:
a) Both the confidential marital communications privilege and the spousal privileges.
b) The confidential marital communications privilege but not the spousal privileges.
c) The spousal privileges but not the confidential marital communications.
d) Neither the confidential marital communications privilege nor the spousal privileges.
d) Neither the confidential marital communications privilege nor the spousal privileges.
320
Dale is prosecuted for battery. The prosecution seeks to call Dale’s wife, Willa, to testify that she saw Dale commit the battery. Willa’s counsel’s objection on privilege grounds will be
a) Sustained, because the spousal privilege applies.
b) Sustained, because the confidential marital communications privilege applies.
c) Overruled, because neither the spousal privilege nor the confidential marital communications privilege applies.
d) Overruled, because the spousal privilege does not apply in criminal cases.
a) Sustained, because the spousal privilege applies.
321
Dale is prosecuted for murder. At trial, Dale wants his wife Willa to testify that he told her that the killing was an accident. Willa has her own counsel, who objects that she cannot be compelled to give this testimony because of the confidential marital communications privilege. The objection should be:
a) Sustained, because both spouses are holders of the confidential marital communications privilege.
b) Sustained, because the testifying spouse is the holder of the confidential marital communications privilege.
c) Overruled, because an exception to the confidential marital communications privilege applies.
d) Overruled, because the spousal privilege does not apply when the party spouse calls the spouse.
c) Overruled, because an exception to the confidential marital communications privilege applies.
322
Dale is prosecuted for murder. Dale admits to his psychiatrist that he got sexual satisfaction by killing the victim, and that he was planning on doing it again soon, whether inside or outside of prison. The prosecution seeks to introduce this statement at trial through the psychiatrist’s testimony. A psychotherapist-patient privilege objection raised by Dale would be:
a) Overruled, because the testimony fits within the crime-tort exception to the privilege.
b) Overruled, because the testimony fits within an exception to the privilege.
c) Sustained, because the testimony does not fits within any exception to the privilege.
d) Sustained, because a party does not put their mental state at issue when charged with murder unless they raise an insanity defense.
b) Overruled, because the testimony fits within an exception to the privilege.
323
Dale is prosecuted for theft. At trial, the prosecution calls Dale’s ex-wife, Emily, to testify that when they were married, he told her (a) that he stole a necklace; and (b) that he asked her to “fence” the necklace for as much cash as she could get. Over objection by Dale, Willa may testify to:
a) His admission about the theft and his request to have her fence the necklace.
b) His admission about the theft but not his request to have her fence the necklace.
c) His request to have her fence the necklace but not his admission about the theft.
d) Neither his admission about the theft nor his request to have her fence the necklace.
c) His request to have her fence the necklace but not his admission about the theft.
324
Dale is prosecuted for robbery. At trial, in his case-in-chief, Dale calls his wife, Willa, to testify that Dale was home at the time the victim claims she was robbed. On cross-examination, the prosecution asks Willa to admit that Dale gave her a necklace that the victim has identified as the necklace taken in the robbery. An objection by Willa on spousal privilege grounds will be:
a) Sustained, because Willa is a current spouse and a holder of the privilege.
b) Sustained, because the privilege not to be called as a witness by the adverse party to a spouse is distinct from the privilege not to testify adversely against a spouse.
c) Overruled, because the spousal privilege was waived when Willa testified in Dale’s favor.
d) Overruled, because the party spouse is the holder of the spousal privilege.
c) Overruled, because the spousal privilege was waived when Willa testified in Dale’s favor.
325
Dale is prosecuted for a theft that occurred prior to his marriage to Willa. Willa saw Dale commit the theft and was aware that the theft charge was pending against Dale prior to marriage. The prosecution calls Willa to testify that she saw Dale commit the theft. If Willa objects on privilege grounds, the objection will be:
a) Overruled, because neither the spousal privilege nor the confidential marital communications privilege will apply.
b) Sustained, because the spousal privilege but not the confidential marital communications privilege will apply.
c) Sustained, because the confidential marital communications privilege but not the spousal privilege will apply.
d) Sustained, because both the spousal privilege and the confidential marital communications privilege will apply.
a) Overruled, because neither the spousal privilege nor the confidential marital communications privilege will apply.
326
Sol, the owner of a solar panel installation company, sues Clint, a client, for non-payment on a home installation project Sol did for him. Sol had not only supervised the work but had done a fair portion of it himself. At trial, Sol seeks to testify about what he remembers regarding the amount of work the project entailed, the materials used, and the number of hours the project took to complete. Clint’s attorney objects on the ground that this information was documented in the company records that Sol routinely kept. The objection should be
a) Sustained, because the testimony violates the best evidence rule.
b) Sustained, because original documents rather than a summary must be made available for examination.
c) Overruled, because the testimony falls within an exception to the hearsay rule for a report of regular business activity.
d) Overruled, because Sol is testifying to first-hand knowledge.
d) Overruled, because Sol is testifying to first-hand knowledge.
326
Harry and Wanda filed for divorce. At trial, one of the issues was the value of the family home they jointly owned. (Harry alleged it was worth $300,000, whereas Wanda claimed it was worth at least twice that). At trial, during Harry’s case in chief, Harry’s attorney asked him to testify to the value of the home. Wanda’s objection on improper opinion grounds will be
a) Overruled, because Harry's opinion would necessarily be based on hearsay information obtained from other sources.
b) Overruled, because lay opinion is admissible concerning the value of real property owned by the lay witness.
c) Sustained, because Harry is not an expert.
d) Sustained, because opinion testimony is not admissible on an ultimate issue.
b) Overruled, because lay opinion is admissible concerning the value of real property owned by the lay witness.
327
Alicia and Benton, both attorneys, had been dating for several months. Benton was driving Alicia home from a party that they had attended together when his car collided with a car operated by Pentel. Police who arrived at the scene of the accident moments later arrested Benton and charged him with driving while intoxicated. Alicia immediately advised the arresting officers that she was Benton's attorney, accompanied them to the police station, and arranged for Benton's bail. Benton was eventually tried and acquitted, with Alicia representing him at the trial. Several months after the trial, Pentel instituted an action against Benton for personal injuries resulting from the accident. Benton retained a different attorney to defend him in the civil action. Assume for the purpose of this question only that Alicia and Benton married after the criminal trial, but divorced before the civil trial. If Pentel's attorney asked her to state how much alcohol she had observed Benton consume at the party, Benton's objection should be
a) sustained, since Alicia's testimony would involve a confidential marital communication.
b) sustained, under the spousal privilege.
c) sustained, since a rule of policy prevents the testimony of a former spouse from being used against a party.
d) overruled.
d) overruled.
328
At the trial of a personal injury action, Dr. Watson testified that she examined the plaintiff on the day of trial, and that at that time the plaintiff told her that she felt pain in her knee. On cross-examination, the defendant's attorney asked Dr. Watson whether she had ever met the plaintiff before the day of trial. Dr. Watson responded that she had not, and that her sole purpose in examining the plaintiff was to prepare for testifying at the trial. The defendant's attorney then moved to strike that portion of Dr. Watson's testimony which referred to the plaintiff’s complaint of pain, on the grounds that it violates the privilege regarding confidential communications between patient and physician. Should the defendant's motion be granted?
a) Yes, because the examination was solely for the purpose of litigation.
b) Yes, because the probative value of the statement is outweighed by the possibility of prejudice.
c) Yes, because statements made to a physician are privileged.
d) No, because the statement described what the plaintiff was feeling at the time.
d) No, because the statement described what the plaintiff was feeling at the time.
329
Phineas was riding a ski lift when the belt that controlled the lift broke and he fell to the ground, suffering serious injuries. Phineas sued the ski lift operator, OpCo. At the request of its insurance company funding the defense of the suit, OpCo.’s supervisor for the ski lift in question prepared a report of the accident, which she submitted to OpCo.'s attorney. Phineas’ attorney learned of the existence of the report and requested a copy of the report, but OpCo. refused to produce it. Phineas’ attorney’s motion to compel production of the report is likely to be
a) granted, because it was OpCo.'s insurance company, not its own attorney, that initially requested the report.
b) granted, because the report may contain information that may lead to the discovery of admissible evidence.
c) denied, because the report is protected under the attorney-client privilege.
d) denied, because there may be an entry in the report that specifically details subsequent remedial measures.
c) denied, because the report is protected under the attorney-client privilege.
330
Valeria was stabbed with a knife during a bar fight. Derek was charged with attempted murder, but acquitted. Valeria then sued Derek civilly for battery. At the civil trial, Derek testified and claimed that he was at an ice skating rink at the time of the fight at the bar. Derek’s attorney asked the court to take judicial notice that the shortest possible route by car from the skating rink to the bar is six miles, and gave the court printouts of all the possible routes between the bowling alley and the bar as calculated using three different reputable mapping programs. The court should instruct the jury that
a) It must accept the distance as conclusive.
b) it may, but does not have to, accept the distance as conclusive.
c) it may draw its own inference about the presumed distance.
d) It cannot accept the distance given as conclusive because the issue was not brought up during the criminal trial.
a) It must accept the distance as conclusive.
331
Denny was arrested with ten ounces of cocaine and charged with possession of narcotics with intent to distribute. At trial, the prosecution called a drug enforcement agent to testify as an expert witness. She testified that an individual would not normally keep such a large quantity of cocaine for his or her personal use and, in her opinion, Denny intended to distribute the marijuana. Denny’s counsel’s objection on improper opinion grounds should be
a) Overruled, because the testimony is admissible as evidence of defendant's intent to distribute.
b) Overruled, because an expert can render an opinion on an ultimate issue in a case.
c) Sustained, because an expert cannot be qualified to testify as to another person's state of mind.
d) Sustained, because it is improper to prove intent by opinion testimony.
d) Sustained, because it is improper to prove intent by opinion testimony.
332
Harold is prosecuted for committing domestic violence against his wife, Wanda. At trial, the prosecution calls Emily, Harold’s ex-wife, to testify that when they were married he told her that he admitted to his attorney that he routinely filled iPhone shells with sand. Over a privilege objection by Harold’s attorney, the testimony is:
a) Admissible because it violates no privilege.
b) Admissible because Harold destroyed the attorney-client privilege when he disclosed it to Emily.
c) Inadmissible because it violates the confidential marital communications privilege.
d) Inadmissible because it violates the spousal privileges.
c) Inadmissible because it violates the confidential marital communications privilege.
333
Pinto was an employee of the County of Los Angeles in the State of California for twelve years, during which time he had earned recognition as employee of the year five times. However, the County terminated him when his supervisor learned that he had been convicted of domestic violence 15 years earlier. After being terminated, Pinto moved to Las Vegas, Nevada, to become a blackjack dealer. Pinto then sued the County in the federal District Court for the Central District of California under the Civil Rights Act, 42 U.S.C. 1983, alleging that he was discharged without adequate notice of reasons and without a hearing in violation of his constitutional rights to due process. At trial, on cross-examination of Pinto, the County’s attorney sought to elicit testimony about statements Pinto had made to his attorney. Pinto objected on attorney-client privilege grounds. The court’s ruling on the objection will be based on:
a) Federal common law.
b) California law.
c) Nevada law.
d) The law that the court determines has the closest nexus to the events in question.
a) Federal common law.
334
Paulina sues Jules, a jeweler, for breach of contract, based on Jules’ failure to deliver a unique necklace to her by the date specified in their written contract that she negotiated and signed with Jules. At trial, Paulina testifies on her own behalf. When Paulina’s attorney asks what she remembers about the agreement made with Jules, she is unable to remember the exact date on which they agreed the necklace was to be delivered. Paulina’s attorney shows her (and opposing counsel) the bill of sale to refresh her memory, which had not yet been offered into evidence. Paulina then says that she does remember the date on which the necklace was to be delivered. Jules’ counsel’s objection to Paulina testifying as to the date of delivery should be:
a) sustained, because it is not the best evidence.
b) sustained, because it is hearsay not within any exception.
c) overruled, because it is a past recorded recollection.
d) Overruled, because it is present recollection refreshed.
d) Overruled, because it is present recollection refreshed.
