FINAL

Question 1

Prosecution of D for the murder of V. To prove she did not commit the crime, D wishes to testify that after the murder was committed, X, a member of the Jets, a violent street gang, told her the Jets had “whacked” V. D is not a member of the Jets.

Which of the following statements is most likely correct?

(A) Because D’s testimony concerning X’s statement would be highly self-serving, the court should exclude it as a waste of time.

(B) Although X’s statement is relevant to D’s innocence, it is hearsay when offered for that purpose.

(C) X’s statement is not hearsay when offered to prove D’s innocence, but it must be excluded because its probative value is substantially outweighed by the danger of unfair prejudice.

(D) X’s statement is relevant non-hearsay when offered to prove D’s innocence.

Answer 1

(B) Although X’s statement is relevant to D’s innocence, it is hearsay when offered for that purpose.

Question 2

Prosecution of D for kidnapping V, her 6-year-old niece. The prosecution alleges that D hid V in a very small container for several days. D admits V was with her for several days, but claims she was babysitting V and never hid V in a container. At trial, the prosecution calls V, who testifies that D locked him in a small “box” for “a long time.” On cross-examination, D attacks V’s credibility on grounds of mental difficulties affecting V’s ability to distinguish reality from fantasy. The prosecution now wishes to offer evidence that when the police interviewed V shortly after D’s arrest, V gave a detailed description of the container, right down to certain unique markings on its interior walls. Other evidence demonstrates that D possessed a container with that description before the events at issue.

D makes a hearsay objection to the testimony concerning V’s detailed description. Of the following, which is the prosecution’s strongest response?

(A) Because of V’s age, it is natural to expect him to lack credibility as a witness, and given the importance of the matter to D’s guilt, the need for the evidence outweighs the hearsay dangers of the evidence.

(B) The evidence is admissible as non-hearsay prior identification.

(C) The evidence is not admissible to prove what the container looked like, but to prove that V knew what the container looked like.

(D) The evidence is admissible as a prior consistent statement.

Answer 2

(C) The evidence is not admissible to prove what the container looked like, but to prove that V knew what the container looked like.

Question 3

Prosecution of D for the murder of V in a city plaza. It is undisputed that at the time of the killing, D was standing in a grassy area on the east side of the plaza, about 50 feet from V. D claims, however, that she had nothing to do with the killing. At trial, a critical issue is the direction from which the shots were fired. The prosecution claims the shots came from the grassy area, while D claims they came from a six-story building on the west side of the plaza. To prove that the shots issued from the grassy area, the prosecution calls W, and wishes to have her testify that she was in the plaza at the time of the killing, that she heard the sound of gunfire, and that moments later, she saw X, a bystander who she’d noticed had been in the plaza for several minutes, raise her arm and point toward the grassy area. D lodges a hearsay objection to W’s testimony about X’s actions.

Which of the following statements is most accurate?

(A) The judge must decide whether X was asserting the direction from which the shots were fired. If the judge decides that she was, the evidence will be hearsay but admissible as a present sense impression.

(B) The judge must decide whether there is sufficient evidence to support the conclusion that X was asserting the direction from which the shots were fired. If the judge makes that finding, she will allow the jury to hear the evidence of X’s conduct.

(C) Because the foundational elements for the excited utterance exception are clearly satisfied, the court must admit the evidence.

(D) Because X’s conduct is irrelevant if he was not asserting the place from which the shots were fired, and inadmissible hearsay if X was in fact asserting the place from which the shots were fired, the judge must exclude the evidence.

Answer 3

(B) The judge must decide whether there is sufficient evidence to support the conclusion that X was asserting the direction from which the shots were fired. If the judge makes that finding, she will allow the jury to hear the evidence of X’s conduct.

Question 4

Prosecution of D for assault and battery on V, a hitchhiker who was driven by his attacker to a remote location and brutally assaulted before being dumped in an alley. D denies that he was the attacker. At trial, the prosecution calls V to testify about the incident, and then calls PO, a police officer, to testify that while V was recuperating in the hospital the day after the attack, V told her that he expected to die and then described the inside of the van in which he was attacked, saying that the interior was upholstered with red and white striped leather, and that the walls of the van were covered with “gang-style” graffiti and photographs of a well-known political figure. It is undisputed that D owns a van meeting the description given by V. D lodges a hearsay objection to PO’s testimony concerning V’s out of court statement.

Which of the following constitutes the prosecution’s strongest argument in favor of admissibility?

(A) Although the statement is hearsay because it is offered to prove the appearance of the interior of the attacker’s van, there are sufficient indications of trustworthiness to warrant admission.

(B) Although the statement is hearsay because it is offered to prove the appearance of the interior of the attacker’s van, the statement is admissible as a present sense impression.

(C) Although the statement is hearsay because it is offered to prove the appearance of the interior of the attacker’s van, the statement is admissible as a dying declaration.

(D) The statement is not offered to prove the appearance of the interior of the attacker’s van, but to demonstrate V’s knowledge of its quite unique interior under circumstances indicating that V must have been inside the van.

Answer 4

(D) The statement is not offered to prove the appearance of the interior of the attacker’s van, but to demonstrate V’s knowledge of its quite unique interior under circumstances indicating that V must have been inside the van.

(Rule 804(2))

Question 5

Prosecution of D for assault and battery on V. V was attacked in a dimly lit alley late one night, with the perpetrator jumping V from behind. A struggle ensued, during which V got a glimpse of the perpetrator. The day after the assault, while V was recuperating in the hospital from serious head injuries, he described his attacker to PO, a police officer, as a white male between 25 and 35, medium height, with long brown hair. PO then showed V some photographs of men generally meeting the description V gave. V picked D’s photograph out of this group. At trial, V testifies generally about the crime, but is unable to provide much detail because, he claims, he remembers little. V remembers looking through some photographs, but does not remember who, if anybody, he selected. The prosecutor then calls PO and wishes to have PO testify that V chose D’s photograph. D lodges a hearsay objection to PO’s testimony insofar as it relates that V selected D’s photograph.

Which of the followings statements is most accurate?

(A) PO’s testimony concerning V’s selection of D’s photograph is admissible under the prior identification rule.

(B) Because V remembers so little about both the attack and identification procedure, admitting PO’s testimony would violate D’s right to confront the witnesses against him.

(C) Because PO did not know whether V chose the correct person when he selected D’s photograph from the book, PO’s testimony is inadmissible.

(D) Because V could not have gotten a good look at the attacker, V did not have personal knowledge. Thus, V would not have been allowed to testify about who attacked him. If V could not have testified to this fact, neither can PO.

Answer 5

(A) PO’s testimony concerning V’s selection of D’s photograph is admissible under the prior identification rule.

(Rule 803(d)(1)(C))

Question 6

Prosecution of D for importing and selling bootleg copies of the software program “Mirrors XP,” and with conspiracy to commit that act. To prove D’s guilt, the prosecution calls W, who testifies that a few weeks before the police arrested D, X, and Y for the crime, she overheard a conversation between X and Y in which X stated, “D’s bringing in a shipment of MXP on TAL flight 612, and we’ll be meeting him at O’Hare.”

Which of the following statements is correct?

(A) If the judge finds that there is evidence sufficient to support a finding both that there was a conspiracy and that X was involved in it, the evidence is admissible under the coconspirator rule.

(B) If the judge finds that there was a conspiracy and that X was involved in it, the evidence is admissible under the coconspirator rule.

(C) Because the existence of a conspiracy is a fact the jury must ultimately decide, the judge need not make any preliminary determination of that fact. However, the evidence will not be admissible unless the judge finds that X was involved in any conspiracy the jury might decide existed.

(D) X’s statement is admissible as a simple party admission under FRE 801(d)(2)(A).

Answer 6

(B) If the judge finds that there was a conspiracy and that X was involved in it, the evidence is admissible under the coconspirator rule.

Question 7

7. Personal injury action by P against D arising from an automobile collision. P claims the accident caused a permanent leg injury and that he is not able to continue to work at his job. To prove the permanent impairment, P calls W, the custodian of records of the office of Dr. X, an orthopedic specialist who examined P to determine eligibility for state disability benefits. W states that the office keeps charts on all persons examined by Dr. X. W identifies P’s chart. The chart contains Dr. X’s notation, “Prognosis: Significant permanent impairment of motion in left leg.”

Which of the following is correct?

(A) The notation is hearsay but admissible as an expert opinion.

(B) The notation is hearsay but admissible as a business record.

(C) The notation is inadmissible because of physician-patient privilege.

(D) The notation is inadmissible hearsay.

Answer 7

(B) The notation is hearsay but admissible as a business record.

(Rule 803(6))

Question 8

Product liability action by P against D, a drug manufacturer. P claims he took D’s drug for many years and suffered liver damage as a result. To prove the extent of his harm, P calls W, his physician. W identifies a document as a report she prepared in connection with an application P had made for health insurance. W testifies that the report was prepared in the ordinary course of her medical practice, that it was her usual practice to prepare such reports regarding her patients, and that she kept the report in her office. The report states that P has suffered “significant decline in liver function over the past several years.” The report was prepared before P learned that D’s drug might have caused her liver ailment. P offers the document into evidence.

Which of the following statements is most likely correct?

(A) The report is hearsay but admissible as an authorized admission.

(B) The report is hearsay but admissible as a business record.

(C) The report is hearsay but admissible as a statement made for purposes of medical diagnosis or treatment.

(D) The report is inadmissible hearsay.

Answer 8

(B) The report is hearsay but admissible as a business record.

(Rule 803(6))

Question 9

Personal injury action by P against D after an automobile accident between P’s red car and D’s blue car. P claims D ran the red light. D denies this. To prove D ran the red light, P calls W, a claims adjuster for P’s insurance company who was assigned to handle the case. P asks W if she remembers what she learned in her investigation, and W is only able to give a few details. P then asks W if she interviewed any witnesses, and W testifies that she did, but that she cannot remember anything about the interviews. P shows W a document which W identifies as a note she wrote to herself at home one evening during her investigation. She states that she wrote it as a reminder of a talk she had with a witness to the accident, and that when she wrote the note, the conversation was fresh in her memory. She found the note at home recently. The note states that a witness said D ran the red light.

Which of the following statements is correct?

(A) The note is hearsay but satisfies the recorded recollection exception. It may be read to the jury but not received as an exhibit.

(B) The note is hearsay but satisfies the recorded recollection exception. It may be admitted as an exhibit.

(C) The note is hearsay but admissible as a business record.

(D) The note is inadmissible hearsay.

Answer 9

(D) The note is inadmissible hearsay.

(Rule 803(5))

Question 10

Action by P, a hospital, against D, after D refused to pay a bill. D claims she was never treated at the hospital. To prove D was treated at the hospital, P calls W, its custodian of records, who authenticates a computerized “admissions-discharge log” from the dates of D’s alleged hospital stay. W testifies that the log is updated daily, and that the names and identification codes of all patients admitted and discharged are entered at the times of admission and discharge. The log contains entries showing D’s admission and discharge.

D objects to admission of the log. Which of the following is correct?

(A) The court most likely will admit the log.

(B) The court most likely will exclude the log because it is self-serving and therefore unreliable.

(C) The court most likely will exclude the log because it is easy to tamper with computerized records such as these.

(D) The court most likely will exclude the log unless P calls an expert to testify that the software used to create the log produces accurate results.

Answer 10

(A) The court most likely will admit the log.

(Rule 803(6))

Question 11

Prosecution of D for assault and battery on V, D’s wife. The incident occurred on the driveway of the home D and V shared. D admits that an altercation occurred, but claims he struck V in self-defense. At trial, the prosecution calls W, a 911 operator, who will testify that at the time of the incident, she received a call from X, who claimed to be a neighbor of D and V. X died before the trial. The prosecutor then asks W to relate the substance of the conversation with X.

If permitted, W will testify that X sounded “hysterical” and said, “several minutes ago, D punched V over and over again” and that D had run into the house. D objects to this testimony on hearsay and confrontation grounds. Which of the following is correct?

(A) The testimony is hearsay but qualifies as an excited utterance, and does not violate D’s confrontation right.

(B) The testimony is hearsay but qualifies as a present sense impression, and does not violate D’s confrontation right.

(C) The testimony is otherwise admissible hearsay but violates D’s confrontation right.

(D) The testimony is hearsay and does not satisfy any exception, so the court does not need to reach the confrontation issue.

Answer 11

(A) The testimony is hearsay but qualifies as an excited utterance, and does not violate D’s confrontation right.

(Rule 804(3))

Question 12

Prosecution of D for murder. At trial, the prosecution wishes to offer evidence that in testimony before the grand jury, X, who died before trial, stated that both she and D planned and carried out the murder.

D objects to admission of X’s statement. Which of the following is correct?

(A) The evidence is hearsay, and though it might satisfy the exception for declarations against interest, it is inadmissible under the Confrontation Clause.

(B) The evidence is hearsay and satisfies the exception for former testimony, but is inadmissible under the Confrontation Clause.

(C) The evidence is hearsay and satisfies the exception for declarations against interest, but is not admissible unless the prosecution presents evidence showing that the statement is trustworthy.

(D) The evidence is hearsay, satisfies the exception for declarations against interest, and is admissible under the Confrontation Clause without any additional showing.

Answer 12

(A) The evidence is hearsay, and though it might satisfy the exception for declarations against interest, it is inadmissible under the Confrontation Clause.

(Rule 803(8))

Question 13

Prosecution of D for robbing a yogurt shop. D claims that the police arrested the wrong person. To prove that he was not at the shop at the time of the robbery, D calls W, a police officer, and shows W a document that W identifies as a report she made of an interview conducted at D’s home on an unrelated matter, and notes that it records a date and time of the interview that correspond to the time of the yogurt shop robbery. W further testifies that she is required to make and file reports of all citizen interviews.

Which of the following statements is most accurate?

(A) The document may be read into the record under the doctrine of refreshing recollection.

(B) The document is hearsay but is admissible under the recorded recollection exception.

(C) The document is hearsay but is admissible as a public record.

(D) The document is inadmissible.

Answer 13

(C) The document is hearsay but is admissible as a public record.

(Rule 803(8))

Question 14

Libel action by P against D, the publisher of a newspaper. P claims that D published an article calling P a “notorious gangster,” which P claims is completely false. At trial, P wishes to testify about the allegedly libelous statements in the article.

Which of the following statements is most accurate?

(A) Though P’s testimony is not hearsay, it is inadmissible because it violates the best evidence rule.

(B) P’s testimony violates the best evidence rule and constitutes inadmissible hearsay.

(C) P’s testimony does not violate the best evidence rule but constitutes inadmissible hearsay.

(D) P’s testimony is admissible.

Answer 14

(A) Though P’s testimony is not hearsay, it is inadmissible because it violates the best evidence rule.

Question 15

Prosecution of D for bank robbery. At trial, the prosecution calls W, who testifies that an hour after the robbery, she was riding on a bus and saw D, whom she knew. If permitted, W will then testify that she walked up to D, said “That was quite a bank job you pulled off today,” and that D laughed. D makes a hearsay objection to W’s testimony concerning her out-of-court statement to D and D’s response.

Which of the following constitutes the prosecution’s strongest argument in favor of admissibility?

(A) W’s statement is hearsay but admissible as an excited utterance.

(B) W’s statement is hearsay but admissible as a present sense impression.

(C) Standing alone, W’s statement is inadmissible hearsay. However, D’s response makes both statements admissible as a declaration against interest.

(D) Standing alone, W’s statement is inadmissible hearsay. However, by his response, D adopted W’s statement, making it admissible as an adoptive admission.

Answer 15

(D) Standing alone, W’s statement is inadmissible hearsay. However, by his response, D adopted W’s statement, making it admissible as an adoptive admission.

Question 16

Prosecution of D for the murder of V. D claims he killed V in self-defense after V viciously attacked D with a knife. At trial, D calls W to testify that she is well-acquainted with V’s community reputation, and that V had a reputation as a very violent person.

Which of the following statements is most accurate?

(A) The evidence is inadmissible because it is irrelevant.

(B) The evidence constitutes inadmissible hearsay.

(C) The evidence is inadmissible because D is not permitted to offer character evidence in this situation.

(D) The evidence is admissible.

Answer 16

(D) The evidence is admissible.

Question 17

Proceeding for injunctive relief brought by the state of Muckaska against Messon Oil Co. to compel Messon to complete the cleanup of Muckaska beaches which were badly soiled when a Messon Oil tanker ran aground and spilled millions of gallons of crude into a pristine bay. To prove that Messon does not intend to resume cleanup operations after the winter season, Muckaska offers evidence that at the end of the warm season, Messon’s public relations officer held a press conference in which she stated, “Mission Accomplished! We think the entire bay is prettier and cleaner than ever!”

Which of the following constitutes Muckaska’s strongest argument for admissibility of this statement?

(A) The statement is hearsay but admissible as a declaration against interest.

(B) The statement is hearsay but admissible as an excited utterance.

(C) The statement is not hearsay because it is not offered to prove the truth of the matter asserted.

(D) The statement is admissible as an authorized admission.

Answer 17

(D) The statement is admissible as an authorized admission.

Question 18

P sues D after a freeway collision. Each claims the other caused the accident. At trial, P authenticates and offers into evidence a letter from D. In it, D states, “I know this was my fault but your car was barely scratched. I’ll give you $10,000 if you’ll drop the matter.”

Which of the following is correct?

(A) D’s letter is inadmissible hearsay.

(B) D’s letter is non-hearsay but probably inadmissible because made during the course of an effort to compromise.

(C) D’s letter is non-hearsay and probably admissible because D’s admission of responsibility is not part of an offer to compromise.

(D) D’s letter is non-hearsay and admissible because D failed to state that the statement about running into P’s car was made “arguendo” or “without prejudice.”

Answer 18

(B) D’s letter is non-hearsay but probably inadmissible because made during the course of an effort to compromise.

Question 19

P sues D for negligence following a sidewalk collision. During her case-in-chief, P calls W, who testifies that he saw D run into P from behind.

P also offers into evidence a portion of the transcript of W’s deposition, at which W made a similar statement about the accident. On the facts stated, which of the following is most likely correct?

(A) The transcript is admissible as a prior consistent statement.

(B) The transcript is hearsay but admissible under the former testimony exception.

(C) The transcript is admissible only to prove W’s opinion about what happened, not to prove what actually happened.

(D) The transcript is inadmissible.

Answer 19

(D) The transcript is inadmissible.

Question 20

Prosecution of D for a burglary that took place in Big City. D claims she was in Smalltown when the crime was committed. To prove D was in Big City at the time of the crime, the prosecution calls W to testify that the day before the crime, she was with D in Smalltown and that D said, “I’m heading back to Big City tonight.”

Which of the following is correct?

(A) D’s statement is hearsay but admissible as a party admission.

(B) D’s statement is admissible as a party admission, which is non-hearsay.

(C) D’s statement is hearsay and inadmissible as a party admission because the statement was not against D’s interest when it was made.

(D) D’s statement is hearsay but admissible as a declaration against interest.

Answer 20

(B) D’s statement is admissible as a party admission, which is non-hearsay.

Question 21

Personal injury action by P against D arising out of a skateboard accident. P alleges that the accident caused him permanent, painful impairment of his right leg. At trial, D calls Dr. W, the physician who treated P for the injuries she sustained in the accident. Dr. W proves to be antagonistic to D’s questions, so the court permits D to proceed with leading questions. D asks Dr. W whether it isn’t true that when P first consulted her, P said his right leg “isn’t hurting too badly.” P objects.

Which of the following statements is most likely true?

(A) P’s statement is not hearsay and is not subject to any privilege.

(B) P’s statement is inadmissible hearsay and is subject to the physician-patient privilege.

(C) P’s statement is not hearsay but is subject to the physician-patient privilege.

(D) P’s statement is admissible hearsay and is not subject to any privilege.

Answer 21

(A) P’s statement is not hearsay and is not subject to any privilege.

Question 22

Wrongful death action by P against D Corp. arising out of a collision between a D Corp. truck and P’s car. Several people including P’s deceased were killed in the crash. P alleges that the driver of the D Corp. truck was drunk at the time of the accident. At trial, P calls W to testify that the day after the collision, X, an officer of D Corp., called the spouse of P’s deceased and said, “I speak for the company when I tell you how sorry we are about this accident. We plan to review our procedures for enforcing our policy against alcohol consumption by truck drivers.” D Corp. makes a hearsay objection to this testimony.

Which of the following statements is most accurate?

(A) If the trial court finds that X was authorized to speak for the company, the statement is admissible as an authorized admission.

(B) Because X is not a party and no hearsay exception applies, X’s statement is inadmissible hearsay.

(C) When deciding whether to admit the statement, the court may not take the statement itself into account in determining if X had authority to speak for D Corp.

(D) If the court finds that a reasonable jury could decide that X had authority to speak for D Corp., the court should admit the statement.

Answer 22

(A) If the trial court finds that X was authorized to speak for the company, the statement is admissible as an authorized admission.

Question 23

Prosecution of D for car theft. At trial, the prosecution calls W, the custodian of records for D’s employer. W is shown a document which W identifies as D’s personnel record. That record contains the statement, “Following investigation, it has been determined that D has been stealing office supplies from our storeroom. Personnel has notified D of this finding and informed D that any further infractions will result in immediate termination.” W testifies that written personnel records are kept of each employee, and that items in each record are written by individuals with personal knowledge of the matters recorded.

Which of the following statements is most accurate?

(A) The document is admissible as a business record.

(B) The document is inadmissible because it is irrelevant.

(C) The document is hearsay and fails to satisfy the business records exception.

(D) The document satisfies the business records exception and is relevant, but is inadmissible.

Answer 23

(D) The document satisfies the business records exception and is relevant, but is inadmissible.

Question 24

D drove a car that struck and killed V as V was crossing a street. P, the administrator of V’s estate, sued D for wrongful death. At trial, P called W, who testified that he was standing on a street corner near where the accident took place and saw D run a red light and strike V in a crosswalk. The jury returned a verdict for P. Within the limitations period, the state decides to prosecute D for involuntary manslaughter. At trial, W raises a wholly improper “privacy” claim and refuses to testify even when ordered by the trial court. The prosecution therefore wishes to offer in evidence the transcript of W’s testimony in the earlier trial.

Which of the following statements is most likely correct?

(A) Because the prosecution cannot succeed without W’s testimony, the transcript is admissible.

(B) Because the transcript is admissible hearsay and its use does not violate the Confrontation Clause, the transcript is admissible.

(C) Because W is available to testify, the transcript is inadmissible.

(D) Because the civil trial came first, D’s confrontation rights would be violated if the transcript were used. Therefore, the transcript is inadmissible.

Answer 24

(B) Because the transcript is admissible hearsay and its use does not violate the Confrontation Clause, the transcript is admissible.

Question 25

Wrongful death action by P, administrator of V's estate, against D. P alleges that V was walking on a sidewalk adjacent to a construction site when he was crushed by a steel crane which fell onto the sidewalk. D admits that V was struck by the crane, but claims that at the time, V was trespassing on the construction site. (The position of V's body following the accident leaves doubt as to where he had been walking.) To prove that V was on the sidewalk outside of the construction site, P calls W to testify that as he was lying on the ground just before he died, V told W, “I've had it! You aren't safe anymore on the sidewalks of the city.” D makes a hearsay objection to this evidence. Which of the following statements is most accurate? (A) Because the statement is relevant and is not offered to prove the truth of the matter asserted, it is admissible non-hearsay. (B) The statement is hearsay and does not satisfy the dying declarations exception because it does not concern the causes or circumstances of V's impending death. (C) The statement is hearsay, but if the court finds that V believed he was about to die when he made the statement and that the statement concerns the cause or circumstances of what V believed to be his impending death, it will be admissible under the dying declarations exception. (D) The statement is hearsay, but if the court finds that there is evidence sufficient to support a finding that V believed he was about to die when he made the statement, it will be admissible under the dying declarations exception

Answer 25

(C) The statement is hearsay, but if the court finds that V believed he was about to die when he made the statement and that the statement concerns the cause or circumstances of what V believed to be his impending death, it will be admissible under the dying declarations exception.

Question 26

Prosecution of D for the murder of V in V's home. D claims she was on vacation in another state when the crime took place. To prove that D could have been in V's home at the time of the murder, the prosecution wishes to offer evidence that D was a federal inmate on work-release who worked for V as a housekeeper. Which of the following statements is most accurate? (A) The evidence is relevant, and because it goes to a central issue in the case, its probative value cannot be substantially outweighed by the danger of unfair prejudice (B) The evidence concerning D's job as a housekeeper is relevant but her status as an inmate on work-release is not. Because the probative value of that aspect of the evidence is zero, the court must not allow the jury to hear that D was an inmate on work-release. (C) The evidence is relevant, but if the court finds that the probative value of any part of the evidence is substantially outweighed by the danger of unfair prejudice, the court may exclude that part. (D) The evidence is irrelevant

Answer 26

Answer (C) is correct. The evidence is relevant because if D was a housekeeper for V, D had some connection with V that might have placed D in V's home. (In more technical language, this evidence gives rise to the inference that D had opportunity to commit the crime.) FRE 403, however, allows the court to exclude “relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice....” Prejudice here comes from the reason D had opportunity: her status as an inmate on work release. Hearing that D was an inmate might lead the jury to punish D for her prior crimes rather than for what she might have done on this occasion. Alternatively, the jury might consider the evidence of D's inmate status for the wrong reason: that one who has committed a crime is more likely to have committed the charged crime. As we will learn, this inference is forbidden by the rules of evidence. The issue is whether, in this instance, the danger of unfair prejudice is so great as to substantially outweigh the probative value of the evidence. That is a close question. A court might find that all the jury really needs to know is that D was a housekeeper, not that she held that job as part of a prison work-release program. Answer (C) states the issue that way.

Question 27

Prosecution of D for first degree murder of V. D admits shooting V but claims she acted in self-defense when V attacked her. At trial, the prosecution calls W, a forensic pathologist who conducted the autopsy on V. W testifies that she found three entry wounds on the back of V's head. The prosecution then shows W a series of photographs, which W states were taken of V's upper body and head during the autopsy. The photographs clearly show the bullet wounds to the back of V's head that W had testified about. The prosecution offers the photographs into evidence. D objects. Which of the following statements is most likely correct? (A) Because the photographs are cumulative, they are irrelevant and must be excluded. (B) Although the photographs are relevant, the fact that they merely corroborate W's testimony deprives them of all but minimal probative value, and they must be excluded. (C) Although the photographs are relevant, the court may exclude them if it finds that they are less reliable evidence of the condition of V's body than is W's oral testimony. (D) Although the photographs are relevant, the court may exclude them if it finds that their probative value is substantially outweighed by the danger that the jury will convict D for the wrong reasons.

Answer 27

Answer (D) is correct. The photographs are relevant because they make it somewhat more likely than it would be without the evidence that V was retreating when shot. The court may exclude the photographs if it finds that their probative value is substantially outweighed by the danger of unfair prejudice or other dangers mentioned in FRE 403. Among those is “needlessly presenting cumulative evidence.” The evidence here is cumulative in the sense that it corroborates oral testimony. But the court is unlikely to find them “needlessly cumulative” because they add something to the oral story: they show the jury what the witness was testimony. The jurors might also be able to judge whether the witness accurately described the condition of the head. There is also the risk of unfair prejudice if the jury might react emotionally rather than logically to the evidence, and the court should weigh this danger as well. On balance, the court is likely to admit the evidence.

Question 28

Wrongful death action by P against D arising from a horrible head-on automobile collision that killed P's deceased. To prove that D was traveling considerably above the speed limit of 25 miles per hour at the time of the crash, P wishes to offer into evidence several photographs taken at the scene. The photographs show P's mangled car, reduced to half its original size. Blood stains can be seen through the windshield. D offers to stipulate that she was traveling at least 60 miles per hour, and asks the court to exclude the photographs. P refuses to accept D's stipulation and insists on offering the photographs. How should the court rule? (A) Because the photographs would provide the jury with a greater understanding of the accident, the court should deny D's motion and allow P to offer the photographs. (B) Because D's stipulation would give P everything the photographs would have shown, the court should grant D's motion and exclude the photographs. (C) Because a party may prove its case with any otherwise admissible evidence, and may never be forced to accept a stipulation, the court should deny D's motion and allow P to offer the photographs into evidence. (D) Because trial courts generally exclude gory photographs, which tend to invite unfair prejudice by inflaming the jury's passions against the opponent, the court would exclude them even without D's offered stipulation.

Answer 28

Answer (A) is correct. In Old Chief v. US (1997), the Supreme Court adopted a very narrow exception to the general principle that a party may prove her case with any otherwise admissible evidence, and may not be forced to accept a stipulation. The exception applied where the issue on which the disputed evidence would have been offered—defendant's status as a felon within the meaning of a statute—was an issue that could not benefit from any “evidentiary richness.” D either was or was not a felon within the meaning of that statute, and D essentially offered to stipulate that he was. In this situation, D's offer to stipulate to his speed prior to the crash does tend to establish that he was going considerably in excess of the speed limit, but it does not demonstrate the catastrophic effect of his actions as well as the photographs.

Question 29

Action by P, who was struck in a crosswalk by driver D. P wishes to offer evidence that D is a wealthy person. Which of the following statements is most likely correct? (A) The evidence might be relevant if P's action is brought on an intentional tort theory and P seeks punitive damages. (B) Because a wealthy person is not likely to be concerned about the potential financial impact of a tort judgment against her, the evidence is relevant if P's action is brought on a negligence theory. (C) Regardless of the substantive theory supporting P's action, the evidence is relevant. (D) Regardless of the substantive theory supporting P's action, the evidence is irrelevant.

Answer 29

Answer (A) is correct. A person's wealth is relevant to the amount of punitive damages that should be awarded because the amount of money it takes to “punish” a person depends in part on the person's wealth. A punitive damage award of $1000 might be significant to a poor defendant, but would likely mean little to a wealthy person.

Question 30

Prosecution of D for being a felon in possession of a firearm and for assault with a deadly weapon. Prior to trial, D offers to stipulate that he is in fact a “felon” as defined in the applicable statute. In return, he asks the court to order the prosecution not to offer evidence that D's prior felony conviction was for assault with a deadly weapon. The prosecutor refuses to accept D's offered stipulation on the ground that the prosecution is entitled to offer evidence to prove each element of the crimes. Of the following, which constitutes D's strongest response? (A) The prosecution is required to accept any factual stipulation offered by a criminal defendant. (B) Because D's stipulation gives the prosecution everything it can prove legitimately, any additional evidence has no marginal effect on the probability of D's guilt and poses a substantial risk of unfair prejudice. (C) D's stipulation renders any evidence of his felon status irrelevant. (D) D has a due process right to limit the amount of prejudicial evidence offered by the prosecution.

Answer 30

Answer (B) is correct. The facts of this hypothetical closely track those of Old Chief v. US (1997). The only value of D's status is to show that D qualifies as a “felon” under the statute. There is no “story-telling” value to more information (such as the nature of the prior conviction) because that information does not help the jury understand what happened in the present case. Under these very limited circumstances, the general rule that a party may use any otherwise admissible evidence to prove its case does not apply. Thus, the court may require the prosecution to accept the stipulation D has offered.

Question 31

Assume that in a certain trial, a party wishes to present evidence that the opponent claims constitute inadmissible character evidence. The proponent's response is that the evidence is not of a character “trait,” so is not character evidence. Assuming it concerns the evidence at issue, which of the following is a court least likely to treat as testimony that relates to a “trait” of character? (A) X is a careless driver. (B) X has epilepsy. (C) X is frugal. (D) X is an alcoholic.

Answer 31

Answer (B) is correct. “Character” is something internal to a person that tells us something about the person's morality. Having a disease does not speak to a person's morality.

Question 32

Prosecution of D for molestation of V, a child. D claims she was not the one who committed the crime. To prove that D molested V, the prosecution offers evidence that several years earlier, D molested another child. D objects. Which of the following statements is correct? (A) The evidence is inadmissible character evidence. (B) The evidence is admissible unless the court finds that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. (C) The evidence is admissible to prove modus operandi to molest children, and thus prove D's identity as the perpetrator. (D) The evidence is admissible regardless of the balance of probative value and unfair prejudice

Answer 32

Answer (B) is correct. Until the Federal Rules were amended in the mid-1990s, there was no exception to the ban on character evidence that would allow the court to admit evidence of a defendant's character to prove action in accordance with that character in sexual assault or child molestation cases. The enactment of FRE 413–415 changed that situation by adding exceptions for these types of cases, both civil and criminal. In this hypothetical, the prosecution wishes to offer evidence that the defendant committed another act of child molestation. The purpose of the evidence is to prove, circumstantially, that the defendant committed the charged crime. FRE 414(a) specifically makes this evidence admissible “on any matter to which it is relevant.” Thus, the prosecution may ask the jury to infer from D's prior act of child molestation that D is the kind of person who would commit such crimes, and that D therefore committed the charged crime. That is also why answer (A) is incorrect.

Question 33

Civil action by P against D for battery during a professional basketball game. D had been cheering for the visiting team when P asked her to “cut it out.” P claims D then punched P. D claims she never touched P. To prove her defense, D calls W to testify that she was with D at another game when D cheered for the visiting team, that a home team fan asked D to stop, and that D just shrugged it off. P objects. Which of the following statements is correct? (A) The evidence is admissible character evidence. (B) The evidence is admissible habit evidence. (C) The evidence is inadmissible because it is offered in the form of specific instances of conduct rather than reputation or opinion. (D) The evidence is inadmissible because D may not use character evidence to support her defense in this situation.

Answer 33

Answer (D) is correct. Character evidence (Rule 404(a)(2)) is not admissible here because this is a civil action, and none of the exceptions in FRE 404(a) apply. (FRE 415 applies to civil cases, but only ones dealing with sexual assault and child molestation.) Thus, answer (A) is also incorrect.

Question 34

Libel action by P against D after D, the owner of a newspaper, published an article accusing P of committing a string of burglaries in the city. D claims the story was true. To prove P committed the burglaries, D offers evidence that P had been convicted of several burglaries in another city within the past few years. P objects. Which of the following statements is correct? (A) The evidence is admissible because character is in issue. (B) The evidence is admissible because it tends to show D's good faith. (C) The evidence is inadmissible because it is offered in the form of specific instances of conduct rather than reputation or opinion. (D) The evidence is inadmissible because D may not use character evidence to support her defense in this situation.

Answer 34

Answer (D) is correct. In this example, D is trying to show that P committed the burglaries mentioned in the newspaper article by showing that P committed other burglaries. The inference from the older burglaries is being used to show that P has the character of a burglar, and that P committed the burglaries mentioned in the article. That use is forbidden by FRE 404(a). Thus, the evidence is inadmissible.

Question 35

Prosecution of D for the murder of V while both were watching their sons compete in a high school football game. To prove self-defense, D offers the testimony of W that D is a peaceful person. The prosecution does not object. On cross-examination, the prosecutor asks W, “Did you know that D was involved in a barroom brawl just last year?” D objects. How should the court rule? (A) The court should overrule the objection. (B) The court should sustain the objection because specific instances of conduct may not be used in this situation. (C) The court should sustain the objection because the question is impermissibly leading. (D) The court should sustain the objection because the circumstances of the barroom brawl were different than the brawl that led to V's death.

Answer 35

Answer (A) is correct. FRE 405(a) allows a party cross-examining a character witness to refer to specific instances of conduct. The main purpose is to impeach the character witness by demonstrating that she lacks adequate information on which to base her testimony on direct examination. Here, if W was unaware of D's involvement in a barroom brawl, W's opinion about D's peacefulness would carry less value with the fact-finder.

Question 36

Prosecution of D for assault and battery on V. D calls W, who testifies that she has lived in the same community as D for more than twenty years, and that D has a reputation as a peaceful person. The prosecution wishes to ask W whether she heard that D had once started a fight in a yogurt store. The prosecutor admits that although stories about D's involvement in the fight were all over town, it was actually someone else who was involved. D objects. How should the court rule? (A) The court should sustain the objection because D was not involved. (B) The court should sustain the objection because the question should have been framed as “did you know?” rather than “have you heard?” (C) The court should sustain the objection because the question concerns a specific instance of conduct. (D) The court should overrule the objection unless the court determines that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Answer 36

Answer (A) is correct. In Michelson v. US (1948), the Supreme Court approved limits the common law had placed on a character evidence offered by a criminal defendant and on the rebuttal the prosecution is allowed to make. One rule provided that if the prosecutor seeks to cross-examine a character witness by inquiring about whether the witness has heard about an event inconsistent with the witness's character testimony, the prosecutor must show the court that it has a good faith belief that the event actually occurred. The Court noted that this is somewhat illogical because what should matter is that stories were circulating, even if untrue. (The witness's ignorance of those stories would show that her reputation testimony is questionable.) Nevertheless, to keep the inquiry within reasonable bounds and protect the defendant from unfair prejudice, the Court approved the requirement that the prosecutor show a good faith belief that the event occurred.

Question 37

Prosecution of D for the murder of V in a pet shop. D admits killing V with a sharp stick, but claims she did so accidentally when she was trying to part two fighting puppies. During its case-in-chief, the prosecution calls W to testify that shortly before V's killing, D and V had been partners in a criminal fraud that had netted the pair more than $2 million. Which of the following statements is correct? (A) W's testimony is inadmissible character evidence. (B) W's testimony is inadmissible because of lack of similarity between the charged and the uncharged act. (C) W's testimony is inadmissible because of the nature of D's defense. (D) W's testimony is admissible.

Answer 37

Answer (D) is correct. Although the evidence reveals another crime, it is relevant for a non-character purpose: to show that D had a motive to kill V (to be able to keep all the loot netted in the fraud). Motive, in turn, tends to show that the killing was not an accident. The probative value of the evidence is high for that purpose, and the risk of unfair prejudice caused by the jury's misuse of the evidence almost certainly does not substantially outweigh the probative value.

Question 38

Prosecution of D for robbing a pet shop of cash, hamsters, and kittens. The robbery was committed by a masked bandit who threatened to fling a bag of monkey excrement at a clerk if the clerk did not turn over all the cash, hamsters, and kittens. D denies involvement. To prove D's involvement, the prosecution wishes to present evidence that a year earlier, D committed a pet shop holdup in a very similar way, except that she demanded only hamsters and money, not kittens. D was never charged in connection with the earlier holdup. Which of the following is correct? (A) This evidence is inadmissible because D was never charged in the prior incident. (B) This evidence is inadmissible to prove identity because the incidents are not sufficiently similar. (C) This evidence is admissible to prove identity if the court finds by a preponderance of the evidence that D committed the earlier robbery. (D) This evidence is admissible to prove identity if the court finds that there is evidence sufficient to support a finding that D committed the earlier robbery.

Answer 38

Answer (D) is correct. The admissibility of this evidence is governed by FRE 404(b) because it concerns conduct of D other than that charged in the case. It will not be admissible to prove D's character and action in accordance with character, but it might be admissible if it is relevant on another basis. Here, that basis might be to show identity by means of modus operandi. It would be reasonable for a court to conclude that this was a very distinctive type of robbery, almost a “signature” of the person. Thus, the evidence is not being used to prove character, but just identity by means of “doctrine of chances” reasoning: the same person committed both crimes. There is no requirement that D have been found to have committed the other crime. All that is needed is evidence sufficient to support a finding that she did; FRE 104(b) applies.

Question 39

Prosecution of D, a trustee, for embezzling funds from the trust. D admits that the trust was depleted, but claims someone else was stealing the funds. To rebut D's defense, the prosecution wishes to present evidence that after the charged act, D embezzled more funds from the same trust. D objects. How should the court rule? (A) The court should overrule the objection because the evidence is admissible to prove a plan, and thus D's identity as the perpetrator. (B) The court should overrule the objection because the evidence is admissible to impeach D by contradiction. (C) The court should sustain the objection because the uncharged act took place after the charged event. (D) The court should sustain the objection because this is inadmissible character evidence.

Answer 39

Answer (A) is correct. FRE 404 only forbids the use of other crimes, wrongs, or acts when their relevance depends on an inference of the actor's character. Here, the evidence appears to be relevant to D's identity as the embezzler by means other than character. The theory is plan. A person who has a plan to act in a certain way is more likely to act in that way than is a person chosen randomly. In theory, this is not character-based propensity reasoning. Here, the existence of the plan may be inferred from D's subsequent embezzlement from the same trust. This explains why answer (D) is incorrect.

Question 40

Prosecution of D for robbing a store. The robber entered before closing, put on a salesperson's uniform, and pretended to work there. After the store closed and everyone else left, the robber shed the uniform and stole all the DVD players. D denies involvement. To prove D’s [involvement, the prosecution seeks to introduce evidence that D used] the same method. D denies committing the prior robbery, and objects. How should the court rule? (A) The court should sustain the objection unless D was charged criminally for that robbery. (B) The court should sustain the objection unless the prosecution convinces the court by a preponderance of the evidence that D committed the prior robbery. (C) The court should sustain the objection unless the prosecution offers evidence sufficient to support a finding that D committed the prior robbery. (D) The court should sustain the objection even if D admits committing the prior robbery.

Answer 40

Answer (C) is correct. The evidence in this case is potentially admissible under FRE 404(b), which would allow a modus operandi theory to show identity—that D is the person who committed the charged crime. The theory is that the method D used in the uncharged prior robbery was so distinctive as to mark the robbery as his, and that the later robbery, committed in the same distinctive way, bore that mark. The evidence does not offend the character ban of FRE 404(a) because the courts hold that the modus operandi theory does not depend on an inference of the person's character. Though the modus operandi theory potentially applies, the Supreme Court held in Huddleston v. US (1988), that when there is a dispute about the person's commission of the uncharged act, the standard of FRE 104(b) applies. That means the court may admit the evidence if it finds that there is evidence sufficient to support a finding that the person committed the uncharged act. Answer (C) tracks the law as just discussed.

Question 41

Prosecution of D, a home care nurse, for the murder of V by poison. D testifies, denying involvement. D also calls two character witnesses to vouch for her non-violent character. The prosecution establishes that D makes a living caring for patients placed in his home, and that D cares for only one or two patients at a time. The prosecution calls several witnesses to testify that on three prior occasions, home care patients in D's care died of poisoning. D objects. How should the court rule? (A) The court should overrule D's objection because this evidence is admissible to rebut the evidence offered by D's character witnesses. (B) The court should overrule D's objection because this evidence is admissible to prove D's guilt by means of the “doctrine of chances.” (C) The court should overrule D's objection because this evidence is admissible to impeach D. (D) The court should sustain D's objection unless the prosecution proves D's guilt of each of the three prior offenses.

Answer 41

Answer (B) is correct. The theory here is that the evidence, though relevant on an impermissible character-propensity basis, is also relevant on a non-character basis supplied by the doctrine of chances. To state that theory in a common-sense way: What is the probability that four home care patients would die of poisoning while in D's care and without D's involvement? One would think the odds would be overwhelmingly against such an event happening four times. Though one patient might die of poisoning without D's involvement, four seems beyond the realm of coincidence. (The point is not that this couldn't happen. It is that such a chain of events is extremely unlikely to happen without wrongdoing on D's part.)

Question 42

Prosecution of D for the rape of V. D and V met at a gym. D claims V consented to the sexual conduct. To prove consent, D calls W to testify that on several occasions in the past year, V went to the same gym, met a stranger, and had sex at the stranger's house. Which of the following statements concerning W's testimony about V's encounters with these several different men is most likely correct? (A) The testimony is admissible to prove a pattern, and thus consent. (B) The testimony is admissible to prove a habit, and thus consent. (C) The testimony is admissible to prove V's character with respect to sexual relationships with strangers, and thus consent. (D) The testimony is inadmissible.

Answer 42

Answer (D) is correct. “Rape-shield” statutes such as those contained in FRE 412 are designed to exclude evidence concerning an alleged rape victim's prior sexual behavior or reputation. FRE 412 contains several exceptions, but none apply here on the facts given. (Defendant's best chance is to argue that exclusion violates his 6th Amendment right to present a defense, but the facts do not show why that is true here and not in many other rape prosecutions in which defendant claims consent.)

Question 43

Personal injury action by P against D arising from an automobile collision. P alleges that D wasn't paying attention and allowed the car to drift across the center line, striking P's car. D denies losing attention, and claims it was P's car that drifted across the center line. To prove she was paying attention, D calls W, a long-time friend who often rides with D to work, to testify that in her opinion, D is a careful driver who always pays attention. P objects. How should the court rule? (A) The court should overrule the objection because this is admissible habit evidence. (B) The court should overrule the objection because by testifying that she did not lose attention, D has placed her character in issue. (C) The court should overrule the objection because this is admissible evidence of D's good character for careful driving. (D) The court should sustain the objection.

Answer 43

Answer (D) is correct. This is not a situation in which character is in issue because neither P's claim nor D's defense requires proof of D's character for care. Thus, answer (B) is incorrect. Evidence of character is also not admissible here as circumstantial evidence of D's conduct because the case does not fit within any of the exceptions in FRE 404(a). Thus, answer (C) is incorrect. If the evidence is to be admitted, it must be on the basis that the evidence is being used to show a habit, not character. That argument will fail, however. Habit under FRE 406 is a specific response to a specific stimulus. It is not a general tendency. That D tends to be “a careful driver who always pays attention” is not a specific response to a specific stimulus; it is far too general to be evidence of habit. Rather, it is evidence of D's character for care as a driver. Thus, answer (A) is incorrect.

Question 44

Prosecution of D for the murder of V. The prosecution alleges that D and V, two strangers, had a quarrel in a bar, that D left the bar momentarily, retrieved a shotgun from her car, returned to the bar, and shot V to death. D admits having an argument with V, but claims she never returned. That twice in the past five years, D has physically attacked strangers with whom she has had serious arguments. D does not deny that these prior events occurred, but objects to admission of the evidence. How should the court rule? (A) The court should overrule the objection because this is admissible habit evidence. (B) The court should overrule the objection because this evidence is admissible to show a pattern of conduct or a common scheme or plan, and from that, D's intent. (C) The court should overrule the objection because this evidence is admissible to show a pattern of conduct, or a common scheme or plan, and from that, to prove D shot V. (D) The court should sustain the objection.

Answer 44

Answer (D) is correct. The issue here is identity—whether D is the person who shot V. Thus, answer (B) is incorrect, as the evidence will not be admissible to prove the perpetrator's intent. The evidence does not show conduct specific enough, nor are there enough incidents, to prove the existence of a habit. Answer (A) is incorrect for this reason.

Question 45

20. Negligence action by P against D, a supermarket owner, following P's slip and fall in the produce section. P claims D allowed slippery matter to collect on the floor, leading to his fall. P fell nearly an hour after D's employees last cleaned the floor. W, D's manager, testifies that she was not aware of anything slippery on the produce section floor at the time of P's fall. In rebuttal, P wishes to offer evidence that shortly after P's accident, D started requiring its employees to clean the produce section floor every thirty minutes instead of once an hour. D objects. Which of the following statements is correct? (A) The evidence is admissible to prove that until D changed the policy, D did not have the floor cleaned often enough. (B) The evidence is admissible to prove that the floor was slippery at the time of the accident. (C) The evidence is admissible to impeach W by contradiction and to prove the feasibility of more frequent cleaning. (D) The evidence is inadmissible.

Answer 45

Answer (D) is correct. In the previous problem, the evidence had a clear and strong tendency to impeach the witness by contradiction. That is not the situation here. The evidence, in fact, does not contradict W's testimony, nor is it inconsistent with it in any meaningful way. The only way in which the evidence is relevant is as an implied recognition of responsibility, and for that purpose it is inadmissible. Answers (A) and (B) are incorrect because they both involve the type of inference FRE 407 forbids. Answer (C) is incorrect for the reason just stated.

Question 46

Negligence action by P against D City following an accident in which P's car was badly damaged when it hit a huge pothole in the middle of the small street on which P was driving. D City claims that the street on which the accident took place was a small private lane over which it had no authority. At trial, P wishes to call W to testify that a day after the accident, a D City road crew repaired the street, covering the pothole. Which of the following statements is most accurate? (A) The evidence is relevant but inadmissible for reasons of policy. (B) The evidence is irrelevant and therefore inadmissible. (C) The evidence is relevant and admissible as an act of independent legal significance. (D) The evidence is relevant and admissible to demonstrate that D City had control over the street.

Answer 46

Answer (D) is correct. Evidence of subsequent remedial measures may be admitted if offered to prove the actor's ownership of or control over the instrumentality of the accident, where the actor denies ownership or control. Here, D has asserted that the road was private and that it had no authority to repair it. Evidence that a city road crew did in fact repair the pothole after the accident tends to show that the city did in fact have such authority. Answers (A) and (B) are incorrect for the reasons just discussed. Answer (C) is incorrect because the act is only evidence of ownership or control; it does not have “independent legal significance.”

Question 47

Prosecution of D for murder. Previously, D had pleaded guilty, but the court permitted her to withdraw her plea and enter a plea of not guilty. At trial, the prosecution wishes to offer evidence of D's earlier guilty plea. D objects. How should the court rule? (A) The court should sustain the objection. (B) The court should overrule the objection but allow the evidence only to impeach D's credibility if she testifies that she did not commit the crime. (C) The court should overrule the objection but allow the evidence only to prove D's guilt. (D) The court should overrule the objection and allow the evidence for any relevant purpose.

Answer 47

Answer (A) is correct. The prior guilty plea is relevant because it tends to show that at one time at least, D believed herself to be guilty of the crime charged. However, FRE 410 excludes guilty pleas that have been withdrawn. Evidence of the plea is not admissible to prove guilt or to impeach the pleader's credibility. Answers (B), (C), and (D) are incorrect for the reasons given above.

Question 48

Negligence action by P against D after the two surfers collided while trying to catch the same wave. P was injured and his board was broken in half. D denies negligence. To prove D's fault, P wishes to testify that a week after the collision, D gave P a new surfboard. D objects. Which of the following statements is correct? (A) Evidence of D's conduct is inadmissible because it is irrelevant. (B) Evidence of D's conduct is inadmissible because of the compromise rule. (C) Evidence of D's conduct is inadmissible under FRE 409. (D) Evidence of D's conduct is admissible.

Answer 48

Answer (D) is correct. What D did for P was nice, and the law likes to encourage nice gestures, but no rule would exclude this evidence. It was not an offer to pay hospital, medical, or related expenses. It was not an offer to compromise a disputed claim. And of course, the evidence is relevant because a person who replaces the property of another that was destroyed in an accident involving the two people is more likely responsible for the injury than is one who does not act in that way. Answers (A), (B), and (C) are incorrect for these reasons.

Question 49

Prosecution of D for murder. D calls W, who claims she and D were home all night the evening the murder took place across town. On cross-examination, the prosecutor asks W if it isn't true that she (W) was convicted of murder five years earlier. D objects. Which of the following statements is most accurate? (A) The court must sustain the objection. (B) The court must overrule the objection. (C) The court must sustain the objection unless it finds that the probative value of the evidence on the issue of W's credibility outweighs the danger of unfair prejudice. (D) The court must overrule the objection unless it finds that the probative value of the evidence on the issue of W's credibility is substantially outweighed by the dangers enumerated in FRE 403.

Answer 49

Answer (D) is correct. The prosecution is attempting to impeach W with a prior conviction. The conviction is not one for a crime involving dishonesty or false statement, so it is not automatically admissible. Thus, answer (B) is incorrect. Because murder is a crime “punishable by death or by imprisonment for more than one year,” the court has discretion to admit the evidence. Thus, answer (A) is incorrect. Because the witness is a witness other than the accused, the evidence “must be admitted, subject to Rule 403.” That means the evidence is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. This is the test stated in answer (D). Answer (C) is incorrect because it states the standard that would apply if the witness being impeached were the accused.

Question 50

Prosecution of D for the murder of V. D admits killing V, but claims that she acted in self-defense when V attacked her. To prove that V attacked D, D wishes to offer evidence that V had a community reputation as a violent person. D was unaware of this fact at the time she killed V. Which of the following statements is most accurate? (A) Because D was unaware of the story about V at the time she killed V, the evidence is irrelevant. (B) Even though D was unaware of the story about V at the time she killed V, the evidence is relevant and admissible to show that V was the first aggressor in the fight. (C) The evidence is relevant but is an improper attempt to impeach V. (D) The evidence is relevant but is an improper attempt to use character evidence to prove V's out of court conduct.

Answer 50

Answer (B) is correct. The evidence of V's violent character is relevant because it makes it more likely that V did in fact attack D first, causing D to respond in self-defense. The idea is that a person with a reputation for violence is more likely to have an actual character for violence than is one without such reputation. From that, one may infer that the person is more likely to start a fight than is one who is not violent. On the facts of this case, this evidence is relevant even though D was unaware of V's reputation for violence, because the evidence is being offered to show V's behavior, not D's. (Note would not be relevant unless D had heard about it.)