EVIDENCE QUIZ # 2

FORTUNE

SPRING 95

Last 4 digits of Social Security #

This is a 50 minute quiz on Hearsay and Confrontation

consisting of 25 short answer and multiple choice questions. The

Federal Rules of Evidence are applicable. Closed book and rules.

Treat admissions and prior statements (FRE 801(d)) which fit the

hearsay definition as hearsay exceptions rather than as "non-

hearsay."

Write the last 4 digits of your Social Security Number in the

space above and on the back of the quiz. Watch your time!

Questions 1-4:

Question 1: State v. John for the murder of V. On the issue of

the identity of the killer, the state offers Friend to testify

that, before her death, V said, "John's going to kill me."

Admissible through the testimony of Friend as:

i) a statement of John's intent within the Hillmon doctrine;

ii) showing V's state of mind

iii)a dying declaration of V

a) all of the above

b) (i) and (ii)

c) (i) only

d) (ii) only

e) none of the above

Question 2. To prove the identity of the killer the state offers

a letter found in John's apartment, which reads in part,

"Dear John, I want to break off the relationship

immediately. I'm tired of being beaten every time you get drunk.

Find yourself another punching bag. /s/ V'~

The letter is admissible as:

i) a declaration against John's penal interest

ii) as non-hearsay evidence of V's state of mind

iii) as non-hearsay evidence to show John's state of mind

* * * *

a) all of the above

b) (ii) and (iii)

c) (ii) only

d) (iii) only

e) none of the above

Question 3. To prove the identity of the killer, the state calls

Policeman to testify that a business card bearing John's name and

business address was found pinned to the victim's blouse. Hearsay

or non-hearsay? Why or why not?

Question 4. To establish the time of the homicide the state

offers two witnesses: l) X who testifies that he saw the killing

and immediately afterward called 911 to report it; and 2) the 911

operator who would testify that the call from X reporting the

killing was received at 2:20 pm. Is this hearsay? Why or why not?

Question 5. Issue -- whether H survived W in an airplane

disaster. Rescue Worker would testify that when he arrived on the

scene W was dead and H said, " I am alive." Objection is made on

the basis of hearsay. Should the objection be sustained? Why or

why not?

Question 6. On the issue of the cause of the accident Rescue

Worker would further testify that on the way to the hospital

about an hour after the crash H, who was in great pain said, "The

plane was bucking and swaying and people were thrown around the

cabin. It seemed to straighten out before the crash for a while

but all of a sudden we went down." H died a week later from his

injuries. The best theory of admissibility for this statement is:

a) excited utterance;

b) present sense impression;

c) statement for medical treatment;

d) dying declaration.

e) non-hearsay state of mind of declarant

Questions 7-9

Question 7. P, administrator of S's estate, v Desert Land Co. for

return of the down payment made by S on desert real estate, P

offers the following exhibits:

A) An advertisement from the New York Times for Mojave

Garden Lots. The ad says, " Make a down payment to reserve

your lot and pay by installments. If you inspect your lot

within 90 days and state your dissatisfaction to us and ask

for your downpayment back, it will be returned."

B) A copy of a letter from S to Desert Land that states,"I

inspected my lot and am dissatisfied. I want my money back."

What portion(s) of (A) and (B), if any, are hearsay?

Question 8. Assume that on the facts of (7) that 5 would offer

Witness to testify he was present in the office of Desert Land

when X told S, "I'm the manager of Desert Land and I assure you

that the lot you're buying has plenty of water." Desert Land

denies that X was employed. In deciding whether X was Desert

Land's agent the judge:

a) may find agency solely on the basis of the statement

attributed to X;

b) may consider the statement attributed to X along with

other evidence in the case to decide the issue of agency;

c) may not consider X's statement in deciding the

preliminary question of agency;

d) should allow the jury to decide the issue of agency

Question 9. Desert Land would further object to the admission of

the statement attributed to X on the ground that there is no

evidence that X had personal knowledge of the lot in question. Is

this objection well-founded? Why or why not?

Questions 10-11

Question 10. Salvo and Barry were indicted for conspiracy to

traffic in cocaine. The government cut a deal with Salvo in which

he agreed to testify against Barry in return for a reduced

sentence. Salvo testified before the grand jury that Barry

supplied the cocaine. At trial, however, Salvo refused to testify

even when threatened with contempt. The government offers Salvo's

grand jury testimony. Over a hearsay objection the grand jury

transcript is admissible as:

i) prior testimony

ii) a declaration against penal interest

iii) a prior inconsistent statement

a) (i) and (ii)

b) (i) only

c) (ii) only

d) (iii) only

e) none of the above

Question ll. Assume that Salvo testifies against Barry

consistently with his grand jury testimony. The defense impeaches

Salvo by establishing that he received a sweetheart deal in

return for ratting on Barry. The government offers the grand jury

transcript to rehabilitate Salvo? Admissible for this purpose?

Why or why not?

Question 12. Assume that Salvo testifies but surprises the

prosecutor by testifying that Barry had nothing to do with the

drug sales. The prosecutor offers the grand jury transcript. The

transcript is admissible as:

i) as an inconsistent statement;

ii) as prior testimony;

iii) as a declaration against penal interest

a) (i) and (ii)

b) (i) only

c) (ii) only

d) (iii) only

e) none of the above

Question 13. Assume that State X adopts a statute with a new

hearsay exception for videotaped statements of children under 10.

Defendant is charged with sexual abuse of a 9 year old child and

the state offers the videotaped interview of the child by a

social worker. The defendant objects on Confrontation grounds. In

ruling on this objection the court should consider:

i) the demeanor of the child and the questions of the

interviewer (leading, non-leading, etc.)

ii) the physical findings of the physician who examined the

child after the alleged incident

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) not (ii)

Question 14. P v. D to quiet title to Blackacre. Adverse

possession requires that the possession be against the interests

of the record owner and "open and notorious." To prove adverse

possession of Blackacre, P would testify that he fenced Blackacre

and told all the neighbors that, "Blackacre belongs to me." P's

testimony about his statements to his neighbors is admissible as:

i) a prior consistent statement of a witness;

ii) an admission of a party;

iii) as non-hearsay

a) (i) and (iii)

b) (ii) and (iii)

c) (ii) only

d) (iii) only

e) none of the above

Questions 15-16

Question 15. P v. Insurance Company on a policy on H's(P's

husband) life. P claims H died in an accidental fall while rock

climbing in Red River Gorge. Insurance Company claims H committed

suicide. P calls W to testify that thirty minutes before H's fall

he heard Y say the following to H, "There's a guy in Frenchburg

who has a standing offer of $500 to the first person who climbs

that face without ropes." Is W's testimony to Y's statement

admissible over a hearsay objection? Why or why not?

Question 16. On the facts of (15) Ins. Co. would offer the

testimony of Z that two days before the fall H told him that he

was going to have to take bankruptcy, his marriage was falling

apart, and his teenage son had been caught with crack cocaine. Is

Z's testimony to H's statement admissible over a hearsay

objection? Why or why not?

Question 17. State v Defendant for poisoning her husband with

rat poison. Defendant claims that she bought the poison at

Hardware Store for rats in the cellar and Husband committed

suicide. Hardware Store Owner would testify that he doesn't

remember the sale but he does remember that the day before the

alleged sale Defendant's Daughter came in and said, "I saw some

rats in the basement and Momma is going to buy some poison and

kill them." Owner's testimony to Daughter's statement is

admissible:

i) to show there were rats in the basement;

ii) to show the purpose of Defendant's purchase of the

poison

b) (i) but not (ii)

c) (ii) but not (i)

d) neither (i) nor (ii)

Question 18. P v. D for injuries sustained in an auto accident in

which P was a passenger in D's car. P has claimed that the

accident was caused by defective brakes and that D was aware of

the condition of the brakes. P would testify that just before the

accident D said, "Sometimes the pedal goes all the way to the

floor when I put on the brake." P's testimony to D's statement is

admissible:

i) to show the brakes were bad;

ii) to show D's knowledge of the brakes' condition

a) both (i) and (ii)

b) (i) but not (ii)

c) (ii) but not (i)

d) neither (i) nor (ii)

Question 19. Issue of whether corn in a shed belonged to the

Tenant or the Owner under a sharecropping arrangement. Witness

would testify that he was present when Owner came to the farm

after the crop was in, and saw Tenant point to the shed and say,

"Mr. Sims, that's your corn in the shed." and Owner replied,

"Fine, John." Hearsay? Why or why not?

Question 20. P v. Insurance Company on life insurance policy on H

(P's husband). H shot himself in the barn. P claims that it was

accidental, Ins. Co. claims suicide. P would testify that just

before he went to the barn H put the coffee water on to heat.

Hearsay? why or why not?

Question 21. P v. D for injuries sustained in a head-on accident

when D passed a slow-moving farm tractor on a blind curve. D

would testify that he passed because the tractor operator waved

him around. D's testimony to the tractor operator's motion is:

a) admissible because non-assertive conduct

b) admissible as assertive conduct for its effect on D

c) admissible as a present sense impression to show that no

vehicles were coming

d) inadmissible because self-serving

Question 22. Assume that as a result of the accident in (21) that

P suffered a broken jaw and loss of three teeth. A month after

the accident P told a friend "When it happened the pain was terrible-

- worse than when I had my wisdom teeth pulled. It still bothers me -- and of course I can't eat solids with my jaw wired." Friend would testify to P's statement. To what extent, if at all, is Friend's testimony admissible under the hearsay exception for statements of physical condition?

Question 23. If the statement in (22) is otherwise admissible (at

least in part) as a statement of physical condition, the

statement should be:

a) admitted only if P is available for cross-examination

concerning the statement;

b) admitted only if P is unavailable;

c) admitted only if the statement is inconsistent with P's

testimony

d) admitted

Question 24. P's attorney interviewed Witness and prepared a

written statement which Witness read and signed. While preparing

for a discovery deposition taken by D's attorney witness did not

look at the statement Before questioning Witness D's counsel

demanded an opportunity to see any statement of Witness. P's

counsel refused. In ruling on the matter the judge should:

a) allow D's counsel to see the statement as a statement

"made or adopted" by the witness

b) allow D's counsel to see the statement as past

recollection recorded

c) not allow D's counsel to see the statement because the

matter arose at a deposition rather than trial

d) not allow D's counsel to see the statement without a

showing of need and hardship

Question 25. To obtain a loan H valued his business at $100,000

in a written statement to Bank. Six months later he valued the

business at $50,000 in a document filed in a divorce proceeding

between H and W. H then suffered a stroke and was unable to

testify at the divorce hearing. W's attorney offers the first

valuation as evidence of the value of the business and H's

attorney objects on hearsay grounds. The statement is admissible

as:

i) an admission

ii) a declaration against interest

iii) a prior inconsistent statement

a) (ii) and (iii)

b) (i) and (ii)

c) (i) and (iii)

d) (i) only

e) (ii) only