Last 4 digits of SS #

EVIDENCE QUIZ

FORTUNE

April 9, 1996

This.is a 50 minute quiz consisting of 25 multiple choice and

short answer questions. The Federal Rules of Evidence are

applicable. Closed book and closed rules. Answer the short answer

questions briefly in the space provided. Some of the multiple

choice responses are in the form (for example): a) sustained; b)

sustained because H is a party. Choose the specific response if

your reason for sustaining is the reason in the response.

Otherwise choose the general response.

Write the last four digits of your SS # in the space provided

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

l) P vs. D to quiet title to Blackacre based on adverse

possession. Adverse possession requires that the possession be

against the interests of the record owner and "open and

notorious." P would testify in his own behalf that he fenced

Blackacre and then told D, "I've put a fence around Blackacre and

there's nothing you can do about it." P's testimony is

admissible:

i) as a prior consistent statement

ii) as an admission of a party

iii) as non-hearsay -- verbal part of an act

a) (i) and (ii) only

b) (ii) and (iii) only

c) (iii) only

d) all of the above

e) none of the above

2) Estate of P vs. D to recover a diamond ring in D's

possession. D claims that P gave it to her three weeks prior to

death. Estate of P offers W to testify that two weeks prior to

death P said, "I'm going to leave you (W) my diamond ring."

Admissible over a hearsay objection? Why or why not?

3) On the facts of #2 W would further testify that P said two

weeks prior to death, "Watch out for D. She's sneaky and I don't

trust her." Admissible over a hearsay objection? Why or why not?

4) On the facts of # 2 D offers X to testify that one week prior

to death P said, "I gave D my diamond ring." Admissible over a

hearsay objection? Why or why not?

5) Davis is charged with shooting his wife Veronica. Davis claims

that she committed suicide. (The defense theory is clearly set

out in opening statement). The state offers Wanda to testify

that, the day before the shooting, Veronica called her on the

phone and said, "My husband found out about Ted and is going to

kill me." Which is the best theory of admissibility?

a) non-hearsay evidence of state of mind inconsistent with

suicide;

b) statement of D's intent to commit future act within the

Hillmon doctrine;

c) declaration against V's interest;

d) dying declaration

6) On the facts of #5, the state calls Larry to testify that two

weeks before V's death he was present when Sam told D, "Ted's

been seeing your wife." Larry's testimony is admissible:

~a) to prove that Ted was seeing D's wife

b) for its effect on D

c) as an adoptive admission of D

d) only if Sam is unavailable

7) On the facts of #5, two days after V's death, Larry gave an

oral statement to Officer recounting a conversation with D the

day before V's death in which D allegedly said, "I'm going to

shoot V." When the state called Larry to testify, to everyone's

surprise, he denied any such conversation with D and denied

telling Officer that D made the statement. The state proposes to

call Officer to testify to what Larry told him. Officer's

testimony is:

a) inadmissible because the state cannot impeach its own

witness

b) admissible to prove D threatened to kill his wife

c) admissible to impeach Larry but not to prove that D made

the threat

d) inadmissible because Larry denied making the statement to

Officer

8) P v. Grocery Store for injuries sustained when P slipped on

syrup spilled in the aisle. P alleges that the condition was

dangerous and that Store knew or should have known of the

condition. Store denies all allegation and claims that P was

contributorily negligent. P offers W to testify she was waiting

at the manager's counter about an hour before P fell when someone

came up and told the manager, "There's syrup on the floor in

Aisle One." This is admissible:

i) to show that there was syrup on the floor

ii) to give Store notice of the condition

a) both (i) and (ii)

b) (i) but not (ii)

c) (ii) but not (i)

d) neither (i) nor (ii)

9) On the facts of # 8, W would further testify that, in response

to the report of the lettuce, the manager immediately told a

stock person, "There's syrup on the floor in Aisle 1. Get over

there and clean it up." Is this admissible over a hearsay

objection to show there was syrup on the floor? Why or why not?

10) After the fall referred to in # 8, Z, an employee of the

store, made the following statement,

"That syrup was on the floor all day."

Which of the following would defeat the admission of the

statement on P's behalf?

i) D did not authorize Z to make the statement

ii) Z did not have personal knowledge that the syrup was on

the floor all day

iii) Z's duties did not include the condition of the floor

a) (i) and (iii)

b) (ii) and (iii)

c) (i) only

d) (ii) only

e) (iii) only

11) On the facts of # 8, P would testify that immediately after

she fell someone said, "My God lady, are you okay? That syrup has

been on the floor all day!" This is admissible to show the syrup

had been on the floor for a period of time as

i) a present sense impression

ii) an excited utterance

iii) non-hearsay -- state of mind of hearer

a) (ii) and (iii)

c) (i) and (iii)

d) (i) only

e) (ii) only

12) (From a Colombo movie) To prove that the defendant knew a

bomb had been placed under a car, the state offers a video tape

(taken by a police officer at the scene) that shows the defendant

flinching just before the chauffeur opened the car door (which

detonated the bomb). Hearsay? Why or why not?

13) State v. D for embezzlement from the petty cash fund. W

testifies for the state to shortages which W attributes to D.

Both the state and D wish to question W about the following

statement she made to D soon after the shortages were discovered,

"I may take a few pens home and make a few personal calls but I

sure wouldn't steal money like you did." D did not respond to

this statement. When offered by the state, W's statement and D's

silence is:

i) a prior consistent statement

ii) an adoptive admission by D

iii) a declaration against W's interest

* * * *

a) (i) and (ii)

b) (i) and (iii)

~c) (ii) and (iii)

d) (ii) only

e) (iii) only

14) P v. D driver for injuries sustained in an alleged hit and

run car/pedestrian accident. W witnessed the accident and

immediately wrote the license number of the car down on a piece

of paper and gave it to Officer, who wrote in his police report

the name of the witness and under that,

"Late model Mercedes Benz KY license ABC-123 ran red light

at high rate of speed, struck pedestrian in cross walk and

sped off without stopping."

The piece of paper with the license plate number was attached to

the report. P calls Officer who would testify that the report was

made in the ordinary course of business at a time when the

interview with fresh in his mind, and offers the report as a

business record. The court should sustain the defense objection

because:

a) no showing has been made that the officer has had a

failure of memory

b) a police report cannot qualify as a business record or

official record in a civil case

c) the officer is not the custodian of records

d) the report contains inadmissible hearsay

15) On the facts of # 14, assume that W is called as a witness

for the plaintiff. W can recall the accident but has no present

memory of the license plate number. What is the foundation for

the receipt of the paper with the license plate number as past

recollection recorded?

16) Issue -- whether P was able to lift her leg after the

accident. Officer would testify that he asked P to lift her leg

and she did. Hearsay? Why or why not?

17) State v. D for possession of drugs found in a desk drawer in

a house occupied by D and X. D claims the drugs belonged to X. To

support this claim D offers a desk calendar found in the same

drawer; the calendar includes a number of entries in the

handwriting of X. A typical entry is,

"April 15 -- meet Jill for lunch. Tennis with Jim. Work on

taxes."

Admissible over a hearsay objection? Why or why not?

18) State v. D for robbing V. D denies the event. D was caught

within 30 minutes of the robbery and the police hastily took V to

the place where D was being held. V identified D as the person

who had robbed him. By the time of trial V's memory of the event

is impaired by post-traumatic stress. D would, however, testify

to having identified D as the robber. Admissible over a hearsay

and Confrontation objection? Why or why not?

19) On the facts of # 18, assume that V makes a courtroom

identification of D and defense counsel cross-examines V to show

that he previously identified D in a suggestive situation (D was

in the custody of two uniformed officers). The state calls

Officer to testify to V's description of the robber -- which fits

D very well. The description:

i) is inadmissible unless under oath when made

ii) is admissible to rehabilitate the witness but not

admissible substantively

iii) is admissible if made before the suggestive showup but

not admissible if made afterward

a) all are correct

b) (ii) and (iii) are correct

c) (i) and (iii) are correct

d) (ii) only

e) (iii) only

20) 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)

Questions 21-25: On February 5, the house of Sam Durbin burned to

the ground. It was insured through the Last Chance Insurance

Company for $100,000. Based on the Metro City fire department

report Last Chance suspected arson and denied the claim filed by

Durbin. On March 5 Durbin filed a civil suit against Last Chance

on the policy. Last Chance admitted in its answer that the

property was insured and that loss occurred, but affirmatively

alleged that the fire was the result of arson and that Durbin had

conspired to burn the house with persons unknown.

On April 5 Mike Martin was arrested on other charges. He was

questioned by the state police and admitted starting the fire for

$5000 which he said he received from John Wilson, Durbin's

brother-in-law. He was given immunity from prosecution in return

for his promise to testify truthfully against Wilson and Durbin.

Wilson and Durbin were indicted for conspiring to commit and

committing arson.

21) The criminal charge against Durbin and Wilson was tried

first. If permitted Martin would testify for the prosecution that

"sometime in late January Wilson came over to my house and said

that Sam Durbin -- that's his brother in law -- would pay $5000

to get his house burned down. I said okay and two days later I

met Wilson again; he gave me $2500 and told me when Durbin would

be out of town. I used a key Wilson gave me and went over there

on February 5. I poured gasoline all over the basement and made a

fuse out of a sheet and lit it and ran. She almost exploded she

burned so fast. Next day I met Wilson at the diner and he gave me

the other $2500." Durbin's counsel objects to the italicized

portion of Martin's testimony. Admissible over a hearsay

objection? Why or why not?

22) The prosecutor attempts to introduce the tape-recorded

confession of Wilson taken by Officer Brown after Wilson was

arrested. The confession says in pertinent part, "Durbin asked me

to find someone to torch his house. I found a torch man named

Mike Morgan who did the job for $5000. Durbin supplied the money

and gave me $1000 for my trouble." Assuming that Wilson does not

testify, to what extent, if at all, is Wilson's confession

admissible against Durbin, over hearsay and constitutional

objections in a joint trial?

23) The prosecutor calls Neighbor Jones to testify she was

present at the Durbin home in late January when Banker Brown came

to call and that Brown said to Durbin, "Sam, you're my friend and

all but my boss says that you're six months behind now and if you

don't make the next payment we're going to have to foreclose on

this place." Durbin's counsel objects on hearsay grounds.

Neighbor's testimony is:

a) admissible as non-hearsay relevant to the state of mind

of the hearer

b) admissible as non-hearsay relevant to the state of mind

of the declarant

c) admissible within the Hillmon doctrine to prove the

occurrence of a future event

d) admissible to prove that Durbin was six months behind

24) Assume that Durbin and Wilson are acquitted of criminal

charges and that Durbin's civil suit against Last Chance proceeds

accordingly. By the time of trial Martin is dead and Last Chance

asks to have his testimony from the criminal trial read into

evidence under the prior testimony exception. Durbin objects on

hearsay grounds. The testimony is:

a) admissible because Durbin was a party in both cases with

similar motive and opportunity to question Martin

b) admissible if the state can be considered the predecessor

in interest to Last Chance

c) inadmissible because Durbin and Wilson were acquitted in

the first trial

d) inadmissible because Last Chance was not a party in the

first trial

25) In the civil case Last Chance seeks to prove that the fire

was caused by arson through the report of Captain Blaze, Metro

City fire chief, made the day after the fire that concludes,

"Based on the statements of witnesses and fire patterns within

the house, it is my opinion that the fire was set in the dining

room and spread rapidly by means of an accelerant (probably

gasoline) through the rest of the house." The plaintiff (Durbin)

objects on hearsay grounds.

a) the conclusion in the report is admissible if: l) the

conclusion is one that Blaze could testify to if called as a

witness; and 2) the sources of information and other

circumstances do not indicate lack of trustworthiness

b) the conclusion in the report is not admissible because it

appears to be based on hearsay

c) the conclusion in the report is not admissible because it

is not a factual finding

d) the conclusion in the report is not admissible because

Durbin was acquitted in the criminal trial.