EVIDENCE QUIZ

FORTUNE

April 1, 1997

Last 4 digits of SS #

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. Only one

correct answer is intended on the multiple choice answers. If you

feel there are two correct answers, pick one and state your

reasoning in the margin.

Do not answer any questions by relying on the residual (or

"catch-all") provisions of Rules 803 and 804. The questions treat

admissions and witness statements as hearsay exceptions (not

"non-hearsay"). Do not make unwarranted assumptions in order to

force a correct answer.

Write the last four digits of your 55 # in the space provided

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

l) To prove that A loved his son, 5, more than his other

children, the proponent offers W to testify that A said on many

occasions, "S is my finest child Over a hearsay objection W's

testimony is:

a) admissible;

b) admissible only if A is available to be questioned about

the statement;

c) admissible only if A is unavailable as a witness;

d) inadmissible

2) A versus B for breach of contract. B denies the existence of

the contract. A offers Wl to testify that she heard B say, "I'll

sell you my bike for $500," and A say, "It's a deal." The best

rationale for the receipt of Wl's testimony to B's statement is:

a) non-hearsay -- state of mind of hearer (A);

b) non-hearsay -- state of mind of declarant (B);

c) verbal act;

d) hearsay -- state of mind exception.

3) On the facts of (2), A offers W2 to testify that Wl sent him

an e-mail which read, "B agreed to sell his new bike to A for

$500.n Over a hearsay objection, W2's testimony is:

a) admissible as non-hearsay;

b) admissible hearsay;

c) inadmissible unless Wl is unavailable;

d) inadmissible.

4) On the facts of (2) and (3), assume that A calls Wl as a

witness and, to A' s surprise, Wl testifies that B did not agree

to sell the bike to A. A would call W2 to testify to the e-mail

W2 received from Wl. Over a hearsay objection W2's testimony to

the contents of the e-mail is:

a) admissible to impeach Wl's testimony and to prove the

existence of the contract between A and B;

b) admissible only to impeach Wl's testimony;

c) inadmissible because A is attempting to impeach his own

witness;

d) inadmissible.

5 ) A, employee of B company, versus B, alleging B discriminated

against A on the basis of age in corporate downsizing. A offers

into evidence, as an admission of B, the following memo of X, an

employee of B.

"Our plan to achieve savings by terminating employees with

the greatest seniority is in full swing. In most cases,

their jobs have been taken over by younger (and lower paid)

employees."

Which of the following will defeat the admissibility of the memo?

i) X lacked personal knowledge of the plan to terminate

older employees;

ii) X was, himself, terminated after the memo was written;

iii) X's position with B did not include personnel matters

* *

a) (i) and (iii)

b) (ii) and (iii)

c) (i) only

d) (ii) only

e) (iii) only

6) State X recently amended its hearsay rules to create a hearsay

exception for "statements by a sexual assault victim to a sexual

abuse counselor." State v. D for sexual assault on V. The state

calls W, a sexual abuse counselor, to testify that during

counseling V said, "D sexually assaulted me." D challenges the

admissibility of the statement on confrontation grounds. The

statement is:

a) admissible

b) admissible if the statement is corroborated by evidence

independent of the statement;

c) inadmissible unless the circumstances surrounding the

making of the statement provide a guarantee of reliability;

d) inadmissible.

7) State v. D for possession of drugs found in a desk to which

both D and X had access. In the drawer in which the drugs were

located, the police found a journal in D's handwriting. There

were no references to drug possession in the journal. A typical

entry is:

"Sept.5 -- cloudy and cool. Lunch with Robt. Played tennis

with Marty. Watched tv."

Is the journal admissible over a hearsay objection? Why or why

not?

8) State v. D for the murder of V. D offers W to testify that he

was present when X made a deathbed confession to killing V. X

knew that he was going to die and said he wanted to clear his

conscience. There is some independent evidence tending to prove X

killed V. W's testimony to X's confession is admissible as:

i) a dying declaration;

ii) a declaration against interest;

iii) the state of mind exception

a) all of the above;

b) (i) and (ii);

c) (i) and (iii);

d) (i) only;

e) (ii) only

9) P v. Insurer on a life insurance policy on X's life. X either

fell or jumped off a bridge. P contends that X accidentally fell

to his death, Insurer contends X committed suicide by jumping. P

calls Wl to testify that, on the day of X's death, X said, "I'm

getting a raise next week and P and I are going to have a baby

soon." Is W's testimony admissible over a hearsay objection? Why

or why not?

10) On the facts of (9) W would further testify that he offered

to give X $100 if X was able to climb to the top of the

suspension bridge, and X then started to climb the bridge. The

best theory of admissibility for W's testimony of his offer to X

i s :

a) verbal act;

b) state of mind of hearer;

c) state of mind of declarant;

d) prior consistent statement.

11) P v. D in a boundary dispute action. P and D each claim

ownership of a spring. Three years earlier the state EPA had sued

P to force cleanup of pollution in the spring. P testified in

that suit that he did not own the spring. The suit was settled

and P cleaned up the spring. In the suit between P and D, D

offers the transcript of P's testimony in the state environmental

suit. The transcript is admissible as:

i) an admission;

ii) a declaration against interest;

a) both (i) and (ii);

b) (i) only;

c) (ii) only;

d) neither (i) or (ii)

12) On the facts of (11), in the state EPA suit, W, a surveyor,

testified for P that a survey showed that the spring was not on

P's property. W died before the suit between P and D. D offers

the transcript of W's testimony in the state case against P under

the hearsay exception for former testimony. Is it admissible? Why

or why not?

13) State v. D for the murder of V. D claims he shot V in self-

defense out of fear for his life. D would testify that shortly

before the killing X told him that Y said V was carrying a knife

and looking to kill D. Over a hearsay objection D's testimony is:

a) admissible to show his fear of V and to show that V

intended to kill D;

b) admissible only to show his fear of V;

c) inadmissible because double hearsay;

d) inadmissible as self-serving

4) State v. D for the murder of V. X would testify on behalf of

the state that before the murder Y said to X, "D and I are going

to get even with V for selling us bad cocaine." If offered under

the hearsay exception for co-conspirators, the court must find as

a preliminary matter that there is a conspiracy between:

a) X and Y;

b) X and D;

c) Y and D;

d) X, Y and D

15) P v Ins. Co. on life insurance policy on H's life; H killed

himself with a gun. P claims that it was accidental, Ins. Co.

claims that it was suicide. P would testify that she and H were

in the kitchen and H said, "I'm going in the den to clean my

gun," and H then left the room and she heard a shot. Is P's

testimony to H's statement admissible over a hearsay objection?

Why or why not?

16) P would further testify that before he left the kitchen, H

put the tea kettle on to boil. Over a hearsay objection, W's

testimony to H's actions is:

a) admissible as non-hearsay -- assertive conduct

inconsistent with a suicidal state of mind;

b) admissible as non-assertive conduct inconsistent with a

suicidal state of mind;

c) admissible within the state of mind exception to the

hearsay rule;

d) admissible as a present sense impression.

17) State v. D for robbery of V. Soon after the robbery V gave a

detailed and accurate description of the robber to X, a policeman.

V also viewed D in a suggestive show-up (one person). At trial V

testified to the robbery and made a positive courtroom

identification of D as the robber. The defense pointed out that V

had seen D in a suggestive setting. The state now seeks to call X

to testify to V's description of the robber. Which of the

following must be true before the state can introduce V's

description of D:

i) the description of D must have been under oath;

ii) the description of D must have preceded the showup;

iii) V must be willing to answer questions about the

description

a) all of the above;

b) (ii) and (iii) only;

c) (i) only;

d) (ii) only;

e) (iii) only

18) P v. Grocery for slip and fall in ketchup. P would testify

that as he lay in the floor, he heard someone say to a clerk,

"That ketchup's been on that floor all day!" Admissible as:

i) present sense impression;

ii) excited utterance;

iii) non-hearsay -- state of mind of declarant.

a) all of the above;

b) (i) and (ii) only;

c) (i) only;

d) (ii) only;

e) (iii) only.

19) State v. A and B for robbery and murder of a convenient store

clerk. After being arrested, A told Officer, "B and I robbed the

store and B shot the clerk." At B's trial the state calls Officer

to testify to A's statement. The state argues that it is admissible as a declaration against penal interest. Should it be

admitted? Why or why not?

20) A, driver, and B, passenger were injured when their car was

struck by train as A tried to cross the tracks. In trial one A

sued RR Co. W testified for RR Co. that A drove around the gate

and onto the tracks. The jury returned a verdict for RR. In trial

two B sued RR Co. W had died by the time of trial and RR Co.

offered a transcript of his testimony from trial one under the

hearsay exception for prior testimony? Is it admissible? Why or

why not?

21) 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?

22) A and B were indicted for conspiracy to traffic in stolen

credit cards. The government cut a deal with B in which he agreed

to testify against A in return for a reduced sentence. B

testified before the grand jury that A supplied the cards. At

trial, however, B refused to testify even when threatened with

contempt. The government offers B's grand jury testimony. Over

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

23) Assume that B testifies but surprises the prosecutor by

testifying that A had nothing to do with the stolen credit cards.

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

24) P v. D for injuries sustained in when D's car hit P as P

crossed the street. P calls Dr. Bones, the emergency room doctor,

to testify that P said, My leg and back hurt terribly." Dr.

Bones' testimony to P's statement is admissible as:

i) a statement for the purpose of medical treatment

ii) a statement of present physical condition

iii) an admission of a party

* * * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (i) only

25) On the facts of (24) D calls the Records Clerk of Hospital,

which contains the following entry by X, the admitting officer,

~P says he wasn't watching where he was going and was hit by car

while crossing the street." This entry is not admissible because:

a) of the hearsay problems with P's statement to X;

b) of the hearsay problems with X's recordation of P's

statement;

c) for the reasons in both (a) and (b)