Exam #
EVIDENCE -- FINAL EXAMINATION 595
Last four digits of 55 #_
The Federal Rules of Evidence are applicable. Closed book and
closed rules. Each question counts one point. You have two and a
half hours. One of the quizzes will be dropped if lower than the
grade on the final. The exam has been edited so that questions do
not run over from one page to the next. That causes the bottom
margin to be large on some of the pages
l) State v. Theater for showing "Debbie Does Dallas," alleged to
be a pornographic movie. Officer is called as a witness. Officer
testified that he watched the movie in Theater and offered to
testify to the sexual acts depicted in the movie. Defense
counsel's objection to Officer's description of the movie should
be sustained on the grounds of:
i) hearsay;
ii) Best Evidence;
iii) lack of authentication
* * * *
a) (i) and (ii)
b) (ii) and (iii)
c) (i) only
d) (ii) only
e) none of the above
2) State v. Druggie for conspiracy to distribute a controlled
substance. The State calls Officer to testify to a phone number
on a scrap of paper found in D's possession. Officer testified
that she lost the scrap of paper but that she wrote the number
down in an incident report prepared at the time. Officer
testified that she has no present memory of the number but that
she accurately recorded the number in her report. Officer offers
to testify to the number. If an objection is made on Best
Evidence grounds:
i) the judge should decide whether the destruction of the
note was in good faith before allowing other evidence of its
contents;
ii) the Officer's written report of the number must be
produced;
iii) the Officer may read to the jury the number as written
in the report
a) all of the above are correct
b) (i) and (ii) are correct
c) (ii) and (iii) are correct
d) (i) only is correct
e) (ii) only is correct
3) P v. D for diminution of earning power as a result of injuries
sustained in an accident. P would testify that he earned $50,000
in the year before the injury. Defense objects to this testimony
on the ground that P's income tax return is the Best Evidence of
his earnings. Should this objection be sustained. Why or why not?
4) Assume that on the facts of (3) that P produced his signed
income tax return for the previous year during discovery and it
shows that P reported his earnings as $30,000. After P testifies
that he earned $50,000 D offers the tax return into evidence. It
is admissible as:
i) a prior inconsistent statement for the purpose of
impeaching P's testimony that he earned $50,000;
ii) an admission to prove that P only earned $30,000;
iii) a declaration against interest to prove that P only
earned $30,000
a) all of the above
b) (i) and (ii)
c) (ii) and (iii)
d) (i) and (iii)
e) (ii) only
5) On the facts of (3) and (4) which of the following would be
sufficient to authenticate the tax return;
i) it was produced by P in response to a request for
production under the discovery rules;
ii) the testimony of a person familiar with P's handwriting
that P's signature is on the return;
iii) a comparison by the jury of the signature on the return
with a genuine exemplar of P's signature
a) all of the above
b) (i) and (ii)
c) (ii) and (iii)
d) (i) and (iii)
e) (ii) only
6) P v D in a case where the date of X's death is important. To
prove X's date of death Witness would testify that she went to
the cemetery and read the inscription on the headstone of the
deceased. Without regard to whether an objection would be
sustained, which of these statements is true:
i) The inscription is hearsay;
ii) The inscription is the Best Evidence
a) both (i) and (ii)
b) (i) only
c) (ii) only
d) neither (i) nor (ii)
7) On the facts of (6) Witness would further offer an affidavit
signed and acknowledged by X's son stating that X died on a
certain date. The affidavit:
i) self-authenticates;
ii) is hearsay;
iii) is the Best Evidence of the date of X's death
a) all of the above
b) (i) and (ii)
c) (i) and (iii)
d) (ii) and (iii)
e) (i) only
8) H v D corporation for injuries sustained when H slipped on a
broken bottle of syrup in D's grocery store. The following
exchange occurred between M, a customer, and N, the store
manager, before the fall:
M: "There's a broken bottle of syrup in Aisle l.~
N: "Thanks for letting us know. We'll take care of it."
This exchange is:
i) admissible to give D notice of the condition
ii) admissible to prove the existence of the condition
a) both (i) and (ii) are correct
b) (i) only
c) (ii) only
d) neither (i) nor (ii) is correct
9) After the fall referred to in (8) 0, 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 H's behalf?
a) D did not authorize O to make the statement
b) D intended O's statement to be used only internally
c) O had no personal knowledge of the condition
d) O's duties did not include the condition of the floor
10) W, H's wife, would testify that she heard a crash and turned
to see H lying on the floor. B, a bystander, said, "He slipped in
that pool of syrup that's been there all day!" Bystander is
unavailable at trial. W's testimony to B's statement is:
a) admissible as an excited utterance;
b) admissible as a present sense impression;
c) both (a) and (b) are correct;
d) inadmissible because B is unavailable at trial
11) W would further testify that she helped H to his feet, took
him to the hospital, waited for an hour to see an emergency room
doctor and that during this period he constantly complained of
pain in his lower back. The best theory of admissibility is:
a) non-hearsay;
b) statement of present physical condition;
c) statement for the purpose of medical treatment;
d) excited utterance
12) H offers the emergency admitting report into evidence through
the testimony of the records clerk who testifies that it is a
record of the hospital maintained in the ordinary course of
business. The "history" portion of the report states in part, "H
slipped on syrup that had been on the floor all day." Should
defendant's objection to this portion of the report be sustained?
Why or why not?
13) Store calls Q, a customer, to testify that he saw H walking
without looking and that he yelled "Mister, don't step in that
syrup," just before H slipped. Is Q's testimony admissible over a
hearsay objection? Why or why not?
14) Q would further testify that when he got home after the
accident he told his wife, "This guy wasn't watching where he was
going and fell in some syrup. I yelled at him to watch out but he
slipped anyway." P objects on hearsay grounds and defense counsel
points out that Q is present in court to be cross-examined.
Should the objection be sustained? Why or why not?
15) State v. D for mass murder of his family. Defense of
insanity. X would testify for D that after the killings D told
him "God told me to kill them all." Is X's testimony to D's
statement admissible over an objection that the statement is
hearsay and self-serving? Why or why not?
16) State v. D for kidnapping and killing V, his wife. The state
alleges that D forced V into his car, drove to the country,
killed her, and buried the body in the woods. D and V were seen
together that day in D's car. D claims V voluntarily accompanied
him, that he let her out at a shopping mall and didn't see her
alive thereafter. The state calls W, who was a friend of V's, to
testify that on the morning of her death (before V and D were
seen together in the car) V said,
~I told D yesterday I'm getting a divorce. He told me he's
going to kill me."
W's testimony to V's statement is:
i) admissible as giving D motive to kill V
ii) admissible as tending to show V's fear of D, which in
turn tends to show that she would not voluntarily have
accompanied him.
iii) admissible within the Hillmon doctrine to show that D
acted to carry out his expressed intent to kill V
a) all of the above
b) (i) and (ii) are correct
c) (ii) and (iii) are correct
d) (i) only
e) (ii) only
17) T's estate against D for return of a diamond ring which D
began wearing on October l. T died on December 1. S, the executor
and beneficiary of T, claims D stole the ring; D claims T gave
her the ring. D calls W to testify that on November 1 T said,
~I love D very much. She's the best thing that ever happened
to me"
Admissible over a hearsay objection? Why or why not?
18) Suppose on the facts of (17) that W testifies that on
November 1 T said,
"I gave my diamond ring to D a month ago."
Admissible as:
i) a declaration against interest;
ii) non-hearsay evidence of T's state of mind
iii) an admission, assuming that T and T's estate are
treated as one and the same
* * *
a) all of the above;
b) (i) and (ii)
c) (ii) and (iii)
d) (i) and (iii)
e) (iii) only
19) T's will, which has been probated, includes the following
statement,
"I leave all my worldly possessions to S, the most loving
and honest of my seven children."
Admissible over a hearsay objection to show that S is T's
beneficiary under the will? Why or why not?
20) State v. D for robbery of V. D denies the event. D was caught
within an hour and the police took V to the place where D was
being held. V identified D as the person who had robbed him. At
trial V would testify to the identification. What is the best
theory of admissibility?
a) prior statement of identification
b) excited utterance
c) present sense impression
d) verbal act
e) admission
21) On the facts of (20) 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. Officer's testimony of V's-description is:
i) inadmissible unless V's description was made under oath;
ii) admissible to rehabilitate the witness but not
- admissible substantively
iii) 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 is correct
e) (iii) only is correct
22) State v. D for a ten year old homicide of V. The
prosecution's case-is based in large part on the sworn written
confession of X, made on his deathbed to Officer Jones. The
pertinent part of the confession is as follows:
"I know I'm going to die. D and I planned to kill V. D lured him into the woods and stabbed him to death. We hid his body in a
shallow grave."
Investigation uncovered V's body in the place described by X. X is long dead by the time
of D's trial. When offered by the state, the confession is:
i) admissible as a dying declaration
ii) admissible as the admission of a co-conspirator
iii) admissible as a declaration against interest
a) (ii) and (iii)
b) (iii) only
c) (i) only
d) (ii) only
e) none of the above
Questions 23 -- 32. On November 10 of last year at about 4:30 pm
ten year old Johnny Parks was struck and badly injured by a City
police car driven by Officer David Dugan. At the time Dugan was
responding to a call of 'robbery in progress" at a nearby
Convenient store. His flashing lights were on but his siren was
not activated. Johnny was crossing the street to see his uncle,
Peter Smith, who was sitting on the porch of his house directly
across the road. Paula Parks, Johnny's mother, brought an action
against Dugan and City, alleging that Dugan was negligent in
driving at a high rate of speed without a siren and failing to
keep a lookout. Dugan and the City have denied negligence and
asserted that Johnny was negligent in crossing without looking.
23) Peter Smith is called as a witness for the plaintiff. If
permitted he would testify that he was watching Johnny as Johnny
came to the edge of the road, that Johnny looked both ways, and
didn't see the car because the sun was in his eyes, started
across, and was struck by the car. Over objection should the
italicized portion of the testimony be allowed? Why or why not?
24) Smith would further testify that Johnny always looked both
ways before crossing the street. Admissible? Why or why not?
25) During his direct examination Smith estimated the speed of
the police car at 70 mph. On cross-examination he was asked,
'Didn ' t you tell Of f icer Krupke immediately af ter the accident
that the police car was going only 50 mph? " Smith answered " I
don' t remember" The City attempts to call Krupke to testify that
after the accident Smith said the car was going 50 mph.
i ) Krupke should not be allowed to testify because Smith
said he didn' t remember talking to him;
ii) Krupke should not be allowed to testify because the
matter is collateral;
iii ) If Krupke is allowed to testify the prior statement is
admissible to impeach Smith' s present testimony but not
admissible for the truth of the matters contained therein
a) all of the above;
b) (i) and (iii)
c) (ii) and (iii)
d) (i) only
e) (iii) only
26) Five years ago Smith was convicted of growing marijuana (a
felony punishable by 1-5 years in prison). He was given
probation. The defense attorney seeks to question Smith about
this conviction. The conviction is:
a) admissible;
b) admissible if the judge finds that the probative value
outweighs the prejudicial effect;
c) inadmissible if the judge finds that the prejudicial
effect substantially outweighs probative value;
d) inadmissible unless the defendant testifies
e) inadmissible
27) Assume that the judge refuses to allow questioning about the
marijuana conviction. The defense attorney then attempts to
question Smith by asking him if he told Mr. Williams, the county
clerk, just before testifying, "I'm going to get even with the
cops for that marijuana bust a couple of years ago." Should this
question be allowed? Why or why not?
28) May the City call Mr. Williams to testify if Smith denies
having made the statement referred to in (27)? Why or why not?
29) After suit was filed Paula Parks and her attorney met with
David Dugan, a representative of the City, and the City's
attorney in an attempt to mediate the case with the help of a
mediator. During the course of the mediation Dugan admitted for
the first time that he had looked down at his police radio (over
which a call was coming) just before Johnny started across the
street.
i) Paula Parks may testify to Dugan's statement made during
the mediation conference;
ii) The plaintiff's attorney may take Dugan's deposition and
ask whether he looked down, even though this matter was
brought up initially during the mediation.
a) (i) and (ii) are correct
b) (i) only is
c) (ii) only is correct
d) neither (i) nor (ii) is correct
30) At trial Dugan testified that he had his lights on but no
siren because the police procedure was to run without siren on
"crimes in progress" calls as the car came within hearing
distance of the reported crime in progress. Dugan testified that
criminals would flee at the sound of the siren, thus frustrating
the effort to apprehend them. After Johnny's death the City
changed the police procedure to require the use of a siren in all
high speed situations. The plaintiff would like to introduce this
change in procedure to show that it is feasible to use a siren
in responding to a crime in progress. Admissible? Why or why not?
31) To establish the extent of Johnny's injuries the plaintiff
called Dr. Bones, an examining physician, who would testify that
in his opinion Johnny suffers from permanent brain injury as a
result of the accident. Dr. Bones" opinion is based on:
i) A CAT scan and neurological tests, which have not been
introduced into evidence;
ii) A standard treatise on the brain
iii) Johnny's statements during the course of an examination
Which of the above is a proper basis (for evidentiary purposes)
of Dr. Bones testimony?
a) all of the above;
b) (i) and (ii)
c) (ii) and (iii)
d) (i) and (iii)
e) (ii) only
32) If Dr. Bones is permitted to give his opinion and state that
the basis for his opinion are the matters in (31) should the
judge give a limiting instruction that the matters are to be
considered only as the basis for the doctor's testimony and not
for the truth of what is contained therein as to:
a) (i) and (ii)
b) (i) and (iii)
c) (ii) and (iii)
d) (i) only
e) (ii) only
33) State v D for murder of V. D denies the offense. D called W
to testify that he was sitting in a car different from the
location where the prosecution evidence indicates the shooting
took place; that he saw V, X and Y standing in front of a house,,
that he heard a shot, saw V clutch his stomach and V, X and Y
then entered the house. The prosecution calls X who would testify
that he was working on a construction site at the time described
by W. D objects that this is impeachment on a collateral matter.
Should the objection be sustained? Why or why not?
34) On the facts of (33) assume that W further testified on
direct examination that about fifteen minutes after V, X, and Y
entered the house that a postman delivered mail to the house. The
prosecution calls a representative of the Postal Service who
would testify that the day in question was a legal holiday and
there was no mail service. D objects that this is impeachment on
a collateral matter. Should the objection be sustained? Why or
why not?
35) H and W died in a car wreck. Under their wills it benefits
the heirs of H to prove that H died after W. The heirs of H call
Officer to testify that when he arrived at the scene W was dead
but H said, "Help her Officer, she's going to die." Officer's
testimony to H's statement is admissible as:
i) non-hearsay;
ii) a statement of intent within the Hillmon doctrine;
iii) a dying declaration
* * *
a) all of the above
b) (i) and (ii)
c) (i) and (iii)
d) (i) only
e) (iii) only
36) Assume that State X adopts a statute with a new hearsay
exception for statements of persons, now unavailable, about
"recently perceived matters, made in good faith and not in
contemplation of pending or anticipated litigation in which the
declarant is interested in W~ a witness to a robbery, gave the
police a videotaped interview the day after the robbery
describing the robbery and the suspect. The description of the
suspect matched other descriptions and led to charges being
placed against the defendant. At trial W is unavailable -- his
whereabouts are unknown. The state calls Officer who would play
the tape to the jury. The defendant objects on Confrontation
grounds. In ruling on this objection the court should consider:
i) W's demeanor and the questions of the Officer conducting
the interview (suggestive, open-ended, etc.)
ii) the descriptions given by other witnesses, which
corroborate the accuracy of W's description
a) both (i) and (ii)
b) (i) only
c) (ii) only
d) neither (i) nor (ii)
37) 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 that it was suicide. P would testify
that before he went to the barn H put the coffee water on to
heat. Ins. Co. claims P's testimony to H's action is inadmissible
hearsay. The best response P can make to this argument is:
a) H's actions were non-assertive;
b) H's actions were assertive but circumstantial evidence of
his state of mind;
c) H's actions are within the state of mind exception to the
hearsay rule;
d) Actions are not words and therefore cannot be hearsay;
e) Since H is unavailable W can testify to whatever H said
or did before his death
38) D and V were both residents of the Terrace View Hotel, a
seedy residential hotel. One night D shot V in the lobby in the
presence of a number of other residents. The State indicted D for
murder. D claimed self-defense -- that he thought V was coming
after him with a knife. A pocket knife was found on V. D would
testify that on the day of the incident X told him that she had
heard that V "was looking to cut D." The prosecutor objects to
this as hearsay and self-serving. The evidence is
a) admissible for its effect on the hearer (D);
b) admissible to prove that V was "looking to cut D;~
c) admissible for the reasons in both (a) and (b);
d) inadmissible as self-serving
39) The prosecutor seeks to impeach D by asking him whether he
was convicted of felony assault with a gun five years earlier,
for which he served two years in prison. How does the similarity
of the former charge affect admissibility of the conviction?
40) Assume that in the previous case D claimed that he shot the
victim because he had been told on the day of the killing that
the victim "was looking to cut him." No knife was found on the
victim. A transcript of D's testimony in the previous case is
available. Should it be admitted over the defendants objection?
Why or why not?
41) After D testified he called Y. a female resident of the
hotel, to testify to an incident two years before in which V
allegedly cut Y. The prosecutor objects. Y's testimony is:
a) admissible to show V's character;
b) admissible to show V's modus operandi;
c) inadmissible because V is dead;
d) inadmissible
42) Y would further testify that in her opinion V was a violent
person. The prosecutor objects. Y's testimony is:
a) admissible to show V's character;
b) inadmissible because Y is not disinterested;
c) inadmissible because the state has not offered evidence
that Y was a peaceable person;
d) inadmissible because irrelevant
e) inadmissible because not in the form of reputation
evidence
43) Y would further testify that D has the reputation of being a
peaceable and truthful person. Assuming the state was permitted
to ask D about the conviction referred to in (39), Y's testimony
should be admissible:
i) to show D to be a peaceful person;
ii) to show D to be a truthful person
a) both (i) and (ii)
b) (i) only;
c) (ii) only;
d) neither (i) nor (ii)
44) Assume that Y is permitted to testify that D has the
reputation of being a peaceful person. The state would attempt
to ask Y whether she has heard that D was convicted of assault
five years before.
a) the state should be permitted to ask Y about D's
conviction and prove its existence if Y has not heard of it;
b) the state should be permitted to ask Y about D's
conviction but should not be permitted to prove its
existence if Y was not heard of it;
c) the state should be permitted to ask Y about the
conviction only if it was deemed admissible when offered to
impeach D;
d) the state should not be permitted to ask Y about the
conviction because bad character of the defendant may be
shown only by opinion or reputation evidence.
45) When interviewed by the police Y said that she and D were
just acquaintances. The prosecutor has since found a witness (Z)
who would testify that Y and D are in fact romantically involved.
Assume Y testifies for D as set out above and describes her
relationship with D as mere friends. The prosecutor would call Z
to testify that Y and D are lovers. Defense counsel argues that
this is an attempt to impeach by extrinsic evidence of a
collateral fact. Should the objection be sustained? Why or why
not?
46) State v. D for assault on V, who was struck by a hit and run
driver. V can describe the car (an old red Honda civic) and three
digits of a Kentucky license plate (MCN . . .). Licensing records
show that there are six red Honda civics with Kentucky license
plates beginning MCN. As a result of the ensuing investigation D
was charged. At trial V would testify that "I saw the car as it
sped away and I think the license started MCN." V's testimony
should be:
a) excluded unless V can say he is certain that the license
began "MCN."
b) excluded because the odds of the car belonging to D are
only one in six;
c) admitted as evidence of the character of D;
d) admitted
47) Detective learned D's name and address through the license
records. Detective found D in his garage trying to straighten the
bumper and fender on his red Honda civic. Detective would testify
to the condition of the car and D's attempts to repair the
damage. D objects that this testimony is barred by the rule
against subsequent remedial measures. What ruling and why?
48) Detective would further testify that D said, I'll pay you
$1000 to forget you ever saw me and this car."
a) D may be asked about this statement if he testifies but
the prosecutor cannot call Detective to testify to the
statement;
b) The statement is inadmissible as an offer to compromise;
c) The statement is inadmissible as an attempt to negotiate
a plea in a criminal case;
d) The prosecutor may ask Detective about the statement and
may ask D about the statement if he testifies
49) Assume that D is tried on the criminal charge and acquitted.
During the criminal trial V took the stand and was cross-examined
by D's counsel. V then died of his injuries. W (V's wife) then
sued D under the wrongful death statute and W's counsel offers
the transcript of V's testimony at the criminal trial. D objects.
The transcript should be:
a) admitted as prior testimony which was subject to cross-
examination by the party against whom it is now offered;
b) admitted only if W is considered V's "successor in
interest;"
c) excluded because D was acquitted;
d) excluded because W was not a party to the criminal trial
50) In a criminal trial which of the following documents must a
prosecutor produce for examination by defense counsel (either
during or after the direct examination of Witness):
i) W's tape recorded statement, not reviewed by W prior to
trial;
ii) The prosecutor's summary of W's oral statement, not
reviewed by W prior to trial;
iii) The prosecutor's question and answer "script"" referred
to by W during cross-examination.
a) all of the above
b) (i) and (ii)
c) (i) and (iii)
d) (ii) and (iii)
e) (iii) only