Evid Fnl S96 -- Fortune

Exam #

EVIDENCE FINAL S96

FORTUNE

Last four digits of SS #

The Federal Rules of Evidence are applicable. Closed book and

closed rules. There are 75 questions, each counting one point.

You have three and a half hours if you need it. The exam has been

edited to minimize questions running from one page to the next.

That causes the bottom margin to be large on some of the pages

l) P's estate v. D over the ownership of a golden egg. P's

estate claims D stole it; D claims P gave it to her. D offers W

who would testify that two months before his death P said, "I'm

going to give D my golden egg." Admissible over a hearsay

objection? Why or why not?

2) On the facts of (l) W would further testify that later that

week P said, "I gave my golden egg to D." Admissible over a

hearsay objection? Why or why not?

Evid Fnl S96 -- Fortune

3) On the facts of (l) W would further testify that on his death

bed, P said, "I know I'm going to die. Tell D I love her." This

testimony is admissible as:

i) state of mind of the declarant

ii) a dying declaration

iii) a declaration against interest

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (i) only

e) (ii) only

4) Pedestrian v. D for injuries sustained when P was struck by a

hit and driver, who was driving a 1995 black Mercedes. P did not

see the license number. P would testify that someone came up to

her immediately after she was struck and said, "Lady, are you

okay? I got the license number. It's "N2XTC." The individual then

ran off. At trial, to prove the registration of the vehicle, P

would testify to what the individual told her. P's testimony is:

a) admissible as non-hearsay for its effect on the hearer

b) admissible as an excited utterance

c) inadmissible as self-serving

d) inadmissible because the declarant is not available

5) On the facts of (4) P would rely on the following statute, "In

any hit and run case, ownership of a motor vehicle shall be prima

facie evidence of operation at the time of the hit and run. " P can establish that a 1995 Mercedes with the vanity plate "N2XTC" was registered to D. What is the effect of the statute?

Evid Fnl S96 -- Fortune

6.) On the facts of (4), assume that D is criminally prosecuted

for the hit and run and the prosecutor seeks to rely on the

statute above to establish D's operation. Assuming the state has

enough evidence to create a jury issue, should the judge give the

following instruction to the jury.

"It is presumed that the owner of an automobile is the

operator thereof. This presumption is, however, subject to

rebuttal. In any event, you should not convict unless you

are convinced beyond a reasonable doubt that the defendant

was operating the automobile."

Should the instruction be given? Why or why not?

7) On the facts of (4) assume that P would call Dr. Casey, the

emergency room doctor, to testify that P said, My back hurts

terribly." Dr. Casey's testimony should be 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

e) (ii) only

Evid Fnl S96 -- Fortune

8) Dr. Casey would further testify that he asked P if she could

lift her leg and that in response P lifted her leg. If offered to

prove that P could lift her leg is this hearsay? Why or why not?

9) 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)

Evid Fnl 596 -- Fortune

10) On the facts of (9) 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

11) Sybil was shot in the chest by either Henry or David under

circumstances which indicate she knew her assailant. David is

charged with the murder. The state calls W, an ambulance

attendant, to testify that when he arrived at the scene Henry

with Sybil and Sybil said, "Henry, get me a blanket. I'm cold."

Sybil thereafter died. Sybil's statement is:

a) admissible as a dying declaration

b) admissible within the state of mind exception to the

hearsay rule as tending to show that Sybil did not believe

Henry to believe her assailant

c) admissible as non-hearsay as tending to show that Sybil

did not believe Henry to be her assailant

d) admissible as non-hearsay because the ultimate issue is

whether David shot Sybil

Evid Fnl S96 -- Fortune

12)D is charged with the murder of V in an apartment shared by D

and X. The state calls P, a policeman, to testify that X came to

the police station and gave P a butcher knife with the

accompanying statement, "This is the knife D stabbed V with." P

said nothing in response. P's testimony to X's statement is:

a) admissible as a present sense impression;

b) admissible as non-hearsay -- the verbal part of an act;

c) admissible as the adoptive admission of P;

d) inadmissible hearsay.

13) On the facts of (12), at the police station X~told P that, "I

held V while D stabbed him." On investigation , the police found

V's body in the apartment and blood-stained clothing belonging to

both D and X in the washing machine. Assume that the state

indicts X and D for murder and they are tried separately. D is

tried first and the state calls X as a witness. X asserts the

privilege against self-incrimination and his claim is upheld by

the judge. The state wishes to call P to testify to X's

statement. Is this admissible as the statement of a co-

conspirator? Why or why not?

14) Is X's statement in (13) admissible as a declaration against

interest? Why or why not?

Evid Fnl 596 -- Fortune

15) On the facts of (12), the state calls W to testify that he

was with D two days before V's death, that D was agitated and

said, "I'm going to kill V!" W's testimony to what D said is

admissible as:

i) an admission

ii) a statement of intent within the Hillmon doctrine

iii) an excited utterance

* * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (ii) and (iii)

e) (i) only

16) On the facts of (12), the state offers the lab report of M,

an employee of an independent testing laboratory, showing that V

had A negative blood, the blood on the clothing is A negative,

and that neither D nor X has A negative blood. Is this report

admissible? Why or why not?

Evid Fnl 596 -- Fortune

17)0n the facts of (12), assume that M testified at the

preliminary hearing of D to the contents of his laboratory report

and was cross-examined by D's counsel. Assume that at trial the

defendant's objection to the introduction of the lab report is

sustained and the state offers the transcript of the preliminary

hearing. The state offers no explanation for M's absence. The

transcript is:

a) admissible

b) admissible because there was a prior opportunity to cross

c) inadmissible because the state has not explained its

failure to present M as a witness

d) inadmissible

18)State v D for murder of V. D offers W to testify that A, now

deceased, made a deathbed statement to him that B, also deceased,

told A he killed V and buried the gun in his backyard. A search

of the backyard reveals the murder weapon. W's testimony to what

A said B said is:

a) admissible as a dying declaration containing a

declaration against interest

b) admissible as a dying declaration containing a dying

declaration

c) inadmissible because no hearsay exception covers A's

statement to W

d) inadmissible because no hearsay exception covers B's

statement to A

l9)State v Franks for possession of cocaine with intent to

distribute. He was stopped on August 5 for a traffic violation

and six ounces of cocaine were found under the front seat of the

car. The elements of the crime are: l) possession of cocaine; 2)

knowing it to be cocaine; 3) with intent to distribute. Franks

testified at trial that he had borrowed the car and did not know

that there was cocaine under the seat. On cross examination he

was asked whether he was familiar with cocaine and he answered

that he "wouldn't know cocaine if he saw it."

Evid Fnl 596 -- Fortune

(continuation of Question 19)

The state now offers to prove that on the preceding April 15,

Franks was apprehended with 1/4 gram of cocaine, that he was not

arrested or charged with possession of cocaine, but was warned

that he would be in trouble if caught again. Would you allow the

state to prove the April 15 incident? Why or why not?

20)0n the facts of (19), assume that Franks moves prior to trial

to exclude any reference to the April 15 incident-~n the ground

that the substance in question was a headache powder rather than

cocaine. Franks asks the judge to determine the nature of the

substance involved in the April 15 incident while the prosecutor

insists that this is a matter for the jury to decide. What should

the judge do?

21) On the facts of (19), the state offers Able, the detective

who dealt with Franks on April 15, to testify that on August 5 he

was walking through the police station and saw Franks being

questioned by police officers and that Franks called out to him,

"Hey, Sam what kind of break will you give me if I tell you where

I got the stuff this time?" Able did not reply because he was not

involved in the August 5 arrest. Able's testimony is:

a) inadmissible as part of the state's case in chief but

admissible to impeach Franks' testimony that he did not know

the nature of cocaine;

b) inadmissible as a statement made in the course of plea

negotiations

c) admissible only if the court admits proof of the April 15

incident;

d) admissible

Evid Fnl 596 -- Fortune

22) State v Dugan for the assault of Vernon in Tom's Tavern of

September 2d. Dugan claims self-defense -- that Vernon was the

first aggressor.

Vernon testifies that he was peacefully sitting in the bar when

Dugan struck him with a broken beer bottle. Dugan's lawyer wants

to ask Vernon on cross-examination if six months earlier he was

convicted of misdemeanor assault and given 30 days in jail. There

is a good faith basis for the question. The court should:

a) allow the question to be asked to attack Vernon's

character for truthfulness but not allow extrinsic evidence

of the conviction;

b) allow proof of the conviction to attack Vernon's

character for truthfulness;

c) allow proof of the conviction to attack Vernon's

character for peacefulness;

d) not allow either the question or extrinsic evidence of

the conviction.

23) On the facts of (22), after Vernon testifies, Dugan proposes

to call Tom the bartender who to testify that Vernon was drinking

heavily, that he threw the first punch and hit Dugan with a

chair. Objection is made to Tom's further testimony that Vernon

"would have killed him" had Dugan not defended himself with the

broken bottle. Would you permit Tom to so testify? Why or why

not?

24) On the facts of (22), Tom further proposes to testify that

Vernon is a regular patron who always gets belligerent when he

drinks. Would you permit this? Why or why not?

Evid Fnl S96 -- Fortune

25) On the facts of (22), Tom further proposes to testify that he knows Vernon to be a violent and untruthful person. The court should allow Tom to testify that in his opinion:

i) Vernon is untruthful;

ii) Vernon is violent;

* * * *

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) nor (ii)

26)On the facts of (22), the state has a good faith basis for believing that Tom and Dugan have been running an illegal betting operation out of the tavern. Paul, a former bartender, is available to testify that he saw the betting slips and saw Tom and Dugan dividing money.

a) Tom may be asked about the betting operation but Paul cannot be called as a witness if Tom denies its existence;

b) Paul may testify to the illegal betting operation;

c) Tom may be asked about the betting operation only if the court determines that there is an element of deceit involved;

d) No questions may be asked of Tom nor may Paul testify to what he observed

27) On the facts of (22), Dugan would testify in his own behalf that two days before Wanda told him that Vernon was always looking for a fight and had beaten up somebody six months before and been convicted for misdemeanor assault. Admissible over a hearsay objection? Why or why not?

Evid Fnl s96 -- Fortune

28) Paul v Anthony's Pizza for personal injuries sustained when he was forced off the road by a speeding delivery truck bearing the name Anthony's Pizza. The defendant's answer to the complaint denies that a driver of Anthony's Pizza caused the accident.

Paul offers to testify that when he was in the hospital Joe Anthony, the owner of Anthony's Pizza, visited him and said, Don't worry about a thing. I'll make sure your hospital bills are paid." Is this statement admissible against Anthony's Pizza? why or why not?

29) On the facts of (28), Paul would further testify that Anthony said, "I'm sorry my driver forced you off the road." This testimony is:

a) inadmissible as a statement made in the course of plea negotiations

b) inadmissible because Anthony lacks personal knowledge to what occurred

c) admissible to show that the driver worked for Anthony but not to show that the driver was negligent

d) admissible

30) On the facts of (28) assume that Paul is able to identify the driver as Doug, a 17 year old high school student. Paul would call Richard to testify that he rode with Doug on many occasions and that Doug is a "really bad driver." Richard's testimony is:

a) admissible because Doug's character as a driver is put in issue by Paul's allegation that the driver was negligent

b) admissible as circumstantial evidence that Doug was driving negligently on the occasion in question

c) inadmissible unless put in the form of Doug's reputation for recklessness

d) inadmissible

Evid Fnl S96 -- Fortune

31) On the facts of (28), Paul calls Edwards, a clinical psychologist to testify that Paul suffers from traumatic neurosis as a result of the accident. Which of the following is true:

i) The judge must decide, as a preliminary matter, whether expert testimony will be of assistance to the jury;

ii) The judge must decide, as a preliminary matter, whether Edwards is qualified as an expert;

iii) The judge must decide as a preliminary matter whether it is reasonable for Edwards to base her opinion on certain reports not in evidence

* * * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (ii) and (iii)

32) IRS v. Frost, a law professor in a civil suit for tax deficiency in which there is an issue of Frost's claimed expenses while teaching away from home. Frost would testify as to his expenditures (so much for rent, so much for groceries etc.)on the basis of a list brought to court. The IRS attorney objects to Frost consulting the list while testifying. What foundation must be, laid before Frost consults the list?

Evid Fnl S96 -- Fortune

33) On the facts of (32), assume that Frost consults the list while testifying. The IRS attorney asks to see the list before cross-examination, The IRS attorney is entitled to see the list because:

i) it is the statement of a witness

ii) Frost consulted it while testifying

* * * *

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) nor (ii)

34) On the facts of (32), on cross-examination of Frost, it is established that there are receipts to document some of the expenditures. Frost did not bring the receipts to court. The IRS attorney asks the court to strike Frost's testimony as to those items on the ground that the receipts are the Best Evidence of the expenditures. Should the motion be granted? Why or why not?

35) Assume that the judge rules that the Best Evidence Rule requires Frost to produce the receipts. After a recess Frost reports that he has been unable to find them. The judge should:

a) not allow Frost to testify to the contents of the receipts;

b) not allow Frost to testify to the contents of the receipts unless the judge decides by a preponderance of the evidence that Frost did not lose or destroy the receipts in bad faith;

c) allow Frost to testify to the contents of the receipts and let the jury decide by a preponderance standard whether Frost lost or destroyed the receipts in bad faith;

d) allow Frost to testify to the contents of the receipts

Evid Fnl S96 -- Fortune

36) While crossing Limestone at Maxwelton, P, a law student, was killed by a hit and run driver. D was subsequently arrested and charged with reckless homicide, the elements of which are: 1) D killed V; 2) recklessly. D's not guilty plea has the effect of forcing the state to prove all elements of the crime. In opening statement to the jury D's counsel argues that the evidence will be insufficient to prove that D was the driver and, in the alternative, that the evidence will show that P was crossing the street out of the crosswalk and against the light and thus caused his own death.

The state calls C, a friend of P, to testify that she has known P for many years and that in her opinion P was a careful pedestrian. This testimony is:

a) admissible because this is a homicide case

b) admissible as evidence of habit

c) inadmissible because it is irrelevant whether P was careful on the night he was killed

d) inadmissible because D has not introduced evidence that P was a careless person

37)Would the evidence in (36) be admissible after D calls B, a bystander, to testify that P tried to cross the street against the light and out of the crosswalk? Why or why not?

38) On the facts of (36), assume that B testifies that the crosswalk was on the north side of the intersection. The prosecutor asks the judge to take judicial notice that the only crosswalk is on the south side of the intersection. The judge knows that the prosecutor is correct. Should the judge take judicial notice? Why or why not?

Evid Fnl S96 -- Fortune

39) On the facts of (36) to prove D's ownership of the car which struck p, the state offers a photocopy of a 1996 certificate of registration bearing the seal of the Fayette County Clerk stating that KY license xyz 123 (with a current sticker) is assigned to a 1989 Honda Civic vehicle number 134589PRX owned by D. The defense objects on grounds of:

i) Best Evidence; ii)lack of authentication;

* *

On which ground, if either, should the objection be sustained?

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) nor (ii)

40) On the facts of (36), the state calls A, an autobody man, to testify that the day after P's death D brought his car to A's shop to have a crumpled right front fender replaced. A replaced and painted the fender. D objects that the repair is a remedial measure. Should this objection be sustained? Why or why not?

41)On the facts of (36) , the state calls Officer to testify that he looked D up in the phone book and called the number assigned to D; a woman answered and stated that D was not home; 0 left his number and asked the woman to have D call him; an hour later he received a call from a man who identified himself as D. In the ensuing conversation the caller admitted striking P. D objects to 0's testimony concerning this conversation on authentication grounds. Should the objection be sustained? Why or why not?

42)On the facts of (36), the state calls 0 to testify that four days after the event he located D at his place of employment; 0 identified himself and said he wanted to ask some questions about a hit and run on Limestone; D then said, "Officer I'll take care of this if we can keep it out of the newspapers." D objects that his statement was an offer of compromise. Should the objection be sustained? Why or why not?

43)On the facts of (36) The state offers a series of witnesses to prove that two years earlier D was involved in a hit and run incident in Louisville. The pedestrian was not killed and the civil claim was settled by D's insurance carrier. D was charged with leaving the scene of the accident but the criminal charge was dismissed at the request of the pedestrian. This evidence should be:

a) admitted to prove identity

b) admitted to prove intent

c) excluded because the dismissal of the criminal charge bars introduction of the evidence in a later trial

d) excluded because the unfair prejudice to the defendant and the danger of becoming involved in collateral matters substantially outweighs the probative value of the evidence

Evid Fnl S96 -- Fortune

44) On the facts of (36), assume that D testifies in his own behalf and admits, for the first time, that he struck P. He testifies that he was driving at a moderate rate of speed south on Limestone when P stepped out in front of him. After D testifies the state would call W to testify as an adverse character witness. W would testify that D's reputation is of a bad driver who is untruthful. W should be permitted to testify that:

i) D's reputation for truthfulness is bad

ii) D's reputation for carefulness is bad

* * * *

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) nor (ii)

45) On the facts of (36), assume a civil case arising out of the car pedestrian incident. During the course of settlement negotiations in the civil case D's attorney said, "My client was going at least 20 miles over the speed limit." The state seeks to introduce this statement in the criminal case to show D's speed at the time of the accident. The statement is:

a) admissible because it is a statement of fact

b) admissible because it is a fact learned during settlement negotiations

c) inadmissible because it is a statement of fact made during the course of settlement negotiations

d) inadmissible because character cannot be proved by specific acts

46) D's attorney would further object to the statement in (45) on hearsay grounds. Should the objection be sustained? Why or why not?

Evid Fnl S96 -- Fortune

47) State v. X and Y for the murder of V. After being arrested and interrogated for twelve hours without food or water, X confessed that "Y forced me to do it. y held a gun on me and said he~'d shoot me unless I shot V." X now claims that he had nothing to do with the murder and only confessed to end the interrogation. X moves to have the confession suppressed as involuntary.

i) the judge must decide this issue as a preliminary matter out of the hearing of the jury;

ii) the judge must apply a beyond a reasonable doubt standard in deciding the voluntaries of the confession

iii) x may testify at the hearing on voluntaries without being subject to cross-examination on other issues in the case

iv) if the judge decides the confession is voluntary D's counsel may still urge the jury to disregard the confession as unreliable

* * * *

a) all of the above are correct

b) (i)1 (ii), and (iii) are correct

c) (i), (iii), and (iv) are correct

d) (i), (ii) and (iv) are correct

e) (iv) only is correct

48) On the facts of (47), assume the confession is ruled

admissible against X. The state urges that it be received against

Y as well as:

i) a declaration against interest

ii) a statement of a coconspirator

iii) a verbal act

* * * *

Evid Fnl S96 -- Fortune

On which grounds is X's confession admissible against Y?

a) (i) and (ii)

b) (i) and (iii)

c) (i) only

d) (iii) only

e) none of the above

49) On the facts of (47), assume that the judge rules that X's confession is admissible against X, but not against Y, in the joint trial of X and Y. The judge proposes to instruct the jury to consider X's confession only against X. Y objects on constitutional grounds. Admitting the confession with a limiting instruction:

a) is constitutional because it is assumed that juries will comply with limiting instructions

b) will violate Y's constitutional rights

c) will violate Y's constitutional rights unless Y testifies

d) will violate Y's constitutional rights unless X testifies

50) On the facts of (47), assume that X testifies in his own behalf and denies having been involved in V's death. The prosecutor seeks to question D about a two year old conviction for assault in the second degree. Second degree assault is a class D felony, punishable by up to five years in the county jail. D was sentenced to six months, which he served. The question is:

a) admissible

b) admissible if the judge finds that probative value outweighs prejudicial effect to X

c) not admissible if the judge finds, pursuant to FRE 403, that prejudicial effect to X substantially outweighs probative value

d) inadmissible

Evid Fnl S96 -- Fortune

51) Assume that the judge allows the question in (50). Is X entitled to a limiting instruction? If so, what should it say?

52) On the facts of (47), the prosecutor would seek to ask X about an application he filled out for admission to graduate school. The application was completed after V's death. In the application X answered "no" to the question, "Have you ever been convicted of a felony." The question should be

a) allowed

b) allowed in the discretion of the court if there is a good faith basis for the question

c) disallowed because X's character for truthfulness is not in issue

d) disallowed because the application was completed after the crime charged

53) D retained Attorney to represent him in a divorce case. D asked Attorney to help him conceal assets from his wife. Attorney refused to do this and told wife's attorney of his client's intentions D then fired Attorney. The wife's attorney has now subpoenaed Attorney to testify. The judge should rule that the attorney-client privilege does not apply because:

i) A waived the privilege when he told the wife's attorney of the client's intentions;

ii) D forfeited the privilege by firing A;

iii) D sought A's help to perpetrate a fraud

* * * *

a) all of the above reasons;

b) (i) and (ii)

c) (i) an d (iii)

d) (ii) and (iii)

e) (iii) only

Evid Fnl S96 -- Fortune

54) Paul v. Acme Company for injuries sustained on Acme's loading dock, due to the alleged negligence of B, an Acme employee working on the dock. B allegedly dropped a heavy box on P.The incident was witnessed by C, another Acme dockman helping B, and by D, an Acme secretary who was off work waiting for C, her husband, to get off work. Acme's CEO is E. Larry, house counsel for Acme, interviewed B,C, D and E after the accident. Assume that all four said essentially the same thing: "B dropped the box on P." Which of the statements are within the attorney client privilege?

i) B's statement

ii) C's statement

iii) E's statement

* * * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (i) only

e) (iii) only

55) On the facts of (54), assume that after the accident B, C, D and E went drinking with F, a policeman. The four Acme employees all told F that B had dropped the box on P. F now would testify for P to the statements of the Acme employees. Over a hearsay objection which statements are admissible:

i) B's statement

ii) C's statement

iii) D's statement

iv) E's statement

* * * *

Evid Fnl S96 -- Fortune

a) all of the above

b) (i), (ii), and (iii)

c) (i), (ii), and (iv)

d) (i) and (iv)

e) (i) only

56) On the facts of (54), assume that B was fired after he was interviewed by Acme's attorney. He then was interviewed by P's attorney and a paralegal working for P's attorney. B told P's attorney that he dropped the box on P. Can P's attorney call B as a witness over an objection based on the attorney client privilege? Why or why not?

57) On the facts of (54), assume that B tells P's attorney what he told Acme's attorney

i) B can waive Acme's attorney client privilege

ii) Acme forfeited the privilege by firing B

* * * *

a) both of the above are true

b) (i) is true

c) (ii) is true

d) neither of the above is true

Evid Fnl S96 -- Fortune

58) On the facts of (54), assume that B is called as a witness by P's attorney and surprises P's attorney by saying that he did not drop the box on P. P's attorney would call the paralegal to testify to B's statement that he dropped the box on P. Is this admissible as the admission of Acme? Why or why not?

59) On the facts of (54) , if the statement of B is offered (through the paralegal) as a prior inconsistent statement

(i) the judge should instruct the jury to consider it for impeachment purposes only

(ii) the judge should not allow the paralegal to testify because P is seeking to impeach his own witness

* * * *

a) both of the above

b) (i)

c) (ii)

d) neither (i) nor (ii)

60) State v. D for robbery. Defense: alibi. The defendant claims that he was in his high school physics class at the time of the robbery. In support he calls Teacher as an alibi witness. Teacher testifies that D was in class at the time. On cross-examination Teacher testified that D "almost never" missed class. Should the state be permitted to call W who sat behind D in physics and who would testify that D was not in physics on the date in question? Why or why not?

Evid Fnl S96 -- Fortune

61) On the facts of (60), should W be permitted to testify that D had missed "about half the physics classes" that semester? Why or why not?

62) State v. D for assault of V. After the event V suffered from post-traumatic stress and was unable to provide a description of his attacker. Under hypnosis V described the attack and the attacker. This led to the arrest of D. At trial V would, if permitted describe the attack and the attacker. ~ best objection to this testimony is:

a) The testimony interferes with D's Constitutional right to Compulsory Process;

b) V is not a competent witness;

c) There is no way to ascertain what portions of V's recollection are the result of recovered memory and what portions are the result of confabulation;

d) There is no scientific basis for believing that hypnosis may result in recovered memory

63)State v. D for murder. The prosecution alleges that D shot V in a domestic disturbance. D claims that V committed suicide. The state offers morgue photos of the entry wound to show the absence of powder burns for the purpose of showing that the shot was fired from several feet away. The judge should:

a) admit the photos;

b) admit the photos unless convinced that prejudice to the defendant substantially outweighs the probative value of the evidence;

c) exclude the photos unless convinced that probative value substantially outweighs the prejudice to the defendant;

d) exclude the photos

Evid Fnl S96 -- Fortune

64) On the facts of (63), the prosecutor offers the following as evidence that D intentionally shot V. Which of the following most clearly should be excluded on proper objection?

a) D purchased the gun one week before V's death;

b) D initially denied knowledge of the shooting and changed the story to suicide after he learned that he had been identified as running from the house after the shooting;

c) D struck V with a bat three days before V's death;

d) Five years before D was convicted of first degree manslaughter for the killing of his first wife

65) On the facts of (63), D calls W to testify that he has known D for the last five years and that D's reputation for peacefulness is good. The prosecutor would seek to ask W if is aware that two years earlier D was arrested for shoplifting. What is D's strongest argument that the question should not be allowed?

a) the subject of the question is not relevant to the credibility of W's testimony;

b) the matter is a misdemeanor not a felony

c) W could not be expected to have heard of the arrest

d) allowing the question might necessitate the introduction of extrinsic evidence on a collateral matter

66) On the facts of (63), the state seeks to call W, D's present wife, as a witness to testify to incriminating confidential statements D made to her before marriage. D objects on the basis of "spousal privilege." Should D's objection be sustained on the ground that the confidential statements are privileged? Why or why not?

Evid Fnl S96 -- Fortune

67) Should D's objection in (66) be sustained on the ground that

D has the right to prevent his spouse from giving adverse

testimony? Why or why not?

68) P sues D Hospital for complications arising from an operation performed by Dr. Morte. P alleges that Morte was negligent and that D was negligent in granting operating privileges to Morte. In support P alleges that Morte was an incompetent doctor and his incompetence was, or should have been known, to D. P offers evidence of six claims of medical negligence against D arising out of operations performed by Morte in the year before P's operation. This evidence is:

i) admissible to show notice to D

ii) admissible to show D's negligent character Which of the above is correct?

a) both (i) and (ii)

b) (i) but not (ii)

c) (ii) but not (i)

d) neither (i) nor (ii)

69) P offers to prove that D terminated Dr. Morte's operating privileges after she filed her claim against D. This testimony is:

a) admissible as relevant to Dr. Morte's character

b) admissible as relevant to D's negligence in granting operating privileges to Dr. Morte

c) inadmissible as a remedial measure

d) inadmissible as an attempt to settle

Evid Fnl S96 -- Fortune

70)In a bank robbery case, which of the following is most clearly characterized as demonstrative evidence, rather than real evidence:

a) the jury's view of the bank which was robbed;

b) the defendant's demeanor in the courtroom;

c) a photograph of the bank lobby, used by a witness to show the positions of the customers at the time of the robbery

d) the gun dropped by the robber outside the bank

71) A and B are charged with the murder of V. C is a 15 year old girl who witnessed the event and talked with A afterward. Officer interviewed C a week after the event and the pertinent part of 0's report reads:

According to C, A and B threw V over the cliff, then went down into the quarry and beat his head in with rocks. They took $20 and his car keys. A told me afterwards that it was his idea and he was sorry for what he'd done.

Assume that C is called as a state's witness and surprises the prosecutor by testifying that V fell off the cliff and A and B tried to save him from falling. Which of the following is true?

i) The prosecutor must show C a copy of 0's report before questioning her about its contents

ii) ordinarily the prosecutor must question C about her statement to 0 before calling 0 to testify to that statement

iii) If 0 testifies to C's statement, the jury should be instructed to use it only insofar as it affects C's credibility

* * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (ii) and (iii)

e) (ii) only

Evid Fnl S96 -- Fortune

72) On the facts of (71), assume that C was charged as a juvenile with facilitation of murder. In a plea agreement she was allowed to plead guilty to misdemeanor theft and receive 30 days house arrest in return for her testimony against A and B. She then testified before a grand jury that:

A and B stole V's car keys, threw V over the cliff, V climbed back up, they threw him over again, knocked him down with rocks, then went down to the quarry floor, and beat him to death with rocks. A told me afterwards it was all his idea and he was sorry he'd led B astray.

Which of the following is true?

i) The prosecutor may call C as a witness even if the

prosecutor knows that C has recanted her grand jury

testimony and will testify that V fell off the cliff

ii) The grand jury testimony can be used to show that A and B murdered and robbed V even if C refuses to answer any questions when called as a witness

iii) The grand jury testimony cannot be used to show that A confessed to C after the crime because that would be double hearsay

* * * *

a) all of the above

b) (i) and (ii)

c) (i) and (iii)

d) (ii) and (iii)

e) (i) only

73) On the facts of (71) , assume that C testifies consistently with her statement to the Officer and the grand jury. The defense attempts to cast doubt on her testimony by showing the favorable plea bargain. Is the defense entitled to do this over prosecution objections that juvenile records are sealed?

Evid Fnl S96 -- Fortune

74) On the facts of (71), assume the defense is allowed to impeach Z with the plea bargain. The prosecution then seeks to introduce the statements made to the Officer and to the grand jury.

i) Statement to Officer is admissible

ii) Grand jury testimony is admissible

* * * *

a) both (i) and (ii)

b) (i) only

c) (ii) only

d) neither (i) nor (ii)

75) If the prosecution is permitted to introduce the statement to the Officer in (74) should the jury be instructed to consider it only insofar as it affects the credibility of Z? Why or why not?