Evidence Quiz 1
Test your knowledge of the rules of evidence
- 1.
Perry sued his mechanic for failing to repair his brakes properly, causing an accident. Perry's attorney deposed an employee of the mechanic who testified that he saw the mechanic install the brakes while talking on the phone and watching TV. The employee passed away three weeks after the deposition. Is the deposition transcript admissible at trial?
- A.
Yes, because of the Dead Man's Statute.
- B.
Yes, it is a present sense impression exception to the hearsay rule.
- C.
Yes, it is a prior testimony exception to the hearsay rule.
- D.
Yes, provided the employee is an expert and the deposition transcript is the functional equivalent of an expert report.
Correct Answer
C. Yes, it is a prior testimony exception to the hearsay rule.Explanation
The Federal Rules distinguish between statements that are non-hearsay, hearsay, and exceptions to the hearsay rule.
In addition, the Federal Rules of Evidence distinguish between exceptions to the hearsay rule that require the declarant to be unavailable and those exceptions where it does not matter whether or not the person that made the original statement is available or not.
According to FRE 804, prior testimony is admissible as an exception to the hearsay rule if it is in a prior proceeding involving the same events and parties and there was an opportunity for the party against whom the testimony is being presented to further develop the testimony by direct or cross examination. The original declarant must be unavailable to testify.
FRE 804 prior testimony exception should apply here because the deposition concerned the same parties and events and provided the mechanic with an opportunity for cross examination.
Choice (1) is wrong because the Dead Man's Statute does not exist in the Federal Rules. Some states prohibit an interested party from testifying about verbal statements of a deceased or mentally incapacitated person.
Choice (2) is wrong because a present sense impression a present sense impression is a statement made at the time (or just after) a person perceives an event in which the person describes the event.
Choice (4) is a strange answer that is meant to appear very lawyerly.Rate this question:
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- 2.
Combat Sports International (CSI) is an athletic association that organizes martial arts matches. CSI cancels Paul the Puncher's fight claiming that Paul failed a medical examination. Paul sues CSI alleging that this was a pretense. CSI calls a doctor to testify as an expert witness that the results of Paul's blood test demonstrated that Paul was ill. A nurse who works for a local hospital conducted the blood test and the expert witness is not associated with the hospital. The blood test has not been admitted into evidence. The doctor's testimony is probably
- A.
Admissible, provided other doctors would rely on the blood test to determine whether Paul was fit to fight.
- B.
Admissible, provided the nurse is available to testify as to how she conducted the blood test.
- C.
Inadmissible as hearsay.
- D.
Inadmissible as a legal conclusion.
Correct Answer
A. Admissible, provided other doctors would rely on the blood test to determine whether Paul was fit to fight.Explanation
Rule 703 provides that an expert can base his opinion on facts or data that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, the underlying facts or data do not need to be admitted into evidence.
Under FRE 703 it does not matter that the doctor did not personally perform the blood test. But because this is expert testimony, a court will only allow the doctor's testimony if other doctors would rely on this type of data to determine whether a competitor is fit to fight.Rate this question:
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- 3.
Penelope alleges that Davida breached a contract to paint her house. Davida denies the contract required her to paint the house and Penelope does not have a copy of the contract. Penelope wants to call Davida's friend, Wanda as a witness, because (i) Wanda had first-hand knowledge of the contract and (ii) also saw Penelope's neighbor's dog eat the contract. Should Wanda be allowed to testify?
- A.
Yes, as an admission of a party opponent.
- B.
Yes, as secondary evidence of the contents of the contract.
- C.
No, because the testimony will benefit Penelope, who failed to enter the contract into evidence.
- D.
No, because Wanda is not an attorney.
Correct Answer
B. Yes, as secondary evidence of the contents of the contract.Explanation
Federal Rule of Evidence 1004 provides that under certain circumstances a court should admit secondary evidence of a document if the original is unavailable. One such circumstance is where the original is unavailable through no fault of the proponent. That seems to be the situation here. The contract is unavailable because a dog ate it and not because Penelope acted in bad faith.Rate this question:
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- 4.
Percival is struck by a white delivery van with license plate VRM 123 on Main Street. He sues Daniel, the owner of the delivery van. At trial Percival's attorney calls Daniel to testify. Percival's attorney asks Daniel two questions: (i) "Isn't it true that the delivery van you own is white?"; and (ii) "Its license plate is VRM 123, right?" Daniel answers "Yes" to both questions.On cross examination Daniel's attorney asks him, "Isn't it also true that you specifically instructed your employee drivers to never drive on Main Street?"What would be the best basis for Percival's attorney to object to this question?
- A.
Daniel's testimony would be speculative because there is no foundation for Daniel to know whether his driver was on Main Street or not.
- B.
Daniel's testimony would be irrelevant character evidence.
- C.
Daniel's testimony would be beyond the scope of direct examination.
- D.
Daniel's testimony would attempt to prove innocence or guilt based on prior conduct.
Correct Answer
C. Daniel's testimony would be beyond the scope of direct examination.Explanation
Pursuant to Federal Rule of Evidence 611(b) the scope of a witnesses's cross-examination should be limited to ". . . the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination." Although the Court might, in its discretion, allow this cross-examination, the attorney's question was beyond the scope of the two questions that were asked on direct. Daniel's attorney could try to introduce this evidence later in the trial.
Choice (1) is not a good choice because Daniel's testimony would not be speculative. As contemplated by Rule 602, Daniel is testifying as to something within his personal knowledge - - that he recalls instructing his drivers to not drive down Main Street.
The proposed testimony is unrelated to character evidence so choices (2) and (4) are wrong.Rate this question:
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- 5.
Delta Security Company hires Charlie as a security guard. Delta equips him with a heavy flashlight and a baton. On his first assignment to guard a warehouse Charlie uses both pieces of equipment to bash Patrick, a resident of the neighborhood who was strolling by on his way home.Patrick sues Delta for negligently hiring Charlie and seeks to introduce evidence that Charlie has a reputation as a violent and unstable person. This evidence is probably
- A.
Admissible because Charlie's character is at issue.
- B.
Admissible because Charlie might testify as to his good character.
- C.
Inadmissible because the prejudicial nature of the evidence will outweigh its probative value.
- D.
Inadmissible because Charlie's character is not at issue.
Correct Answer
A. Admissible because Charlie's character is at issue.Explanation
The case against Delta is based on negligent hiring. You may also see questions on law school exams concerning negligent entrustment. The idea is that if Delta were more careful it would not have hired a dangerous person to act as a security guard and would not have equipped him with weapons.
While it is true that in civil and criminal cases character evidence is generally inadmissible there are exceptions if character is an element of a claim or defense. Here, character evidence is an element of the claim against Delta because Patrick is alleging that if Delta had met its duty of care it would not have hired someone with a dangerous reputation. Federal Rule of Evidence 405 tells us that when character is at issue it can be proven through evidence based on reputation, opinion, or specific instances of conduct. Therefore, the reputation testimony should be admissible as evidence of Charlie's character.
Choice (2) is wrong for a number of reasons. Among other things, the Federal Rules do not allow testimony as to someone's bad character in anticipation that someone will testify as to his own good character.
Choice (3) is not the best choice. A court can decline to admit evidence if its prejudicial nature will outweigh its probative value but the question does not suggest that there will be unfair prejudice against Delta as a result of this testimony.Rate this question:
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- 6.
Mr. Dimes is charged with embezzling money from his company. The prosecutor seeks to compel Larry Lawyer, the attorney and golf buddy of Dimes, to disclose a conversation he had with Dimes during a golf outing. Of the following, which would be the circumstances under which a court would be most likely to compel testimony?
- A.
If Dimes confided in Larry during the discussion that he engaged in activities that would amount to embezzling, it would be admissible as an admission.
- B.
If Dimes told Larry in the presence of others on the golf course that he was embezzling funds it would be admissible because it would not violate the attorney-client privilege.
- C.
If Dimes told Larry he was embezzling funds but also stated that he wanted to know the best way that he could "come clean" and disclose his activities.
- D.
If Larry told Dimes that Dimes was in danger of going to prison.
Correct Answer
B. If Dimes told Larry in the presence of others on the golf course that he was embezzling funds it would be admissible because it would not violate the attorney-client privilege.Explanation
When a party has a confidential communication with his attorney for purposes of legal advice the communication should be subject to the attorney-client privilege. The court cannot compel the lawyer to testify over the client's objection.
But if the communication is made in the presence of others, especially strangers, then the communication will probably not be shielded because it was not a confidential communciation. If Dimes spoke in front of others, a court is likely to conclude that the communication was not privileged.
The other choices involve communications not in the presence of others where Dimes was apparently seeking and Larry was providing legal advice.Rate this question:
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- 7.
Dudley is charged with murder after he stabbed Victoria. A neighbor reports that she heard Victoria yell, "Oh my! Dudley just stabbed me! But ha! I'm fine and will get my revenge!" Shortly thereafter Victoria died.Of the following, which would be the best argument to allow the neighbor testify to what she heard as evidence that Dudley committed the crime?
- A.
This statement is admissible as non-hearsay because it is not being admitted for the truth of the matter asserted.
- B.
The statement is admissible as a dying declaration.
- C.
The statement is admissible as a statement against interest.
- D.
The statement is admissible as an excited utterance.
Correct Answer
D. The statement is admissible as an excited utterance.Explanation
Choice (1) is wrong because the testimony is obviously intended to prove the truth of the assertion that Dudley was the murderer.
Choice (2) is wrong because it would not be a dying declaration (FRE 804(b)(2)) unless Victoria believed she was in danger of imminent death and Victoria were unavailable for trial. Yes, she is unavailable but it appears that she did not have imminent apprehension of death.
Choice (3) is wrong because the declarant is Victoria and the statement is being used as evidence against Dudley.
The best answer is that the statement was an excited utterance, a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused (FRE 803). Note that this testimony might also be admissible as an exception to the hearsay rule even if Victoria survived and was available to testify. Rule 803 does not require the declarant to be unavailable.Rate this question:
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- 8.
Penelope sues David for fraud after he purported to sell her a house that he did not actually own. At trial, Penelope intends to testify that a week after the sale she confronted David, accused him of cheating her, and that he silently smiled and winked.David objects to the testimony. The testimony is likely
- A.
Admissible as an exception to the hearsay rule as a statement against interest.
- B.
Admissible as a non-hearsay adoptive admission.
- C.
Admissible as an exception to the hearsay rule as an adoptive admission.
- D.
Inadmissible as hearsay.
Correct Answer
B. Admissible as a non-hearsay adoptive admission.Explanation
The Federal Rules of Evidence distinguish between statements that are hearsay, exceptions to the hearsay rule, and non-hearsay.
FRE 801 provides a list of non-hearsay statements, including adoptive admissions (Rule 801(d)(2)(B)). In an adoptive admission a defendant hears an accusation against him but does not respond under circumstances where we would expect a reasonable person to deny the accusation.
David was accused of fraud but did not deny it; he just smiled and winked so a court will likely treat this as a non-hearsay adoptive admission.
Adoptive admissions are not hearsay, therefore, choice (3) is wrong by referring to an adoptive admission as an exception to the hearsay rule.
Choice (1) is not correct because David's failure to deny the accusation was an admission, not a statement against interest.Rate this question:
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- 9.
Patty's Pet Shop sues Darren Dog Food for breaching a contract to deliver dog food. Specifically, Patty argues that the dog food was delivered in an unusable condition. As part of its case that Darren breached the contract, Patty wants to introduce written notes by Wanda, a Patty employee who jotted down the condition of the dog food when it arrived. Her notes include statements such as: "Bag 14 - foul smelling"; "Bag 15 - Open, contents missing" etc.Patty is available to testify.What would be the best argument in favor of admitting the notes over Darren's objection?
- A.
The notes are admissible as a present sense impression exception to the hearsay rule.
- B.
The notes are admissible as non-hearsay present sense impression
- C.
The notes are admissible as an exception to the parol evidence rule because the notes represent non-contradictory supplemental terms
- D.
The notes are admissible as non-hearsay parol evidence.
Correct Answer
A. The notes are admissible as a present sense impression exception to the hearsay rule.Explanation
A present sense impression is an exception to the hearsay rule. FRE 803(1) provides that even if the declarant is available, a court can admit a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Wanda's notes reflect her contemporaneous description of the delivery.
A resent sense impression is hearsay, so choice (2) is wrong.
Choices (3) and (4) are way off. The parol evidence rule generally prohibits parties from using other agreements to explain, contradict, or supplement the terms of a fully integrated agreement. There is no connection between the parol evidence rule and the admissibility of Wanda's notes.Rate this question:
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- 10.
Pauline was in a taxi when an accident occurred. Following the accident at a nearby hospital, Pauline told a nurse, "It all happened very fast and was so scary. The taxi driver was such a maniac." A senior hospital staff member overhears the conversation.If called to testify, would the staff member's testimony regarding the conversation likely be admissible?
- A.
Yes, the statement would be admissible because it does not matter whether the person testifying actually administered medical treatment.
- B.
Yes, the statement would be admissible because the person testifying is a senior person at the facility where medical aid was rendered.
- C.
No, because the statement was not pertinent to medical diagnosis or treatment.
- D.
No, because the statement was made to the nurse who was administering care, not to the senior staff member.
Correct Answer
C. No, because the statement was not pertinent to medical diagnosis or treatment.Explanation
Pursuant to FRE 803(4) the statement would be admissible as an exception to the hearsay rule if it was reasonably pertinent for medical diagnosis or treatment. The statement that the driver was a maniac would probably not be relevant to treatment of Pauline's injuries and, therefore, the statement is probably inadmissible hearsay.
Choice (1) is accurate in that the person testifying does not have to be the person providing medical care but Pauline's statement was not pertinent to a request for medical treatment.
Choice (2) is wrong because it does not matter whether the person testifying was a senior staff member of the hospital.
Choice (4) is wrong because if the statement had been pertinent to medical care or diagnosis it would not matter whether the nurse or another person who heard the conversation testified as to what Pauline said.Rate this question:
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Mar 20, 2022Quiz Edited by
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Feb 15, 2015Quiz Created by
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