Admissibility of Testimonies and Evidences in Legal Cases, Exams of Law

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Evid Fnl S96 -- Fortune Exam # EVIDENCE FINAL S 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

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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

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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

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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?

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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;

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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 illegalbetting 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 deceitinvolved;

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 wasalways 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?

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28. Paul v Anthony's Pizza for personal injuries sustained when he was forced off the road by a speeding deliverytruck 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. Paulwould 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 12 Evid Fnl S96 -- Fortune

31. On the facts of (28), Paul calls Edwards, a clinical psychologist to testify that Paul suffers from traumatic neurosisas 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 certainreports not in evidence

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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 expenseswhile 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. Whatfoundation must be, laid before Frost consults the list?

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33. On the facts of (32), assume that Frost consults the list while testifying. The IRS attorney asks to see the list beforecross-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

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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 theexpenditures. 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 Frostreports 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 evidencethat 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 whetherFrost lost or destroyed the receipts in bad faith;

d) allow Frost to testify to the contents of the receipts 14 Evid Fnl S96 -- Fortune

36. While crossing Limestone at Maxwelton, P, a law student, was killed by a hit and run driver. D was subsequentlyarrested 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 willshow 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 carefulpedestrian. 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 streetagainst 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. Theprosecutor 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?

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39. On the facts of (36) to prove D's ownership of the car which struck p, the state offers a photocopy of a 1996certificate 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 groundsof:

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 toA'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 numberassigned 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 thecaller admitted striking P. D objects to 0's testimony concerning this conversation on authentication grounds. Should the objection be sustained? Why or why not?

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42)On the facts of (36), the state calls 0 to testify that four days after the event he located D at his place ofemployment; 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 ofcompromise. 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 andrun 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 matterssubstantially outweighs the probative value of the evidence

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44. On the facts of (36), assume that D testifies in his own behalf and admits, for the first time, that he struck P. Hetestifies 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 abad 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

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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 settlementnegotiations 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?

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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 confessionsuppressed 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 asunreliable

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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

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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, inthe 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. Theprosecutor 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 probativevalue

d) inadmissible j 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 tograduate 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 applybecause:

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

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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