Answered Essay: 8. Given that the general qualifications are met, the expert may base an opinion on ___________

8. Given that the general qualifications are met, the expert may base an opinion on ____________.

a. Facts or data in the case that the expert has introduced into evidence.

b. Facts or data in the case from percipient witness testimony.

c. Facts or data in the case that the expert has been made aware of or has personally observed.

d. None of the above.

9. The general rule is that hearsay is not admissible. There are ____________ exceptions to this rule.

a. No.

b. A very small number of.

c. Nearly a couple of dozen.

d. Over 50.

10. Normally, the proponent must produce sufficient evidence to support a finding that an item be admitted as evidence. However, an official state signed and sealed document might be admitted without the proponent being required to produce such sufficient evidence. Such a document being admitted would involve an exception to which rule (or title)?

a. Contents, writings, recordings, and photographs.

b. Opinions and expert testimony.

c. Authentication and identification.

d. None of the above.

11. Which of the following is true?

a. Many states base their rules, at least in part, on the federal rules of evidence.

b. Generally speaking, state rules of evidence bear little resemblance to the federal rules of evidence.

c. All states have codified the federal rules of evidence as their written rules.

d. None of the above.

12. Smithson took action against the estate of Upton for nonpayment of a promissory note. Smithson filed the action in federal court under its diversity jurisdiction. The estate claims Upton paid the note in full before his death. The state in which the federal court sits has a dead man statute. At trial, Smithson wishes to testify that shortly before his death, Upton acknowledged that the debt remained unpaid. The estate objects. Which of the following statements is true?

a. The court should sustain the objection because of the dead man statute.

b. The court should sustain the objection because Smithson’s testimony constitutes inadmissible hearsay.

c. The court should overrule the objection as there is no federal dead man statute and FRE 601 removes such a ground of witness incompetency.

d. The court should sustain the objection both because of the dead man statute and because of the hearsay rule.

e. None of the above.

13. Abbott is being prosecuted for the murder of Costello. To prove he did not commit the crime, Abbott wishes to testify that after the murder was committed, Barney, a member of the Coasties, a violent street gang, told him that the Coasties had killed Costello. Abbott is not a member of the Coasties. Which of the following statements is correct?

a. Since Abbott’s testimony concerning Barney’s statement would be highly self-serving, the court should exclude it as a waste of time.

b. Although Barney’s statement is relevant to Abbott’s innocence, it is hearsay when offered for that purpose.

c. Barney’s statement is not hearsay when offered to prove Abbott’s innocence, but it must be excluded because its probative value is substantially outweighed by the danger of unfair prejudice.

d. Barney’s statement is relevant non-hearsay when offered to prove Abbott’s innocence.

e. None of the above.

14. Tom is being prosecuted for conspiring to sell illegal drugs in Miami. Tom denies that he was involved in any conspiracy. The prosecution calls one witness who testifies that she was a part of the conspiracy, but withdrew before any drug sales. To prove Tom’s involvement in the conspiracy, the prosecution wishes to call Nat an undercover narc, to testify that he infiltrated the organization which allegedly planned the crime, and that on the day before the deal was going down, George, a member of the organization, said to Nat, “Tom and I need a driver for tomorrow’s deal. Can you assist us?” Tom lodges a hearsay objection to Nat’s testimony concerning George’s statement. What statement is the most accurate?

a. The existence of a conspiracy is a preliminary fact which must be found for George’s statement to be admissible. It is also a fact which the jury must ultimately decide to convict Tom. As a result, the jury should decide the preliminary fact.

b. The existence of a conspiracy is a preliminary fact which must be found for George’s statement to be admissible. It is also a fact which the jury must ultimately decide to convict Tom. Therefore, although the existence of the preliminary fact will be for the court to decide, the court must apply the reasonable doub standard in making that determination.

c. Because the statement asserts that a conspiracy existed, which is the very thing the court must decide to

determine the admissibility of the statement, it would be improper to permit the court to consider the statement as evidence of the existence of a conspiracy.

d. Even though the statement asserts that a conspiracy existed, which is the very thing the court must decide to admit the statement, the court may consider the statement as it determines the preliminary fact question.

15. At the trial of Ike, who was accused of receiving stolen property, the prosecution called Jeff to the witness stand. Jeff testified that in a conversation that he had with Ike in jail shortly after Ike’s arrest, Ike admitted that he knew that the car he had been driving was stolen. Which of the following facts or inferences would best support Ike’s motion to exclude Jeff’s testimony?

a. At the time of their conversation, Jeff told Ike that he was an attorney.

b. At the time of their conversation, Ike reasonably believed that Jeff was employed as an investigator for Ike’s attorney.

c. Jeff had offered to recommend an attorney to Ike, and had asked Ike to tell him the facts of the case.

d. Jeff had been charged with a crime and, on the day of Ike’s trial, had negotiated a favorable plea bargain in return for his testimony.

e. None of the above.

16. Berlinda and Sylvia, business partners, are being prosecuted for participating in a fraudulent real estate scheme. Earlier, Sylvia had been sued by Mike, an investor who lost a great deal of money. At that civil trial, Mike testified about the scheme and identified Sylvia as the one who enticed him into investing his son’s college fund. Mike died before the criminal trial. At the criminal trial, the prosecution wished to call Wendy, a newspaper reporter who was in the courtroom during Mike’s testimony at the civil trial, to testify about Mike’s trial testimony. Wendy’s testimony concerning Mike’s civil trial testimony is ____________.

a. Hearsay and inadmissible against both Berlinda and Sylvia. It does not satisfy the former testimony exception because of the “similar motive” requirement of said exception.

b. Hearsay and inadmissible against both Berlinda and Sylvia because it is not offered in the form of the trial transcript.

c. Hearsay and admissible against Sylvia, but not Berlinda.

d. Hearsay and admissible against both Berlinda and Sylvia.

e. None of the above.

17. Bill is prosecuted for arson. Bill denies committing the crime. At trial, Bill calls Leonard, a law officer who interviewed Omar, the owner of the torched building. Bill shows Leonard a document, which Leonard identifies as the report he prepared after the interview. The report describes the physical condition of the building and states that Leonard showed Omar a group of photographs, and that Omar identified an individual as the one he saw running from the building just before the fire broke out. That person was not Bill. Bill represents that he will call Omar to testify later at the trial. Bill now offers Leonard’s report into evidence. Which of the following statements is most likely correct?

a. The report is hearsay and inadmissible under the public records exception because it contains matters

observed pursuant to duty imposed by law, as well as factual findings resulting from an investigation.

Omar’s statement is thus also inadmissible.

b. The report is hearsay and admissible under the public records exception. Omar’s statement is admissible non hearsay if Omar testifies and is subject to cross-examination concerning the statement.

c. The report is hearsay and the description of the building is admissible under the public records exception. The part of the report describing Omar’s identification of the perpetrator is inadmissible because Leonard lacks personal knowledge of who committed the crime.

d. The report is non-hearsay because it is not offered to prove the truth of the matter asserted.

e. None of the above.

18. Angie sues Ohio Heating for negligence for injuries suffered when Ohio allegedly failed to fix Angie’s heater during a strong cold snap. Angie, who is elderly and housebound, alleges that she phoned Ohio as soon as the heater failed, that Ohio agreed to respond quickly and that Angie waited for an entire night, but Ohio never appeared. While waiting for Ohio, Angie claims she suffered cold-related injuries to her fingers and toes. Angie testifies that she placed her call to the number for Ohio listed in the phone book, and that a voice answered, “Heating Service.” Ohio denies ever receiving the call and moves to strike Angie’s testimony from the record. How should the court rule?

a. The court should deny Ohio’s motion because there is sufficient evidence to support a finding that the call was actually placed to Ohio.

b. The court should deny the motion if it finds that the call was not placed to Ohio.

c. The court should grant the motion because the party answering the phone did not identify itself as Ohio

Heating.

d. The court should deny the motion because Angie has already testified and it is too late to keep the evidence from the jury.

e. None of the above.

19. Grover initiates a breach of contract action against Todd. Grover claims the contract, which was reduced to writing, called for Todd to deliver 200 crates of peaches by a certain date. At trial, Todd wishes to testify that the contract only called for delivery of 100 crates. Grover makes a best evidence rule objection.

a. The court should sustain the objection.

b. The court should overrule the objection because a contract is an agreement brought about by the meeting of two minds, not by writing. The writing is only a memorandum of the agreement, not the contract itself.

c. The court should overrule the objection because Todd is not testifying about the contents of the writing, but about his understanding of the agreement.

d. The court should overrule the objection because the central issue in the case concerns the terms of the

agreement, and the jury is entitled to hear Todd’s interpretation of the terms.

e. None of the above.

20. Vivian starts a fraud action against Dennis, a used car seller, arising from the sale of a car. Vivian asserts that Dennis advertised the car as new when in fact its odometer had been set back to zero from 10,000 miles. Before trial, Vivian took the deposition of Sam, Dennis’s sales manager. During the deposition, Sam admitted that the seller sometimes turned back odometers on vehicles before sale. At trial, Dennis calls Sam, who testifies that he prepares all cars for Dennis and that no odometers were ever turned back while Sam worked for Dennis. On cross-examination, Vivian asks Sam whether he remembers having his deposition taken and stating that odometers sometimes were turned back. Sam admits to having had his deposition taken, but denies making the statement. Vivian wishes to read into evidence a portion of Sam’s deposition transcript containing Sam’s statement that odometers sometimes were turned back. Which of the following statements is most accurate?

a. The portion of the transcript is admissible only to impeach Sam’s credibility.

b. The portion of the transcript is admissible both to impeach Sam’s credibility and to prove that the odometer was turned back.

c. The portion of the transcript is inadmissible for either purpose because Sam is not unavailable.

d. The portion of the transcript is inadmissible for either purpose unless Dennis’s lawyer cross-examined Sam at the deposition.

e. None of the above.

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