EVIDENCE

EXPLANATORY ANSWERS
 EVIDENCE ANSWERS 1.

EVIDENCE ANSWERS
Answer to Question 1

(A) The driving record is inadmissible because it is being offered as character evidence. In a civil
case, evidence of character to prove the conduct of a person in the litigated event is generally not
admissible. The slight probative value of character is outweighed by the dangers of prejudice and
distracting the jury from the main issues. Therefore, circumstantial use of prior behavior patterns
for the purpose of drawing the inference that a person has a particular character trait and that, at
the time and place in question, she probably acted in conformity with it is not permitted. Evidence
of the defendant’s good driving record is being offered to show that she is a careful driver and to
raise the inference that, when the accident occurred, she was acting in conformity with that trait.
This constitutes impermissible use of character evidence and is inadmissible. (B) is incorrect
because evidence is not excludable because it is self-serving. Virtually all evidence is self-serving
to the party offering it. (C) is incorrect because it is based on the mistaken assumption that
character evidence is admissible. As stated above, character evidence is generally inadmissible
in a civil case. It is admissible in a civil case only when proof of a person’s character, as a matter
of substantive law, is an essential element of a claim or defense (e.g., in a defamation case). The
defendant’s character is not in issue, so the driving record is inadmissible. (D) is incorrect because
this is not habit evidence. Habit describes one’s regular response to a specific set of circumstances.
Character describes one’s disposition with respect to general traits. The defendant’s good driving
record describes a general behavior pattern of careful driving, rather than a regular response to a
specific set of circumstances. Thus, this is character evidence, rather than habit evidence.
Answer to Question 2

(A) The defense witness’s testimony is admissible character evidence because the plaintiff’s character
is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a
person in the litigated event is not admissible in a civil case. However, when proof of a person’s
character, as a matter of substantive law, is an essential element of a claim or defense in a civil
action, character evidence is admissible because it is the best method of proving the issue. Under
the Federal Rules, any of the types of evidence—reputation, opinion, or specific acts—may be
used. Here, character is an issue in the plaintiff’s defamation action because the defendant has
pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the
truth. The defense witness’s testimony that he saw the plaintiff take the money from the cash
register is relevant because it tends to show that the defendant spoke the truth. Hence, it should
be allowed. (B) is incorrect because the fact that the theft here could be considered a crime of
dishonesty would be relevant only if the plaintiff’s credibility were being impeached, and only
then if proof of an actual conviction were provided. Here, the testimony is admissible because it
is being offered as substantive evidence of an aspect of the plaintiff’s character that is an essen-
tial element of a defense in the case. (C) is incorrect. One of the few cases where testimony as to
specific acts of a person may be used to show that person’s character is when character itself is
one of the essential issues in the case, as it is here. (D) is incorrect because the fact that the plain-
tiff never took the stand only means that she has not placed her credibility in issue and become
subject to impeachment. Here, however, the plaintiff’s character is in issue and the testimony is
being offered as substantive evidence of her character rather than to impeach her credibility.
Answer to Question 3

(B) The defendant can put his character in issue by calling a witness to testify to his good reputation
for the trait involved. Here, the defendant is offering the testimony of a witness as to his reputation
2. EVIDENCE ANSWERS

for honesty and veracity, which is a trait directly in issue in his embezzlement charge. There-
fore, the testimony should be allowed, and the prosecution will have the opportunity to rebut the
testimony on cross-examination. (A) is incorrect because only the defendant can put his character
in issue, and the filing of criminal charges does not have the effect of putting the defendant’s
character in issue. (C) is incorrect because there is no impeachment issue here and the defense is
not attempting to bolster the testimony of its witness (which is generally done after the credibility
of the witness is attacked on cross-examination), but rather to offer an opinion as to the defen-
dant’s character. (D) is incorrect because, to the extent that the witness’s testimony is hearsay, it
falls within the exception to the hearsay rule for reputation evidence of a person’s character.

Answer to Question 4

(C) The bartender’s testimony is inadmissible because the defendant’s prior fight in the tavern cannot
be admitted to prove his propensity to beat someone to death. The basic rule is that when a person
is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible
if such evidence is offered solely to establish a criminal disposition. [Fed. R. Evid. 404(b)] The
danger is that the jury may convict because of past conduct rather than because of guilt of the
offense charged. While evidence of other crimes is admissible if it is independently relevant
to some other issue (e.g., motive, intent, or identity), the defendant’s prior fight appears to have
no relevance other than as evidence of his violent disposition. It is therefore inadmissible. (A)
is incorrect because it suggests that the bartender’s testimony should be admitted to show the
defendant’s propensity for violence. As stated above, extrinsic evidence of his prior misconduct
is inadmissible if offered solely to establish a criminal disposition. Evidence of specific acts
of the person in question as demonstrating that person’s character is permitted only in the few
instances when character is itself one of the ultimate issues in the case. [Fed. R. Evid. 405(b)] The
defendant’s propensity for violence is not an ultimate issue in this case. (B) is incorrect because
extrinsic evidence of the defendant’s previous bad acts cannot be used to impeach him. A specific
act of misconduct must be probative of truthfulness (i.e., an act of deceit or lying) and can be
elicited only on cross-examination of the witness. Extrinsic evidence is not permitted. Therefore,
testimony concerning the defendant’s prior incident is not admissible for impeachment. (D) is
incorrect because it is irrelevant. It is true that the defendant has not put his character in issue
in this case simply by pleading self-defense. Even if he had, however, the prosecutor could not
rebut by having a witness testify as to prior instances of misconduct; only reputation or opinion
evidence would be admissible.

Answer to Question 5

(A) The defendant’s armed robbery conviction is least likely to be admitted. In a criminal case,
evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to estab-
lish criminal disposition. A broad exception to the general rule permits evidence of other crimes
or misconduct to be admitted if such acts are relevant to some issue other than the character of
the defendant to commit the crime charged. Such evidence may be used to show motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or absence of mistake. Here, (A) is least likely
to be admitted because evidence of the defendant’s previous conviction for armed robbery does
not come within any permissible use of evidence of other crimes or bad acts. Because the defen-
dant apparently is not contesting the issue of whether he possessed the semi-automatic weapon,
it is irrelevant that the robbery conviction shows possession of such a weapon at some earlier
time. The only use to which evidence of this conviction can be put is to show the defendant’s bad
character and disposition to commit the crimes with which he is presently charged. (B) is likely to
be admitted because testimony that the defendant apparently tried to interest the witness in buying
 EVIDENCE ANSWERS 3.

a semi-automatic weapon tends to show that the defendant had the intent to engage in selling the
weapon. For the same reason, (C) is also likely to be admitted. Supplying guns to a paramilitary
group is certainly evidence of involvement in a plan of firearms trafficking. (D) is likely to be
admitted as evidence of intent or knowledge. Because the defendant has denied knowing that the
weapon was stolen, evidence of his prior convictions for receipt of stolen weapons can be intro-
duced to show the likelihood that he knew the weapon was stolen in the present case, negating his
claim of good faith.

Answer to Question 6

(D) The question is proper. The defendant has taken the stand in his own defense, and therefore the
prosecutor can attack his credibility as a witness. Under Federal Rule 609, evidence of conviction
of a crime requiring proof of an act of dishonesty or false statement can always be used to attack
a witness’s character for truthfulness. (A) is incorrect because even if fraud were probative of the
tendency to commit violence, evidence of other crimes is not admissible to prove that a person has
a propensity to commit criminal acts. (C) is incorrect for the same reason. (B) is wrong because
no foundation is needed to show a prior conviction for impeachment purposes.

Answer to Question 7

(C) The record of the conviction should be excluded because the defendant has given no testimony to
be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a
witness. Although the defendant has been called as a witness, she has not given any testimony at
this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise consti-
tute proper impeachment evidence. (A) is incorrect because evidence of character to prove the
conduct of a person in the litigated event is generally not admissible in a civil case. Circumstantial
use of prior behavior patterns for the purpose of inferring that, at the time and place in question,
a person probably acted in accord with such patterns raises the danger of unfair prejudice and
distraction from the main issues. Consequently, even if the prior conviction resulted from driving
while intoxicated, the record of that conviction is not admissible to show that the defendant was
intoxicated when she collided with the plaintiff. (B) is incorrect because, as has been noted,
evidence cannot be used for impeachment purposes before there is anything to be impeached. (D)
is incorrect for two reasons: First, it is unnecessary to address the issue of whether the conviction
constitutes proper impeachment evidence, because impeachment is not even called for on these
facts. Second, if properly offered to impeach testimony by the defendant, the conviction would not
be considered too remote. Under the Federal Rules, a conviction is not too remote if fewer than 10
years have elapsed since the conviction or release from prison.

Answer to Question 8

(B) The court should allow the prosecutor’s question because it is appropriate to show bias or interest
on the part of the witness. Evidence that a witness is biased or has an interest in the outcome of
the case tends to show that the witness has a motive to lie. Bias or adverse interest can be proved
by cross-examination or extrinsic evidence, and in some cases, both. Here, the fact that the
witness is being prosecuted for the same crime tends to show that he has a motive to lie in saying
that the fire started accidentally. Thus, it is proper impeachment for the prosecutor to cross-
examine the witness about his own prosecution. (A) is wrong because all witnesses are subject to
impeachment, and evidence (including character evidence) that bears on truthfulness is always
admissible (although the means of proof may be restricted). This choice confuses the basis for
the prosecution’s introduction of substantive character evidence against a defendant in a criminal
4. EVIDENCE ANSWERS

trial with valid impeachment of a witness for bias or interest. Nor would it matter if the defense
lawyer’s evidence of the witness’s good character was admitted erroneously (because generally a
witness’s testimony cannot be bolstered until the witness has been impeached). Regardless of the
defense’s introduction of that evidence, a witness may always be impeached by extrinsic evidence
of bias. (C) is wrong because conviction of a crime is not a requisite for introduction of evidence
showing bias or interest. A felony conviction or a conviction for a crime involving dishonesty is
an entirely separate method of impeachment. (D) is wrong for two reasons: (i) the answer to the
question could in no way incriminate the witness; and (ii) even if the answer could tie the witness
to the commission of the crime, he could invoke the privilege to refuse to answer—the question
itself would not be objectionable.

Answer to Question 9

(B) The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness
may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic
evidence is not permitted. A specific act of misconduct offered to attack the witness’s character for
truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the
cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot
properly be called to testify about it. (A) is incorrect because there is no specific rule limiting
cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing
evidence that the witness was convicted of a crime if the conviction required proof or admis-
sion of an act of dishonesty or false statements. However, the prior conviction must not be more
than 10 years old, and the facts do not disclose how old the conviction was. Furthermore, a prior
conviction generally is shown by cross-examination of the witness or by introducing the record
of the judgment. A judge is not likely to permit another witness to testify about the conviction
because it is too time-consuming and more prejudicial than the other means of proof. (D) is incor-
rect because even though a hoax would impair a witness’s credibility, it cannot be shown through
testimony of specific acts, as discussed above.

Answer to Question 10

(C) Testimony as to the date of purchase should not be admitted because its minimal relevance is
substantially outweighed by considerations of waste of time and confusion of the issues. The
actual date of purchase has no bearing on the issue of ownership, but instead is offered to cast
doubt on the plaintiff’s credibility. However, when a witness makes a statement not directly
relevant to the issues in the case, the rule against impeachment on a collateral matter bars his
opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsis-
tent statement. As noted previously, the clerk’s statement as to the date on which the defendant
purchased the equipment is not directly relevant to any other issue in the case. Thus, (C) is
correct. (A) is incorrect. The past recollection recorded exception to the hearsay rule permits a
party to offer into evidence a writing made by a witness whose memory cannot be refreshed. The
purpose of the writing would be to prove the facts contained therein to which the witness cannot
testify due to insufficient memory. Here, the clerk has not stated that she has insufficient recollec-
tion of the events to which she is testifying, she is simply referring to the purchase order due to
the unusual signature. Additionally, the defense is not attempting to introduce the purchase order
into evidence. Thus, the purchase order does not constitute a past recollection recorded. (B) is
incorrect for the same reason. A record of any act, transaction, occurrence, or event is admissible
as proof of that act, transaction, occurrence, or event if made in the regular course of business.
Here, the purchase order is not being offered into evidence and a passing reference to it does not
 EVIDENCE ANSWERS 5.

affect the clerk’s testimony. (D) is incorrect because the clerk is not testifying to the content of
the purchase order. Rather, she is simply testifying to the date of purchase from her own memory.
Thus, the hearsay nature of the contents of the purchase order is not at issue.

Answer to Question 11

(D) The testimony is inadmissible. A party cannot bolster the testimony of a witness until the witness
has been impeached. Here, plaintiff’s counsel is seeking to introduce the sister’s prior statement,
which is consistent with her in-court testimony, to prove she is telling the truth. The testimony
is inadmissible for this purpose because the sister has not been impeached. Therefore, (D) is
correct. (A) is incorrect. A prior consistent statement is admissible if offered to rebut a charge
that a witness is lying or is stating the facts incorrectly. Here, the credibility of the sister has not
been attacked; therefore, there is no justification for bolstering her credibility. (B) is incorrect.
While the statement would not be hearsay if it is not being offered to prove the truth of the matter
asserted, it is nevertheless inadmissible because it is improperly offered to bolster the credibility
of the witness. (C) is incorrect. There is no indication that plaintiff’s counsel asked any leading
questions. Furthermore, leading questions are sometimes permitted on direct examination (e.g.,
when the witness is hostile).

Answer to Question 12

(A) The witness’s testimony is admissible for purposes of impeachment only. There are many
occasions in which out-of-court statements are admitted into evidence by means of hearsay excep-
tions. These statements are frequently admitted into evidence even though the person who made
the statement does not testify at trial. The party against whom the statement has been admitted
may wish to impeach the credibility of the declarant so that the jury will discount the statement.
Under Federal Rule 806, if hearsay statements are admitted, the person who made the out-of-
court statements can be impeached the same way any in-court witness could be impeached. (B)
is incorrect. Prior inconsistent statements are admissible for impeachment only, unless they were
given under oath at a trial or other proceeding. If they were given under oath at a trial or other
proceeding, they can be used both to impeach and as evidence to prove the facts contained in
the statement. (C) is incorrect. Prior inconsistent statements offered to impeach are not hearsay
because they are not being offered for the truth of the matter asserted, only that the declarant
made inconsistent statements about the matter. (D) is incorrect. Because the bystander is a hearsay
declarant, the statement is admissible to impeach even if he does not have an opportunity to
comment on the statement. Even if the bystander were a live witness, the Federal Rules do not
always require that he be given an opportunity to comment.

Answer to Question 13

(B) The evidence is not hearsay because the statement is not offered for its truth; the statement is
offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay
rule is applicable, the evidence must be excluded upon appropriate objection to its admission.
[Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the
statement may be admitted to show the statement’s effect on the listener or reader. Thus, in a
negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for
the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense
of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in
6. EVIDENCE ANSWERS

lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement
of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The
statement is not hearsay because it is not offered to prove that it was in fact dangerous for the
plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that
the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter
the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in
most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay)
regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no
opportunity for cross-examination at the time the statement was made. The key in this case is not
that the declarant is testifying, but that the statement is not being offered for its truth. (C) charac-
terizes the testimony as hearsay, which is incorrect because it is not being offered for its truth.
Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception
for present sense impressions, which are statements made contemporaneously when perceiving
some event. The testimony of the foreman would not come within this exception. (D) incorrectly
characterizes the testimony as hearsay. In addition, this statement, even if hearsay, would not
come within the present state of mind exception. A statement of a declarant’s then-existing state
of mind is admissible when the declarant’s state of mind is directly in issue and material to the
controversy, or as a basis for a circumstantial inference that a particular declaration of intent was
carried out. The declarant here is the foreman. There is no indication that his state of mind is at
all relevant to this litigation, nor is the statement offered indicative of any particular intent on the
part of the foreman. Thus, the present state of mind exception is inapplicable.

Answer to Question 14

(A) The witness’s testimony about the conversation between the defendant and his roommate is not
being offered for its truth (i.e., to prove that the plaintiff had been flirting with the defendant’s
girlfriend), but rather to show its effect on the defendant. Thus, it is not hearsay, and (C) is incor-
rect. When the words themselves are in issue (e.g., words of contract, gift, defamation, etc.), they
are legally operative facts. This concept does not apply to these facts, and so (B) is incorrect. (D) is
incorrect because opinion testimony by lay witnesses is admissible if it is based on the perception
of the witness, helpful in determining a fact in issue, and not based on scientific, technical, or other
specialized knowledge. Here, the witness saw the defendant, and he appeared angry. Whether the
defendant was angry could help determine whether he acted in self-defense or struck the first blow.

Answer to Question 15

(D) The mechanic’s statement is admissible as a statement attributable to a party-opponent. The

Federal Rules treat statements by a party-opponent (commonly known as admissions) as
nonhearsay (whereas most states consider them to be an exception to the hearsay rule). This rule
applies to any statement made by a party and offered against that party. Such a statement need not
have been against interest at the time it was made. Some statements are considered admissions
even if not made by the party against whom they are offered, as long as they are attributable to
the party. One such vicarious admission is a statement by an agent concerning a matter within the
scope of her agency, made during the existence of the agency relationship. [Fed. R. Evid. 801(d)
(2)(D)] Here, the bystander’s testimony as to the mechanic’s statement is offered to prove the truth
of the matter asserted therein; i.e., that the mechanic had not properly fixed the brakes. Thus, the
mechanic’s statement would normally be considered hearsay. However, the statement was made
while she was an agent of the repair shop, and the statement concerned a matter within the scope
of her agency (i.e., whether she had properly performed the job for which she was employed by
the repair shop). Consequently, her statement may be introduced against the repair shop as an
 EVIDENCE ANSWERS 7.

admission by a party-opponent of negligence in the repair of the brakes. (A) is wrong because the
statement is admissible against the repair shop as a vicarious admission. (B) is wrong because
it is irrelevant to the issue of whether the bystander’s testimony is admissible. The fact that the
motorist failed to stop at the stop sign, and thus was negligent, will not prevent introduction of
testimony that the mechanic admitted that she was negligent. (C) is wrong because the statement
against interest exception to the hearsay rule is applicable only where the declarant is unavailable
as a witness. Here, the mechanic is available as a witness. In addition, as noted above, a statement
by a party-opponent is admissible even if not against interest when made. Thus, the statement
would be admissible against the repair shop even if it were not against its interest when made.

Answer to Question 16

(D) The transcript of the first witness’s grand jury testimony is inadmissible hearsay. Hearsay is a
statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] A hearsay statement, to
which no exception to the hearsay rule is applicable, must be excluded upon appropriate objection
to its admission. [Fed. R. Evid. 802] The transcript of the grand jury testimony is being offered
to prove the truth of the matter asserted therein (i.e., that the defendant beat the victim with a
baseball bat). The grand jury testimony of a person who is not now testifying is deemed neither
nonhearsay nor within any recognized exception to the hearsay rule. (A) is incorrect because
grand jury testimony does not fall within the former testimony exception. Under that exception,
the testimony of a now unavailable witness given at another hearing or in a deposition taken in
accordance with law is admissible in a subsequent trial if there is a sufficient similarity of parties
and issues so that the opportunity to develop testimony or cross-examine at the prior hearing
was meaningful. [Fed. R. Evid. 804(b)(1)] Grand jury proceedings do not afford an opportu-
nity for cross-examination. Consequently, the defendant (the party against whom the grand jury
transcript is offered) did not have the opportunity to develop the first witness’s testimony. Absent a
meaningful opportunity to cross-examine the first witness at the time of her grand jury testimony,
the transcript of such testimony will not be admissible under the former testimony exception.
(B) is incorrect because the first witness’s statement is an out-of-court statement being offered
for its truth and does not fall within any special category of nonhearsay under the Federal Rules.
Therefore, the grand jury testimony is hearsay. Note that the first witness’s testimony cannot
be nonhearsay under Rule 801(d) because she is not currently testifying at the civil trial; thus,
the grand jury transcript cannot be the prior statement of a witness. (C) is incorrect because the
rehabilitation of the second witness (if he had been impeached by a charge that he was lying or
exaggerating because of some motive) would have to be accomplished through the introduction of
a prior consistent statement made by the second witness himself, rather than the first witness. A
party may rehabilitate a witness by showing a prior consistent statement if opposing counsel has
impeached the credibility of a witness by making a charge that the witness is lying or exagger-
ating because of some motive. Under Federal Rule 801(d)(1)(B), the prior consistent statement
may be used not only to bolster the witness’s testimony, but also as substantive evidence of the
truth of its contents (i.e., it is nonhearsay). If the second witness had been charged with lying or
exaggerating, then the victim’s counsel may rebut such a charge by introducing a prior consistent
statement made by the second witness before the time of any such alleged lying or exaggerating.
However, a statement by the first witness cannot be used to rehabilitate the second witness.

Answer to Question 17

(D) If offered to prove that the defendant stole the jewelry, the testimony by the plaintiff would be
hearsay and, thus, inadmissible. Hearsay is a statement, other than one made by the declarant
8. EVIDENCE ANSWERS

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. [Fed. R. Evid. 801(c)] A hearsay statement, to which no exception to the hearsay rule
is applicable, must be excluded upon appropriate objection. [Fed. R. Evid. 802] The proffered
testimony of the plaintiff relates to a statement made by the witness other than while testifying
at the instant trial. Therefore, if the witness’s out-of-court statement is offered to prove that the
defendant stole the pieces of jewelry, the statement is hearsay. Because no exceptions to the
hearsay rule apply, the statement is inadmissible. (A) is incorrect because the statement is not
against the interest of the declarant (the witness). Under the statement against interest exception
to the hearsay rule, statements of a person, now unavailable as a witness, against that person’s
pecuniary, proprietary, or penal interest when made are admissible. [Fed. R. Evid. 804(b)(3)]
Here, the witness may be deemed to be unavailable because he has testified to a lack of memory
of the subject matter to which his original statement to the plaintiff relates. However, the state-
ment contained in the proposed testimony of the plaintiff is not against any interest of the witness,
who is the declarant, but is rather against the interest, both penal and civil, of the defendant.
Therefore, the statement does not qualify for admissibility as a statement against interest. (B)
is incorrect because the witness has simply testified that he does not remember either seeing
the defendant take the jewelry or telling the plaintiff that she did so. Impeachment refers to the
casting of an adverse reflection on the truthfulness of a witness. One form of impeachment is to
show that a witness has, on another occasion, made statements that are inconsistent with some
material part of his present testimony. If the witness in his testimony had denied seeing the defen-
dant take anything or telling the plaintiff that she had done so, then the testimony of the plaintiff
as to the witness’s previous statements would be admissible as a prior inconsistent statement, thus
serving to disprove the credibility of the witness. However, because the witness has merely testi-
fied to a lack of memory concerning these matters, the plaintiff’s testimony probably would not
be considered a prior inconsistent statement. Although (B) could be correct in some jurisdictions,
most would not consider introduction of a prior inconsistent statement an appropriate response to
a claim of lack of memory unless the court believed the witness was being deliberately evasive.
Because (D) is a completely accurate statement, it is the better answer. (C) is incorrect because the
plaintiff’s testimony is relevant. Evidence is logically relevant if it tends to make the existence of
any fact of consequence to the determination of an action more probable than it would be without
the evidence. [Fed. R. Evid. 401] The plaintiff’s testimony that he was told that the defendant stole
jewelry from his store would certainly tend to make it more probable that she took the jewelry
than would otherwise be the case. This fact is of great consequence to the determination of the
plaintiff’s action against the defendant for the value of the missing jewelry. Thus, the proffered
testimony is relevant. Although relevant, however, the testimony runs afoul of the hearsay rule,
and is thus inadmissible.

Answer to Question 18

(D) The testimony is inadmissible. Hearsay is an out-of-court statement offered in evidence to prove
the truth of the matter asserted. An out-of-court statement that incorporates other hearsay is
“hearsay within hearsay.” Hearsay within hearsay is admissible only if both the outer hearsay
statement and the inner hearsay statement fall within an exception to the hearsay rule. Here,
the aunt’s statement incorporating the defendant’s statement constitutes hearsay within hearsay.
Therefore, both statements must fall within an exception to the hearsay rule to be admissible.
The defendant’s statement to his aunt ordinarily would be hearsay because it is being offered to
prove the truth of the matter asserted—that he intended to kill his mother. However, statements
by a party-opponent (commonly called admissions) are admissible nonhearsay under the Federal
Rules. Thus, the defendant’s statement is admissible as a statement by a party-opponent. However,
 EVIDENCE ANSWERS 9.

the aunt’s statement made to the nurse regarding the defendant’s admission must also fall within
an exception to the hearsay rule. Because no exception applies to that statement, the entire testi-
mony is inadmissible. (A) is incorrect because, while it correctly states that the defendant’s state-
ment is a statement by an opposing party, it incorrectly deems the statement admissible because it
fails to address the hearsay within hearsay issue discussed above. (B) is incorrect. A declaration
made by the now unavailable declarant, while believing that her death was imminent, is admis-
sible if it concerns the cause or circumstances of what she believes to be her impending death.
Here, the statement was made while the aunt believed that her death was imminent; however, the
statement did not concern the cause or circumstances of her death and therefore does not qualify
as a dying declaration. (C) is incorrect for the same reason. While the defendant’s statement is an
admission, the aunt’s statement is not a dying declaration, as discussed above.

Answer to Question 19

(D) The ground for the judge’s decision is incorrect because the defendant is available to testify. The
statement against interest exception to the hearsay rule requires that the declarant be unavailable
as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court
rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court
order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she
cannot testify because she has died or is ill, or (v) she is absent and the statement’s proponent is
unable to procure her attendance or testimony by process or other reasonable means. [Fed. R.
Evid. 804(a)(1) - (5)] None of the bases for a finding of unavailability is present here. The defen-
dant, the declarant whose statement is at issue, is available as a witness; thus, the judge was incor-
rect in basing his decision on this exception. (A) is incorrect because the fact that the statement
subjected the defendant to tort liability, and thus was against her interest, is not enough; she must
also be unavailable. Also, this choice implies that this exception would be available only if she
were subjected to tort liability, not criminal liability. Although some courts so limit the exception,
the Federal Rules include statements against penal interest within the parameters of the statement
against interest. (B) is incorrect because the defendant need not be a party to the litigation for
her statement to qualify as a statement against interest. Thus, her status as a party would not be a
basis for deciding that the statement against interest exception applies here. Of course, this choice
is also incorrect because her availability to testify precludes application of this exception. (C) is
incorrect because the defendant’s statement, which effectively acknowledges liability for the plain-
tiff’s injury, is most certainly against an important pecuniary interest; i.e., it subjects her to the
possibility of being held financially liable for the plaintiff’s damages. Note that the judge correctly
overruled the objection by the defendant’s attorney, but for the wrong reason. The defendant’s
statement constitutes a statement by a party-opponent (commonly called an admission), which is
an act done or statement made by a party and offered against that party and is nonhearsay under
the Federal Rules. [Fed. R. Evid. 801(d)(2)] The defendant is a party, and her statement is a prior
acknowledgment of the highly relevant matter of fault. For a statement by a party-opponent, the
declarant need not be unavailable. (Don’t be confused by the fact that, although the judge was
correct in allowing the testimony as to the defendant’s statement, the call of the question pertains
to the grounds for the ruling, which were incorrect.)

Answer to Question 20

(A) The witness can testify to the nephew’s statement because it qualifies as an excited utterance.
The statement of the wife that the nephew is relating is admissible as a statement of a party-
opponent (commonly called an admission). The problem presented here is one of hearsay within
hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial
10. EVIDENCE ANSWERS

or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay statement to
which no exception to the hearsay rule is applicable must be excluded upon appropriate objection.
Hearsay included within hearsay is admissible only if each layer of hearsay falls within a hearsay
exception. Here, two separate statements are really being offered for the truth of the matter
asserted therein: First, the nephew’s statement is being offered to prove that he actually said that
the wife admitted killing the husband. Second, the wife’s statement is being offered to prove that
she killed the husband. However, the wife’s statement is a statement by a party-opponent, which is
traditionally treated as a hearsay exception and is treated as nonhearsay under the Federal Rules.
In either case, this statement alone would be admissible. The nephew’s statement relating the
wife’s admission is also admissible; it comes within the excited utterance exception to the hearsay
rule. Under this exception, a declaration made during or soon after a startling event is admissible.
There must have been an occurrence startling enough to produce a nervous excitement and thus
render the declaration an unreflective expression of the declarant’s impression of the event. Also,
the statement must have been made while the declarant was under the stress of the excitement.
Here, the nephew witnessed the wife running with a gun in her hand and declaring that she had
killed her husband. The nephew immediately ran back to the witness’s house and told her, “You
won’t believe what I just saw!” The occurrence, including the wife’s statement, was certainly a
startling event, and the nephew seems to have made his statement to the witness while he was
still under the stress of excitement caused by the occurrence. Thus, the witness can testify to
the nephew’s statement, including the part relating what the wife had told him. (B) is incorrect
because the exception to the hearsay rule for excited utterances such as the nephew’s statement
does not require the declarant to be unavailable to testify. (C) is incorrect because it does not
matter in this case that the party-opponent made her admission to someone other than the testi-
fying witness. The witness can repeat what the nephew said—including the wife’s admission—
because it was an excited utterance. (D) is incorrect because, as discussed above, both parts of the
nephew’s statement are admissible.

Answer to Question 21

(B) The transcript is admissible both for impeachment purposes and as substantive evidence. Under
Federal Rule 801(d)(1), if the prior inconsistent statement was made at a trial or hearing while the
declarant was under oath and subject to the penalty of perjury, it is not hearsay. Here, the passen-
ger's prior statement was made at the defendant's criminal trial. The statement is admissible to
impeach the passenger and as substantive proof that the priest stopped suddenly. Thus, (A) and
(C) are incorrect. (D) is incorrect because it imposes the unavailability requirement of the former
testimony exception to the hearsay rule. Since this evidence is not hearsay under the Federal
Rules, the former testimony exception and its requirements do not apply.

Answer to Question 22

(D) The report is inadmissible hearsay because it is an out-of-court statement being offered for its
truth, and it does not fall within any exception to the hearsay rule. It does not qualify as a business
record because the report was not made in the course of a regularly conducted business activity.
Records prepared in anticipation of litigation, such as at the request of the defendant’s liability
insurance carrier, generally are not admissible under the rule of Palmer v. Hoffman. Hence, (A)
is incorrect. (B) is incorrect because an expert may rely on inadmissible evidence as long as it is
a kind reasonably relied on by experts in that field, but relying on it does not make it admissible.
(C) is incorrect because interest goes to the weight, not the admissibility, of the evidence. The
plaintiff’s attorney may elicit on cross-examination information regarding the bias of the party
preparing the report.
 EVIDENCE ANSWERS 11.

Answer to Question 23

(B) The witness list should be admitted as a record of a regularly conducted activity (business record).
A writing or record made as a memorandum or record of any act, transaction, occurrence, or
event is admissible as proof of such act, transaction, occurrence, or event if it was made in the
course of a regularly conducted business activity and if it was customary to make the type of
entry involved (i.e., the entrant must have had a duty to make the entry). The business record must
consist of matters within the personal knowledge of the entrant or within the personal knowledge
of someone with a business duty to transmit such matters to the entrant. The entry must have been
made at or near the time of the transaction. The list of proposed witnesses and the notation consti-
tute a statement that the law firm was alerted to the existence of the doctor as a potential expert
witness. The plaintiff wants to introduce these documents to prove the truth of this statement (i.e.,
that he alerted the firm to the existence of the doctor). Thus, the documents present a hearsay
problem. Making a list of proposed witnesses would be part of the regular course of business for
a law firm, and it would be part of the duties of the paralegal responsible for updating case files
to enter the handwritten notation regarding the doctor at the direction of one of the firm’s attor-
neys. The matters contained in the list and notation would be within the personal knowledge of
the attorney, who was under a business duty to report the information accurately to the paralegal,
who was under a business duty to properly record the information. Thus, all the requirements
for a business record are present, and the list and notation, made as records of the firm’s having
been alerted to the doctor as a potential expert witness, are admissible as proof of that fact. (A) is
incorrect because past recollection recorded comes into play when a witness’s memory cannot be
refreshed by looking at something. At that point, there may be an attempt to introduce a writing
made by the witness or under his direction at or near the time of the event. The writing is charac-
terized as past recollection recorded. Here, there is no indication that a witness who has an insuf-
ficient memory is testifying, and the list of proposed witnesses and notation are not being offered
as a record of anyone’s past recollection. Rather, the evidence is offered as a record of the firm’s
being informed of the doctor as a potential expert witness. Therefore, the evidence will not be
admitted as past recollection recorded. (C) is incorrect because, as explained above, the proffered
evidence does come within a recognized hearsay exception. (D) is incorrect because the facts
do not present any problem of “levels” of hearsay. The list and notation are considered to be an
out-of-court statement that the firm was alerted to the doctor as a potential expert witness, and
are being offered as proof of that fact. If the notation had simply repeated an assertion made by
one outside of the business (e.g., “the doctor says that he will be available to testify on the date of
the trial”) and been offered to prove the truth of the assertion (that the doctor was available as a
witness), a hearsay within hearsay problem would exist. Because the statement within the notation
would be hearsay not within any exception, the notation itself, despite the fact that it is a business
record, would not be admissible to prove the doctor’s availability.

Answer to Question 24

(D) The judge should rule that the plaintiff’s testimony is admissible. Although it was hearsay, the
plaintiff’s testimony was to show she was suffering pain, and is an exception to the hearsay rule as
a declaration of present physical sensation. Statements of symptoms being experienced, including
the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or
other medical personnel. Thus, (A) is wrong. (B) is wrong because the plaintiff’s testimony is not
to establish that she suffered a “sprained” neck, which would require an expert witness, but just to
establish that her neck was in pain. (C) is wrong because the plaintiff’s statement would be admis-
sible to show her current physical condition even if she had not planned to introduce medical
evidence.
12. EVIDENCE ANSWERS

Answer to Question 25

(D) It was not error to introduce either item of evidence, even though both contain hearsay. Hearsay is
a statement, other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. Here, both items of evidence are being
offered to prove the truth of what they are asserting—the date of the plaintiff’s birth. However,
they both fall within exceptions to the general rule that hearsay is not admissible at trial. Under
Federal Rule 803(13), statements of fact concerning personal or family history contained in
family Bibles, engravings on tombstones, etc., are admissible (regardless of whether the declarant
is available). The plaintiff’s Bible is therefore admissible, and (A) and (C) are incorrect. The
certified copy of the birth certificate is also admissible hearsay under Federal Rule 803(9), which
admits official records of births, deaths, and marriages. (B) is incorrect because official records
are self-authenticating when they are certified [Fed. R. Evid. 902]; the custodian need not authen-
ticate them in court.