PMBR Flash Cards - Evidence - 2007

Torts
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Property Evil
Contracts . Constitu
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321 Relevancy
Describe when evidence is

relevant.
•0 ,
MULTISTATE SPECIALIST
321
ANSWER
Evidence is relevant if it has a tendency to
make the existence of any fact of consequence
more or less probable; FRE 401. All relevant
evidence is admissible, unless (1) excluded by
one or more applicable evidentiary rules, or
(2) its probative value is outweighed by the
danger of (1) unfair prejudice, (2) confusion of
the issues, (3) misleading the jury, or (4) by
considerations of (a) undue delay, or (b) need-
less presentation of cumulative evidence;
FRE 403.
•EXAMINATION TIP: In determining if

evidence is relevant, the causes of action
and/or defenses thereto must be considered.
P commences a products liability action
against D, contending that the latter manu-
factured a defective vehicle. As a conse-
quence, P was injured when the brakes of a
car purchased from D failed while P was
driving on a rain soaked street. If in his
defense, D contends that P was exceeding the
speed limit when the accident occurred, P
could probably successfully contend that this
evidence is irrelevant (i.e., contributory neg-
ligence is ordinarily not a defense to a prod-
ucts liability action).
ato iv
MULTISTATE SPECIALIST flash cards
322 Liability Insurance
Describe when evidence

of liability insurance is
admissible.
M ULTISTATE SPECIALIST
322
ANSWER
Evidence that a person was, or was not,
insured against liability is not admissible for
the purpose of showing that she acted negli-
gently or wrongfully. However, such evidence
may be introduced for any other relevant pur-
pose (i.e., to show ownership or control of an
instrumentality, or the bias or prejudice of a
witness); FRE 411.
EXAMPLE
D, Joe's son, injures P in a traffic accident. When P sues
Joe and D, Joe claims that the vehicle belongs to D, and
therefore he has no liability, However, if, under the
applicable law, a vehicle owner is vicariously liable for
its negligent operation by members of his household,
Joe's purchase of liability insurance for the car is admissi-
ble to show that he owned or controlled the vehicle.
•EXAMINATION TIP: The rationale of this rule

is that if evidence of insurance is made
known, a jury might be tempted to resolve
litigation against a party simply because the
judgment would be paid by an affluent third
party.
potable flash cards

MULTI SPECIALIST
323 Compromise Offers
Describe the FRE rule

pertaining to offers of
compromise.
MULTISTATE
323
ANSWER
Statements made during formal settlement
negotiations are not admissible for the pur-
pose of proving liability, the invalidity of a
claim or the value or amount of a claim;
FRE 408.
Offers to compromise, or to accept a compro-
mise, for valuable consideration are not admis-
sible for the purpose of proving liability, the
invalidity of a claim or the value or amount of
a claim (even though made exclusive of settle-
ment negotiations); FRE 408.
EXAMPLE
Immediately after his car collides with that of Y's, X says
to Y, "I'll give you $10,000 to forget your claim," D's
statement would be admissible as an admission because
neither the validity nor the amount of the claim is yet in
dispute.
•EXAMINATION TIP: If in the above Example,

X had stated to Y, 'Don't worry, I'll pay all
of your medical bills," X's statement (while
not a settlement offer) is inadmissible.
Promises to pay, and the payment of
another's medical bills are ordinarily inad-
missible; FRE 409.
isittikr•
324 Remedial Measures
Describe the FRE rule

pertaining to subsequent
remedial measures.
potable
/MULTISTATE SPECIALIST
324
ANSWER
Where, after an event has occurred, measures
are undertaken which, if previously per-
formed, would have made the incident less
likely to have occurred, evidence of such sub-
sequent remedial measures is not admissible to
prove negligence, culpable conduct, a defect
in a product, a defect in a product's design, or
a need for a warning or instruction. Such evi-
dence may be admitted when offered for
another purpose, such as proving ownership,
control, or feasibility of precautionary mea-
sures, if controverted, or impeachment;
FRE 407.
EXAMPLES
P's parked car was scraped by another vehicle. When P
sues D, she denies operating the vehicle when the acci-
dent occurred. If P introduces proof that D painted her
car the day after the incident (to have the jury infer that
D sought to cover-up the scratches which D's car had
incurred), the evidence would probably be admissible.
D's actions would not have made the accident less likely
to have occurred. Additionally, many jurisdictions permit
proof of subsequent remedial measures to show that the
defendant had attempted to conceal or destroy evidence.
P was hurt when a brick fell from a building which was
under construction. When P sues D (the owner of the
land), D claims that the building was under X's control
when the accident occurred. If P sought to introduce evi-
dence that, one day after the accident, D ordered X to
erect a screen on the portion of the roof overlooking the
street, the evidence would be admissible.
posibo
325 Character Traits

of a character trait of a
person can be offered as
direct evidence.
325
ANSWER
Evidence of a character trait (i.e., she is vio-
lent, untrustworthy, reckless, etc.) is admissible
as direct evidence for any relevant purpose,
other than to prove conduct in conformity
therewith on a particular occasion; FRE 404(a).
EXAMPLES
A sues B for breach of contract claiming B delivered him
non-conforming goods of inferior quality. A seeks to
introduce evidence that B has a reputation for being
"unsavory" and "a chiseler." However, this evidence is
not admissible. It is being offered only for the purpose
of showing that B acted in conformity with these charac-
ter traits on the occasion in question.
A sues P's parents under a negligent entrustment theory.
A contends that the defendants permitted their son, P, to
borrow their car, and P then collided with an auto driven
by A. Evidence of P's "reckless" character is probably
admissible. In this instance, the evidence is offered to
show that P's parents knew, or should have known,
of his reckless propensities. The defendants, however,
can request a limiting instruction (i.e., that the jury be
advised that evidence of P's character be considered only
on the issue of whether entrustment of the car to him
was negligent, not for the purpose of deciding whether
the accident was actually P's fault).
MUMULTISTATE
LTISTATE SPECIALIST

flash cards
326 Prior Acts

of prior, specific acts of a
person is admissible for
the purpose of proving
that she acted in
conformity with those acts
on a particular occasion.
plash,*
/ MULTISTATE SPECIALIST
326
ANSWER
Evidence of specific acts is ordinarily not
admissible for the purpose of proving that a
party acted in conformity with those prior acts
on a particular occasion. Such evidence is,
however, admissible for any other relevant
purpose (i.e., to prove identity, motive, oppor-
tunity, absence of mistake, etc.); FRE 404(B).
EXAMPLES
Joe is charged with attempted bank robbery. The fact
that he has previously been convicted of armed robbery
would ordinarily not be admissible on the prosecution's
case-in-chief.
D was arrested as he left a department store with a
watch on his wrist. When charged with larceny, D con-
tends that he was trying on the item and had simply for-
gotten about it. The prosecution can introduce evidence
that, on a prior occasion, D was stopped outside of a dif-
ferent store for neglecting to purchase an item he was
wearing. In this case, the prosecution is rebutting D's
assertion that he had made an innocent mistake. How-
ever, D would be entitled to a limiting instruction (i.e.,
for the jury to be instructed that this evidence should be
considered only on the issue of "lack of mistake," rather
than for the purpose of showing or inferring that, by rea-
son of the earlier incident, D stole the wristwatch in this
case).
•EXAMINATION TIP: Habit (i.e., an almost

reflexive response to a defined set of circum-
stances) is ordinarily admissible to prove
conduct in conformity therewith on a partic-
ular occasion; FRE 406.
MUMULTISTATE
LTISTATE SPECIALIST

flash cards

327 Proof of Character Traits
When, on direct, evidence

pertaining to a person's
trait of character is
admissible, describe the
manner in which it may
be proved.
hh
327
ANSWER
Where a person's trait of character is admis-
sible as direct evidence, proof may be made
by: (1) testimony as to such person's reputa-
tion in the community, (2) testimony by a
witness as to her opinion about the character
trait in question, or (3) where character is an
essential element of a case, charge, claim or
defense, evidence of specific instances of such
person's conduct, FRE 405(b).
EXAMPLES
Testimony by a witness that, "John has an excellent
reputation for honesty in the community," or, "In my
opinion, John is an honest individual," is admissible.
A and B are involved in a will contest. A claims that the
descendent ("D")'s will was invalid, since he was men-
tally incompetent when it was made. A would be permit-
ted to present evidence of specific acts pertaining to D's
sanity at that time (i.e., that D often put on a clown's
outfit and sauntered down the street). D's character is an
essential of the case.
Pirleihni °
328 Character Traits of Accused
Describe when, in a
criminal case, a defendant
may introduce evidence of
a character trait which she
possesses.
r11
32 8
ANSWER
In a criminal case, a defendant may introduce
evidence of a character trait which (1) she pos-
sesses, and (2) tends to prove that she did not
commit the crime charged. In such event, the
prosecution may, in rebuttal, offer character
evidence tending to prove that the defendant
committed the crime charged; FRE 404(a)(1).
EXAMPLES
D has been charged with the murder of B. In his
defense, D introduces evidence that he has a reputation
for "honesty" and "fair dealing." Such evidence is not
admissible. It does not tend to rebut the crime with
which D has been charged (i.e., murder). The evidence
sought to be introduced by D would be admissible if D
had been charged with, for example, forgery.
D (who has been charged with forgery) introduces evi-
dence of his character for honesty, to show that he did
not commit the crime with which he is charged. The
prosecution may now produce reputation or opinion evi-
dence that D has poor character with respect to honesty
or veracity.
•EXAMINATION TIP: Rule 404(a)(1) was

amended in 2000 to provide that when the
accused attacks the character of an alleged
victim, the door is opened for an attack on
the same character trait of the accused (e.g.,
when the accused offers proof of self-defense,
this permits proof of the alleged victim's
character trait for peacefulness, but it does
not permit proof of the accused's character
trait for violence).
posable
329 Character Traits of Victim
Describe when, in a
criminal case, a defendant
may introduce evidence of
a pertinent character trait
of his alleged victim.
pvabie
329
ANSWER
A defendant may introduce evidence of the
victim's character which tends to prove that
he (the defendant) did not commit the crime
charged. In such event, the prosecution may,
in rebuttal, offer character evidence pertaining
to the victim which tends to prove that the
defendant did commit the crime charged;
FRE 404(a)(2).
EXAMPLE
P sues D for punching him in a bar. D attempts to prove
that P has a reputation for being "aggressive" and a
"bully" for the purpose of showing that P acted in con-
formity with these character traits during the occurrence
in question. D will be precluded from introducing this
evidence (the action is civil, rather than criminal, in
nature).
Compare:
D is charged with committing the crime of aggravated
battery against V. D could introduce character evidence
tending to show that she was "peaceable" in nature. If
she did so, however, the prosecution could then intro-
duce character evidence tending to prove that D had a
"violent" or "aggressive" character.
*EXAMINATION TIP: Under this rule, the

defendant may offer reputation or opinion
evidence. Specific acts may be inquired into
on cross-examination.
piwbv
/ MULTISTATE SPECIALIST flash cards
330 Character Traits of Victim
Describe when, in a
criminal case, the
prosecution can offer
evidence of the victim's
character.
try
MULTISTATE
330
ANSWER
In a homicide case in which the defendant has
asserted that the victim was the initial aggres-
sor (i.e., the defendant is either asserting self-
defense, or, alternatively, that his crime is
merely voluntary manslaughter), the prosecu-
tion may, in rebuttal, offer evidence that the
victim's character was peaceful in nature;
FRE 404(a)(2).
EXAMPLES
D is charged with murdering V in a barroom brawl. In
response, D asserts that (1) he acted in self-defense (i.e.,
V had attempted to choke him), and (2) alternatively, V
provoked the incident by slapping D in the face. In this
instance, the prosecution can introduce character evi-
dence of V's peaceable or nonviolent nature for the
purpose of disproving D's assertions.
D is charged with aggravated assault for stabbing V. In
response, D asserts that he acted in self-defense. The
prosecution cannot introduce evidence of V's peaceful
character for the purpose of rebutting D's defense. In
this instance, D has not been charged with homicide.
ponbite

331 Past Sexual Behavior
Describe when, in sex

offense cases, evidence of
the victim's past sexual
behavior is admissible.
pandse
331
ANSWER
In any civil or criminal proceeding involving
alleged sexual misconduct, the following is not
admissible: (1) Evidence offered to prove that
any alleged victim engaged in other sexual
behavior, (2) Evidence offered to prove any
alleged victim's sexual predisposition. Excep-
tions: In a criminal case, evidence of specific
instances of sexual behavior by the alleged
victim (1) offered to prove a person other than
the accused was the source of semen, injury or
other physical evidence, or (2) offered by the
accused to prove consent, or (3) offered by
the prosecution.
In a civil case, evidence offered to prove the
sexual behavior or sexual predisposition of
any alleged victim is admissible if its probative
value substantially outweighs the danger of
unfair prejudice to any party. Evidence of the
alleged victim's reputation is admissible only
if it has been placed in controversy by the
alleged victim.
EXAMPLE
D is accused of raping P. At trial, D attempts to introduce
evidence that D had a reputation for sexual promiscuity.
This evidence is not permissible. However, if D ques-
tioned P with respect to (1) particular acts of intercourse
she had with other persons at the approximate time she
became pregnant, or (2) previous consensual sexual
encounters with him, the evidence is admissible.
pssabo
332 Sexual Assault and
Child Molestation
Describe what evidence is

admissible in sexual
assault and child
molestation cases.
332
ANSWER
In criminal cases, where the defendant is accused
of an offense of sexual assault (FRE 413) or child
molestation (FRE 414), evidence of defendant's
commission of another such offense or offenses,
is admissible, and may be considered for its bear-
ing on any matter to which it is relevant. Where
the prosecution intends to offer evidence under
these rules, such evidence must be disclosed to
the defendant, including statements of witnesses
or a summary of the substance of any testimony
expected to be offered, at least 15 days before the
scheduled date of trial or at such later time as the
court may allow for good cause.
These same rules for admitting evidence of
offenses of sexual assault or child molestation also
apply to civil cases seeking damages or other
relief based on the alleged commission of conduct
constituting an offense of sexual assault or child
molestation (FRE 415).
EXAMPLE
D, a teacher, is charged with sodomy of an 11 year-old stu-
dent. The prosecution offers testimony that on two prior occa-
sions D paid underage boys to engage in oral sex with him.
Such testimony of specific acts will be admitted under
FRE 414 as evidence of D's character.
• EXAMINATION TIP: Rules 413 and 414 are rules

of character evidence in a criminal case where spe-
cific acts are being offered generally by the prosecu-
tion. Rule 415 is the civil counterpart.
pink&
333 Hearsay
Describe the statements or

conduct which constitute
hearsay under the FRE.
pwabio
333
ANSWER
Unless excluded pursuant to FRE 801, the fol-
lowing statements constitute hearsay under the
FRE:
(1) Any oral or written statement, other than
one made by a testifying witness, which is
offered into evidence to prove the truth of the
matter asserted therein, or
(2) Conduct, other than that undertaken by the
testifying witness, which (i) was intended to
be an assertion, and (ii) is offered into evi-
dence to prove the truth of the matter asserted
thereby.
ANSWER
Hearsay statements are inadmissible, unless an
exception to the hearsay rule exists; FRE 801.
EXAMPLE
X sues Y for breach of contract. Joe, a witness for X,
attempts to testify that Bill, who has inspected the items
for X before they were sent to Y, advised him (Joe) that,
"The widgets are in perfect condition." Bill's out-of-court
statement is hearsay, and therefore inadmissible unless
some exception to the hearsay rule exists.
• EXAMINATION TIP: Under the FRE, conduct

not intended as an assertion is not hearsay.
pi/ibis*
334 Hearsay
Describe some situations

in which out-of-court
statements do not
constitute hearsay.
ossioste
334
ANSWER
Operative facts (words or conduct which have
a substantive, legal significance apart from the
fact that they were spoken or, in the case of an
act, performed) are not hearsay.
ANSWER
Words or conduct offered as circumstantial
evidence to show the declarant's state of mind
are not hearsay.
EXAMPLES
Illustrations of the operative facts doctrine include the
following:
(1) Testimony by W, that. as Joe handed a deed to Bill,
Joe said "Blackacre is yours now." If an issue arose as to
whether a conveyance of land had occurred, W's testi-
mony about Bill's words and conduct is admissible to
show that Bill intended the transfer to be "immediately
operative."
(2) J testifies that B called P a "Crook." J's testimony is
not hearsay, if P had asserted a cause of action for
defamation against B.
Words which might be admissible as circumstantial
evidence of the declarant's state of mind include the
following:
(1) In a battery action by P against D, testimony by J that
he overheard 0 telling P that D had kicked P's daughter.
O's out-of-court statement is being offered to show that
P had a motive for attacking D.
(2) X testifies that he overheard Bill tell D (who is being
prosecuted for bank robbery) that the ABC Bank always
has "big bucks on Friday afternoons." Bill's statement is
admissible to show that D believed the ABC Bank had
money in its vault when he attempted the robbery.
1W
335 Party-Opportunity Exclusion
Describe the party-

opponent exclusion to the
hearsay rule. (Admissions)
ble
MULTISTATE
335
ANSWER
The following out-of-court statements are not
hearsay under the FRE:
(I) Statements (including assertive conduct)
made personally by a party-opponent.
(2) Statements in which a party-opponent has
manifested his adoption or belief,
(3) Statements by another which were
authorized by the party-opponent,
(4) Statements made by the party-opponent's
agent or servant (i) concerning a matter within
the scope of the declarant's agency or employ-
ment, and (ii) during the existence of that rela-
tionship, and
(5) Statements by a co-conspirator of an
accused, if made during the course and in fur-
therance of the conspiracy; FRE 801(d)(2).
EXAMPLE
P sues D for breach of contract. W is called to testify on
behalf of P that "P told me that the goods received from
D arrived after the prescribed delivery date." W's testi-
mony is not within the party-opponent exclusion from
the hearsay rule. The declaration in question was not
made by P's party-opponent (i.e., D). Rather, it is
being offered by the litigant who purportedly made the
statement.
possb
336 1"."49..or <1.:(....m..sistent Testimony
Exclusion
Describe the prior

consistent testimony
exclusion from the
hearsay rule.
p MULTISTATE SPECIALIST
336
ANSWER
Out-of-court statements made by a witness
(who is subject to cross-examination) which
are consistent with her present testimony and
offered for the purpose of rebutting an asser-
tion of recent fabrication, improper influence
or improper motive, are not hearsay under the
FRE.
EXAMPLES
P sues D for injuries sustained in a car collision with the
latter. W testifies, on behalf of P, that D ran a red light.
Counsel for D asks W, "Haven't you recently become an
employee of P?" Assuming W admits that he had, P's
attorney might then call Y to the stand for the purpose
of having Y testify that, immediately after the accident,
W had told her that D ran the red light. Although Y is
testifying about an out-of-court statement by W, it is not
hearsay; FRE 801(d)(1)(B).
latter. W testifies, on behalf of P, that, after the accident,
D said, "I ran a red light." Counsel for D then calls Y,
who testifies that, after the accident, D said, "P ran the
red light." P cannot call Z as a witness to corroborate W's
testimony. Z's testimony would merely rehabilitate W by
a prior consistent statement (which ordinarily is not per-
missible). It would not rebut a charge of recent fabrica-
tion or influence.
'Alit ' ."

0,,,: MULTISTATE SPECIALIST flash cards
337 Prior Inconsistent Testimony
Exclusion
Describe the prior

inconsistent testimony
exclusion from the
hearsay rule.
MULTISTATE
337
ANSWER
Prior out-of-court statements which were made
(1) under oath, and (2) in an adversarial con-
text (i.e., the declarant was subject to cross-
examination), by a witness who is presently
subject to cross-examination, and (3) which
statements are inconsistent with her testimony
in the current trial or hearing are not hearsay;
FRE 801(d)(1)(A).
EXAMPLE
P sues D for injuries sustained in a traffic accident. W
testifies at a deposition that he had seen the accident
occur, and that D had not come to a complete halt at
the red light. At trial, however, W testifies that D had a
green light. W's prior testimony at the deposition is not
hearsay. Therefore, W's testimony at the deposition can
be utilized by the factfinder as substantive evidence in
determining if P has carried his burden of proof.
•EXAMINATION TIP: W's prior statement

would also be admissible for impeachment
purposes. In the context of impeachment, the
hearsay rule is inapplicable (i.e., the state-
ment is not offered to prove the truth of the
matter asserted therein, but rather to impugn
the witness's credibility by showing that he
has made statements which are inconsistent
with his present testimony).
posebite
338 Excited Utterance Exception
Describe the excited

utterance exception to the
hearsay rule.
, MULTISTATE
338
ANSWER
Out-of-court statements pertaining to a
startling event, made by a percipient declarant
(i) while such event was occurring, or (ii) who
was still under the stress of excitement caused
by the event, are admissible as an exception to
the hearsay rule; FRE 803(2).
EXAMPLES
In a civil case, P sues D for shooting him in the back at a
bar. P testifies that immediately before the bullet struck
him, he heard someone shout, "Watch out, D's got a
gun." The elements of the "excited utterance" exception
are satisfied, even though P cannot identify the out-of-
court declarant.
Bill is hurt when he trips over a garden hose in front of
D's home. One hour after the incident, D's wife exclaims
to Bill's spouse, "I told D to put the hose away last
night." The excited utterance exception to the hearsay
rule is not applicable because there is no indication that
D's wife (1) witnessed the startling event (i.e., Bill trip
over the hose), or (2) was under the stress of excitement.
•EXAMINATION TIP: An excited utterance

does not require spontaneity as long as the
statement was made under the stress of
excitement. On the other hand, a present
sense impression does require spontaneity
inasmuch as the statement must be made
while the declarant was perceiving the event
or immediately thereafter.
postibin
MU LTISTATE SPECIALIST flash cards
339 Presence Sense Impression
Exception
Describe the "present

sense impression"
exception to the hearsay
rule.
po.•
msb
339
ANSWER
Out-of-court statements made about an event
or condition, while the declarant was observ-
ing or perceiving that event or condition, or
immediately thereafter, are admissible as an
exception to the hearsay rule; FRE 803(1).
EXAMPLE
Six months ago, Bill, while gazing out of his window,
remarked to his roommate (Jeff), "There goes D, crossing
the street." Bill has died and D has been charged with a
crime. To establish an alibi, D seeks to have Jeff testify as
to Bill's statement. Jeffs testimony (as to what Bill had
said) would probably be admissible under the presence
sense impression exception to the hearsay rule.
• EXAMINATION TIP: The "present sense

impression" exception differs from the
"excited utterance" rule in that, under the
former doctrine, (1) it is not necessary that
the event witnessed have been exciting or
startling, and (2) the out-of-court statement
must have been made while the event was
occurring or immediately thereafter.
posabite
340 Medical Treatment Exception
Describe the medical

diagnosis or treatment
rule.
,
MULTISTATE
340
ANSWER
Out-of-court statements made by a declarant
for the purpose of receiving medical diagnosis
or treatment, in so far as reasonably pertinent
to such diagnosis or treatment, are admissible
as an exception to the hearsay rule;
FRE 803(4).
EXAMPLES
After being involved in a traffic accident, P told one of
the paramedics (W) who responded to the incident,
"I was hit by a car which ran a red light." If, at trial, W
is called as a witness for P, and is asked to repeat P's
words, the court would probably permit the initial por-
tion of W's testimony (i.e., P said he was hit by a car).
This statement was reasonably pertinent for P to obtain
effective medical treatment. However, the second part of
P's statement (i.e., the car had run a red light), would
probably not be admissible. It is not "reasonably perti-
nent" to the treatment of P's injuries.
While P was being treated for injuries sustained in an
accident, he advised the doctor that, "I'd like to strangle
the driver who hit me." Since P's statement does not per-
tain to medical diagnosis or treatment, the hearsay rule
could not be overcome upon this ground. However, P's
statement might be admissible under "then existing men-
tal condition" exception to the hearsay rule; FRE 803(3).
pittiiihnt•
341 Present Mental or Physical
Condition Exception
Describe the "presently

existing mental, emotional
or physical condition"
rule.
MULTISTATE
34 1
ANSWER
pertaining to his then existing state of mind,
emotions, sensations, intention or physical
condition, constitute an exception to the
hearsay rule; FRE 803(3).
EXAMPLES
X comments to Y, "I'm going to Los Angeles tomorrow."
At a criminal trial in which X is the accused, he seeks to
have Y testify as to his (X's) remark to assist in establish-
ing an alibi defense. Y's testimony is admissible (i.e., it
pertains to X's intention).
X is on trial for allegedly murdering Y. The prosecution
seeks to introduce the testimony of Z, that X had
remarked to her, "I hate Y." The testimony as to X's then
existing emotions is admissible.
P sues D, claiming that the latter negligently hit her
while driving his car. To prove that he incurred severe
back injuries, P seeks to have W testify that, one week
after the accident, P had remarked to him (W), "There
was a sharp pain in my back right after the accident
occurred." W's testimony is not admissible. W is seeking
to testify about a past physical sensation.
ID flash
, LTISTATE SPECIALIST cards
342 Business Records Exception
Describe the business

records exception to the
hearsay rule.
tit
potable
34 2
ANSWER
Out-of-court statements made at, or near, the
time of the matter or event by (1) a declarant
with personal knowledge, or (2) transmitted
by a declarant with personal knowledge, are
admissible as an exception to the hearsay rule
if (i) the declarations were made in the course
of a regularly conducted business (whose reg-
ular practice was to record such statements)
and (ii) the circumstances do not indicate a
lack of trustworthiness; FRE 803(6).
EXAMPLE
After an accident in which P was hurt, Bill, an employee
of the ABC Supermarket prepared a report for the man-
ager of the store. The report stated that (1) P slipped as a
consequence of her own clumsiness, and (2) the area
where she fell was completely dry. If ABC attempts to
introduce Bill's report in a lawsuit against it by P, the
court might rule that the business records exception to
the hearsay is not applicable since (1) the ABC Super-
market does not customarily prepare accident reports
(there must, in fact, be a business policy for such a
writing to be produced), and (2) it is untrustworthy
(i.e., Bill would naturally be reluctant to include matters
which might adversely reflect upon his upkeep of the
establishment).
•EXAMINATION TIP: The business record must

be authenticated to be admissible.
postbrie
343 Recorded Recollection Exception
Describe the "recorded

recollection" exception to
the hearsay rule.
1. 101 1 010
11 1
343
ANSM A A
Where a witness has no present recollection
with respect to prior out-of-court statements
contained in a writing made or adopted by
him when the matter was fresh in his mind,
those statements constitute an exception to the
hearsay rule, and may be read into evidence
if (i) the writing is authenticated, and (ii) the
witness verifies that it reflects his knowledge
at the time the statements were written;
FRE 803(5).
EXAMPLE
After an accident, Joe (a police officer) wrote down in
his report that skid marks at the scene of the incident
indicated that D had been speeding. If, at trial, Joe can
no longer remember what he had written in his report,
he could be asked by P (the plaintiff) to read his obser-
vations into the record. Before this could be done, how-
ever, (1) the report must be authenticated, and (2) Joe
must testify that it coincides with his recollection of the
matter.
•EXAMINATION TIP: Police reports are gener-

ally inadmissible as public records, based on
untrustworthiness, in criminal cases. In civil
cases, the judge has broader discretion to
admit them.
'EXAMINATION TIP: Statements contained in a
police report are inadmissible hearsay when
offered for their truth. However, in the example
above the police report is being used to refresh
the witness' recollection not for its truth.
pbit°
344 Public Records Exception
Describe the "public

records and reports"
rule.
pimbie
344
ANSWER
Out-of-court statements issued by a public
agency which set forth (1) the activities of that
office, (2) matters observed by agency person-
nel which the agency was under a duty to
report (except that in criminal cases, matters
observed by law enforcement personnel are
not within this exception), or (3) factual find-
ings resulting from an investigation pursuant to
authority granted by law (except that in crimi-
nal cases, such findings may be used only
against a governmental entity), are admissible
as exceptions to the hearsay rule, unless the
circumstances indicate a lack of trustworthi-
ness; FRE 803(8).
EXAMPLE
The State X Department of Health issues a bulletin
stating that physicians on their staff had concluded that
exposure to epoxy resins causes cancer. In a lawsuit by
P against D (P's employer) for negligently exposing him
to these substances, P could introduce the bulletin if
(1) the Department of Health was under a duty to
make such reports, and (2) the bulletin was properly
authenticated.
•EXAMINATION TIP: This exception to the

hearsay rule does not require that the docu-
ment involved be available to the general
public.
pmbse
MULTISTATE SPEC IALIST flash cards
345 Ancient Documents Exception
Describe the "ancient

documents" exception to
the hearsay rule.
pimsbie
345
ANSWER
Statements contained in documents which are
at least 20 years old, and whose authenticity
has been established, are admissible as an
exception to the hearsay rule; FRE 803(16).
EXAMPLE
After X died, a will contest arose. A key issue was
whether X had (1) intended to exclude his son, Joe, from
the will, or (2) inadvertently forgotten to include Joe. If
the party desiring that Joe be excluded introduces a let-
ter written by X more than 20 years ago (in which X
stated that he had omitted Joe because the latter had
joined the "disco" crowd), it is admissible under this
exception to the hearsay rule.
• EXAMINATION TIP: In the foregoing Exam-

ple, the letter's authenticity (i.e., that it had,
in fact been written by X) would have to be
established for it to be admissible.
• EXAMINATION TIP: This exception to the

hearsay rule occasionally overlaps with the
one pertaining to `statements in documents
affecting an interest in property"; FRE
803(1 5). In the latter instance, however, the
writing need not have been in existence for
at least 20 years.
pstabin
346 Past Memory or Belief Exception
Describe the past memory

or belief exception to the
hearsay rule.
MULTISTATE
346
ANSWER
pertaining to her memory or belief with
respect to the execution, revocation, identifica-
tion or terms of her will, for the purpose of
proving the fact remembered or believed,
constitute an exception to the hearsay rule;
FRE 803(3).
EXAMPLE
X recently died. Under X's will, his sports car was left to
"Joan, whom I love dearly." X has a sister and prior girl-
friend, each named Joan. In a will contest to determine
who was the intended devisee of the sportscar, X's sister
attempts to have Joe testify that, about the time the will
was created, X said to him, "I'm upset with Joan. She's
been dating other guys on the side." The statement to
the effect that X was upset with Joan is admissible under
the "then existing state of mind" exception to the hearsay
rule. However, the statement reflecting X's belief that
Joan had been dating other individuals does not relate to
the declarant's then existing state of mind. However, X's
belief about Joan's past conduct is nevertheless admissi-
ble against a hearsay objection, since it relates to the
terms of the declarant's will.
ul MULTISTATE SPECIALIST flash cards

347 Learned Treatises' Exception
Describe the "learned

treatises" exception to the
hearsay rule.
try
potable
, MULTISTATE SPECIALIST
347
ANSWER
Out-of-court statements contained in writings
pertaining to history, medicine, science or art,
established as reliable authorities and (1) called
to the attention of an expert upon cross-
examination, or (2) relied upon by her on
direct examination, constitute an exception to
the hearsay rule. Such out-of-court statements
may be read into the record; FRE 803(18).
EXAMPLE
P sues D, the owner of a toxic waste disposal plant. P
claims that fumes from the plant caused him to suffer
lung damage. Doctor X was called as a witness for D. He
testified that, in his opinion, P's respiratory condition
was inherited. On cross-examination, Doctor X was
shown a treatise written by Doctor Y. Doctor X acknowl-
edged that Doctor Y was an expert with respect on lung
diseases. Counsel for P read into the record a portion of
the book which indicated that respiratory conditions
(such as that claimed by P) often result from living near
toxic waste plants. The statements contained in Z's book
are admissible as an exception to the hearsay rule. As a
result, they may be considered by the factfinder as sub-
stantive evidence in determining if P has carried his bur-
den of proof (rather than merely for the purpose of
discrediting Doctor X's testimony).
title gjet
348 Prior Criminal Convictions
Exception
Describe the "prior

criminal convictions"
rule.
bs.
34 8
ANSWER
When offered for the purpose of proving facts
essential to the judgment, statements contained
in a final judgment (other than one entered
upon a plea of nolo contendere), determining
a person to be guilty of a crime punishable by
death or imprisonment in excess of one year,
are admissible as an exception to the hearsay
rule. However, in a criminal case where the
prosecution offers the judgment (1) against
someone other than the accused, and (2) for
purposes other than impeachment, this excep-
tion does not apply; FRE 803(22).
EXAMPLES
Y sues X for negligently colliding into him on a highway.
If Y's attorney introduces a guilty plea for drunken driv-
ing entered against X with respect to the incident in
question as proof of the latter's unreasonable behavior, a
hearsay objection to the conviction is overcome by this
exception. (It is assumed, of course, that drunken driving
is punishable by imprisonment in excess of one year).
X is prosecuted for conspiracy to commit bank robbery.
As part of its case-in-chief, the prosecution offers evi-
dence of its successful prosecution of Bill for conspiring
with X to rob the bank in question. Since the judgment
against Bill is being offered for purposes other than
impeachment, the "prior criminal convictions" exception
to the hearsay rule does not apply.
MUistabse
MULTISTATE
LTISTATE SPECIALIST cards
349 Declarant Unavailability
Describe when an out-of-

court declarant is
"unavailable" for purposes
of Section 804 of the FRE.
MULTISTATE
349
ANSWER
An out-of-court declarant is "unavailable" for
purposes of the FRE whenever she:
(1) Is exempt from testifying upon the ground
of privilege,
(2) Refuses to testify, despite a court order to
do so,
(3) Testifies to a complete lack of memory as
to the subject matter of her statement,
(4) Has died, or has a then existing mental or
physical disability which prevents her from
testifying, or
(5) Is absent from the hearing or trial, despite
efforts by the proponent of the hearsay evi-
dence to procure her attendance by process or
other reasonable means; FRE 804(a).
In each of the foregoing instances, the
proponent of the evidence must not be
responsible, in any manner, for the declarant's
unavailability.
EXAMPLE
X is the accused in a criminal trial. He seeks to have Y
testify that he (Y) committed the crime in question. Y,
however, asserts the Fifth Amendment privilege against
self-incrimination. Y is "unavailable" for purpose of
FRE 804.
WON 6
M
MULTISTATE
ULTISTATE SPECIALIST flash cards
350 Impending Death Exception
Describe the "impending

death" exception to the
hearsay rule.
pimbiP
fl„, „„,
350
ANSWER
Out-of-court statements concerning the cir-
cumstances or cause of his death, made by a
declarant who (1) is unavailable, and (2) sin-
cerely believed that his demise was imminent,
are admissible as an exception to the hearsay
rule; FRE 804(b)(2).
EXAMPLE
X was stabbed by Z during an altercation at a bar. Sin-
cerely (and, in this instance, correctly) believing that
death was imminent, X acknowledged a $5,000 debt due
to Y. X then expired. Y had previously sued X to recover
the $5,000. However, in his pleadings X had contended
that the money was given to him as a gift (rather than a
loan). Z's testimony as to X's final words is not within
the "impending death" exception to the hearsay rule.
X's out-of-court statement did not pertain to the circum-
stances of his death. (However, X's comment is admissi-
ble as a party-opponent admission or a statement against
interest.)
•EXAMINATION TIP: Under the FRE, dying

declarations are permitted in all civil cases
and criminal homicide cases.
possible
351 Statement Against Interest
Describe the "statement

against interest" exception
to the hearsay rule.
MULTISTATE
351
ANSWER
Out-of-court statements made by an unavail-
able declarant with personal knowledge which
(1) are against his pecuniary or proprietary
interest, or (2) tend to subject him to civil or
criminal liability, are admissible as an excep-
tion to the hearsay rule; except that out-of-
court statements which (1) expose the
declarant to criminal culpability, and (2) are
offered to exculpate a criminal defendant are
not admissible, unless there are "corroborating
circumstances" indicating their trustworthiness;
FRE 804(b)(3).
EXAMPLES
J was driving his roommate's (D) car when he collided
with P. Later, J told his friend, Bill, that he had imbibed 5
beers immediately prior to operating D's vehicle. P sues
D (but not J) under a statute which makes the owner of
a car liable for the negligent driving of persons using it
with his permission. J has since left the jurisdiction. J's
statement to Bill is probably admissible under the "state-
ment against interest" exception to the hearsay rule. J's
remark could expose him to both civil liability (for negli-
gent driving) and criminal culpability (driving under the
influence of alcohol).
In a criminal case, D is accused of killing J. D seeks to
have W testify that X had told him (W) that he (X) had
murdered. Although X's statement exposes himself to
criminal culpability, W's testimony about X's out-of-court
statement is not admissible, unless D can produce
evidence corroborating the assertion that X was the
murderer.
pititaMP
352 Prior Testimony Exception
Describe the "prior

testimony" exception to
the hearsay rule.
MULTISTATE
352
ANSWER
Out-of-court statements made under oath and
in an adversarial context by an unavailable
declarant are admissible as an exception to the
hearsay rule, if the party (or, in a civil case,
her predecessor in interest) against whom the
evidence is being offered had an opportunity
and similar motive to develop the testimony of
the declarant by direct, cross, or redirect exam-
ination; FRE 804(b)(1).
EXAMPLE
X sues Y, the owner of a toxic waste disposal plant. X
claims that fumes from the plant caused him to suffer
lung damage. Y attempts to introduce the testimony of Z,
a recognized expert, which was given in a previous law-
suit against Y by Joe (X's neighbor). Z, who has since
died, testified that the fumes from X's plant did not cause
Joe's respiratory problems. Z's statement is not admissi-
ble under the "prior testimony" exception to the hearsay
rule. X presumably had no opportunity to cross-examine
Z in Joe's lawsuit against Y, nor was Joe a predecessor in
interest of X.
posabire
Opinion Testimony
353
Describe when opinion

testimony may be given.
MULTISTATE
353
ANSWER
Lay (i.e., non-expert) witnesses may render
opinions, as long as such opinions are
(a) rationally based on the witness's percep-
tion or experience, and (b) helpful to a clear
understanding of her testimony or a determi-
nation of a factual issue; and (c) not based
on scientific, technical, or other specialized
knowledge within the scope of expert testi-
mony; FRE 701. Expert testimony may be in
the form of opinion; FRE 702.
EXAMPLES
On behalf of P, W (a lay witness) testifies that "D was
speeding" at the time of the accident. Assuming W was
not holding a radar gun upon D's car, her testimony that
"D was speeding" is opinion. Nevertheless, it satisfies the
requisites of layperson opinion testimony, and is there-
fore admissible.
W, an expert, testifies for the defendant in a products
liability case, that the product was "not defective". W's
testimony is proper.
•EXAMINATION TIP: A number of cases

express the principle that lay opinion on the
ultimate issue is improper. It appears, how-
ever, that this should be true only in certain
circumstances. A witness's opinion should be
rejected if it contains conclusions or expres-
sions of opinion that are superfluous and
unhelpful (e.g., testimony that a party was
negligent).
pinhe
M.. LTISTATE SPECIALIST flash cards
354 Basis of Expert Opinion
Describe the information

upon which an expert
opinion may be based.
MULTISTATE
354
ANSWER
An expert may base her opinion upon facts or
data made known to, or perceived by, her
(1) before, or (2) at, the hearing. If the data or
facts are the type which are reasonably relied
upon by experts in that field, such facts or
data need not be admissible into evidence;
FRE 703.
EXAMPLE
Doctor W, having been advised by her lab technician as
to the results of X-rays pertaining to P, testifies that P's
back injuries are permanent in nature. Even though the
(1) lab technician's comments to Doctor W might consti-
tute hearsay, and (2) X-rays were not authenticated (i.e.,
no proof was offered in court that the X-rays which the
lab technician viewed were those of P), P's testimony is
admissible. Doctors frequently rely upon statements
made to them by their staff or paraprofessionals.
• EXAMINATION TIP: An expert may render an

opinion without disclosing the underlying
basis upon which it is made; FRE 705. This
data can be elicited upon cross-examination.
• EXAMINATION TIP: An expert's testimony

may ordinarily be developed by hypothetical
(i.e., leading) questions.
potable

355 Present Recollection Refreshed
Describe the "present

recollection refreshed"
doctrine.
try
MULTISTATE
355
ANSWER
Where a witness testifies that she has no pres-
ent recollection with respect to a matter about
which she once had personal knowledge, her
recollection may be "refreshed" by any means
(writings, songs, leading questions, etc.);
FRE 612.
• EXAMINATION TIP: Where a witness's

memory is refreshed through a writing
(1) while testifying, or (2) before testifying
(if necessary to the interests of justice), the
adverse party is entitled to inspect it, cross-
examine the witness about it, and to intro-
duce into evidence those portions of the
writing which relate to the witness's testi-
mony. If the writing is not produced in a
civil case, the court may "make any order
justice requires". In a criminal case, the
court must strike the witness's testimony alto-
gether or declare a mistrial if the prosecution
fails to produce such a writing.
1XAMINATION TIP: Anything utilized to

refresh a witness's recollection is not sub-
stantive evidence. Therefore, it need not
(1) satisfy the Best Evidence or hearsay rules,
or (2) be authenticated.
pitsehe
356 Completeness Doctrine
Describe the doctrine of

completeness.
MULTISTATE
356
ANSWER
Where a writing or recorded statement (i.e., a
deposition), or any part thereof, is admitted
into evidence, the adverse party, at that time,
may require the proponent of the writing or
recorded statement to also introduce any other
(1) part of it, or (2) writing or recorded state-
ment, which in fairness ought to be considered
contemporaneously with the offered evidence;
FRE 106.
EXAMPLE
P's attorney introduces the initial two pages of a letter. In
it, D indicates that she is giving Blackacre to P. D's attor-
ney can demand to see the entire letter and, if advanta-
geous, introduce the third page (where, for example, it is
indicated that the gift was conditioned upon P graduat-
ing from law school).
• EXAMINATION TIP: In addition to the com-

pleteness doctrine, a party has a right to view
a writing which was utilized to examine a
witness with respect to a prior statement by
the latter; FRE 613(a). X testifies that he had
advised Y that the latter's insurance was
about to lapse. Y testifies that notification
was never received by him. If X's attorney
seeks to question Y about the contents of the
letter supposedly sent to Y, Y's counsel could
request to see that writing.
pettbir°
357 Impeachment
Describe when a party

may impeach her own
witness.
hh
tri
Alp
a*
MULTISTATE
357
ANSWER
A witness may be impeached by any party
(including the one who called her to the stand
to testify); FRE 607.
EXAMPLE
P sues D for injuries sustained in a collision with the lat-
ter. P calls W to the witness stand. If W testifies that "P
ran a red light", P could then call Joe to testify that W
had earlier told him (Joe) that "D failed to observe the
red light." J's testimony about W's earlier statement is a
proper means of impeaching W (even though W had
been called as a witness by P).
•EXAMINATION TIP: The Example represents

impeachment by a prior inconsistent state-
ment. To impeach in this manner, the wit-
ness (other than a party-opponent) must be
available for re-direct by the party who origi-
nally called him; FRE 613(b). Thus, if, in the
Example, W had left the courtroom prior to
the time that P called Joe to impeach W
(thereby making it impossible for D to recall
W), Joe's testimony would not be admissible;
FRE 613(b).
iiMitsbito
358 Character for Truthfulness
Describe when a witness

may be impeached by
character evidence
pertaining to lack of
truthfulness or veracity.
MULTISTATE
358
ANSWER
A witness may always be impeached by
character evidence in the form of reputation or
opinion pertaining to lack of truthfulness or
veracity; FRE 608.
EXAMPLE
W testifies on behalf of the plaintiff (P) that the defen-
dant (D) ignored a red light and collided with P. After W
concluded her testimony, D introduces Bill, who testifies
that W has a reputation for being "violent". Bill's testi-
mony should not be admitted. It does not impair W's
truthfulness or veracity. However, if Bill testified that, in
his opinion, W was untrustworthy, the testimony would
be permitted (assuming Bill had sufficient familiarity with
W to validly offer an opinion as to the latter). In the sec-
ond instance, Bill's testimony pertains to W's lack of
truthfulness or veracity.
•EXAMINATION TIP: Evidence supporting the

truthfulness or veracity of a witness may be
introduced only after her character for those
traits has been attacked. X is on trial for per-
jury. W testifies that X has an excellent repu-
tation for truthfulness. X then seeks to have
Bill testify that, in his opinion, W is an hon-
est person. Bill's testimony is not admissible
(i.e., W's character for truthfulness or verac-
ity has not yet been attacked).
,
,,..
MULTISTATE SPECALIST
MULTISTATE

flash cards

359 Contradiction
Describe the manner in

which lay and expert
witnesses may be
impeached by
contradiction.
MULTISTATE
359
ANSWER
A lay witness may be impeached by any
evidence which contradicts his testimony. An
expert, however, may be impeached through
contradiction only by (1) another expert wit-
ness, or (2) a learned treatise (i.e., a publica-
tion established as a reliable authority).
EXAMPLE
P sues D for injuries sustained in a collision with the lat-
ter. On behalf of P, W testifies that "D ran a red light and
hit P." On cross-examination, W is asked "Why were you
standing on Fifth and Main Street" (the viewpoint from
which the accident was observed)? W responds that he
had "gotten a haircut and was walking home." D's attor-
ney could then (presuming he does so in good faith) ask
W, "Weren't you actually returning home from a card
game?" This fact, if true, would contradict W's earlier
statement that he had previously been at a barber shop.
D's attorney could not, however, call Bill (a player at the
poker game) to contradict W's testimony that he was at a
barber shop before the accident. Since W's location
before the accident is a collateral matter, W cannot be
impeached as to this aspect by extrinsic evidence. D's
attorney could, however, call Bill to testify that W was
playing cards at the time W supposedly observed the inci-
dent. This is a significant aspect of the case (i.e., whether
W had, in fact, witnessed the accident).
posibie

360 Bias
Describe how a witness

may be impeached by
bias.
360
ANSWER
A witness may ordinarily be impeached by evi-
dence tending to show that she has a bias for,
or against, a party.
EXAMPLE
P is suing D (a lawyer) in a breach of contract case. In
behalf of P, W testifies that D offered to sell his car to P
for $500. On cross-examination, D's attorney asked W,
"Isn't it true that you hate attorneys?" Alternatively, D's
counsel calls Mel to the stand. Mel testifies that he has
often heard W state, "I hate attorneys." Either means of
impeaching W for bias against attorneys would be
proper.
• EXAMINATION TIP: No foundation is

required to be laid when impeaching in this
manner.
• EXAMINATION TIP: The question through

which the witness is impeached must be
asked in good faith (i.e., in the Example, D's
attorney must have had a good faith basis
for believing that W disliked attorneys). If he
did not, the judge can (1) strike the question
and answer; or (2) declare a mistrial.
Mi .0
SPECIALIST
i MULTISTATE flash cards
361 Defects in Memory or Perception

can be impeached based
upon defects in his
capacity, memory or
perception.
ipmbs•
361
ANSWER
A witness may be impeached by evidence with
respect to his capacity to have (1) perceived,
(2) recollect, or (3) to presently give an accu-
rate rendition of, the matter about which he
has testified.
EXAMPLES
latter. On behalf of P, W testifies that the accident was
caused by, "D running a red light." Counsel for D could
properly ask W, "Were you wearing your glasses when
you purportedly observed the incident?" Assuming W
said, "No", (1) W might then be asked if she had the
capability of observing a traffic light which was approxi-
mately 50 feet away (the viewpoint from which W sup-
posedly saw the accident), or (2) counsel for D could
call an eye doctor to testify that it would be impossible
for an individual with W's vision to have seen the traffic
light without her glasses.
Asking a witness "Are you presently under the influence
of marijuana" would be proper (assuming, of course,
there was a good faith reason to believe that she had
recently ingested this substance). Being under the influ-
ence of an intoxicant would arguably impair a witness's
ability to recollect and effectively communicate the mat-
ter about which she is testifying.
posabie
MULTISTATS SPECIALIST flash cards
362 Prior Bad Acts

may be impeached by
prior acts of misconduct
(which have not resulted
in a conviction).
try
try
362
ANSWER
A court may, in its discretion, permit cross-
examination into specific instances of miscon-
duct (which have not resulted in a criminal
conviction) by a witness, if such misconduct is
pertinent to truthfulness or veracity.
EXAMPLES
W testified on behalf of plaintiff (P) at trial. During
cross-examination, W is asked, "Weren't you caught
cheating at cards last Saturday evening?" If W responds
in the negative, the cross-examining attorney would have
to accept W's answer (even if the 5 persons who were
playing cards with W are prepared to testify that W dealt
herself aces from the bottom of the deck). Impeachment
with respect to prior bad acts not resulting in a convic-
tion cannot be impeached by extrinsic evidence (i.e.,
evidence of any type, other than through the witness's
own mouth).
After W testified in behalf of P and against D, D's attor-
ney asks W, "Isn't it a fact that you punched Joe in the
stomach two weeks ago?" The question probably is not
proper. The specific act in question does not pertain to
W's propensity for truthfulness or veracity.
Piga10 .
MULTISTATE SPECIA L IS T flash cards
363 Prior Criminal Convictions

may be impeached by
prior criminal convictions.
MULTISTATE
363
ANSWER
A witness may be impeached (intrinsically or
extrinsically) by a criminal conviction which
(1) was punishable by death or imprisonment
in excess of one year (if the court determines
that the probative value of admitting this evi-
dence outweighs its prejudicial effect to the
accused), or (2) involves honesty or false state-
ments (regardless of the punishment which the
witness received); FRE 609(a)(1)(2).
EXAMPLES
W, who testified in favor of D, is asked by P's attorney
on cross-examination, "Weren't you convicted of aggra-
vated battery seven years ago?" If the court, in its discre-
tion, determines that the probative value of this fact is
outweighed by its potential prejudicial effect, it could
sustain an objection to this question.
W, who testified in favor of D, is asked on cross-
examination, "Weren't you convicted of perjury five years
ago?" Since the crime of perjury involves false state-
ments, the court must permit P's attorney to ask this
question.
•EXAMINATION TIP: Evidence of a prior con-

viction is not admissible where (1) more
than ten years has elapsed since the later of
the (a) date of conviction, or (b) witness's
release from confinement, unless (1) the
court determines that the probative value of
this evidence outweighs its prejudicial effect,
and (2) the proponent of the conviction gives
the adverse party sufficient advance notice.
MULTISTATE
MU LTI STATESPECIALIST flash cards
364 Specc Acts of Prior Witness

may be cross-examined
as to specific acts, relating
to truthfulness or
untruthfulness, of another
witness.
MULTISTATE
364
ANSWER
Where a witness testifies with respect to the
character for truthfulness or untruthfulness of
another witness, the former may be cross-
examined with respect to specific instances of
conduct by the latter which pertain to truth-
fulness or untruthfulness; FRE 608(b).
EXAMPLES
latter. P, for the purpose of impeaching W (one of D's
witnesses), calls Y to the stand. Y testifies that W (1) has
a poor reputation for truthfulness in the community, or
(2) in his opinion, W is untrustworthy; FRE 608(a). Coun-
sel for D could then ask Y, "Did you know that W
recently returned a lost wallet which had $100 in it?"
On behalf of P, W testifies that he saw D punch P. D
then introduces Y, who testifies that W has a poor repu-
tation for truthfulness in the community. Counsel for P
then calls Z to the stand. Z testifies that W has a good
reputation for truthfulness in the community. Counsel for
D could then ask Z "Did you know that W was recently
terminated from his job for embezzling money?"
Penh,.
365 Best Evidence Rule
Describe the Best

Evidence rule.
365
AN S WER
Under the Best Evidence rule, the original
document, recording or photograph must ordi-
narily be offered into evidence to prove the
contents of that writing, recording or photo-
graph; FRE 1002. A duplicate is ordinarily also
admissible, unless there is a question as to the
original's authenticity; FRE 1003.
EXAMPLES
P sues D for breach of contract. P testifies that (1) he
personally delivered 100 widgets to D, and (2) despite
accepting the items, D refuses to pay for them. The fact
that, at the time of delivery of the widgets D signed an
invoice acknowledging receipt of the items, would not
preclude P's testimony under the Best Evidence rule. P's
testimony does not describe the contents of a writing.
Instead, he is testifying from his personal knowledge
about a matter which also happens to be reflected in a
writing.
On behalf of P, W testifies that he saw a letter, written by
D, which stated that the widgets in question were "work-
ing excellently." Counsel for D could probably make a
Best Evidence rule objection. In this instance, W is testi-
fying about the contents of a writing.
•EXAMINATION TIP: In the second Example,

D could also object to W's testimony upon
the grounds (1) lack of authentication, and
(2) hearsay. The latter objection could be
overcome by the party-opponent exclusion to
the hearsay rule.
pinky
MULT SPECIALIST flash cards

36 6 Best Evidence Rule
Describe the circumstances

under which the Best
Evidence rule is not
applicable.
366
ANSWER
The Best Evidence rule is not applicable under
the following circumstances:
(1) The original has been lost or destroyed
(unless the proponent of such evidence has
lost or destroyed it in bad faith) FRE 1004(1),
(2) The original was under the control of the
party against whom it is being offered and,
despite being put on notice that the contents
would be a subject of proof at the hearing, she
does not produce the original at such hearing,
FRE 1004(3), or
(3) The writing, recording or photograph is not
closely related (i.e., it's collateral) to the ulti-
mate issues; FRE 1004(4).
(4) An official record or document, if properly
filed or recorded, is excluded from the Best
Evidence rule if it has been (1) validly certified,
or (2) testified to as correct by a witness who
has compared it with the original; FRE 1005.
postbe
367 Confidentiality
Describe when, for

purposes of the
various privileges, a
communication is
confidential.
tri
pmbste
/MU- LTISTATE SPECIALIST
367
ANSWER
A communication is intended to be confiden-
tial when it is disclosed only to (1) a person
who has been consulted in her professional
capacity (including the latter's essential per-
sonnel), or (2) a spouse.
EXAMPLE
X (and others) have been sued by P for tortious inter-
ference with a contractual relationship. X is dining at a
restaurant with Y (a friend). When Z, X's attorney hap-
pens to walk by the table, X asks him, "Do you think P
will find the letter implicating me?" Y could be called to
testify as to X's remark. X's statement was not confiden-
tial. It was made in front of Y. Communications made in
public are never confidential.
• EXAMINATION TIP: Evidence is not immu-

nized from discovery simply because it is
delivered to an attorney (e.g., pre-existing
bank records). Thus, if X gives her attorney
documentation which is otherwise discover-
able, the other side can obtain it from X's
counsel.
• EXAMINATION TIP: There is a division of

authority as to whether otherwise confiden-
tial communications which are overheard by
an eavesdropper are admissible. The major-
ity view is that such communications are
admissible.
posthe
368 Attorney-Client Privilege
Describe the attorney-

client privilege.
368
ANSWER
One who consults an attorney for the purpose
of obtaining professional legal assistance is
privileged to refuse to disclose, and to prevent
the non-holder party (as well as her essential
personnel) from disclosing, confidential com-
munications made for the purpose of facilitat-
ing the rendition of those legal services
(whether or not the attorney is actually
retained).
EXAMPLE
X and Y (X's employee) consult A (an attorney) after
they are sued as joint defendants by Z. During the con-
ference, Joe, A's investigator, is called into the meeting to
overhear the conversation. At trial, Y is called by Z to
testify. Y (who no longer works for X) was asked about
statements made by X during the meeting with A. Y, X or
A could successfully assert the attorney-client privilege to
preclude this testimony. Where two parties jointly con-
sult an attorney, either can prevent the other from
revealing his statements to a third party. Since Joe would
qualify as "essential personnel," his presence at the meet-
ing does not preclude assertion of the privilege.
•EXAMINATION TIP: This privilege does not

extend to communications made to facilitate
the prospective perpetration of a fraud or
crime. However, communications about an
illegal wrongful act after it has occurred
are privileged.
pssibire
MUISTATE
LT SPECIALIST flash cards
369 Physician-Patient Privilege
Describe the physician-

patient privilege.
tri
369
ANSWER
A person who consults a physician for diagno-
sis or medical treatment is privileged to refuse
to disclose, and to prevent the physician (as
well as his essential personnel) from disclos-
ing, any confidential communications pertain-
ing to such diagnosis or treatment.
EXAMPLE
At a party, P meets Doctor (D). P casually asks D what
the latter typically prescribes for a chronically sore shoul-
der. Subsequently, P sues X for injuries sustained in a car
collision with the latter. P claims that, since the incident,
a chronic pain has arisen in his shoulder. If X seeks
to have D testify as to P's remarks at the party, the physi-
cian-client privilege could not be successfully asserted
by P. P's inquiry would probably be viewed as having
occurred outside the course of a professional capacity.
•EXAMINATION TIP: This privilege is ordinar-

ily assertable in civil actions only (i.e., it
cannot be raised in a criminal context).
EXAMINATION TIP: This privilege ordinarily

does not apply in personal injury actions by
the patient against another: In these situa-
tions, the patient has voluntarily chosen to
put his physical condition into issue.
plinbso
LTI PECIALIST
MUSTATE S fl Sh cards
370 Spousal Privilege
Describe the spousal

privilege.
MULTISTATE
370
ANSWER
Common law view: At common law, a married
person whose spouse is the defendant in a
criminal case may not be called as a witness
by the prosecution, and a married person may
not be compelled to testify against his spouse in
any criminal proceeding. Note that this "privi-
lege" is not really a privilege since it does not
apply to any particular information. Rather, it is
an incapacity of one spouse to testify
against the other in a criminal case.
Modern view: Federal courts follow the view
of Trammel v. California, 445 U.S. 40 (1980)
that the witness spouse, rather than the
party spouse, holds the privilege, based on
the rationale that a criminal defendant cannot
keep her spouse off the stand. For MBE pur-
poses, the modern view should be followed
whenever the parties are in federal court.
EXAMPLE
H is tried in a U.S. District Court for robbing a federal
bank. His spouse (W) was a witness to H's allegedly ille-
gal conduct. W, if she desires to do so, can refuse to
testify (i.e., take the stand) against H.
•EXAMINATION TIP: The privilege for marital

communications extends to any confidential
statement made between spouses during the
existence of a legal marriage. The widely
accepted rule is that the "quality of the mar-
riage" will not be inquired into.
posibiP
371 Marital Communications' Privilege
Describe the "marital

communications"
privilege.
MULTISTATE
371
ANSWER
A spouse can refuse to disclose, and prevent
the other spouse from disclosing, confidential
communications made during the marriage.
Most jurisdictions hold that the privilege sur-
vives the termination of the marriage either by
death or divorce.
EXAMPLE
H returns home one evening with a black eye. He tells
his wife (W) that he was in a fight with Jim. Shortly
thereafter, H and W became divorced. Jim sues H and
seeks to have W testify as to H's statement to her. H
could assert the marital communications privilege (even
though he and Ware now divorced). However, H proba-
bly could not prevent W from testifying as to his black
eye. Since this attribute was viewable by everyone, it is
not "confidential."
• EXAMINATION TIP: Where a spouse under-

takes conduct in apparent reliance upon
the confidentiality of the marital relation-
ship, most courts hold that the privilege
applies. After a bank robbery, X returns to
his home and, in the presence of his wife,
places a handgun into a shoe box (which
is then closed and placed into a closet).
Although no words were spoken by H,
most jurisdictions would view such "obser-
vations" and "impressions" as privileged
"communications."
MULTISTATE

flash cards
372 ,elf-Authenticating Writings
Describe the types of

writings which are
self-authenticating.
MULTISTATE
372
ANSWER
The following types of writings are self-
authenticating (i.e., no extrinsic evidence of
authenticity is ordinarily required) (FRE 902);
(1) Domestic public documents under seal.
A document which bears a (1) seal purporting
to be that of the United States or any State (or
any political subdivision, department, officer
or agency thereof), and (2) signature purport-
ing to be an attestation.
(2) Certified copies of public records. A copy of
(1) an official record, report, or entry therein,
or (2) a document authorized by law to be
recorded or filed, and which is actually
recorded or filed in a public office, provided it
is certified as correct by the person authorized
to make the certification.
(3) Official publications. Books, pamphlets
and other publications purporting to be issued
by a public authority.
(4) Newspapers and periodicals. Printed
materials purporting to be newspapers or
periodicals.
(5) Trade inscriptions. Inscriptions, signs, tags
or labels purporting to have been affixed in
the ordinary course of business and indicating
ownership, control or origin.
posabe
Voice Authentication
373
Describe the typical

means of voice
authentication.
MULTISTATE
373
ANSWER
A voice can be authenticated in each of the
following ways:
(1) Testimony by anyone familiar with the
voice of the alleged speaker,
(2) Self-identification by the (i) caller, or
(ii) person called (provided the caller used the
number assigned to that person by the tele-
phone company), or
(3) The call was made to a place of business
(assigned to the business by the telephone
company) and the conversation related to
business reasonably transacted over the tele-
phone; FRE 901(6).
EXAMPLE
X calls the number assigned to the Y Car Dealership in
the telephone directory. A voice answers, "Hello, Y Car
Dealership." X then asks the price of a new, particular
model, car? The voice answers, "$12,000." X responds,
"I accept." X could authenticate the telephone conversa-
tion with Y under subdivisions (2) or (3), above.
*EXAMINATION TIP: The court determines if

there is sufficient evidence for the jury to
determine that the underlying facts
necessary for authentication have been
established.

374 Scientific Processes
Describe when scientific

processes, experiments or
tests are admissible.
MULTISTATE
374
ANSWER
Scientific processes, experiments or tests are
admissible where (1) the process is reliable,
and (2) there is sufficient evidence that the
process, test or experiment was correctly
conducted.
EXAMPLES
D is accused of burglarizing P's home. The prosecution
attempts to introduce a shoeprint (found near the win-
dow through which entry was made), which it claims
matches a print that was lawfully obtained from D.
Before this evidence is introduced, however, the court
must be persuaded that (1) the process of matching
shoeprints is reliable, and (2) the manner in which the
two shoeprints in question were taken and are to be
compared is valid.
Scientific tests such as X-rays, MRIs, and EKGs may be
authenticated by a showing that the procedure used was
accurate, that the equipment was in proper working con-
dition, and that it was operated by a qualified person.
Mere testimony that the test result accurately represents
the facts is insufficient. Note finally that a "chain of
custody" must be established to account for the item's
whereabouts from the time at issue until trial.
p.1.1w
375 Judicial Notice
Describe the judicial

notice doctrine.
potable
375
ANSWER
A court may, in its discretion, take judicial
notice of an adjudicative fact which is not sub-
ject to reasonable dispute because it is (1) gen-
erally known within the jurisdiction of the trial
court, or (2) capable of determination from
sources whose accuracy cannot reasonably be
questioned; FRE 201(b).
EXAMPLE
In a criminal case, the prosecution asks the court to take
judicial notice of the fact that vehicle speeds indicated by
properly functioning radar guns are accurate. The court
would probably take judicial notice of the fact that this
process is valid. The prosecution would still be obliged
to authenticate the particular results submitted in that
case (i.e., that the radar gun was functional and utilized
in a proper manner at the time in question).
• EXAMINATION TIP: The side against whom

this doctrine is to be applied must have an
opportunity to contest the propriety of taking
judicial notice; FRE 201(c).
• EXAMINATION TIP: In a criminal case, the

court must instruct the jury that it is not
required to accept any judicially noticed
fact as conclusive. In civil actions, however,
judicially noticed facts must be accepted as
conclusive by the jury; FRE 201(g).
potable

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Torts

The PMBR course materials are copyrighted and

Describe when evidence is

•EXAMINATION TIP: In determining if

Describe when evidence

•EXAMINATION TIP: The rationale of this rule

potable flash cards

Describe the FRE rule

•EXAMINATION TIP: If in the above Example,

Describe the FRE rule

Describe when evidence

Describe when evidence

•EXAMINATION TIP: Habit (i.e., an almost

When, on direct, evidence

•EXAMINATION TIP: Rule 404(a)(1) was

*EXAMINATION TIP: Under this rule, the

Describe when, in sex

Describe what evidence is

• EXAMINATION TIP: Rules 413 and 414 are rules

Describe the statements or

• EXAMINATION TIP: Under the FRE, conduct

Describe some situations

Describe the party-

Describe the prior

'Alit ' ."

Describe the prior

•EXAMINATION TIP: W's prior statement

Describe the excited

•EXAMINATION TIP: An excited utterance

Describe the "present

• EXAMINATION TIP: The "present sense

Describe the medical

Describe the "presently

Describe the business

•EXAMINATION TIP: The business record must

Describe the "recorded

•EXAMINATION TIP: Police reports are gener-

Describe the "public

•EXAMINATION TIP: This exception to the

Describe the "ancient

• EXAMINATION TIP: In the foregoing Exam-

• EXAMINATION TIP: This exception to the

Describe the past memory

ul MULTISTATE SPECIALIST flash cards

Describe the "learned

Describe the "prior

Describe when an out-of-

Describe the "impending

•EXAMINATION TIP: Under the FRE, dying

Describe the "statement

Describe the "prior

Describe when opinion

•EXAMINATION TIP: A number of cases

Describe the information

• EXAMINATION TIP: An expert may render an

• EXAMINATION TIP: An expert's testimony

Describe the "present

• EXAMINATION TIP: Where a witness's

1XAMINATION TIP: Anything utilized to

Describe the doctrine of

• EXAMINATION TIP: In addition to the com-

Describe when a party

•EXAMINATION TIP: The Example represents

Describe when a witness