EVIDENCE MIDTERM QUIZ: ANSWERS & EXPLANATIONS Fall 2020

Question #1: The correct answer is G – Answers B and D.

This question concerns objections to the form of the question. Answer A is not objectionable – it is a
leading question, but was asked on cross-examination, during which leading is permissible. Answer B is
objectionable – it is a leading question, on direct, and thus generally impermissible without some special
factors not present in this question. Answer C is not objectionable. It’s a straightforward direct
question. Answer D is objectionable – It is a compound question, with multiple questions packed into
one.

Only 69% got this one right. Pretty puzzling because there were no close cases or curve balls among the
choices.

Question #2: 100% of you correctly answered that witness unavailability is a precondition for all FRE 804
exceptions.

Question #3:The correct answer is F – Answers B and D

In this question, an officer is called to testify about a jailhouse statement of Joe, a now-deceased co-
conspirator of defendant Derrick. The answers all relate to hearsay objections that might be made to
this testimony by the officer about what Joe said.

Answer A – that all of Joe’s statement is “indisputably” admissible under FRE 804(b)(3), statement
against interest -- is not correct because, although parts of Joe’s statement do fit that rule because they
implicate Joe, the declarant, other parts don’t fit because they implicate the defendant. That part of the
statement is definitely disputable under Williamson v US.

Answer B recognizes the Williamson issue and says that parts of the statement may be admissible, so it
is correct.

Answer C is wrong. It suggests that Joe’s statement is non-hearsay under FRE 801. This was red herring.
Some co-conspirator statements are, of course, non-hearsay. But this statement, being after Joe was
caught, was neither made during the course of, nor in furtherance of the conspiracy.

Answer D says that Joe’s statement is probably objectionable under the Confrontation Clause. It is
testimonial in the sense of being a statement to a police officer in a setting where both parties to the
conversation would clearly have understood that it would used for a criminal prosecution. Because Joe
is now dead, he’s unavailable and not subject to cross.

61% got this right.

Question #4: The correct answer is: D. Hearsay, but admissible under FRE 803(4).

This question tests your knowledge of the hearsay exception for statements for medical diagnosis or
treatment under FRE 803(4). The declarant, Luke, was attacked and injured by robbers. He told the
construction worker from Samaria who came to help him that he had been beaten by thugs, that his
eyes were so swollen that he couldn’t see, and that he couldn’t feel anything below the waist and feared
a broken back. In a subsequent civil trial in which the nature and timing of his injuries was key to the
defense, Luke calls the Samaritan to talk about what he, Luke, had said.
Since Luke called the Samaritan as a witness, and Luke himself was the out-of-court declarant, the
statement could not be one by a party-opponent. Therefore, answer B was wrong. Several of you
selected Answer F, which suggested that 803(4) applies only to cases where the hearer of a statement
has a medical degree. NO!!! I emphasized this point several times in class, as does the casebook. The
issue under FRE 803(4) is whether the purpose of the declarant in making a statement is to obtain
medical diagnosis or treatment. If so, and so long as the statement was made in a setting where the
declarant might reasonably anticipate that making the statement would facilitate obtaining medical
treatment, the statement can come in. Here, it seems pretty clear that Luke is telling the Samaritan the
nature of his injuries in order to get medical help.

A surprising number of you selected Answer C – “Not hearsay because not introduced to prove the truth
of the assertions made by Luke.” Those who selected this answer seemingly failed to read the question
carefully and think about the facts. Luke’s statement to the Samaritan concerned his injuries just after
the beating. The defendants claimed that Luke’s injuries were not suffered at the time of the beating,
but during a later ambulance crash. Therefore, the point of introducing the statement to the Samaritan
– or at least one of the major points – was to prove the truth of what Luke said to him, in effect, “I am
badly hurt right now and this is the nature of my injuries.”

82% of you got this right.

Question #5: The correct answer was “B. Might be considered non-hearsay depending on when the
employment relationship between Walter and the company was determined to have ended.”

This is a hearsay question about a statement by an employee of a company in his resignation letter
introduced against his former employer. Therefore, you should immediately have been considering
whether the statement could fall under one of the FRE 801(d) carveouts for non-hearsay statements by
a party-opponent or party-opponent’s agent or co-conspirator.

Walter was an agent of the company and the contents of the statement were pretty plainly about
matters within the scope of his employment relationship. The only issue was, since this was a
resignation letter, when that employment relationship terminated. Hence the qualifier in Answer B.

The statement did not fall under FRE 801(d)(2)(A), because declarant Walter was not himself the party-
opponent; that was the company. So Answer C was wrong. Statement was not a present sense
impression under FRE 803(1), so Answer D was wrong.

Answer A was wrong because it was about FRE 804(b)(3), statement against interest, and in this case
there is no indication that Walter, the declarant, was unavailable at the time of trial ( a requirement
under FRE 804), and the statement was not apparently against his interest.

75% got this right.

Question #6: As 70% of you understood, the correct answer is F. “Answers B, C, and D.”

Gladys’s statement identifying the probable firebomber is hearsay, but also likely fits under the
exceptions for present sense impression (she is describing what she is watching as she is watching it)
and excited utterance (see exclamation points). Seven percent of you thought this was a statement of a
person after perceiving him, FRE 801d1C. But that section only applies when, “The declarant testifies
and is subject to cross-examination about a prior statement.” And in this case the problem tells you that
Gladys is dead at the time of trial.

Question #7: The correct answer is E: “None of the above.”

Same facts as previous problem regarding Gladys’s statement about the firebomber to a 911 operator.
The most common wrong answers were that her statement:

Answer A -- “Is barred by the Confrontation Clause because Gladys's statement is helpful to the
prosecution, thus making her a witness against the defendant.” No. Merely because an out-of-court
statement is helpful to prosecution, the declarant does not become a “witness” whose statement is
barred by the Confrontation Clause. The whole point of Crawford is that only testimonial statements
are barred, and testimonial statements are a small subset of the universe of out-of-court statements
helpful to the prosecution.

Answer B -- “Is not testimonial and not subject to a Confrontation Clause objection because a 911
operator is not a magistrate and therefore the statement lacks the indicia of formality required for a
violation of the Confrontation Clause.” No. For this answer to be right, Justice Thomas’s view of the
Confrontation Clause would have to have prevailed. It didn’t. The recipient of a statement need not be
a magistrate in order for a statement to that recipient to be testimonial. This answer is the closest to
being right among the available options – because this statement is pretty certainly not testimonial. But
that’s because of the emergency doctrine and not because of the operator’s lack of judicial status.

Answer C -- “Is definitely not testimonial and not subject to a Confrontation Clause objection because
Gladys is very excited about the matter she is reporting to the police.” No. Merely because a statement
falls within a hearsay exception (excited utterance) does not take it out of the Confrontation Clause.

Answer D -- “Is admissible even if Gladys’s statement is testimonial because Gladys is dead and
therefore unavailable.” No. Once we establish that the statement is testimonial, Gladys’s unavailability
due to death makes the Confrontation Clause problem worse, not better. If Gladys is now unavailable,
the only way to solve the confrontation problem would be if her earlier statement were subject to cross-
examination at the time it was made … which obviously did not happen.

Only 44% got this one right.

Question #8: The correct answer is C – Inadmissible hearsay, if introduced during Vance’s direct
testimony.

The question concerned the admissibility of a statement by Vance, the victim of a shooting, made
shortly after the shooting concerning the identity of the shooter (who shot both Vance and another
person).

Vance’s statement at the scene was out-of-court and introduced to prove the truth of what it asserted,
viz, that Bill Johnson was the shooter. There is no indication from the facts of the problem that Vance
testified differently during the trial, so his prior statement is not inconsistent and thus not admissible to
impeach him. A prior consistent statement might be introduced under FRE 801(d)(1)(B), but only to
rehabilitate the witness following an express or implied charge of fabrication or improper motive, or to
rehabilitate credibility after it was attacked on another ground. BUT, here the effort is to introduce the
prior statement on direct examination, so neither of those conditions could be fulfilled. Therefore,
answer C is correct.

Some 43% of you picked answers suggesting that you thought the statement was a dying declaration
under FRE 804(b)(2). But a prerequisite for any FRE 804 exception is that the declarant be unavailable
and the facts specify that Vance was alive and testified at the trial.

7% thought this was a statement of a party-opponent. No. Vance is both a victim and a witness, but in a
criminal case, he is not a party.

That said, some 27% of you answered F “None of the above.” This answer would be correct if Vance’s
statement is hearsay, but admissible under some exception. Having thought about this a bit more, I
think it’s arguable that the statement could be admitted as an excited utterance under FRE 803(2). It
does relate to a startling event or condition and, since the question says that Vance was taken to the
hospital “immediately after the shooting,” I think one could fairly argue that he was still under the
“stress of the excitement” of the event. THEREFORE, I will also count Answer F as being correct. Bottom
line: If you answered either C or F, you will get credit for a correct answer.

Question #9: The correct answer is Answers A, C, and E only.

This is a double hearsay problem. In order to admit double hearsay, the court must be able to find as to
each level of alleged hearsay either a reason why the statement is not hearsay or an exception to the
hearsay rule. Here, the first layer is solved by the fact that one of the out-of-court declarants, Pamela, is
the plaintiff and thus party-opponent to defendant Derrick who wants to introduce the statement. The
second layer – the statement by deceased declarant Diane – is solved by 804(b)(6), which admits
statements of unavailable declarants whose absence has been procured by the party against whom the
statement is offered for the purpose of preventing testimony. Here, the facts in Answers C and E show
that plaintiff Pam very likely murdered Diane to prevent her from testifying.

83% of you got this right.

Question #10: The correct answer is F – the records would probably be admissible over a hearsay
objection so long as Threepwood could lay a foundation establishing that they were created by the
Office of Social Services and set out that office’s activities.

This is a question about the admission of public records under FRE 803(8). The correct answer simply
states that the records will be admissible if a witness can lay the foundation that these records fit within
FRE 803(8)(A)(i).

Answer A regarding FRE 201, judicial notice, is out in left field. Answer B, suggesting use of FRE 803(7),
doesn’t work because that rule relates to the absence of entries in business records, something not at
issue here. Answer D is wrong because it mixes a requirement of FRE 803(6), business records, up with
FRE 803(8). Answer E is wrong because judges, not juries, decide who qualifies as a proper foundational
witness for the admission of records.

83% got this right.

Question #11: The correct answer is C – Crawford v Washington Holds, or strongly implies, that non-
testimonial evidence is not subject to the constraints of the Confrontation Clause.
This correctly states the holding of Crawford. None of the other answers is close. 93% of you got this
right.

Question #12: As 94% of you knew (YAY!), the correct answer was C: Dan’s prior conviction was a bank
robbery in which he wore a broad-brimmed straw cowboy hat and a Richard Nixon mask and carried a
short rifle.

This question is about use of prior bad act evidence under FRE 404(b) to show identity. The point was
that, when trying to prove identity, the ideal is a “signature crime” the details of which are identical to
or very close to the crime being litigated. Answer C involves a prior robbery that is nearly identical to
the crime charged. None of the other three answers involved crimes very similar to the one charged.

Those of you who missed this question were led astray by the pogo stick thing. That is, the question was
about introduction of evidence that the defendant had committed robbery before, i.e., on some other
prior occasion. The facts that the robber in this case used a pogo stick and that a pogo stick was found
in defendant Dan’s garage certainly make it more likely that Dan committed THIS robbery. But the pogo
stick has no obvious connection to any prior robbery.

Question #13: The correct answer is A: The transcript is admissible.

As 89% of you understood, a transcript of a civil deposition of a now-deceased witness in a case arising
from the same arson that led to the criminal trial at issue will be admissible under FRE 804(b)(1)(A), so
long as the party against whom it is introduced had an opportunity and similar motive to cross the
witness in the earlier civil case. Given that the defendant was a party to both cases, this condition was
fulfilled.

Question #14: The correct answer is E – None of the above.

This is the question about refreshing recollection of a testifying police officer with a ticket she wrote on
a prior occasion. Answers A and D are wrong because both suggest that a party can introduce into
evidence a document used solely to refresh recollection. But that is not the case. See FRE 612(a).
Answer B is wrong because a witness may not read from a refreshing document. Answer C is wrong
because it is perfectly OK to use a record the witness created to refresh recollection.

Question #15: The correct answer is F: Answers A and B only.

Determination of preliminary questions of fact concerning the admissibility of evidence are governed by
FRE 104 and are made by the judge. They are not made only after a motion in limine. And, as we’ve
emphasized OVER and OVER in class, the judge is not limited to admissible evidence in determining
preliminary questions of fact.

91% got this right.

Question #16: The correct answer is Answer D: Nonhearsay and admissible.

This is the Dorothy/Scarecrow question. It’s a plain case of an non-hearsay adoptive admission under
FRE 801(d)(2)(B). The Scarecrow said something and Dorothy nodded in agreement.
Several of you said this statement was inadmissible because irrelevant. That puzzled me because this is
a prosecution for premeditated murder of the Witch, and the Scarecrow’s statement is a plan to kill the
witch. Seems pretty relevant.

15% of you said the statement was inadmissible unless inconsistent with other statements given by the
Scarecrow. Not sure what the thinking was there.

4% of you said the statement would be inadmissible under the Confrontation Clause. But the out-of-
court declarant was the Scarecrow, who is testifying in court. So there could hardly be a confrontation
issue. Or if you consider that, because this is an adoptive admission, the true declarant is Dorothy, she’s
a party and is there in court.

78% got this right.

Question #17: The correct answer is Answer B: “The report is hearsay, but admissible as a business
record if the doctor also testifies that it was his customary practice to prepare such reports.”

This answer, together with the facts in the question, lays all the foundational elements for the business
records exception. 78% of you got this one right. About 21% of you answered that the report was
admissible as a statement for purposes of medical diagnosis or treatment; however, the information in
the report does not consist of patient statements, but of data on decrease in liver function – not
something the patient would be able to relate to her doctor.

Question #18: The correct answer is A: “Should overrule the objection and permit the testimony.”

This question tests your knowledge of the admissibility of specific instances of conduct to prove a
criminal defendant’s character for violence. As 91% of you recognized, once the defendant calls a
character witness to testify to an opinion about the defendant’s peaceful character, under FRE
405(a),the prosecution may ask the character witness about relevant specific instances of prior conduct.

Question #19: The correct answer is D, “Inadmissible,” as 82% of you said.

This is a trial in which the defendant is charged with making criminal false statements. The proffered
testimony relates to the defendant’s character for peacefulness and non-violence. It is inadmissible,
first, because it is as a general matter irrelevant, and second, because even where a criminal defendant
seeks to introduce evidence of his or her own character under FRE 404(a)(1), the evidence must relate
to “a pertinent trait of character,” which this was not.

Question #20: As 88% of you recognized, the correct answer was Answer C: “Hearsay but admissible
because it is introduced to prove Miss Hood's current state of mind in order to suggest that she acted in
conformity with her expressed intention at some later time.” This is a question that asks you to
remember the rule of the Hillmon case regarding use of a statement concerning declarant’s state of
mind to prove declarant’s future conduct when it may also tend to prove another person’s future
conduct.

Question #21: As 76% of you realized, the correct answer is Answer C: “Will probably be admissible so
long as there is some other evidence of the conspiracy between Jorge and Charley in addition to
Charley's statement.”
This is a question about the application of the co-conspirator exception to the hearsay rule, FRE 801(d)
(2)(E). 21% of you answered incorrectly that Charley’s statement would be inadmissible because the
person to whom he made it, Bernice, was not a member of the conspiracy. This is an error. The first
question under the rule is whether the out-of-court declarant is a member of a conspiracy that includes
the defendant/party-opponent. In this case, Charley was plainly a member of a conspiracy that included
Jorge. The fact that Charley made the statement to somebody outside the conspiracy doesn’t matter so
long as the statement was made in furtherance of the conspiracy, as this one plainly was (“Go down to
Joe’s guns and buy me a revolver”). Finally, the co-conspirator statement rule of FRE 801(d)(2)(E) is not
limited to cases in which a conspiracy is actually charged; indeed, it can be used in civil cases. So Answer
A is not correct.

Question #22: The correct answer is C: “If the trial results from a civil complaint filed by the decedent's
estate alleging negligence. “

This problem applies the public records exception, FRE 803(8). The facts exactly mirror the case of Baker
v. Elcona Homes in the casebook, and the answer is explained in that case.

About 10% thought that the contents of the police investigative report would come in in a criminal trial
for vehicular homicide. This conclusion ignores the provision of 803(8)(ii) that specifically says public
records DON’T come in a criminal case if the matter is one there was a legal duty to report and the
matter reported was “observed by law enforcement personnel.” It also misreads 803(8)(iii) that admits
gov’t records in a criminal case, but only AGAINST the government. Here, the question specifies that the
report is offered by the “plaintiff,” i.e, the government.

4% thought the report was only admissible if Officer Friendly was unavailable. I’m not sure what the
thinking was here. All FRE 803 exceptions apply regardless of declarant unavailability. And I don’t see
any 804 exception that even comes close on these facts.

65% got this right.

Question #23: As 69% of you said, the correct answer was C: The motion to strike the testimony
“[s]hould be denied so that the weight of Walter's evidence can be explored through the adversary
process.”

The first two answers suggested either that Walter should be barred because legally incompetent or
lacking personal knowledge. Neither is true. His view of the accident was bad for reasons that could be
and were explored on cross, but that would not bar his testimony altogether. The answer relating to
hearsay is plainly incorrect inasmuch as Walter doesn’t offer any out-of-court statement, but is
personally present in court to testify.

Question #24: The correct answer is C: If a proper foundation is laid, these records are probably
admissible under FRE 803(7).

As 92% of you concluded, this was a pretty straightforward application of the rule that the absence of
records can be used to prove a relevant matter.

Question #25: The correct answer is B, that hearsay within hearsay within hearsay “is sometimes
admissible.”
That will be case (assuming relevance) whenever each and every layer of alleged hearsay falls within a
definitional carveout of FRE 801 or some hearsay exception under FRE 803, 804, or 807.

88% got this right.