Evidence Flashcards

A murder victim, knowing she was dying from her wounds, told a paramedic, 'My husband poisoned me.' She died minutes later. In the husband's homicide prosecution, the statement is:

Answer: Admissible as a dying declaration concerning the cause of her death

FRE 804(b)(2) admits a statement made under belief of imminent death about its cause or circumstances in homicide prosecutions and civil cases, when the declarant is unavailable.

A plaintiff in a slip-and-fall case offers evidence that three other customers fell in the same spot under similar conditions in the prior month. This evidence is:

Answer: Admissible to show the dangerous condition and the defendant's notice of it

Substantially similar prior accidents are admissible to prove a dangerous condition, causation, or the defendant's notice of the hazard.

During trial, a party asks the court to take judicial notice that the intersection of two named streets is within city limits, a fact verifiable from official maps. In a civil case, once notice is taken, the jury:

Answer: Must accept the noticed fact as conclusive

In civil cases the jury must accept a judicially noticed fact as conclusive, whereas in criminal cases the jury may but is not required to accept it.

A defendant claims his confession is inadmissible. At the preliminary hearing on admissibility, the judge considers a police officer's hearsay account of the interrogation. This is:

Answer: Proper, because the court is not bound by the rules of evidence (except privileges) when deciding preliminary questions of admissibility

Under FRE 104(a), the court deciding preliminary admissibility questions is not bound by evidence rules other than privilege.

A wife is called to testify against her husband in a federal criminal trial about events she observed during the marriage. The couple is still married and she is willing to testify. Under federal common law:

Answer: She may testify, because the witness spouse holds the spousal testimonial privilege and may waive it

Under Trammel v. United States, the testimonial privilege belongs to the witness spouse alone, who may choose to testify; the communications privilege covers only confidential communications, not observations.

An email is offered against a defendant company, written by its sales manager to a customer about a product defect, sent while the manager was employed and concerning a matter within his duties. The email is:

Answer: Admissible non-hearsay as a statement by the party's agent on a matter within the scope of the agency

Under FRE 801(d)(2)(D), a statement by a party's employee on a matter within the scope of employment, made during the employment relationship, is not hearsay.

In a drug conspiracy trial, the prosecution offers a co-conspirator's statement made to an undercover agent arranging a sale. For admission under the co-conspirator exclusion, the judge must find by a preponderance that:

Answer: A conspiracy existed including the defendant and declarant, and the statement was made during and in furtherance of it

FRE 801(d)(2)(E) requires the court to find, by a preponderance and considering the statement itself plus independent evidence, a conspiracy and a statement made during and in furtherance of it.