MD Bar Evidence 3 — Questions and Answers
Question 1: At trial, a witness cannot recall the license plate number she reported to police right after a hit-and-run. The prosecutor shows her the police report, but her memory is not refreshed. What may the prosecutor do with the report's plate number?
- Have it read into evidence as recorded recollection if the foundation is met (Correct answer)
- Admit the report itself as an exhibit for the jury to take into deliberations
- Nothing, because the witness's failed memory ends the inquiry
- Have the officer testify to the number as a present sense impression of the officer
Correct answer: Have it read into evidence as recorded recollection if the foundation is met
Under FRE 803(5), a memorandum made when the matter was fresh in the witness's memory may be read into evidence as recorded recollection, but the document itself may be received as an exhibit only if offered by the adverse party.
Question 2: In a civil fraud case, the defendant claims his statement to investors was an innocent mistake. The plaintiff offers evidence that the defendant made three similar false statements to other investors. Is this evidence admissible?
- Yes, to show absence of mistake or intent under the other-acts rule (Correct answer)
- No, because other acts are inadmissible in civil cases
- No, because it is impermissible propensity evidence
- Yes, but only if the other statements resulted in fraud judgments
Correct answer: Yes, to show absence of mistake or intent under the other-acts rule
FRE 404(b) permits other-acts evidence for non-propensity purposes such as intent, plan, or absence of mistake, and it applies in civil as well as criminal cases.
Question 3: A dying hospital patient tells a nurse, "My brother poisoned my tea." The patient believed death was imminent but then recovered fully. The patient refuses to testify at the brother's attempted murder trial. Is the statement admissible as a dying declaration?
- No, because dying declarations in criminal cases apply only in homicide prosecutions (Correct answer)
- Yes, because the declarant believed death was imminent when speaking
- No, because the declarant survived, which defeats the exception
- Yes, because the declarant is unavailable by refusing to testify
Correct answer: No, because dying declarations in criminal cases apply only in homicide prosecutions
Under FRE 804(b)(2), dying declarations are admissible in criminal cases only in homicide prosecutions (or in any civil case), so an attempted murder charge does not qualify.
Question 4: A lawyer offers a photocopy of a signed contract to prove its terms. The opponent objects under the best evidence rule, noting the original exists. How should the court rule?
- Admit the photocopy, because duplicates are admissible unless there is a genuine question about the original's authenticity (Correct answer)
- Exclude the photocopy, because the original must be produced when available
- Exclude the photocopy unless the proponent proves the original was destroyed
- Admit the photocopy only with testimony from the person who made the copy
Correct answer: Admit the photocopy, because duplicates are admissible unless there is a genuine question about the original's authenticity
FRE 1003 makes duplicates admissible to the same extent as originals unless authenticity of the original is genuinely questioned or admission would be unfair.
Question 5: A defendant charged with robbery offers testimony from his pastor that the defendant is an honest, law-abiding person. The prosecution objects. Is the testimony admissible?
- Yes, a criminal defendant may offer reputation or opinion evidence of a pertinent character trait (Correct answer)
- No, because character evidence is inadmissible in criminal cases until the prosecution raises it
- No, because honesty is not pertinent to a robbery charge
- Yes, but only through specific instances of good conduct
Correct answer: Yes, a criminal defendant may offer reputation or opinion evidence of a pertinent character trait
Under FRE 404(a)(2)(A), an accused may open the door by offering evidence of a pertinent character trait, and law-abidingness is pertinent to any criminal charge, proved by reputation or opinion under FRE 405(a).
Question 6: During a deposition, a witness described the traffic light as green. At trial, the same witness testifies it was red. The deposition was given under oath and subject to cross-examination. How may the prior statement be used?
- As substantive evidence and for impeachment, because it is a prior inconsistent statement given under penalty of perjury at a deposition (Correct answer)
- For impeachment only, because prior inconsistent statements are never substantive evidence
- It is inadmissible hearsay because the witness is now testifying differently
- As substantive evidence only if the witness adopts it on the stand
Correct answer: As substantive evidence and for impeachment, because it is a prior inconsistent statement given under penalty of perjury at a deposition
Under FRE 801(d)(1)(A), a prior inconsistent statement made under penalty of perjury at a trial, hearing, or deposition is non-hearsay and admissible substantively as well as to impeach.
Question 7: The prosecution offers a certified copy of a public agency's routine report of factual findings from an official investigation against a criminal defendant. The defendant objects. What is the strongest basis for exclusion?
- The public records exception bars investigative findings offered against a defendant in a criminal case (Correct answer)
- Public records are always inadmissible without the author's live testimony
- Certified copies violate the best evidence rule
- Government reports are per se more prejudicial than probative
Correct answer: The public records exception bars investigative findings offered against a defendant in a criminal case
FRE 803(8) excludes law-enforcement matters observed and factual findings from investigations when offered by the prosecution against a criminal defendant.
MD Bar Evidence 3
At trial, a witness cannot recall the license plate number she reported to police right after a hit-and-run.
The prosecutor shows her the police report, but her memory is not refreshed.
What may the prosecutor do with the report's plate number?