Evidence MBE PQ's

A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property.  A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen.  On cross-examination, the prosecutor asked the defendant, "Didn't you also previously buy a stolen stereo from the same man who sold you this television?"  The defendant's attorney immediately objected.

What is the strongest basis for the defense attorney's objection?

• The probative value of the prosecutor's question is substantially outweighed by the danger of unfair prejudice.

• 1. The prosecutor's question was irrelevant because it does not establish an element that the prosecutor must prove.

• The relevance of the prosecutor's question depends upon whether the defendant knew the stereo was stolen, and the prosecutor has not offered sufficient proof to support that finding.

• 1. The risk of unfair prejudice is not substantially outweighed by the probative value of the prosecutor's question.

A defendant is on trial for bank robbery.  In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller on her first day of work.  The teller testified that the note presented to her on the witness stand was the note that she had received from the robber.  The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the defendant, who was a bank customer, based on her comparison of the note with 10 customer signature cards, including the defendant's, presented to her by the prosecutor after the robbery.

Is the teller's testimony that the handwriting on the note matches that on the defendant's customer signature card admissible?

• 1. No, because a lay witness may not testify as to whether a document is in a person's handwriting.

• No, because the teller's familiarity with the defendant's handwriting arose from the actions of the prosecutor.

• 1. Yes, because the process was not unduly suggestive since the prosecutor presented the teller with 10 customer signature cards.

• Yes, because a lay witness may testify as to whether a document is in a person's handwriting.

A defendant was charged with fraud in connection with the sale of nutritional supplements.  The prosecution alleged that the defendant verbally represented himself as a physician to convince elderly individuals to sign contracts authorizing the defendant to charge their credit cards monthly fees for deliveries of these supplements.  In fact, the defendant had no medical training.  The contracts did not identify the defendant as a physician, but the prosecution intended to introduce witness testimony that the defendant verbally represented himself as a physician.  The sole issue in dispute is whether the defendant made such representations.

At trial, the prosecution introduced a photocopy of a contract between the defendant and one of the alleged victims in order to lay a foundation that the alleged victim bought supplements from the defendant.  The defendant did not deny that the alleged victim bought supplements from him, but objected to the introduction of the contract on the ground that the prosecution was required to introduce an original contract under the best evidence rule.  The court sustained the defendant's objection.

Did the court err in making its ruling?

• 1. Yes, because the best evidence rule allows for the introduction of an original or duplicate document.

• Yes, because the best evidence rule is not implicated in this case.

• 1. No, because the best evidence rule applies to a document that has a legal effect, such as a contract.

• No, because a photocopy is not admissible when the absence of the original is not explained.

A boat owner initiated a products liability action against the manufacturer of the boat's engine.  The owner alleged that the engine manufacturer failed to warn the owner about the proper operation of a switch on the engine and that improper operation of the switch caused the owner's injuries.  The boat owner offered evidence that the manufacturer had begun including a written warning about the switch for all boats manufactured beginning in the year after the owner's boat was manufactured.  The owner had owned his boat for five years prior to his injury.

Is this evidence admissible?

• No, because evidence of the manufacturer's warning is inadmissible as a remedial measure.

• 1. No, because the remedial-measures exclusion is limited to negligence cases.

• Yes, because the manufacturer began providing the warning before the boat owner's accident.

• 1. Yes, because evidence of the need for a warning is not subject to the remedial-measures exclusion.

A defendant is acquitted of murder.  Subsequently, the family members of the victim bring a wrongful death action against the defendant.  The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim.  The victim's family members object to the introduction of the judgment.

May the defendant introduce the copy of the final judgment from his criminal case?

• 1. No, because a judgment in a criminal case is inadmissible in a subsequent civil action.

• No, because the judgment is inadmissible hearsay.

• Yes, because the copy of the judgment satisfies the original document rule.

• 1. Yes, because the level of proof in a civil action is less than that in the murder case.

A plaintiff sued a defendant under a disabilities discrimination statute, alleging that the defendant refused to hire the plaintiff because of her physical disability.  The defendant has asserted that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job.  The defendant sought to testify that the plaintiff's former employer advised him not to hire the plaintiff because she was unable to work productively for more than three hours each day.

Is the defendant's testimony admissible?

• 1. No, because the defendant's opinion of the plaintiff's abilities is not based on personal knowledge.

• No, because the former employer's statement is hearsay not within any exception.

• Yes, as evidence of the defendant's reason for refusing to hire the plaintiff.

• 1. Yes, as evidence that the plaintiff would be unable to work longer than three hours each day.

While driving through her neighborhood on the way to work, a woman was involved in a car accident with her neighbor.  The neighbor alleged that the woman failed to stop at a stop sign.  The neighbor brought an action for negligence against the woman.  At trial, the woman intends to call a witness to testify that the woman stops at the stop sign each time she encounters it.  The witness is the woman's coworker and carpools with the woman to work daily, driving the same route with the same stop sign.  However, the witness was not present for the accident with the neighbor, as she was sick that day.

Should the court admit the witness's testimony?

• No, because the testimony is improper character evidence.

• 1. No, because the witness did not observe the accident.

• Yes, because it can be used to prove that the woman stopped at the stop sign on the day of the accident.

• 1. Yes, because the woman's character for careful driving is an essential element of her defense.

The defendant's attorney in a fraud case called a witness to testify as to the defendant's character.  On cross-examination, the prosecutor asked the witness whether he had ever been arrested for writing bad checks.  In fact, the witness had been arrested two years ago for writing bad checks, but the charges had been dropped due to a lack of evidence that the witness had committed the crime.  The defendant's attorney objects to the question.

Should the prosecutor be allowed to ask the question?

• 1. No, because a witness who is not the defendant may not be cross-examined about prior bad acts.

• No, because the witness was never convicted of the crime.

• 1. Yes, because the arrest occurred only two years ago.

• Yes, because writing bad checks is probative of the witness's untruthfulness.

A husband was on trial for the murder of his wife.  The wife's death was attributable to a fall which the prosecution alleged was purposefully caused by her husband.  Shortly after the wife's death, the wife's brother found a video recording, made by the husband, in which the husband sorrowfully stated that his wife's death "was no accident."  The video recording was turned over to the police and is now in the prosecution's custody.  The prosecution, worried that the video recording makes the husband look sympathetic, intends to instead call the wife's brother to testify as to the husband's statement in the video.  The defense has objected to admission of the brother's testimony.

Should the court permit the brother to testify as to the husband's statement in the video?

• 1. No, because the testimony is hearsay.

• No, because the video recording must be produced.

• 1. Yes, because the brother's testimony is a suitable alternative to the video recording.

• Yes, because the husband's statement is a statement of a party-opponent.

A handyman sued a homeowner for negligence after falling off the homeowner's roof while repairing the homeowner's chimney.  The handyman was knocked off the roof when one of several large dead branches from a nearby tree fell on him.  The homeowner's answer contested the handyman's claim that the tree was on the homeowner's property.

At trial, counsel for the handyman seeks to introduce into evidence a properly authenticated invoice, made in the regular course of business, from a landscaping company to the homeowner that indicated that the tree's dead branches were subsequently trimmed at the homeowner's expense.  The homeowner objected to the admission of the invoice.

Should the judge admit the invoice into evidence over the homeowner's objection?

• No, because it evidences a subsequent remedial measure.

• 1. No, because it is hearsay not within any exception.

• 1. Yes, because it is a vicarious admission by the homeowner.

• Yes, because ownership of the tree was disputed.