Question 1.

Good answer (all elements required for full credit):
1) The witness should be allowed to testify.
2) Rule 601
3) says that everyone is a competent witness who takes the oath
4) She took the oath.

Part credt: Arguing that "everyone is competent" without mentioning the requirement of an oath.

Question 2.

Good answer (all elements required for full credit):
1) Object to testimony about awards
2) Rule 404, character evidence.
3) Not admissible to prove conduct in conformity
4) Heroism is a trait of character.

Part credit: (a) Arguing general irrelevancy or Rule 403. Always use the more specific rule.
(b) Arguing this is improper bolstering of a witness's credibility before she has been impeached. Heroism is not closely related to truth-telling.

Question 3.

This is an authentication question, Fed. R. Evid. 901; which we did not cover.

Question 4

Good answers (all elements required for full credit):
1) The whole letter
2) Does not fit the Rule 801 definition of hearsay
3) because not offered to prove the truth
4) But is offered to show that Elvis was capable of writing, so he must be alive;

-- or --

1) The portion of letter stating I am alive
2) Fits the exception for present physical condition, Rule 803(3)..
3) It describes then-existing physical condition contemporaneously with the sensation
4) Being alive is a physcial condition

Part credit: Putting down "not for truth" without saying what it was offered for.

Part credit: Putting down "present sense impression" without explaining how foundation was satisfied.

Bad answers: (a) State of mind exception, 803(3). Elvis' state of mind is not in issue.
(b) Statement of past physical condition, 803(4). The statement was not made for diagnosis or treatment.

Question 5.

Elvis is not a party according to first line of facts.

Question 6.

There is no proof of Elvis' unavailability as required by Rule 804(a), and no proof that the letter is against Elvis' pecuniary interest.

Question 7.

Good answers (all elements required for full credit): .
1) I object to that this opinion
2) because it would violate Rule 702 governing expert testimony
3) This is not a field of specialized knowledge
4) Elvisology is common knowledge within jurors' experience. Expert opinions will therefore not assist jury.

--or--

3) No foundation that witness is using scientifically reliable theories as required by Daubert v. Merrel Dow.
4) Does not describe his methodology at all.

Bad answers: (a) Witness is biased. No rule prohibits calling biased witnesses.
(b) Witness is not qualified as expert. He has unique experience.
(c) Legal opinion. Not in purely legal terminology.
(d) Anything having to do with lay opinion rule; this person is an expert.

Question 8.

Good answer (all elements required for full credit):
1) Opinion should be allowed
2) This is an expert witness
3) Experts don't need personal knowledge
4) they just need a factual basis for their opinion. Rule 703.

Question 9.

Good answer (all elements required for full credit): .
1) Objection to testimony about other forgeries
2) Irrelevant evidence of other events
3) No foundation of similarity of conditions
4) Move to strike

-- or --

2) Low probative value and high danger of confusion of the issues under Rule 403
3) Because no foundation of similarity of conditions

No credit: Character evidence objection. Although this asks about a pattern, it is not a particular person's pattern.

Question 10.

Good answer (all elements required for full credit):
1) Evidence of financial interest
2) Offered to impeach
3) For bias bu showing self-interest.
4) Bias of witness always a significant issue for Rule 403 purposes.

Part credit if you discussed either probative value or prejudicial effect but not both.

Question 11.

Good answers (all elements required for full credit):
1) I object to the statement
2) As improper impeachment
3) No foundation of inconsistency
4) The witness gave no actual courtroom testimony for the statement to be inconsistent with.

-- or --

3) Extrinsic evidence not admissible to impeach
4) Statement itself extrinsic, admissible only if witness denies it aftwer confrontation.

No credit: Hearsay objection -- Whether it is hearsay depends on whether it is a valid prior inconsistent statement; if so, it is not coming in for its truth, but to impeach.

Bad answer: Impeaching own witness. Rule 607 says anyone can impeach any witness

Question 12.

Good answer (all elements required for full credit):
1) Evid of Settlement
2) Only excluded under Rule 408 if offered to show fault
3) Not offered to show fault but to show witness's bias
4) The settlement suggests that there is a quid pro quo giving the witness the motive to fabricate.

Question 13.

Good answer (all elements required for full credit):
1) I object to the answer
2) No foundation of personal knowledge as required by Rule 602.
3) No foundation that witness knows when Elvis died.

Question 14.

Good answer (all elements required for full credit):
1) Report of Elvis' death
2) Does not fit the definition of hearsay. Rule 801
3) No content
4) It asks for the witness's conduct using reports of Elvis's death merely for a time frame; the question does not ask the witness to describe the content of any communication.

Question 15.

Good answer (all elements required for full credit):
1) The records keot by the bank
2) Are admission of party-opponent, Rule 801d
3) Memphis Bank is a party; its records are statements made by employees authorized to make such statements.

Part credit: The trust document itself is not hearsay because it has legal significance (operative legal facts).

Irrelevant answer (no points): Anything having to do with personal knowledge; subsumed under hearsay exception foundations.

Bad answer: Business records exception -- no foundation showing routineness; no evidence they were made at or near time of event, by employee with personal knowledge.

Question 16.

Good answer (all elements required for full credit):
1) Object to the characterization of Elvis' appearance
2) On opinion rule grounds (Rule 701)
3) As not "rational" conclusions of a type lay persons competently make
4) These are not common situations.

Part credit:
Arguing failure to lay an adequate foundation of personal knowledge. This opinion would require a foundation that the witness were familiar with how a "normal" Elvis looked in order to compare a normal Elvis to a deceptive Elvis.

Part credit:
The opinion would not be helpful to the jury because there are better ways of communicating more precise information on issue that is important.

Question 17A.

Good answer (all elements required for full credit):
1) The opinion is based on personal knowledge -- she saw Elvis
2) Opinions of intoxicated appearance are rational for a lay person -- within common experience.
3) Helpful to jury because difficult to break down into more concrete details.

Question 17B.

Good answer (all elements required for full credit):
1) Evidence of Elvis's drugged condition
2) Under Rule 402
3) Has probative value
4) On the theories that he had a drug problem, faked his death and entered drug rehab. While it may pose a Rule 403 danger, the defense did not object on Rule 403 grounds.

Question 18.

Good answer (all elements required for full credit):
1) Priscilla's statement to witness
2) Is an excited utterance, Rule 803(2).
3) It describes startling event immediately thereafter
4) Seeing someone who looks like dead husband is startling

Part credit:
Present sense impression, Rule 803(1), because she was describing event she was seeing. The problem is that the statement relates to past events as well as describing current ones.

Bad answers: (a) Declaration against interest. [Priscilla was divorced, not a beneficiary of trust, would not gain anything if Elvis dead or alive; had no interest].
(b) Admission. [Priscilla is not a party; no proof she was agent of Lisa-Marie]

Question 19

Good answer (all elements required for full credit):
1) Evidence that bank keeps money
2) Relevant to impeach witness
3) For bias
4) Financial motive of bank to want to keep money might affect witness who is employee.

Question 20.

Good answer (all elements required for full credit):
1) I object to evidence of what Fisher usually did
2) As irrelevant character evidence, Rule 404a
3) Not admissible to prove conduct on this occasion
4) What an attorney usually did is "pattern" evidence, not admissible to prove he acted in conformity therewith on the contested occasion.

Bad answers: (a) Habit [question asked "usually"; habit requires "always"]
(b) Lack of personal knowledge [she said she has had many dealings with attorney]

Question 21.

Good answer (all elements required for full credit):
1) Instances where attorney gave instructions
2) Do not fit the definition of hearsay;
3) Commands or requests are not "assertions"

Bad answer: Admission by agent. [No proof that attorney is agent of plaintiff]

Question 22.

Good answer (all elements required for full credit):
1) I object to evidence of this crime
2) Tto impeach under Rule 609
3) No foundation this is either a felony or a crime of dishonesty -- shoplifing may or may not involve dishonesty and deception
4) Falls outside the 10-year rule.

Part credit: (a) You discussed one but not both foundation failures.
(b) You objected that this WAS not a crime of dishonesty rather than no foundation had been laid.

Question 23.

Good answer (all elements required for full credit):
1) I object to evidence of bank's current practice
2) as an irrelevant subsequent remedial measure, Rule 407.
3) If policy had been in place, improper activating Elvis trust might not have occurred

Part credit: Making a Rule 403 objection.

Question 24.

Good answer (all elements required for full credit):
1) Evidence of conversation with Elvis should be allowed
2) Not privileged
3) The privilege was not asserted by Elvis personally and no foundation that lawyer has authority to assert it.
4) No foundation has been laid that the meeting was confidential.
5) The privilege doesn't apply in suits among heirs.