85. A defendant was charged with robbery of a savings and loan branch after being
arrested near the scene and found with marked bills. An hour after the robbery, the officer
investigating the crime videotaped an interview with an eyewitness, in which the eyewitness
described the crime and the robber. The officer then arranged for a lineup, at which the teller
who was robbed identified the defendant as the robber. The officer later obtained
computerized records of that day's deposits and withdrawals at the savings and loan, which
allowed the calculation of how much cash was taken in the robbery. A month later, the teller
testified before a grand jury, which indicted the defendant. The teller and the eyewitness both
died of unrelated causes shortly afterward.
At trial, which of the following evidence, if properly authenticated, may properly be
admitted against the defendant over his attorney's objection that its receipt would violate the
A. A transcript of the teller's sworn grand jury testimony.
B. The computerized records from the savings and loan.
C. The officer's testimony that the teller picked the defendant out of the lineup as the
D. The videotape of the eyewitness's statement.
86. A defendant is being prosecuted for conspiracy to possess with intent to distribute
cocaine. At trial, the government seeks to have its agent testify to a conversation that he
overheard between the defendant and a co-conspirator regarding the incoming shipment of a
large quantity of cocaine.That conversation was also audiotaped, though critical portions of it
are inaudible. The defendant objects to the testimony of the agent on the ground that it is not
the best evidence of the conversation.
Is the testimony admissible?
A. No, because the testimony of the agent is not the best evidence of the conversation.
B. No, because the testimony of the agent reports hearsay not within any exception.
C. Yes, because the best evidence rule does not require proof of the conversation
through the audiotape.
D. Yes, because the audiotape is partly inaudible.
87. A plaintiff sued his employer for illegal discrimination, claiming that the employer
fired him because of his race. At trial, the plaintiff called a witness, expecting him to testify
that the employer had admitted the racist motivation. Instead, the witness testified that the
employer said that he had fired the plaintiff because of his frequent absenteeism. While the
witness is still on the stand, the plaintiff offers a properly authenticated secret tape recording
he had made at a meeting with the witness in which the witness related the employer's
admissions of racial motivation.
The tape recording is
A. admissible as evidence of the employer's racial motivation and to impeach the
B. admissible only to impeach the witness's testimony,
C. inadmissible, because it is hearsay not within any exception.
D. inadmissible, because a secret recording is an invasion of the witness's right of
privacy under the U.S. Constitution.
88. At a defendant's trial for burglary, a witness supported the defendant's alibi that they
were fishing together at the time of the crime. On cross-examination, the witness was asked
whether his statement on a credit card application that he had worked for his present
employer for the last five years was false. The witness denied that the statement was false.
The prosecutor then calls the manager of the company for which the witness works, to
testify that although the witness had been first employed five years earlier and is now
employed by the company, there had been a three-year period during which he had not been
so employed. The testimony of the manager is
A. admissible, in the judge's discretion, because the witness's credibility is a fact of
major consequence to the case.
B. admissible, as a matter of right, because the witness 'opened the door' by his denial
C. inadmissible, because whether the witness lied in his application is a matter that
cannot be proved by extrinsic evidence.
D. inadmissible, because the misstatement by the witness could have been caused by
misunderstanding of the application form.