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20. Which mode of proof of the conviction is LEAST likely to be permitted?
In a federal civil trial, the plaintiff wishes to establish that, in a state court, the defendant had been convicted of fraud, a fact that the defendant denies.
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Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.
Judicial notice is when a judge accepts a fact as true even though no evidence to prove it has been offered. A fact may be judicially noticed if it is not subject to reasonable dispute and either: (i) it's generally known in the community; or (ii) it's capable of immediate and accurate verification by use of easily-available sources that are indisputably accurate (such as information in encyclopedias, almanacs, etc.).
D is correct. This question asks, which mode of proof would be least likely to render the defendant's prior conviction admissible? Because the conviction is not generally known within the territorial jurisdiction of the federal court, and the telephone call to the clerk of the state court, which is hearsay, can reasonably be questioned, judicial notice of the conviction is the least likely method available to prove the conviction.
A is incorrect. A record of a prior criminal conviction is a proper mode of proof for offering that conviction into evidence, and a certified copy of a conviction is self-authenticating, meaning it requires no testimonial sponsor to allow for its admissibility.
B is incorrect. A witness, like the plaintiff in this question, can properly testify regarding matters within his firsthand knowledge. If the plaintiff were present at the time of the defendant's sentencing in state court, the plaintiff may testify to that event.
C is incorrect. Testimony by a witness that the defendant made an oral admission regarding his prior conviction would be admissible as a non-hearsay admission by a party-opponent.