Evidence Foundation Kaplan Foundation Course MBE Questions

Question 1

Under Federal Rules of Evidence (F.R.E.) 401, relevant evidence

Answer 1

is that which tends to make the existence of a fact of consequence more (or less) probable than it would otherwise be.

Question 2

Relevant evidence is generally admissible (F.R.E. 402), but it is inadmissible

Answer 2

where its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (F.R.E. 403).

Question 3

A videotape is not a

Answer 3

“statement” under F.R.E. 801(a).

Question 4

The best evidence rule applies only when the proponent

Answer 4

is attempting to prove the contents or terms of a writing. Note that sometimes a writing recites or records a perceivable event or condition such as a marriage (marriage certificate), payment of money (receipt), or the utterance of certain words (transcript).

Question 5

The Best Evidence Rule is NOT applicable when

Answer 5

When the proponent is not attempting to prove the terms of a writing, but merely is presenting evidence of an event perceived by a witness with firsthand knowledge, which is someone who is not relying on the writing or video to learn of the event or facts

The proponent wishing to prove the underlying event may offer testimony as an observer with first hand knowledge.

Question 6

firsthand knowledge of the suspect’s confession is admissible when

Answer 6

The person testifying was present and overheard it.

Question 7

In a criminal case, the prosecution bears the burden of

Answer 7

proving each and every element of a crime beyond a reasonable doubt

Question 8

Exam Tip: Any time a question gives you a statute, pay particular attention as the examiners will rarely

Answer 8

define something that you are responsible for memorizing. Oftentimes they will insert subtle changes that differ from the common law rules.

Question 9

According to F.R.E. 406, “evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses

Answer 9

is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Question 10

MBE Exam Tip: On the MBE, the key words denoting habit are

Answer 10

always,” “invariably,” “customarily” and “habitually.”

Question 11

MBE Exam Tip: On the MBE, the key words that are NOT sufficient to constitute habit are

Answer 11

Conversely, if a person “generally” behaves or “often” acts in a particular situation, that is not sufficient to constitute habit.

Question 12

F.R.E. 407 allows evidence of subsequent remedial measures

Answer 12

when offered to show ownership or control.

Question 13

F.R.E. 408, which deals with settlement or compromise negotiations, but in order to EXCLUDE the statements there must be

Answer 13

Always remember that in order to exclude statements or admissions made during settlement negotiations, there must be an actual dispute between the parties.

Question 14

Under F.R.E. 408, any statements made during the course of settlement negotiations

Answer 14

will be excluded, but there must be a dispute

Question 15

It is important for students to distinguish between F.R.E. 408 and F.R.E. 409. Under F.R.E. 409, admissions made in connection with an offer to pay medical expenses

Answer 15

admissions are severed for the statement of offer to pay medical expenses, and the admissions are admitted in the trial

Question 16

In order to exclude statements made in compromise negotiations, there must be an actual

Answer 16

dispute or, at least, an apparent difference of view between the parties as to the validity or amount of a claim.

Question 17

On the MBE determine if the testmaker is concluding that no dispute existed at the moment, but a settlement was made

Answer 17

determine if the party is making a spontaneous statement immediately following the incident to settle knows that there is a dispute, and if at the there is no dispute at the time of accrual, then the statement is admissible

Question 18

FRE 404 Character evidence in a criminal case, an accused may offer evidence of his good character by

Answer 18

In accordance with F.R.E. 404(a) (1), an accused may offer evidence of his good character by reputation and opinion,

Question 19

FRE 404 Character evidence in a criminal case, an accused may NOT offer what type of evidence to prove his good character

Answer 19

may not use specific acts, to prove his innocence

Question 20

A prosecution’s direct witness being called to testify about a person’s character is

Answer 20

NOT permitted until the defendant must first “open the door” by presenting such evidence of his good character before the prosecution is entitled to rebut the good character of the accused.

Question 21

F.R.E. 404(a)(2) states that if the accused defendant offers evidence of a relevant character trait of the alleged victim (reputation and opinion), in a self defense murder case

Answer 21

the prosecution in rebuttal may offer evidence of the same character trait of the accused (reputation and opinion). Because the defendant attacked the victim’s character for violence on the issue of self-defense, the prosecution may offer rebuttal evidence that the defendant has a bad reputation for violence.

Question 22

Generally, character evidence in a civil trial

Answer 22

not admissible in civil trials unless it is impeachment evidence in the form of reputation or opinion evidence about a witness’s truthfulness, or a question asked of the witness herself about prior bad acts relating to truthfulness.

Question 23

In a defamation action such as this one the issue of a person’s character is

Answer 23

An essential element of a charge, claim, or defense. Therefore, under F.R.E. 405(b) proof of character by using specific instances of conduct is permitted. Reputation or opinion evidence, though not offered here, would also be allowed to show that the plaintiff cheated on his taxes, because all three types of character evidence may be used to prove the essential character issue in this defamation case.

This is one of the instances where, in a civil case, evidence of specific bad acts may be used to prove a character trait.

Question 24

Under F.R.E. 405, “in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made

Answer 24

by specific instances of that person’s conduct.” Federal Rules of Evidence allow specific instances of misconduct as proof of character in cases in which character is in issue.

Question 25

F.R.E. 608 states, “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proven by

Answer 25

may not be proved by extrinsic evidence

Question 26

The exception to FRE 608, on the other hand, extrinsic evidence is permitted to impeach a witness by to prove

Answer 26

Bias. Courts generally permit the impeaching party to prove bias either on cross examination or by adducing extrinsic evidence, either from witnesses or documents.

Question 27

One method of impeaching a witness is by

Answer 27

sensory defects

Question 28

The purpose of such impeachment using sensor defects

Answer 28

is to show that the witness does not have knowledge of the fact or facts about which they are testifying. This can be done on cross-examination or by using extrinsic evidence.

Question 29

Extrinsic evidence cannot be used to impeach on a

Answer 29

collateral matter.

Question 30

MBE Tip: you must first determine if the question deals with the impeachment of a witness or whether a person’s character is in issue, so

Answer 30

If it is an impeachment question, you must apply Rules 608 and 609. Conversely, if you are confronted with a character evidence question, you should apply Rules 404 and 405. According to F.R.E. 608, “specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, may not be proved by extrinsic evidence

Question 31

F.R.E. 609(a) provides:

Answer 31

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment

Question 32

F.R.E. 609(b) provides

Answer 32

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction, unless the court determines in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Question 33

F.R.E. 404(a)(1) and (a)(2) require, in a criminal case, that the defendant open the door with either his good character or victim’s bad character before

Answer 33

Usually in a criminal case, on rebuttal, the prosecution may use otherwise inadmissible character evidence for some purpose other than to show the defendant acted in conformity therewith. This evidence will be admissible under F.R.E. 404(b)

Question 34

Admissions are

Answer 34

Admissions are the words or acts of a party-opponent (or his predecessor or representative) that are offered against him.

Question 35

Are “admissions” hearsay?

Answer 35

an admission is non- hearsay. A person’s statement related to civil or criminal wrong will be admissible as an admission, and not subject to hearsay

Question 36

Hearsay is defined under F.R.E. 801(c)

Answer 36

As “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The hearsay rule applies when the proponent offers the declarant’s assertion for a purpose that requires the trier to accept as true the facts it embodies.

Question 37

If the particular statement is not being offered for its truth,

Answer 37

then the hearsay rule is inapplicable.

Question 38

The following types of statements are offered for a purpose other than their truth and are classified as non-hearsay:

Answer 38

(1) verbal acts (e.g., proof of oral utterances by parties in a contract action constituting the offer and/or acceptance); (2) utterances and writings offered to show the effect on hearer or reader (e.g., patron sues a grocery store for injuries sustained from slipping on the contents of a broken ketchup bottle; the store calls a checkout clerk who will testify that he heard the manager call out to the patron: “Lady, please don’t step on the bottle of ketchup.”); and (3) statements disclosing declarant’s state of mind (e.g., witness testifies that several months before testator died, he said, “My nephew is an incorrigible spendthrift who is too lazy to hold a job.”) This declaration is admissible to show that testator intended to omit nephew from his will, not as proof that nephew possessed those traits

Question 39

under F.R.E. 803(4), a statement made for purposes of medical diagnosis or treatment must

Answer 39

describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Question 40

Medical statements made by person pointing to persons responsible for the condition

Answer 40

are considered irrelevant to medical diagnosis or treatment and do not fall within the exception

Question 41

F.R.E. 803(1), a present sense impression must

Answer 41

describe or explain an event or condition while the declarant was perceiving the event or condition or immediately thereafter. NOT when time has elapsed.

Question 42

This difficult Evidence question deals with the evidentiary use of a statement incorporated in an item seized during a warrantless search, (a diary)

Answer 42

Even though the diary was lawfully seized under the “plain view” exception to the warrant requirement and would not be subject to the exclusionary rule, the diary, (i.e., the writing itself) is not what is being offered into evidence.

Question 43

F.R.E. 803(6), commonly known as the “business records exception,”

Answer 43

excludes from the hearsay rule, even though the declarant is available, the following: “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” For a business record to be admissible, a foundation must be laid to authenticate the writing.

Question 44

Who needs to testify about a business record under the hearsay exception

Answer 44

However, note that the declarant of the entry need not testify. The business record may be introduced by either the custodian or a reliable qualified witness with personal knowledge.

Question 45

F.R.E. 803(8) provides a hearsay exception for records of public office or agencies, setting forth

Answer 45

(a) the activities of the office or (b) a matter observed pursuant to duty imposed by law as to which there is a duty to report. This is equivalent to the business records exception of F.R.E. 803(6)

Question 46

F.R.E. 803(7) provides

Answer 46

that evidence that a matter is not included in records which qualify under F.R.E. 803(6) is admissible to prove the non-occurrence or nonexistence of the matter (unless the source of information or other circumstances indicate lack of trustworthiness)

Question 47

F.R.E. 803(10) provides

Answer 47

a similar “non-occurrence” rule for public records. F.R.E. 803(10) permits use of absence of an entry or record to prove the non-occurrence of the matter which would otherwise have caused an entry to be present

Question 48

The absence of any entry is the equivalent of an out-of-court declaration that the relevant event (registration as a sex offender) never occurred, and thus is being offered “for the truth of the matter asserted, so which FRE 803 exception applies

Answer 48

F.R.E. 803(10) provides an exception that obviates the hearsay rule.

The foundational elements of the public record (or business record) exception may be established by the custodian of the records or any “qualified witness”; a similarly qualified witness may testify that a diligent search failed to disclose any such record.

Question 49

An excited utterance, under F.R.E. 803(2), is defined as

Answer 49

a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The neighbor’s testimony as to the victim’s statement moments after he was stabbed will be admissible as an excited utterance.

Question 50

In Crawford v. Washington [541 U.S. 36 (2004)], the U.S. Supreme Court ruled that the Confrontation Clause

Answer 50

applies to hearsay statements that are testimonial in nature where the hearsay declarant does not testify at trial and the accused did not have any prior opportunity to cross-examine the declarant. In two cases following Crawford, the Court made a distinction between statements made to police to explain what is happening versus statements made to police telling what had happened.

Question 51

Davis v. Washington and Hammon v. Indiana [547 U.S. 813 (2006)].

Answer 51

Because the primary purpose of the officer’s interrogation was to establish or prove past events potentially relevant to later criminal prosecution, the woman’s statement is testimonial in nature under Crawford, and not admissible

Question 52

Hearsay exceptions under F.R.E. 804, the declarant

Answer 52

must be unavailable. it is important to point out that a witness is rendered unavailable if he or she simply refuses to testify, despite all appropriate judicial pressure to do so.

Question 53

Former testimony is defined under F.R.E. 804(b)

Answer 53

as “testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”…if the declarant is unavailable as a witness, and is admissible, therefore, not treated as hearsay

Question 54

F.R.E. 804(b)(4) is commonly known as the pedigree hearsay exception,

Answer 54

and it applies to the following statements of personal or family history made by an unavailable declarant: “ A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had not means of acquiring personal knowledge of the matter stated; or

Question 55

F.R.E. 803(13), applies to the statements (or written records) made in family

Answer 55

Bibles, inscriptions on family portraits, and engravings on tombstones. A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.”

Question 56

F.R.E. 611 (c) states: Leading questions

Answer 56

should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Note that the entire matter of whether or not to allow leading questions is discretionary and the judge’s action will not be reviewed, unless it is charged that it contributed to the denial of a fair trial.

Question 57

Necessary to differentiate between the spousal communication privilege, and the spousal testimony privilege,

Answer 57

The spousal communication privilege protects confidential communications between the spouses made during the marriage. The spousal testimony privilege, on the other hand, prevents one spouse from testifying against the other in a criminal case. The spousal testimony privilege or incapacity blocks adverse testimony based on knowledge gained in any way, at any time, as long as the accused and the proposed witness are married at the time of trial.

As such, the spousal testimony privilege applies to “pre-marital” acts.

Question 58

F.R.E. 701, if the witness is not testifying as an expert, the witness’ testimony in the form of opinions or references

Answer 58

is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Question 59

It is the essence of the attorney-client privilege that it is limited to

Answer 59

those communications which the client either expressly made confidential or which she could reasonably assume under the circumstances would be understood by the attorney as so intended. The witness’ presence in the hallway breaks the privilege. Although the statement was made out-of-court, it is the statement of the defendant and therefore not hearsay, but rather an admission.