Evidence MBE Misses

Question 1

Prior ID

Answer 1

Prior ID is admissible as non-hearsay BUT declarant must be available and subject to cross.

Question 2

Impeachment by Criminal Conviction

Answer 2

Crimes involving dishonesty - automatically, no discretion

Felonies - judge has discretion
- 403 Balancing test - probative value must not be
substantially outweighed by prejudice.

Conviction/release must be within 10 years.

Foundation is not required, record of the conviction is admissible

Question 3

Impeachment & Prior Bad Acts

Answer 3

A witness may be cross-examined regarding prior bad acts at the judge’s discretion if:

1. The acts are probative of truthfulness
2. There is a good-faith basis for the questioning

Extrinsic evidence not admissible.

Consequences of the bad acts (termination, discipline, etc.) not admissible.