Evidence- Missed MBE Questions Flashcards
Which of the following would most likely qualify as inadmissible hearsay?
A
An admission made during the discovery process.
B
A statement made by a party’s employee about a matter within the scope of his present employment that is offered by the opposing party.
C
A statement offered against a party that was made by that party to a third person.
D
A prior inconsistent statement made by a witness who has since died.
A prior inconsistent statement made by a witness who has since died.
Which of the following is TRUE regarding a statement against interest?
A
It must subject the declarant to criminal liability.
B
A reasonable person would not have made the statement unless he believed it was false.
C
If it exposes the declarant to criminal liability, there must be corroborating evidence.
D
The statement must be made by a party.
If it exposes the declarant to criminal liability, there must be corroborating evidence.
Which of the following statements regarding hearsay is TRUE?
A
A statement that is not hearsay is automatically admissible.
B
Questions are not hearsay because there is no matter being asserted.
C
Hearsay within hearsay may be admissible if the core hearsay statement falls within an exception to the hearsay rule.
D
A statement offered to prove that the statement was made is hearsay.
Questions are not hearsay because there is no matter being asserted.
Compromise offers and negotiations CAN/CANNOT be used to:
- Prove/disprove disputed claim
- Admitted for impeachment by PIS or contradiction.
CANNOT
*there are many exceptions to this rule.
Compromise offers and negotiations CANNOT be used to:
- Prove/disprove disputed claim
- Admitted for impeachment by PIS or contradiction.
What are the exceptions to this rule?
- Compromise negotiations with a GOVERNMENT agency (IRS).
- Admissible to prove:
Bias
Prejudice of a witness
Negate a claim of undue delay
Prove obstruction of criminal investigation
An offer to pay medical expenses without being included with any other statement WILL/WILL NOT be admissible to prove liability for the INJURY CAUSED.
WILL NOT
- unlike a compromise negotiation, any conduct or statement that accompanies the payment/offer to pay/promise to pay medical expenses IS ADMISSIBLE!
Plea negotiations will/will not be admissible
Will not- exceptions.
A girlfriend testified on behalf of her boyfriend when he was prosecuted for first-degree murder of his ex-wife. When questioned by the defense, the girlfriend testified that the ex-wife had provoked her boyfriend by telling him she had cheated on him throughout their marriage. In a momentary heat of passion, the boyfriend strangled the ex-wife. On cross-examination, the prosecution asked if the girlfriend had ever underreported her annual income on her tax forms. When the girlfriend denied doing so, the prosecution sought to introduce evidence of the girlfriend’s annual income and tax forms from the previous three years, all of which showed that the girlfriend underreported her earnings for tax purposes.
Is this evidence admissible?
No, because a specific instance of conduct is not admissible to attack or support the girlfriend’s character for truthfulness.
No, because the fact that the girlfriend may have underreported her annual income on her tax forms cannot be proven through extrinsic evidence.
Yes, because the fact that the girlfriend may have underreported her annual income on her tax forms is probative of her untruthfulness.
Yes, because the probative value of the evidence is not substantially outweighed by the unfair prejudice that it may cause.
No, because the fact that the girlfriend may have underreported her annual income on her tax forms cannot be proven through extrinsic evidence.
Although specific instances of conduct are generally not admissible to attack or support the witness’s character for truthfulness, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of the witness (or another witness about whose character the witness being cross-examined has testified).
When the witness denies a specific instance of conduct on cross-examination, extrinsic evidence is NOT ADMISSIBLE to prove that instance in order to attack or support the witness’s character for truthfulness. In this case, the prosecution was permitted to question the girlfriend on cross-examination about underreporting her annual income on her tax forms, but the extrinsic evidence it attempted to submit to prove the underreporting is not admissible.
T/F: There is a marital privilege for private communications between spouses. Most courts hold that both spouses hold this privilege and either may prevent the other from testifying as to such communications. Even courts that restrict this privilege to one spouse grant it to the spouse who made the statement.
TRUE
Compromise Offers and Negotiations- Not admissible to prove VALIDITY OR AMOUNT OF A DISPUTED CLAIM.
EXCEPTIONS- WILL BE ADMISSIBLE TO PROVE:
- BIAS or ________ of a witness
- To ________ a claim of undue delay
- To prove ________ of a criminal investigation or prosecution.
PREJUDICE
NEGATE
OBSTRUCTION
A son and a daughter are opposing parties in federal court. At trial, the daughter presented evidence that her father has been missing for ten years, and that no one has heard from him in that time. The son testified that he received a phone call three years ago from a person that he believes was his father. In the jurisdiction, a rebuttable presumption arises that a person is dead when a party establishes that the person has been missing and not heard from for more than seven years. Which of the following is correct?
The jury must find that the father is dead.
The jury may find that the father is dead.
The burden has shifted to the son to persuade the jury that the father is alive.
The judge must instruct the jury to conclude that the father is dead.
The jury MAY find that the father is dead.
A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying fact or set of facts (i.e., basic facts).
A rebuttable presumption shifts the burden of PRODUCTION, but not the burden of PERSUASION, to the opposing party.
However, a rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, as is the case here, then the presumption no longer has a preclusive effect. At this point, the jury may, but is not required to, draw the conclusion from the basic facts. Thus, the jury may determine the weight and credibility of all of the evidence.
In a negligence action against an innkeeper, a maintenance man testified for the plaintiff and said that the innkeeper’s inn had received poor safety ratings in its last inspection. The innkeeper’s attorney later called the maintenance man’s co-worker, who testified that the maintenance man had a reputation at work for dishonesty. On his cross-examination of the co-worker, the plaintiff’s attorney asked, “Isn’t it true that you lied about your qualifications on your résumé?” The innkeeper’s attorney objected. Is this a proper question for the plaintiff’s attorney to ask on cross examination of the co-worker?
No, because it is not a proper impeachment use of a specific instance of conduct.
No, because the co-worker testified only to the maintenance man’s reputation.
Yes, because it is a proper impeachment question regarding the co-worker’s credibility.
Yes, because it reveals the co-worker’s capacity to comment on the maintenance man’s reputation.
Yes, because it is a proper impeachment question regarding the co-worker’s credibility.
Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s credibility.
However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of
(i) the witness or
(ii) another witness about whose character the witness being cross-examined has testified. Because the cross-examination here is probative of the co-worker’s own character for untruthfulness, the question is proper.
X-ray images, electrocardiograms, and similar items CAN/CANNOT be authenticated in a similar fashion to photographs- Testimony regarding personal knowledge of the item from a declarant.
CANNOT
X-ray images, electrocardiograms, and similar items cannot simply be authenticated by the testimony of a witness claiming that they are accurate reproductions of the facts.
To authenticate such an item, it must be shown that an accurate PROCESS was used, that the MACHINE used was working properly, and that the operator of the machine was QUALIFIED to operate it.
Photographs CAN/CANNOT be authenticated by the testimony of a party with personal knowledge of its contents.
CAN
A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building. The prosecution called a female witness who lived in the defendant’s last apartment building to testify that she also received a number of identical threatening phone calls while the defendant lived in her building. The defense objected to the testimony on the grounds of relevance. The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant.
Is the witness’s testimony admissible?
No, because calls by an unidentified caller are not relevant to the case.
No, because the witness’s statement cannot be admitted prior to the production of evidence establishing that the defendant made the calls to the witness.
Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
Yes, on the condition that the court finds by a preponderance of the evidence that the caller was the defendant.
Yes, on the condition that evidence is introduced later that would permit the jury to reasonably find by a preponderance of the evidence that the caller was the defendant.
When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof is introduced later.
In making its determination that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence. Here, the court can admit the testimony on the condition that evidence identifying the caller as the defendant is introduced later.
In a prosecution of a man for murder, the government seeks to introduce the confession of a co-conspirator as an admission of a party opponent. In laying the foundation for admitting the confession, the prosecution offered an affidavit from the man’s son concerning the friendship between the man and the confessing co-conspirator. Who rules on the admissibility of the co-conspirator’s confession, and may the son’s affidavit be considered?
The jury determines the confession’s admissibility as a question of weight and credibility, and the jury must not consider the affidavit.
The jury determines the confession’s admissibility as a question of weight and credibility, and the jury may properly consider the affidavit.
The judge determines the confession’s admissibility as a preliminary question of fact, and the judge must not consider the affidavit.
The judge determines the confession’s admissibility as a preliminary question of fact, and the judge may properly consider the affidavit.
The judge determines the confession’s admissibility as a preliminary question of fact, and the judge may properly consider the affidavit.
The judge must first consider whether the confession of the co-conspirator qualifies as an admission of a party opponent, which is not hearsay. This is a preliminary question regarding the competency of the evidence. The judge must rule on the admissibility of the confession before a jury can determine the weight and credibility of the confession.
The holder of a patent for hybrid corn sued both an unlicensed wholesaler of that product and a retailer who purchased the corn from the wholesaler for alleged patent infringement. The patent holder reached an agreement with the retailer in which the holder released the retailer from liability in exchange for the payment of a nominal amount. After properly authenticating the agreement, the wholesaler sought to introduce it into evidence solely for the purpose of determining damages. The patent holder objected to the introduction of the agreement.
Should the court admit the agreement into evidence?
No, because the agreement constituted the acceptance of a settlement offer.
No, because the danger of unfair prejudice outweighs the probative value of the agreement.
Yes, because the agreement is being introduced solely for the purpose of determining the amount of damages.
Yes, because the wholesaler was not a party to the agreement.
No, because the agreement constituted the acceptance of a settlement offer.
Evidence of a settlement offer, including evidence of the acceptance of such an offer, is not admissible for the purpose of establishing the validity of a claim or the amount of damages. For this reason, answer choice C is incorrect. Answer choice B is incorrect because it fails to correctly state the law. In order for evidence to be inadmissible under Federal Rule 403, the dangers of unfair prejudice must substantially outweigh its probative value. Answer choice D is incorrect because when there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the amount of an unsettled claim.
A defendant is on trial for bank robbery. In seeking to prove that the defendant was the robber, the prosecution introduced a handwritten note given by the robber to the bank teller. The teller testified that the note presented to her on the witness stand was the note that she received from the robber. The prosecution also seeks to have the teller testify as a lay witness that the handwriting on the note is that of the robber based on her comparison of the note with ten customer signature cards presented to her by the prosecutor after the robbery.
Is the teller’s testimony that the handwriting on the note matches that of the robber’s customer signature card admissible?
No, because a lay witness may not testify as to whether a document is in a person’s handwriting.
No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
Yes, because the process was not unduly suggestive as the prosecutor presented her with ten customer signature cards.
Yes, because a lay witness may testify as to whether a document is in a person’s handwriting.
No, because the teller’s familiarity with the defendant’s handwriting arose from the actions of the prosecutor.
A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting.
The LAY WITNESS must not have become familiar with the handwriting for the purposes of litigation. In such a case, the witness must be qualified as an EXPERT.
Here, the bank teller was not qualified as an expert witness and she gained familiarity with the defendant’s handwriting through the customer signature cards that were presented to her by the prosecutor. Answer choice A is incorrect because a lay witness is not prohibited from testifying as to whether a document is in a person’s handwriting.
T/F: The routine practice of an organization, such as a hospital, is admissible into evidence to prove that on a particular occasion the organization acted in accordance with that practice.
TRUE
A photographer took a series of pictures of a crowd at a fair. The photographer subsequently learned that a stabbing had taken place at the fair around the time she had taken the pictures. Relying on a detailed physical description of the assailant that had been provided to the police, the photographer examined the photographs and identified the assailant. At the criminal trial of the assailant, the photographer was called as a witness to identify the defendant as the assailant. The defense objected, arguing that the photographer could not testify because the photographs were available.
Should the court rule in the defense’s favor?
No, because a photograph is not a writing and therefore is not subject to the original document rule.
No, because the photographer was present at the scene of the crime.
Yes, because the photographs are the best evidence of the assailant’s identity.
Yes, because the trial is criminal, and not civil, in nature.
Yes, because the photographs are the best evidence of the assailant’s identity.
The photographer does not have personal knowledge of the identity of the assailant apart from the information she gleaned from examining the photographs. Accordingly, the original document rule, which compels the production of the best evidence where the contents of a writing are at issue, requires that the photographs be produced to prove that the defendant was the assailant, or that their unavailability be explained.
A defendant was charged with murder for allegedly striking his wife repeatedly in the head with a blunt object. While testifying, the defendant claimed that an intruder had murdered his wife in the middle of the night. The defendant then called a witness to the stand who testified that, in his opinion, the defendant was a truthful person. The prosecutor objected to the witness’s testimony.
Should the witness’s testimony be admitted?
Yes, because the defendant may present evidence of his good character.
Yes, because the testimony is relevant to the defendant’s argument.
No, because truthfulness may only be supported by reputation testimony.
No, because truthfulness is not a pertinent character trait in a murder prosecution.
No, because truthfulness is not a pertinent character trait in a murder prosecution.
In a criminal case, a defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged.
The defendant’s character evidence must be pertinent to the crime charged. In this case, the defendant was charged with murder. Character evidence supporting the defendant’s character for truthfulness is not pertinent to the charge of murder. Peacefulness, on the other hand, would be a pertinent character trait. In addition, the credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. Here, the prosecutor had not yet called the defendant’s character for truthfulness into question. Therefore, the defendant is not permitted to introduce evidence of his truthful character.
A man is on trial for the misdemeanor crime of public lewd conduct for streaking through a women’s gym in the early evening of May 5. This crime is not a sexual offense. At trial, a trainer at the gym identified the man as the streaker, but the man testified he was nowhere near the gym on the day in question. In rebuttal, the prosecution seeks to call the manager of another local women’s gym to testify that on the afternoon of May 4, the man had streaked though her gym. The defense has objected to the manager’s testimony.
Should the manager’s testimony be admitted?
Yes, to identify the man as the person who streaked through the gym on May 5.
Yes, to demonstrate the man’s propensity for streaking through women’s gyms.
No, because a prior bad act is not admissible to show the man possessed a character trait in accord with which he acted on May 5.
No, because character may generally be proven only by reputation or opinion evidence, not specific acts.
Yes, to identify the man as the person who streaked through the gym on May 5.
A defendant’s past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of motive, intent, absence of mistake, identity, or common plan or scheme (the “MIMIC” rule).
In this case, the man denied that he was the individual who was streaking through the gym on May 5, so the testimony of the manager that he was the individual who did a similar act the day before is relevant to the issue of the identity of the May 5 streaker.
T/F: A statement contained in a medical TREATISE that has been established as a reliable authority by the testimony of another expert witness is not excluded as hearsay if the statement is called to the expert’s attention on cross-examination.
TRUE
A consumer filed a product liability action in federal court on the basis of diversity jurisdiction. In complying with a discovery request, the defendant’s lawyer inadvertently—despite the lawyer’s reasonable efforts to protect privileged material—included a report prepared at the lawyer’s request by an investigator who was employed in anticipation of the litigation and was not expected to be called as a witness at trial. Immediately upon learning of the mistake, the defendant’s lawyer sought to retrieve the report from opposing counsel, but the plaintiff’s lawyer refused, asserting that the defendant’s lawyer’s inclusion of the report in the discovery material constituted a waiver of the protection for the material. The defendant’s lawyer contended that the federal inadvertent waiver rule applied to this disclosure. Is the defendant’s lawyer correct?
Answers:
Yes, because the federal inadvertent waiver rule applies to the disclosure of information covered by attorney work-product protection.
Yes, because the federal inadvertent waiver rule applies to the disclosure of communications protected by the attorney-client privilege.
No, because the federal inadvertent waiver rule applies only to disclosures made to a federal office or agency.
No, because the federal inadvertent waiver rule does not apply to a federal case based on diversity jurisdiction.
Yes, because the federal inadvertent waiver rule applies to the disclosure of information covered by attorney work-product protection.
The federal inadvertent waiver rule (Federal Rule 502) applies to the disclosure of information covered by the attorney work-product protection as well as communications covered by the attorney-client privilege. The report constitutes work product since it was prepared at the defendant’s lawyer’s request and in anticipation of the litigation.
