Evidence- Missed MBE Questions

Question 1

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.

Answer 1

A prior inconsistent statement made by a witness who has since died.

Question 2

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.

Answer 2

If it exposes the declarant to criminal liability, there must be corroborating evidence.

Question 3

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.

Answer 3

Questions are not hearsay because there is no matter being asserted.

Question 4

Compromise offers and negotiations CAN/CANNOT be used to:

1. Prove/disprove disputed claim
2. Admitted for impeachment by PIS or contradiction.

Answer 4

CANNOT

*there are many exceptions to this rule.

Question 5

Compromise offers and negotiations CANNOT be used to:

1. Prove/disprove disputed claim
2. Admitted for impeachment by PIS or contradiction.

What are the exceptions to this rule?

Answer 5

1. Compromise negotiations with a GOVERNMENT agency (IRS).
2. Admissible to prove:

Bias

Prejudice of a witness

Negate a claim of undue delay

Prove obstruction of criminal investigation

Question 6

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.

Answer 6

WILL NOT

• unlike a compromise negotiation, any conduct or statement that accompanies the payment/offer to pay/promise to pay medical expenses IS ADMISSIBLE!

Question 7

Plea negotiations will/will not be admissible

Answer 7

Will not- exceptions.

Question 8

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.

Answer 8

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.

Question 9

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.

Answer 9

TRUE

Question 10

Compromise Offers and Negotiations- Not admissible to prove VALIDITY OR AMOUNT OF A DISPUTED CLAIM.

EXCEPTIONS- WILL BE ADMISSIBLE TO PROVE:

1. BIAS or ________ of a witness
2. To ________ a claim of undue delay
3. To prove ________ of a criminal investigation or prosecution.

Answer 10

PREJUDICE

NEGATE

OBSTRUCTION

Question 11

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.

Answer 11

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.

Question 12

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.

Answer 12

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.

Question 13

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.

Answer 13

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.

Question 14

Photographs CAN/CANNOT be authenticated by the testimony of a party with personal knowledge of its contents.

Answer 14

CAN

Question 15

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.

Answer 15

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.

Question 16

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.

Answer 16

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.

Question 17

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.

Answer 17

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.

Question 18

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.

Answer 18

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.

Question 19

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.

Answer 19

TRUE

Question 20

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.

Answer 20

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.

Question 21

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.

Answer 21

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.

Question 22

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.

Answer 22

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.

Question 23

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.

Answer 23

TRUE

Question 24

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.

Answer 24

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.

Question 25

T/F: A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions.

Answer 25

TRUE!!

Question 26

In a breach of contract action, the defendant denied that her signature appears on the contract. At trial, the plaintiff called the defendant’s secretary as a witness to testify that, having worked for the defendant for several years, she had seen the defendant’s signature many times and that the signature on the contract is the signature of the defendant. The defendant objected to the witness’s testimony. Should the court overrule the objection?

Answer Choices:

No, because the identification of handwriting requires expert testimony and the secretary has not been qualified as an expert.

No, because the jury must compare the signature in question with another signature of the defendant that has been proven to be genuine in order to authenticate it.

Yes, because a lay witness with prior personal knowledge of a person’s handwriting may testify as to whether the document is in that person’s handwriting.

Yes, because the secretary can be considered an expert with specific knowledge of her employer’s handwriting and signature.

Answer 26

Yes, because a lay witness with prior personal knowledge of a person’s handwriting may testify as to whether the document is in that person’s handwriting.

Under FRE 901(b)(2), a lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the handwriting in question is that person’s handwriting. The lay witness must not have become familiar with the handwriting for the purposes of litigation. Here, the defendant’s secretary had personal knowledge of the defendant’s handwriting, gained over years of working for the defendant. Accordingly, her testimony would be admissible to authenticate the signature.

Question 27

A mother, upon learning that her son had been assaulted by his middle school teacher, filed a suit on behalf of her son against the school district, claiming that it had negligently hired the teacher. At trial, the mother sought to introduce the testimony of one of the teacher’s former students from when the teacher had worked in a different school district. The witness would testify that the teacher had beaten her. The mother had further evidence that this incident had been included in the teacher’s personnel file. Is the former student’s testimony likely to be admitted?

Answer Choices:

No, because character evidence is generally not admissible in civil cases.

No, because character may not be proved by evidence of specific instances of conduct.

Yes, because the teacher’s character is an essential element of the mother’s claim.

Yes, because character evidence is generally admissible in civil cases.

Answer 27

Yes, because the teacher’s character is an essential element of the mother’s claim.

YOU MISSED THE SAME TYPE OF QUESTION TWICE. NEGLIGENT ENTRUSTMENT/HIRING WILL ALWAYS HAVE CHARACTER AS AN ELEMENT OF THE CLAIM.

Evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Character evidence is admissible if it is an essential element of a claim, such as in the case of negligent hiring or entrustment. In this case, the mother asserted a negligent hiring claim against the school district, and thus, the teacher’s character as violent toward his students and the school district’s knowledge of that character is an essential element of the claim.

Question 28

A pharmacist was charged with conspiracy to knowingly defraud the government with regard to Medicare payments. The prosecutor called a physician to testify regarding a prescription written by the physician that was filled by the pharmacist. During the defense attorney’s cross-examination of the physician, the judge asked the physician, “What did the pharmacist think about this prescription?” The defense attorney immediately objected to the question. Should the court overrule this objection?

Answer Choices:

Yes, because a judge may question a witness for the purpose of clarifying a witness’s testimony.

Yes, because the answer to the question is relevant and not overly prejudicial.

No, because a judge may not question a witness.

No, because the question calls for an unsupported conclusion.

Answer 28

No, because the question calls for an unsupported conclusion.

The question is improper because it calls for a NON-EXPERT witness to offer an OPINION about the defendant’s THINKING. While lay witnesses may testify as to conclusions in some situations (e.g., whether a person seemed intoxicated, whether a car was speeding), this is NOT one of those circumstances.

Question 29

A prosecutor convened a grand jury to bring criminal charges against a pharmaceutical corporation. The charges were related to a new drug that was linked to several deaths. The prosecutor served a subpoena on a corporate employee who oversaw the testing of new drugs and kept the records related to such testing, requiring the production of all records related to testing done on the new drug. The employee refused to produce the records on Fifth Amendment grounds, asserting that the production of the records might incriminate him personally. Is the employee likely to be required to produce the records?

Answer Choices:

No, because the Fifth Amendment privilege applies to corporations.

No, because the production of the records would incriminate the employee personally.

Yes, because the Fifth Amendment privilege does not apply in grand jury proceedings.

Yes, because the Fifth Amendment privilege does not extend to the custodian of corporate records.

Answer 29

Yes, because the Fifth Amendment privilege does not extend to the CUSTODIAN of corporate records.

Although the custodian of corporate records as an individual enjoys the Fifth Amendment privilege against self-incrimination, the request for production is being made to the custodian in his capacity as a corporation employee, and, as such, the Fifth Amendment does not apply.

Question 30

A defendant is ACQUITTED of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim’s family members object to the introduction of the judgment. May the defendant introduce the copy of the final judgment from his criminal case?

Answer Choices:

No, because a judgment in a criminal case is inadmissible in a subsequent civil action.

No, because the judgment is inadmissible hearsay.

Yes, because the copy of the judgment satisfies the original document rule.

Yes, because the level of proof in a civil action is less than that in the murder case.

Answer 30

No, because the judgment is inadmissible hearsay.

Evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act is hearsay; it is an out-of-court statement of the court or jury that is offered for its truth. Although there is an exception to the hearsay rule for judgments of CONVICTION, there is no such exception that allows for the admission of a judgment of ACQUITTAL.

Question 31

A property owner constructed a fence along what he thought was the boundary to his property. A year later, a neighbor who was selling adjoining property had a survey conducted. As a consequence of the survey, the neighbor brought an action against the property owner seeking removal of the fence. At trial, the neighbor testified that he had orally objected to the property owner about the placement of the fence at the time it was constructed. After the neighbor left the witness stand, the property owner sought to introduce into evidence a certified copy of the official judgment and conviction of the neighbor for perjury. The neighbor was convicted 11 years ago and released from prison nine years ago. The property owner had not asked the neighbor about the conviction while the neighbor was on the stand. Should the court permit the introduction of the judgment for the purpose of impeaching the neighbor’s testimony?

Answer Choices:

No, because the neighbor was convicted of perjury more than 10 years ago.

No, because the neighbor was not questioned about the conviction while the neighbor was on the witness stand.

Yes, because a conviction used to impeach a witness’s character for truthfulness may be proved by extrinsic evidence.

Yes, because a witness in a civil case may not be impeached with a previous conviction.

Answer 31

Yes, because a conviction used to impeach a witness’s character for truthfulness may be proved by extrinsic evidence.

A witness’s character for truthfulness may be impeached by evidence of the witness’s conviction of the crime in this instance. The conviction may be proved by extrinsic evidence.

Answer choice A is incorrect. Generally, a witness may be impeached by a conviction for a crime that requires as an element of the crime proof or admission of an act of dishonesty or false statement, such as perjury, WITHOUT WEIGHING the probative value of the conviction against its prejudicial effect, if the conviction is no more than 10 years old.

In measuring the 10-year period, the later of the date of conviction OR release from imprisonment is used.

Consequently, even though the neighbor’s conviction occurred more than 10 year prior to his testimony, since the date of his release was less than 10 years prior to his testimony his perjury conviction may be used to impeach him.

Question 32

A plaintiff filed suit against a defendant supermarket for injuries he sustained when he slipped on a piece of lettuce in the supermarket’s produce aisle. A supermarket employee who witnessed the plaintiff’s fall prepared a written summary of the events that had occurred in order to alert the supermarket’s management. At trial, the supermarket’s lawyer called the employee as a witness and, after her testimony, asked her to read her summary to the jury. The plaintiff objected to the testimony. May the court admit the testimony at this time over the plaintiff’s objection?

Answer Choices:

Yes, if the employee is unable to remember the actual events.

Yes, because the employee is on the witness stand and can be cross-examined.

No, because it is hearsay not within any exception.

No, because such testimony may only be offered into evidence by an adverse party.

Answer 32

Yes, if the employee is unable to remember the actual events.

FRE 803(5) creates an exception to the hearsay rule for a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.

Here, the summary was made immediately after the slip-and-fall, while the witness’s memory of the events was fresh. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Here, the written summary is being read into evidence only.

HOW DID YOU GET THIS WRONG!?

Question 33

A state enacted a statute requiring that prior to voting in a local primary election, a resident must reside within the state for six months. The intent behind the statute is to prohibit transient residents from affecting the long-term affairs of the state. A resident of the state has been a registered voter in another state for many years but has only lived and worked in the state for 90 days. On the day of the primary, the resident tried to vote at a polling station but was banned from doing so by an elections official citing the above statute. The resident then filed suit in federal district court to challenge the constitutionality of the statute. Which of the following reflects the proper burden of persuasion in this suit?

Answer Choices:

The resident must demonstrate that the statute is not necessary to achieve an important state interest.

The resident must demonstrate that the statute is not rationally related to a legitimate state interest.

The state must demonstrate that the statute is the least restrictive means of achieving a compelling state interest.

The state must demonstrate that the statute is rationally related to a legitimate state interest.

Answer 33

The state must demonstrate that the statute is the least restrictive means of achieving a compelling state interest.

A law interfering with a fundamental right, such as the right to vote, will be upheld only if it is necessary to achieve a compelling governmental interest under the “strict scrutiny” test, and here, the government could not meet that standard. The apparent intent behind the above statute does not warrant application of a lesser burden as applied to a fundamental right. (Note that the level of scrutiny applicable to a government restriction of voting rights depends on the degree to which the restriction impacts the exercise of this right: more significant impacts require higher levels of scrutiny. Accordingly, while strict scrutiny would apply here, a lesser burden might apply if the right to vote was less drastically threatened.)

Question 34

A plaintiff sued a defendant for damages resulting from a traffic accident. The plaintiff called an eyewitness to the accident who testified that the defendant was at fault. The eyewitness, in response to cross-examination by the defendant seeking to impeach the eyewitness, admitted that she was the plaintiff’s sister. The plaintiff called another witness to testify as to her opinion of the eyewitness’s character for truthfulness. The defendant objected.

How should the court rule?

Sustain the objection, because the credibility of a witness may not be bolstered.

Sustain the objection, because any party may attack the credibility of a witness.

Overrule the objection, because testimony in the form of an opinion of a witness’s character for truthfulness is permitted.

Overrule the objection, because the eyewitness has been impeached by the defendant.

Answer 34

Sustain the objection, because the credibility of a witness may not be bolstered.

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. Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack. Consequently, the court should not permit the plaintiff to call a witness to bolster the testimony of the eyewitness, the plaintiff’s sister, because her character for truthfulness has not been attacked.

Question 35

A plaintiff sued a defendant for damages resulting from a traffic accident. The plaintiff called an eyewitness to the accident who testified that the defendant was at fault. The eyewitness, in response to cross-examination by the defendant seeking to impeach the eyewitness, admitted that she was the plaintiff’s sister. The plaintiff called another witness to testify as to her opinion of the eyewitness’s character for truthfulness. The defendant objected.

How should the court rule?

Answers:

Sustain the objection, because the credibility of a witness may not be bolstered.

Sustain the objection, because any party may attack the credibility of a witness.

Overrule the objection, because testimony in the form of an opinion of a witness’s character for truthfulness is permitted.

Overrule the objection, because the eyewitness has been impeached by the defendant.

Answer 35

Sustain the objection, because the credibility of a witness may not be bolstered.

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.

Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack. Consequently, the court should not permit the plaintiff to call a witness to bolster the testimony of the eyewitness, the plaintiff’s sister, because her character for truthfulness has not been attacked.

Question 36

A defendant was charged with defrauding a federally insured bank. At trial, the defendant, in response to a question by the prosecutor, denied owing $125,000 to creditors at the time of the alleged fraud. The prosecutor showed the defendant a bankruptcy petition that she had filed, showing secured claims of $125,000 against her during the relevant time. The defendant testified that the information in the petition was incorrect and had been withdrawn.

Can the prosecutor introduce the bankruptcy petition into evidence as an opposing party’s statement?

Answers:

No, because this a criminal prosecution and a bankrupcty is a civil matter.

No, because the defendant had withdrawn the bankruptcy petition.

Yes, because it is a statement by a party to the current litigation.

Yes, because the admission was against her interest at the time she made it.

Answer 36

Yes, because it is a statement by a party to the current litigation.

A statement made by a party in a pleading filed in another action can be admissible against the party in the current action as an opposing party’s statement. Although the statement in the pleading of another action is not conclusive evidence of the truth of the matter asserted in the statement, it is nevertheless generally admissible as evidence of the truth of the matter asserted in the pleading.