Evidence > Simulated MBE

Question 1

The Federal Rules of Evidence distinguish preliminary facts to be decided by the ________, which determine whether the offered evidence is ________, from preliminary facts to be decided by the ________, which determines whether the offered evidence is __________.

Answer 1

The Federal Rules of Evidence distinguish preliminary facts to be decided by the JURY, which determine whether the offered evidence is RELEVANT to the issues in the case, from preliminary facts to be decided by the JUDGE, which determines whether the offered evidence is COMPETENT to be admitted at all.

Question 2

Is the determination of an agency relationship between the defendant and a third party a question for the judge or jury?

Answer 2

jury

If the jury finds that there’s no agency relationship, it will disregard as irrelevant any contract negotiations undertaken by the third party.

Question 3

What must the judge decide and what must the jury decide regarding whether an agency relationship existed?

Answer 3

Judge: must find that a party has introduced enough evidence to allow the jury to find that an agency relationship existed (admissibility/competence).

Jury: makes ultimate determination of whether the agency relationship existed (relevance)

Question 4

Does a judge or jury determine the qualifications of a witness?

Answer 4

Judge. This touches the competence of evidence, not relevance.

Must determine qualifications of witness before allowing witness to offer an opinion or conclusion on a matter appropriate for expert testimony.

Question 5

Why must the court decide whether a purported business record was made in the regular course of business, and whether a statement offered as a dying declaration was made under a sense of impending death?

Answer 5

Because a judge must determine all preliminary fact questions involving the standards of trustworthiness of exceptions to the heresay rule (i.e. competence of evidence).

Question 6

What are the two rules of “refreshing recollection” of a witness?

Answer 6

1) ANYTHING can be used to refresh recollection of a witness (even a document that includes exactly what you want the witness to say)
2) If you use a document you must make it available to the opposing party who can introduce it into evidence for the jury to see (and you can’t object)

Question 7

Generally, evidence is admissible if it is relevant. The Federal Rules define relevant evidence as ________.

Answer 7

any evidence tending to make the existence of any fact of consequence to the determination of the action (materiality) more or less probable than it would be without the evidence (probativeness).

So, material + probative

Question 8

Is a witness competent to testify about remembering that she received a letter from the plaintiff on the day in question? Why/why not?

Answer 8

Yes, the witness is competent to testify about receipt of the letter because people are competent to testify to facts within their personal knowledge, and whether the witness remembered receiving a letter from the P on the day in question is certainly within her personal knowledge.

Question 9

What are the 3 types of character evidence (evidence of any character trait)?

Answer 9

1. opinion evidence
2. reputation evidence
3. evidence of prior acts (good or bad)

Question 10

What are the 3 types of character evidence (evidence of any character trait)?

Answer 10

1. opinion evidence
2. reputation evidence
3. evidence of prior acts (good or bad)

Question 11

In a criminal case, when are all 3 types of character evidence barred?

Answer 11

If the prosecution wants to introduce evidence of defendant’s bad character and the purpose of that evidence is to show he probably acted in conformity with that trait and committed the crime charged.

Question 12

In a criminal case, when can a defendant always use character evidence?

Answer 12

Defendant is allowed to present evidence of good character traits to establish he conformed with his good character and did not commit the crime. BUT he can ONLY use OPINION OR REPUTATION evidence, not evidence of prior acts.

Question 13

In a criminal case, if defendant has “opened the door” by presenting evidence of good character traits, what character evidence can the prosecution now introduce?

Answer 13

Prosecution can introduce evidence of the defendant’s bad character. But prosecution can only use opinion or reputation evidence, not evidence of prior acts to show bad character.

Question 14

When can a judge exclude prior act evidence offered by the prosecution that is otherwise admissible for a non character-issue?

Answer 14

A judge could exclude MIMIC evidence of prior acts or crimes if the probative value of the non-character purpose for the evidence is substantially outweighed by the potential of prejudice to the defendant.

Question 15

What automatically happens if a defendant testifies in a criminal case?

Answer 15

He places his character trait of truthfulness in issue in the prosecution can then present character evidence that the defendant is not a truthful person.

Question 16

In a civil case, when can’t you produce ANY evidence of the character trait of the party?

Answer 16

If the purpose is to show the party probably acted in conformity with that character trait during the event that gave rise to the litigation.

Question 17

In a civil case, when can you produce evidence of the character trait of a party?

Answer 17

If the litigant has some other purpose for the character evidence.

Question 18

What are 2 civil case examples when one can produce evidence of the character trait of a party?

Answer 18

The litigant has some other purpose for the character trait in the torts of:

1) negligent entrustment (for P to show that the person D entrusted was not trustworthy) and in
2) defamation (for D to show that D’s statements about P’s character indeed were true)

Question 19

In a civil case, if a party testifies, they automatically place their character trait for truthfulness in issue in that case. Then, the other side can _______.

Answer 19

produce character evidence that the party who is now a witness is not a truth person and should not be believed.

Question 20

What are the two rules regarding habit evidence?

Answer 20

1) Evidence of prior similar occurrences (a form of character evidence) is not admissible to show the party probably acted in the same way again.
2) Evidence of a habit (not character evidence) is admissible to show the party probably acted in conformity with the habit the same way one more time.

Question 21

In a criminal case, the defendant can present good character evidence showing that he is not the sort of person who committed the crime. But it must be relevant, i.e. about a trait in involved IN THAT CASE. For violent crimes, what good character trait is always relevant and which is always irrelevant?

Answer 21

For violent crimes, the defendant may offer character evidence only of his peacefulness. Evidence of his honesty is never relevant in criminal cases for violent crimes.

Question 22

What is NOT character evidence?

Answer 22

MIMIC evidence.

Question 23

Settlement offers and factual statements made during settlement negotiations are inadmissible if offered to prove or disprove ______, and only if _____.

Answer 23

the validity or amount of a disputed claim; there is already a legal dispute between the parties (e.g. offer to settle at scene of accident would rarely qualify)

Question 24

The Federal Rules exclude evidence of the payment or offer to pay medical expenses if offered as evidence to ______. However, the Rules do not exclude ________.

Answer 24

establish liability for an injury; factual statements made in conjunction with the payment or offer.

Such factual statements would be admissible as an opposing party’s statement (nonheresay)

E.g. “I’ll take care of your medical bills” - excluded
E.g., “I was not paying attention.” - admissible as an opposing party’s statement

Question 25

What is the general rule for exclusion on subsequent remedial measures?

Answer 25

If someone makes repairs after an accident, evidence of those repairs is not admissible for the purpose of establishing:

1) lack of due care by D element of negligence
2) elements of strict liability for the sale of a defective product

Question 26

What is the policy reason for the general rule of excluding subsequent remedial measures from evidence in certain situations?

Answer 26

Public Safety: people should be encouraged to make repairs if they are needed without fear of it incriminating them.

Question 27

Notwithstanding the general rule for exclusion of evidence of subsequent remedial measures, what are 2 other purposes that will not exclude that evidence:

Answer 27

1) to prove ownership/control over the condition that caused the damage (if the defendant says I didn’t own it)
2) to prove it was possible to make a safer condition (if defense is that making it safer was not possible)

Question 28

What are six categories of evidence one can use to show that a witness who testified may not be telling the truth?

Answer 28

A witness can be impeached by introducing:

1) prior inconsistent statements
2) bias
3) prior criminal convictions
4) prior bad acts
5) reputation for untruthfulness; and
6) contradiction

Question 29

A witness can be impeached with what to kinds of evidence of prior statements inconsistent with their trial testimony?

Answer 29

through cross examination testimony; or

through extrinsic evidence (e.g. testimony of a person who says they heard the witness’ prior statement)

Question 30

If a prior inconsistent statement is being introduces as extrinsic evidence in order to impeach a witness, what 2 admissibility rules attach (that don’t attach is if it’s upon cross ex)?

Answer 30

1) extrinsic evidence is inadmissible if the inconsistency is on a very minor point in testimony (a “collateral matter”) (would be OK on cross ex); and
2) The witness being impeached has an opportunity to comment on the prior inconsistent statement. However, the opportunity may be given either before or after evidence of the prior inconsistent statement has been introduced.

NOTE: if the prior inconsistent statement also qualifies as a party admission (nonheresay), no comment from the party/witness is necessary

Question 31

A witness can be impeached with evidence that shows he might be siding with one party. What kinds of evidence can be used to show bias?

Answer 31

cross ex or extrinsic evidence

Question 32

Any cross examination testimony or extrinsic evidence of a prior criminal conviction (e.g. a conviction document) involving ______________ can always be used to impeach. But any ________ used to impeach can be thwarted by judge’s finding of prejudice.

Answer 32

dishonesty or false statement

other felony

Question 33

For specific bad acts that did not result in a conviction, a party can impeach a witness only if:

Answer 33

1) it indicates a lack of truthfulness; and
2) only during cross examination

NOTE: even if a witness denies he did the bad act on the stand, no extrinsic evidence can be introduced

(e.g. Did you cheat at Poker 1 year ago? OK to ask, but if W says no, you can’t introduce evidence of that unless he was convicted of it - would fall under prior criminal conviction basis)

Question 34

You may impeach a witness with evidence of a bad reputation in the community for _______.

Answer 34

untruthfulness

Question 35

Impeaching by getting the witness to contradict himself is allowed. Extrinsic evidence of contradiction is only allowed as to _______. On cross examination, you can ________ try to get the witness to contradict himself.

Answer 35

major points (no “collateral matters”)

always

Question 36

You can’t use evidence to bolster a witnesses’ reputation unless ________. However, if a party has any other legitimate reason for bolstering the witness with good reputation evidence ____________.

Answer 36

he is impeached; the rule prohibiting bolstering evidence won’t keep it out.

Question 37

If a defendant is charged with embezzlement, is that a good reason for the defendant’s attorney to to bolster his reputation if he goes on the stand?

Answer 37

Yes. To show he didn’t embezzle funds.

Question 38

Rehabilitation of a witness: If a witness is impeached with _______ evidence, then counsel can try to rehabilitate the witness by _______.

Answer 38

bad reputation for truthfulness,
prior crimes, or
prior bad acts

introducing evidence of witness’ good character

Question 39

When you answer a hearsay question, what are all the rules to set out?

Answer 39

1) All relevant evidence is admissible unless a specific rule keeps it out.
2) All hearsay is inadmissible unless it qualifies for an exception to the hearsay rule.
3) Hearsay is a statement, other than statements made by a witness while testifying, offered into evidence to prove the truth of the matter asserted.
4) However the Federal Rules of Evidence nonetheless precludes from the definition of hearsay 3 kinds of “nonhearsay” statements that are offered for the truth of the matter: (a) admission by a party; (b) prior inconsistent statements if given under oath; and (c) prior identification made in a lineup if made by a witness in the current case.
5) If the statement is hearsay and not nonhearsay, the hearsay rule applies and excludes its admission unless an exception can be found.
6) The 9 most popular exceptions to the hearsay rule that make a statement admissible hearsay are: (1) present sense impression; (2) excited utterance; (3) statements showing state of mind or physical condition of speaker; (4) statements made for purposes of medical treatment or diagnosis; (5) recorded recollection; (6) business records; (7) former testimony; (8) dying declarations; (9) statements against interest*
* For (7)-(9), can’t use this exception unless the declarant of the out of court statement is unavailable to testify

Question 40

What are the steps of analysis to answer a hearsay question?

Answer 40

1) Is that statement offered for the truth of the matter asserted?
2) Is that statement removed from the definition of hearsay? (nonhearsay)
3) Does that statement qualify as an exception?

Question 41

What are 3 ways to effect a party admission / statement by a party opponent?

Answer 41

1) basic admission
2) admission by employee
3) admission by silence

Question 42

On MBE when a statement is admissible as a nonhearsay party admission, what 3 ways is the correct answer always read?

Answer 42

a. “admissible as an admission”
b. “admissible nonhearsay”; or
c. “admission by a party opponent”

Question 43

What is required to find an “admission” for party admission nonhearsay purposes so that the hearsay exception will not apply and exclude it?

Answer 43

1) a statement by a party to the action (which includes a statement by an employee if made in scope of employment) made at any previous time
2) offered into evidence by the opposing party (***don’t forget this rule!!); and
3) relevant to this case

NOTE: 98% of out of court statements on MBE are relevant
NOTE: Analyze ANY out of court statement as potentially a party admission

Question 44

An out of court statement by an employee is admissible as an admission on the part of the boss if

Answer 44

that out of court statement was made in the scope of employment

Question 45

Just because the person that made an out of court statement is unavailable, doesn’t get you around the hearsay rule. It’s still excluded unless you can _______.

Answer 45

find an exception.

Question 46

Just because a prior statement was made under oath does not itself get you around the hearsay rule. Which kinds of prior statements under oath WILL get you around the hearsay rule and thus are admissible?

Answer 46

1) prior inconsistent statements of the witness under oath

2) former testimony

Question 47

Rule for party admission by silence / “adoptive admission”

If at any previous time, a party to this lawsuit heard an accusation against him and didn’t protest, and the trial judge determines a reasonable person would have protested that accusation if it were not true, then __________.

Answer 47

both the out of court accusation and the resulting silence will be admissible nonhearsay.

Question 48

What is the rule for prior identifications by a witness?

A prior identification by a witness is nonhearsay if

Answer 48

the witness is testifying (so that they are subject to cross examination)

Question 49

A witness’ prior inconsistent statement is generally OK to impeach, but there are two situations when it can be used to impeach AND ALSO as nonhearsay as substantive evidence to prove the truth of the matter:

Answer 49

1) the prior inconsistent statement was given under oath at trial or other legal proceeding (e.g. deposition); and
2) the prior inconsistent statement ITSELF qualifies as an exception to the hearsay rule.

In these cases the prior statement can be used both to impeach and to prove the the truth of the matter

Question 50

A ___________ can be impeached the same way any other witness can be impeached regardless of whether he is a witness or not. So you can present evidence of his out of court __________ to impeach, and, if the statement was ________ or fits ________, then you can additionally present it as substantial evidence to prove the truth of the matter.

Answer 50

hearsay declarant; prior inconsistent statements; made under oath or fits a different hearsay exception

Question 51

Dying Declaration hearsay exception: 4 elements:

Answer 51

1) Declarant’s statement made under a belief of impending and certain death
2) Declarant now unavailable
3) Declarant described the cause or circumstances of his certain death
4) Admissible in any civil case but only in criminal case if homicide

Question 52

Business Records hearsay exception: 5 elements

Answer 52

(1) Records of a business of any time
(2) made in the regular course of business
(3) the business regularly keeps such records
(4) the record was made contemporaneously (within 1-2 days)
(5) the contents consist of either (a) information usually observed only by employees of the business or (b) a statement that falls within an independent hearsay exception

Question 53

2 nuances to the business records hearsay exception:

Answer 53

(1) person making the record doesn’t need to have firsthand knowledge of the facts that are recorded - that can come from other personnel; and
(2) if a doctor qualifies as a business record, it’s admissible to prove what’s in the record AND ALSO admissible to prove something was not in the record that normally is in the record.

Question 54

State of Mind hearsay exception is also called the

Answer 54

“Plans for the future” exception

Question 55

State of mind exception: Out of court statements for intention for the future are admissible under the state of mind exception to the hearsay rule to _______.

Answer 55

help establish that the person MIGHT HAVE carried out that intention.

NOTE: The Hillman doctrine: “I intend to go to the birthday party.”

Question 56

An object presented as evidence requires authentication in order to provide enough additional evidence sufficient _________.

Answer 56

to support a jury finding that the item is what the party says it is. (low standard) (could be extrinsic evidence, but could be done through a witness’ (e.g. the owner of the coat’s) testimony if under oath)

Question 57

Before an audio recording of a voice can be introduced, you need testimony from a ___________ that it’s his voice on the recording.

Answer 57

a person with knowledge of the speakers voice

Question 58

Is there a requirement that the authenticating witness be familiar with the speaker’s voice before the claim or dispute arose? what about an authenticating witness as to a writer’s handwriting?

Answer 58

No requirement that authenticating witness have been familiar with voice before the claim arose.

Yes a requirement for auth. witness to have been familiary with handwriting before claim arose

Question 59

What can expert witness base his opinion on?

But that information he is basing on be admissible?

Answer 59

any source, provided its the kind of information reasonably relied upon by people in the field

He can base his opinions on completely inadmissible evidence