MBE EVi

Question 1

Where judge is not bound by the FRE - what the judge may CONSIDER

Answer 1

The trial judge generally decides preliminary questions regarding

the competency of evidence, including the

admissibility of evidence,

whether a privilege exists, and whether a person is qualified to be a witness.

Question 2

When can the relevant evidence be excluded?

Answer 2

Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 3

Can D introduce character evidence in criminal cases? if so, how?

Answer 3

In criminal cases, the defendant is entitled to introduce evidence that his character is inconsistent with the crime charged. However, the only way he can introduce such evidence is through reputation or opinion testimony, not specific acts of conduct.

Question 4

When can a prosecutor introduce evidence of a D’s bad character?

Answer 4

Generally, a prosecutor may not introduce evidence of a defendant’s bad character unless the defendant “opens the door” to such evidence by introducing evidence of his good character.

Question 5

When can D ‘open the door’ of prosecutor’s introduction of character evidence (of a D’s bad character)?

Answer 5

1. D’s introduction of D’s own good-character evidence
2. D’s introduction of victim’s bad character eivdence –> Prosec can introduce D’s bad character (but when the character pertains to the same character trait that D introduced )

Question 6

defendant’s crimes or other wrongful acts –> available to show the D’s criminal propensity?

Answer 6

No.

Exception: bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident (“MIMIC”)
“Too EZ” –> identity

Question 7

Chracter eivdence + character witness + cross exam + specific acts inquiry

Answer 7

However, when a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.

However, the party must ask the question of the witness in good faith.

Question 8

Prosecution asks a question based on a hunch. Good faith belief?

Answer 8

No. Not a good faith belief.

Question 9

Requirement for a non-expert witness

Answer 9

A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness’s own testimony as well as through other means.

Question 10

deciding whether the minor is competent to stand on trial

Answer 10

The competence of a child depends on his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth.

Question 11

When would a witness (or a d) be impeached with evidence of a convicted crime ? involving _____ or ____ within __ years of conviction

Answer 11

Any witness, including a criminal defendant, may be impeached with evidence that he has been convicted of any crime involving dishonesty or false statement within 10 years of conviction.

Question 12

Public policy exceptions of evidence (i.e., evidence exclude due to potential violation of public policies)

Answer 12

1. liability insurance
2. Subsequent remedial measures re: negligence, culpable conduct, defective product or design, an indequate warning
3. settlement offers or negotiations

Question 13

Settlement offers - exclusion rule?

Answer 13

Public policy exception.

Exception to exception: hile settlement offers and negotiations generally are not admissible for public policy reasons, they are admissible in order to prove the bias or prejudice of a witness.

Question 14

A lay witness with ——— 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 ——–

Answer 14

personal knowledge, purposes of the current litigation.

Question 15

Best evidence rule? Requirement

Answer 15

The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing.
The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying.
In this case, the contents of the document are not at issue because the sole issue is whether the defendant made verbal representations that he was a physician. (therefore, the K is not at issue)

Question 16

Remedial measure provided by the manufacturer –> Accident happened. Is the measure admissible as evidence?

Answer 16

yes (not subject to the subsequent remedial measure exclusion)this is not subsequent remedial measure

Question 17

Dog barking or machine sound –> Hearsay?

Answer 17

No. Evidence generated by a machine or an animal is not hearsay, and is admissible without qualifying under a hearsay exception.

Question 18

Statement of identification by a witness who later returned to the country. Is this statement admissible?

Answer 18

No. Prior Statements of identification –> non hearsay. In order for identificaiton to be admissible, must be under cross examination under oath

Question 19

Prio inconsistent statement

Answer 19

Under Federal Rule of Evidence 801(d), a prior inconsistent statement, which otherwise would qualify as hearsay, is treated as non-hearsay. A prior inconsistent statement may be used to impeach a witness. Further, if a prior inconsistent statement is made under oath at a trial, hearing, or deposition, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement.

Question 20

Judgment of acquittal introduced in a subsequent legal proceeding to prove that the D did not commit the criminal act. Hearsay?

Answer 20

Yes. 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.

Note: there is an exception to the hearsay rule for judgments of conviction

Question 21

Rule of completeness

Answer 21

Under the rule of completeness, when a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion. The rule of completeness, however, does not require admission of irrelevant portions of a statement.

Question 22

Rule of completeness

Answer 22

Under the rule of completeness, a party may compel the introduction into evidence of a writing or recorded statement that in fairness ought to be considered at the same time that related evidence has been introduced by an adverse party.

Question 23

읊어봐. General Rule of evidence. What makes evidence relevant

Answer 23

All evidence that is relevant is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is deemed relevant if it has a tendency to make a material fact more or less probable than it would be without the evidence.

Question 24

I based on the decision because A said something.

Subject to hearsay rule?

Answer 24

No. The defendant is not required to have personal knowledge of the truth of the statement upon which he based those reasons. Answer choice B is incorrect. The former employer’s statement is not being offered to prove the truth of the matter asserted; it is being offered to show that the statement—whether true or not—affected the defendant’s decision not to hire the plaintiff.

Question 25

Instances of admissible character evidence

Answer 25

Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct. Character is most commonly an essential element in defamation cases (character of the plaintiff). When character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person’s conduct as well as either by testimony about the person’s reputation or by testimony in the form of an opinion.

Question 26

habit evidence

Answer 26

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person’s particular routine reaction to a specific set of circumstances that is semi-automatic in nature, and may be admitted without corroboration and without an eyewitness. Habit evidence must be specific.

Question 27

Judge as a witness.

Answer 27

Absolute bar. (doesn’t matter if he’s a sole judge). The presiding judge is absolutely barred from testifying as a witness in the trial.

Question 28

Requirement of a non-expert witness

Answer 28

A non-expert witness must have personal knowledge of a matter in order to testify about that matter.

Question 29

Admissibility of juvenile conviction

Answer 29

Under FRE 609(d), evidence of a juvenile conviction is never admissible in a civil case.

Question 30

Specific acts and witness

Answer 30

May cross-examine the witness about specific acts of dishonesty

Question 31

Prior Inconsistent statements and witness

Answer 31

Can be done with any kind of statement

Can be proved by extrinsic evidence only when the witness is given the opportunity to explain or deny the evidence

Question 32

Are the purposes of hearsay exception and witness impeachment the same thing?

Answer 32

No.

Question 33

A banker’s secretary + says that Banker said something inconsistent + Banker is a witness

Answer 33

A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness. Extrinsic evidence (i.e., evidence other than the witness’s own testimony) of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it. The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence. In this case, because the prosecution can cross-examine the secretary, and because the banker can be recalled and given an opportunity to explain the statement, the secretary’s testimony is admissible as proper impeachment evidence.

Question 34

Witness + Specific Acts. Record of arrest of forgery. Admissible?

Answer 34

No.

Judge must consider whether the specific conduct is probative of untruthfulness, and the attorney must have a good faith basis for asking about the conduct. Mere arrest not probative

Question 35

Daubert Test

Answer 35

the expert

1. qualified by knowlege, skill, and training
2. base testimony on sufficient facts or data
3. Base testi on reliable principles and methods
4. apply the principles and methods reliably

Question 36

Tangible evidence and authenticiation

Answer 36

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. It is generally not necessary to call the person who created the reproduction to authenticate it.

Question 37

Writing about a collateral issue. The original document rule applies?

Answer 37

No.

Question 38

Original document rule? Exception?

Answer 38

No description. Show me. Requires the production of a recording when its contents are at issue.

Unavailable.public records/voluminous/admission

Question 39

Friend in the recording can still testify. Do you still need to introduce the video recording evidence?

Answer 39

Yes. Even if it is not hearsay (and hence admissible), should not run afoul of best evidence rule. The video must be produced because the content at issue.

Question 40

Client-lawyer communication to aid crime. Protected?

Answer 40

No. (future crime)

Question 41

Marital privilege

Answer 41

Under the confidential marital communications privilege, a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege is held by both spouses and applies in both civil and criminal cases. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage.

Question 42

ACP. Crime exception - knowledge requirement?

Answer 42

However, the attorney-client privilege does not protect communications made to enable or aid in the commission of what the client knew or should have known was a crime or fraud.

Question 43

Statement during plea negotiation

Answer 43

A statement made by a defendant while negotiating a plea is generally not admissible as evidence against the defendant.

Question 44

Admissibility of the previous withdrawn guilty plea

Answer 44

A withdrawn guilty plea is likewise inadmissible.

Question 45

Invoice of a tree trimming to rectify the wrong. Admissible to prove ownership?

Answer 45

Yes.

Question 46

Evidence generated by machine

Answer 46

Evidence generated by a machine, such as an automatically generated time stamp on a fax, a printout of results of computerized telephone tracing equipment, and raw data (such as blood-alcohol level) generated by a forensic lab’s diagnostic machine, is not hearsay.

Question 47

Operator’s written statement after D’s charge. Subject to public record hearsay exception?

Answer 47

Prolly no

Question 48

Hearsay - A statement made by a party to the current litigation

Answer 48

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.

Question 49

Statement of existing state of mind-exception

Answer 49

Although a statement of the declarant’s then-existing state of mind qualifies as an exception to the hearsay rule, this exception only applies to a statement of present intent, motive, or plan that is used to prove conduct in conformity with that state of mind.

Question 50

Dying declaration requirement

Answer 50

if the declarant believes that her death is imminent, and the statement pertains to the cause or circumstances of the death she believes to be imminent.

Question 51

Statement against interest

Answer 51

A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement was against the declarant’s interest at the time it was made, and would not have been made by a reasonable person unless he believed it to be true.

Question 52

Past Recollection recorded

Answer 52

This is an exception to hearsay (declarant availability irrelevant)

When a witness has inadequate memory to testify about a matter for which a record exists, the witness may READ the record to the jury IF

the record concenrs a matter about which the witness once had knowledge
the record prepared by the witness when the matter was fresh
the record accurately reflects the witness knowledge
the witness testifies he has insufficient memory of the event to testify fully and accurately

the witness may READ it to the jury. but not provided to the jury ( not into the evidence)

the adversary may introduce it to the jury

Question 53

Present recolletion refreshed

Answer 53

Arises when a witness is having trouble remembering

Allowed to help the witness remember by showing them a document

witness looks + remembers + puts the notes aside –> proceeds to testify from preseent memory

the document does not become evidence & DOES NOT READ

Opposing party permitted to see and inspect the docuement CAN EVEN SHOW IT TO THE JURY

Question 54

determination of the admissibility of a statement by the victim identifying the defendant as his assailant

Answer 54

a matter that justice requres that the jury not be present. The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness.i

Question 55

When can a court take a judicial notice?

Answer 55

A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

Question 56

Criminal trial + judicial notice

Answer 56

in a criminal case, the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive, as the judge properly did here.

Question 57

The burden of production

burden of persuasion

Answer 57

The burden of production is the obligation to present evidence to the judge or jury. The burden of persuasion is the duty to convince the judge or jury to a certain standard,

Question 58

rebuttable presumption & Burden shifting

Answer 58

A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party.

Question 59

Anonymous threatening call. How to admit this evidence vis-a-vis the man’s threatening call?

Answer 59

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 60

During an inquiry into the validity of a verdict, a juror generally may not testify about:

Answer 60

i) Any statement made or incident that occurred during the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.

Question 61

1) Exceptions

A juror may testify about whether:

Answer 61

i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.

Question 62

D’s girlfriend as a witness. Pro brought income tax forms to ask the girlfriend tax evasion. Admissible?

Answer 62

No. 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 63

Civil case. Evidence of a d’s felony less than 10 years old. Who bears which burden of introducing the conviction?

Answer 63

For a witness other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that the probative value is substantially outweighed by the prejudicial effect

Question 64

Past Recollection refreshed. Counterparty’s right

Answer 64

the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence

Question 65

X-ray images, electrocardiograms, and similar items

Authen?

Answer 65

they 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. The chain of custody must also be established.

Question 66

When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by

Answer 66

by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does.

Question 67

D waived his right during plea nego. Statemens admissible?

Answer 67

Yes, because the defendant knowingly and voluntarily waived his right to have his statements made during a plea negotiation excluded.

Although statements made by a defendant during plea negotiations are generally inadmissible pursuant to Federal Rule 410, the protection afforded by this rule may be waived by the defendant. In this case, the defendant knowingly and voluntarily, and in the presence of counsel, waived this exclusion.

Question 68

Evidence of a settlement offer,

for the purpose of establishing the validity of a claim or the amount of damages

Answer 68

No. 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.

Question 69

Statement. includes nonveerbal conduct?

Answer 69

Yes.