MBE Evidence

Question 1

In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct examination that he came to a full stop at the intersection. On cross-examination, the defendant’s lawyer asked whether the plaintiff claimed to have been exercising due care at the time, and the plaintiff replied that he had been driving carefully. At a sidebar conference, the defendant’s lawyer sought permission to ask the plaintiff about two accidents in the previous 12 months in which he had received traffic citations for failing to stop at stop signs. The plaintiff’s lawyer has objected.

Should the court allow defense counsel to ask the plaintiff about the two prior accidents?

A: No, because improperly failing to stop on the other occasions does not bear on the plaintiff’s veracity and
does not contradict his testimony in this case.
B: No, because there is no indication that failing to stop on the other occasions led to convictions.
C: Yes, because improperly failing to stop on the other occasions bears on the plaintiff’s credibility, since he
claims to have stopped in this case.
D: Yes, because improperly failing to stop on the recent occasions tends to contradict the plaintiff’s claim that he was
driving carefully at the time he collided with the defendant.

Answer 1

A: No, because improperly failing to stop on the other occasions does not bear on the plaintiff’s veracity and
does not contradict his testimony in this case.

The prior accidents have no bearing on the plaintiff’s character for truthfulness, which is required to be
admissible. Moreover, the prior accidents do not qualify as impeachment by contradiction, as they do not render the current testimony false. The defendant may not use the prior accidents merely to establish that the plaintiff is generally a careless driver.

Question 2

A defendant is tried for armed robbery of a bank.
The defendant testified on direct examination that he had never been in the bank that had been robbed. His counsel
asks, “What, if anything, did you tell the police when you were arrested?” If his answer would be, “I told them I had
never been in the bank,” this answer would be

A: admissible, to prove that the defendant had never been in the bank.
B: admissible, as a prior consistent statement.
C: inadmissible, as hearsay not within any exception.
D: inadmissible, because it was a self-serving statement by a person with a substantial motive to fabricate.

Answer 2

C: inadmissible, as hearsay not within any exception.

The statement, which was made out-of-court, is hearsay because it is being offered into evidence for the
truth of the matter asserted - that the defendant had never been in the bank. This hearsay statement does not fall
within any applicable exception, rendering it inadmissible. It is not an admission by a party-opponent because it is
being offered by the declarant himself, not by an opposing party.

Question 3

A bus passenger sued the transit company for injuries to his back from an accident caused by the company’s
negligence. The company denies that the passenger received any injury in the accident.
The company calls an observer to testify that right after the accident, the passenger told him that he had recently
suffered a recurrence of an old back injury.
The judge should rule the observer’s testimony

A: admissible as an admission of a party opponent.
B: admissible as a spontaneous declaration.
C: inadmissible, because it is irrelevant.
D: inadmissible, because it is hearsay, not within any exception.

Answer 3

A: admissible as an admission of a party opponent.

An out-of-court statement such as this one (made by the passenger after the accident) offered for the
truth of the matter asserted (that the passenger was suffering from a recurrence of an old back injury) would typically
be considered inadmissible hearsay. However, the statement satisfies the hearsay exemption for admission by a
party-opponent. It was made by a party and is being offered against that same party, rendering it admissible as nonhearsay.

Question 4

The driver of a car and three passengers were injured when their car was struck by a truck owned by a corporation.
The truck was being driven by a corporate employee, a truck driver. A second corporate employee, a supervisor, was
also riding in the truck. The issues in the case of the driver of the car versus the corporation include the negligence of
the truck driver in driving too fast and failing to wear glasses, and the negligence of the driver of the car in failing to
yield the right of way.
The corporation’s counsel seeks to have a sheriff testify that while he was investigating the accident he was told by
the driver of the car, “This was probably our fault.” The judge should rule the proffered evidence

A: admissible, as an admission of a party.
B: admissible, because it is a statement made to a police officer in the course of an official investigation.
C: inadmissible, because it is a mixed conclusion of law and fact.
D: inadmissible, because it is hearsay, not within any exception.

Answer 4

A: admissible, as an admission of a party.

The statement made by the driver of the car admitting fault is being introduced against him, and is
therefore admissible as an admission by a party-opponent. Admissions by a party-opponent are specifically defined as
non-hearsay under the federal rules.

Question 5

In a civil action for personal injury, the plaintiff alleges that he was beaten up by the defendant during an altercation in
a crowded bar. The defendant’s defense is that he was not the person who hit the plaintiff. To corroborate his
testimony about the cause of his injuries, the plaintiff seeks to introduce, through the hospital records custodian, a
notation in a regular medical record made by an emergency room doctor at the hospital where the plaintiff was treated
for his injuries. The notation is: “Patient says he was attacked by [the defendant].”
The notation is

A: inadmissible, because the doctor who made the record is not available for cross-examination.
B: inadmissible as hearsay, not within any exception.
C: admissible as hearsay, within the exception for records of regularly conducted activity.
D: admissible as a statement made for the purpose of medical diagnosis or treatment.

Answer 5

B: inadmissible as hearsay, not within any exception.

The plaintiff’s statement to the emergency room doctor that the defendant attacked him is an out-of-court
statement being offered for the truth of the matter asserted - that the defendant was the one who attacked the plaintiff.
Because the record contains the plaintiff’s hearsay statement that falls under no applicable exception, it is
inadmissible.

Question 6

A defendant is on trial for theft. At trial, the prosecutor called a husband and wife. They testified that, as they looked
out their apartment window, they saw thieves across the street break the window of a jewelry store, take jewelry, and
leave in a car. The wife telephoned the police and relayed to them the license number of the thieves’ car as her
husband looked out the window with binoculars and read it to her. Neither of them has any present memory of the
number. The prosecutor offers as evidence a properly authenticated police tape recording of the wife’s telephone call
with her voice giving the license number, which is independently shown to belong to the defendant’s car.
The tape recording of the wife stating the license is

A: admissible, under the hearsay exception for present sense impressions.
B: admissible, as nonhearsay circumstantial evidence.
C: inadmissible, because it is hearsay not within any exception.
D: inadmissible, because the wife never had firsthand knowledge of the license number.

Answer 6

A: admissible, under the hearsay exception for present sense impressions.

The tape recording of the wife reporting the license plate number is admissible as a hearsay exception
under present sense impressions. The wife telephoned the police while perceiving the event and
described the license plate to the police. The wife heard the husband read the license plate number to her while he
was observing it. Both the wife’s statement to the police and the husband’s relaying of the license plate number satisfy
the present sense impression exception to the hearsay rule.

Question 7

A defendant is on trial for participating in a drug sale. The prosecution calls a witness, an undercover officer, to testify
that, when the seller sold the drugs to the witness, the seller introduced the defendant to the witness as “my partner in
this” and the defendant shook hands with the witness but said nothing.
The witness’s testimony is

A: inadmissible, because there is no evidence that the seller was authorized to speak for the defendant.
B: inadmissible, because the statement of the seller is hearsay not within any exception.
C: admissible as a statement against the defendant’s penal interest.
D: admissible as the defendant’s adoption of the seller’s statement.

Answer 7

D: admissible as the defendant’s adoption of the seller’s statement.

The defendant, by not correcting the witness, by accepting the introduction, and by shaking hands with
the witness, manifested an agreement with the seller’s statement that the defendant was the seller’s “partner in this.”
These actions will suffice for a finding that the defendant adopted the seller’s statement, and the seller’s statement
that the defendant was his partner will be admissible as an adopted admission by a party-opponent. The defendant
does not need to verbally acknowledge the statement; the mere acceptance and some action on the part of the
defendant will act as an adoption of the statement.

Question 8

In a medical malpractice suit by a patient against his doctor, the patient seeks to introduce a properly authenticated
photocopy of the patient’s hospital chart. The chart contained a notation made by a medical resident that an aortic
clamp had broken during the plaintiff’s surgery. The resident made the notation in the regular course of practice, but
had no personal knowledge of the operation, and cannot remember which of the operating physicians gave him the
information.
The document is
A: admissible as a record of regularly conducted activity.
B: admissible as recorded recollection.
C: inadmissible as a violation of the best evidence rule.
D: inadmissible, because it is hearsay within hearsay.

Answer 8

A: admissible as a record of regularly conducted activity.

The hospital chart is admissible as a record of regularly conducted activity. The chart is a record of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person
with knowledge, that was kept in the course of a regularly conducted business activity. In addition, it was the regular
practice of that business to make medical records in order to maintain a memorandum, report, record or data
compilation. Although the resident may not be able to recall which physician gave him the information, the resident
knew that the statement was made. Therefore, the document is admissible.

Question 9

A plaintiff sued a defendant for damages arising out of an automobile collision. At trial, the plaintiff called an
eyewitness to the collision. The plaintiff expected the eyewitness to testify that she had observed the defendant’s
automobile for five seconds prior to the collision and estimated the defendant’s speed at the time of the collision to
have been 50 miles per hour. Instead, the eyewitness testified that she estimated the defendant’s speed to have been
25 miles per hour.
Without finally excusing the eyewitness as a witness, the plaintiff then called a police officer to testify that the
eyewitness had told him during his investigation at the accident scene that the defendant “was doing at least 50.”
The police officer’s testimony is

A: admissible, as a present sense impression.
B: admissible, to impeach the eye witness.
C: inadmissible, because the plaintiff may not impeach his own witness.
D: inadmissible, because it is hearsay, not within any exception.

Answer 9

B: admissible, to impeach the eye witness.

The police officer’s testimony is admissible only to impeach the testimony of the eyewitness. Prior
inconsistent statements, even if they are hearsay, can be used to impeach the testimony of a witness.

Question 10

In a plaintiff’s antitrust suit against manufacturers of insulation, the plaintiff’s interrogatories asked for information
concerning total sales of insulation by each of the defendant manufacturers in a particular year. The defendants
replied to the interrogatories by referring the plaintiff to the Insulation Manufacturers’ Annual Journal for the
information.
If at trial, the plaintiff offers the journal as evidence of the sales volume, this evidence is

A: admissible, as an adoptive admission of the defendants.
B: admissible, as a business record.
C: inadmissible, because it is hearsay, not within any exception.
D: inadmissible, as lacking sufficient authentication.

Answer 10

A: admissible, as an adoptive admission of the defendants.

Under the non-hearsay exemption for admissions by a party-opponent, the party at issue need not be the
one who actually made the statement for it to qualify; statements made by others, but that the party adopts as its own are sufficient. To qualify, the statement must be offered against the party, and it must be one the party made in an
individual or representative capacity or adopted as true. Here, the statement in the journal was adopted by a party opponent - the manufacturers of insulation. (Note that the admission of a party-opponent non-hearsay category does
not require that the statement was against the party-opponent’s interest when made, unlike the statement against
interest exception.) The adoptive admission here can, therefore, be admitted as substantive evidence.

Question 11

A man and his friend were charged with burglary of a warehouse. They were tried separately. At the man’s trial, the
friend testified that he saw the man commit the burglary. While the friend was still subject to recall as a witness, the
man calls the friend’s cellmate to testify that the friend said, “I broke into the warehouse alone because [the man] was
too drunk to help.”
The evidence of the friend’s statement is

A: admissible, as a declaration against penal interest.
B: admissible, as a prior inconsistent statement.
C: inadmissible, because it is hearsay not within any exception.
D: inadmissible, because the statement is not clearly corroborated.

Answer 11

B: admissible, as a prior inconsistent statement.

A prior inconsistent statement may be admissible to impeach the witness or substantively as nonhearsay. When an out-of-court statement is being offered to impeach in-court testimony of a witness who has the
chance to explain or deny it, as well as be cross-examined about it, such evidence is admissible for impeachment
purposes (i.e., not for the truth of the matter asserted). In this case, the prior statement is inconsistent (it contradicts
the friend’s earlier testimony that he saw the man commit the burglary), and the friend is still subject to recall and thus
may be given a chance to explain or deny it.

The prior inconsistent statement exemption to the hearsay rule, however, applies only to previous out-of-court
statements made under oath, which are then admissible as substantive evidence. Here, the prior statement was not
made under oath, and therefore, this exemption does not apply.

Question 12

A plaintiff sued a defendant for shooting her husband from ambush. The plaintiff offers to testify that, the day before
her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant
said, “I’m going to blow your head off one of these days.”
The plaintiff’s testimony concerning her husband’s statement is

A: admissible, to show the defendant’s state of mind.
B: admissible, because the defendant’s statement is that of a party-opponent.
C: inadmissible, because it is improper evidence of a prior bad act.
D: inadmissible, because it is hearsay not within any exception.

Answer 12

D: inadmissible, because it is hearsay not within any exception.

The plaintiff’s proffered testimony contains multiple out-of-court statements: (i) the deceased’s statement
that he had a chance meeting with the defendant on the street in which the defendant threatened him; and (ii) the
statement by the defendant to the deceased: “I’m going to blow your head off one of these days.” Multiple hearsay
requires that each statement meet its own exception to the rule. Here, it is true that the defendant’s statement to the
deceased may be admissible to establish the defendant’s state of mind. However, the deceased’s statement to the
plaintiff that the defendant told him that the defendant was going to blow the deceased’s head off one of these days is
an out-of-court statement that is being offered for the truth of the matter asserted - that the defendant threatened the
deceased. This statement is thus hearsay and is inadmissible because it does not meet the requirements for any
exceptions to the hearsay rule.

Question 13

The defendant is tried for armed robbery of a bank.
The prosecutor offers the testimony of a bartender that when he saw the money in the defendant’s wallet he said,
“You must have robbed a bank,” to which the defendant made no reply. This evidence is

A: admissible, to prove that the defendant’s conduct caused the bartender to believe that the defendant
robbed the bank.
B: admissible, as a statement made in the presence of the defendant.
C: inadmissible, because it would violate the defendant’s privilege against self-incrimination.
D: inadmissible, because the defendant had no reason to respond to the bartender’s statement.

Answer 13

D: inadmissible, because the defendant had no reason to respond to the bartender’s statement.

In this case, the statement must satisfy the three-part test for silence to operate as an adoptive
admission. First, the defendant must have heard and understood the statement. There are no facts indicating that the
defendant was unable to hear or understand the bartender’s comment. Second, the defendant must have been
physically and mentally capable of denying the statement. Similarly, there are no facts offered to suggest that the
defendant was physically or mentally incapable of denying the statement. And third, it must be true that a reasonable
person in the defendant’s shoes would have denied the accusation under those circumstances. Based on these facts,
a reasonable person in the defendant’s position would have no reason to deny the accusation, which was based
merely on his possession of money.

Question 14

A plaintiff sued a defendant for breach of contract. The plaintiff’s position was that the woman, whom he understood to
be the defendant’s agent, said, “On behalf of [the defendant], I accept your offer.” The defendant asserted that the
woman had no actual or apparent authority to accept the offer on the defendant’s behalf.
The plaintiff’s testimony concerning the woman’s statement is

A: admissible, provided the court first finds by a preponderance of the evidence that the woman had actual or
apparent authority to act for the defendant.
B: admissible, upon or subject to introduction of evidence sufficient to support a finding by the jury that the
woman had actual or apparent authority to act for the defendant.
C: inadmissible, if the woman does not testify and her absence is not excused.
D: inadmissible, because it is hearsay not within any exception.

Answer 14

B: admissible, upon or subject to introduction of evidence sufficient to support a finding by the jury that the
woman had actual or apparent authority to act for the defendant.

An agent’s admission may be introduced against the principal by an opposing party,
as long as the admission was made during the course of an agency relationship and was within the scope of the
agency. The statement itself may be admissible as part of the evidence in determining whether the agency
relationship existed. Here, the relevance of the woman’s statement to the plaintiff is conditioned upon a showing that
the woman had actual or apparent authority to act for the defendant. If the woman did not have actual or apparent authority to act for the defendant, the statement would be irrelevant to the plaintiff’s case against the defendant and it
should not be admitted. However, the statement is admissible subject to the introduction of evidence sufficient to
support a finding that the woman had actual or apparent authority to act for the defendant.

Question 15

The defendant is charged with the murder of the deceased. The prosecutor introduced testimony of a police officer
that the deceased told a priest, administering the last rites, “I was stabbed by [the defendant]. Since I am dying, tell
him I forgive him.” Thereafter, the defendant’s attorney offers the testimony of a friend that the day before, when the
deceased believed he would live, he stated he had been stabbed by an old enemy, not the defendant. The testimony
of the friend is

A: admissible under an exception to the hearsay rule.
B: admissible to impeach the dead declarant.
C: inadmissible, because it goes to the ultimate issue in the case.
D: inadmissible, because it is irrelevant to any substantive issue in this case.

Answer 15

B: admissible to impeach the dead declarant.

Statements that may otherwise be inadmissible as hearsay can be used to impeach testimony already
given from the declarant. Although the deceased’s statement that an old enemy had stabbed him would normally be
inadmissible hearsay, it can be used to impeach his later statement that the defendant was the one who stabbed him.
Although the declarant is deceased, his admissible statement that the defendant was the killer can still be impeached
by one of the declarant’s prior inconsistent statements.

Question 16

A defendant was prosecuted for sexually abusing his 13-year-old stepdaughter. The stepdaughter testified to the
defendant’s conduct. On cross-examination, defense counsel asks the stepdaughter, “Isn’t it true that shortly before
you complained that your stepfather abused you, he punished you for maliciously ruining some of his phonograph
records?”
The question is

A: proper, because it relates to a possible motive for the stepdaughter to falsely accuse the defendant.
B: proper, because the stepdaughter’s misconduct is relevant to her character for veracity.
C: improper, because the incident had nothing to do with the stepdaughter’s truthfulness.
D: improper, because it falls outside the scope of direct examination.

Answer 16

A: proper, because it relates to a possible motive for the stepdaughter to falsely accuse the defendant.

A is correct. A witness may be properly questioned about any bias or motive to lie the witness may have. The
defendant’s counsel is permitted to inquire into whether the stepdaughter may have a bias or motive to lie about the
abuse since the defendant had punished her shortly before the complaint of the abuse.

Question 17

A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a
witness who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks
to ask the witness, “Didn’t you hear that two years ago the defendant was arrested for embezzlement?”
Should the court permit the question?

A: No, because the defendant has not testified and therefore has not put his character at issue.
B: No, because the incident was an arrest, not a conviction.
C: Yes, because it seeks to impeach the credibility of the witness.
D: Yes, because the earlier arrest for a crime of dishonesty makes the defendant’s guilt of the mail fraud more likely.

Answer 17

C: Yes, because it seeks to impeach the credibility of the witness.

The court should permit the question because it is a proper method of impeachment. The defendant
decided to call the witness to testify about the defendant’s reputation for honesty, which constitutes “opening the door”
to the prosecution discrediting the defendant’s character for honesty. Under FRE 405, the prosecutor may rebut the
witness by inquiring into specific instances of conduct on cross-examination as a way of undercutting the witness’s
basis of knowledge of the defendant’s reputation. If the witness answers that she had not heard about the arrest, that
admission could indicate that she is not very knowledgeable about the defendant’s reputation in the community,
because such an arrest would likely have had a negative effect on that reputation.

Question 18

A defendant is charged with robbing a bank. The prosecutor has supplied the court with information from accurate
sources establishing that the bank is a federally insured institution and that this fact is not subject to reasonable
dispute. The prosecutor asks the court to take judicial notice of this fact. The defendant objects.
How should the court proceed?

A: The court must take judicial notice and instruct the jury that it is required to accept the judicially noticed fact as
conclusive.
B: The court must take judicial notice and instruct the jury that it may, but is not required to, accept the
judicially noticed fact as conclusive.
C: The court may refuse to take judicial notice, because judicial notice may not be taken of essential facts in a
criminal case.
D: The court must refuse to take judicial notice, because whether a bank is federally insured would not be generally
known within the court’s jurisdiction.

Answer 18

B: The court must take judicial notice and instruct the jury that it may, but is not required to, accept the
judicially noticed fact as conclusive.

The court must take judicial notice of a fact if the court is supplied with the necessary information to
indicate that the fact is not subject to reasonable dispute, which is the case here with the bank as a federally insured
institution. However, in a criminal case, the jury should be instructed that it may, but is not required, to take the noticed
fact as conclusive.

Question 19

A college student sued an amusement company for injuries he sustained when the amusement company’s roller
coaster allegedly malfunctioned so that the student fell out. At trial, after the student presented his case, the
amusement company called a witness who testified that just before the accident he had heard a bystander say to the
bystander’s companion, “That crazy fool is standing up in the car.”
The student has offered the testimony of another witness who would testify that the day after the accident she was
with the same bystander, and that in describing the accident, the bystander told her that the car had jerked suddenly
and “just threw the guy out of his seat.”
How should the court rule with respect to this offered testimony?

A: Rule it admissible only to impeach the bystander’s credibility.
B: Rule it admissible to impeach the bystander’s credibility and to prove the amusement company’s negligence.
C: Rule it inadmissible, because the bystander was given no opportunity to deny or explain her apparently
inconsistent statement.
D: Rule it inadmissible, because the bystander herself was not called as a witness.

Answer 19

A: Rule it admissible only to impeach the bystander’s credibility.

. In this case, when the amusement company called the first witness, the bystander was a hearsay
declarant whose statement was likely admitted as an excited utterance or present sense impression. For that reason,
the first witness can testify to the out-of-court statement, “That crazy fool is standing up in the car.” The student’s later
witness, looking to testify to the bystander’s second statement from the following day that the ride “just threw the guy
out of his seat,” however, would be inadmissible hearsay. No hearsay exception applies to the later statement by the
bystander that would allow it to be admitted substantively. The statement is admissible as a prior inconsistent
statement to impeach the bystander, however. It contradicts the bystander’s earlier statement, which suggested that
the student was entirely at fault by standing up in the car. FRE 806 provides that a hearsay declarant’s credibility may
be attacked by any evidence that would be admissible if the declarant had testified as a witness.

Question 20

Re-direct examination of a witness must be permitted in which of the following circumstances?

A: To reply to any matter raised in cross-examination.
B: Only to reply to significant new matters raised in cross-examination.
C: Only to reiterate the essential elements of the case.
D: Only to supply significant information inadvertently omitted on direct examination.

Answer 20

B: Only to reply to significant new matters raised in cross-examination.

Re-direct examination must be permitted only if there were significant new matters raised on cross-examination.

Question 21

The driver of an automobile ran into and injured a pedestrian. With the driver in his car were his wife and another
passenger. A passerby saw the accident and called the police department, which sent a sheriff to investigate.
All of these people were available as potential witnesses in the case brought by the pedestrian against the driver. The
pedestrian alleges that the driver, while drunk, struck the pedestrian who was in a duly marked crosswalk.
On the evening of the day of the accident, the passenger wrote a letter to his sister in which he described the
accident. When the passenger says he cannot remember some details of the accident, the pedestrian’s counsel seeks
to show him the letter to assist him in his testimony on direct examination. The trial judge should rule this

A: permissible under the doctrine of present recollection refreshed.
B: permissible under the doctrine of past recollection recorded.
C: objectionable because the letter was not a spontaneous utterance.
D: objectionable because the letter is a self-serving declaration in so far as the witness is concerned.

Answer 21

A: permissible under the doctrine of present recollection refreshed.

It is permissible to allow a witness to view almost any item, even if it is hearsay itself, if it would aid the
witness in remembering something that he has admitted forgetting on the stand. The passenger’s letter to his sister
can be used for the limited purpose of refreshing his recollection of the events of the accident to aid in his testimony.

Question 22

A woman’s car was set on fire by vandals. When she submitted a claim of loss for the car to her insurance company,
the insurance company refused to pay, asserting that the woman’s policy had lapsed due to the nonpayment of her
premium. The woman sued the insurance company for breach of contract.
At trial, the woman testified that she had, in a timely manner, placed a stamped, properly addressed envelope
containing the premium payment in the outgoing mail bin at her office. The woman’s secretary then testified that every
afternoon at closing time he takes all outgoing mail in the bin to the post office. The insurance company later called its
mail clerk to testify that he opens all incoming mail and that he did not receive the woman’s premium payment.
The woman and the insurance company have both moved for a directed verdict.
For which party, if either, should the court direct a verdict?

A: For the insurance company, because neither the woman nor her secretary has any personal knowledge that the
envelope was delivered to the post office.
B: For the insurance company, because the mail clerk’s direct testimony negates the woman’s circumstantial
evidence.
C: For the woman, because there is a presumption that an envelope properly addressed and stamped was
received by the addressee.
D: For neither the woman nor the insurance company, because under these circumstances the jury is
responsible for determining whether the insurance company received the payment.

Answer 22

D: For neither the woman nor the insurance company, because under these circumstances the jury is
responsible for determining whether the insurance company received the payment.

The woman has presented sufficient evidence to trigger the presumption that her payment was received.
The insurance company has presented sufficient evidence to rebut that presumption. Consequently, the presumption
is taken out of the case and it is up to the fact finder to determine whether the insurance company received the
payment. Therefore, it would be error to grant a directed verdict for either the woman or the insurance company.

Question 23

An owner and his employee, a driver, consult an attorney about a motor vehicle collision resulting in a suit by the
litigant against the owner and the driver as joint defendants. The attorney calls his investigator into the conference to
make notes of what is said, and those present discuss the facts of the collision and owner’s insurance. The owner
thereafter files a cross-claim against the driver for indemnity for any damages obtained by the litigant.
The litigant calls the driver to testify in litigant’s case in chief to admissions made by the owner in the conference. On
objection by the owner, the court should rule that the driver’s testimony is

A: admissible, because of the presence of persons in the conference other than the attorney and the owner.
B: admissible, because the driver is an adverse party in the lawsuit.
C: inadmissible, because of the attorney-client privilege.
D: inadmissible, because the best evidence is the investigator’s notes of the conference.

Answer 23

C: inadmissible, because of the attorney-client privilege.

The attorney-client privilege covers confidential communications between an attorney and client made
during the legal consultation, and those communications are inadmissible in cases with third-party claimants. The
litigant’s attempt to introduce the owner’s statements made during the legal conference violates the attorney-client
privilege, and the driver’s testimony as to statements made by the owner at the conference is inadmissible.

Question 24

In a personal injury case, the plaintiff sued a retail store for injuries she sustained from a fall in the store. The plaintiff
alleged that the store negligently allowed its entryway to become slippery due to snow tracked in from the sidewalk.
Before the lawsuit was filed, when the plaintiff threatened to sue, the store’s manager said, “I know that there was
slush on that marble entry, but I think your four-inch-high heels were the real cause of your fall. So let’s agree that
we’ll pay your medical bills, and you release us from any claims you might have.” The plaintiff refused the offer. At
trial, the plaintiff seeks to testify to the manager’s statement that “there was slush on that marble entry.”
Is the statement about the slush on the floor admissible?

A: No, because it is a statement made in the course of compromise negotiations.
B: No, because the manager denied that the slippery condition was the cause of the plaintiff’s fall.
C: Yes, as a statement by an agent about a matter within the scope of his authority.
D: Yes, because the rule excluding offers of compromise does not protect statements of fact made during
compromise negotiations.

Answer 24

A: No, because it is a statement made in the course of compromise negotiations.

When there has been an express or implied indication that a claim may be raised by a
party, any conduct or statements made during compromise negotiations is inadmissible. Here, there was a dispute,
and the manager’s statement was made in an effort to settle that dispute. Therefore, the entire statement is
inadmissible under FRE 408. While an admission of fact accompanying an offer to pay medical bills would normally be
admissible, here, the offer to pay medical bills was part of a greater settlement negotiation, making any accompanying
admissions of fact inadmissible.

Question 25

A defendant, who was charged with the crime of assaulting the victim, admitted striking the victim but claimed to have
acted in self-defense when he was attacked by the victim, who was drunk and belligerent after a football game.
The defendant offered testimony of a former employer that he had known and who had employed the defendant for
twelve years and knew the defendant’s reputation among the people with whom he lived and worked to be that of a
peaceful, law-abiding, nonviolent person. How should the trial judge rule on this testimony?

A: Admissible, because it is relevant to show the improbability of the defendant’s having committed an
unprovoked assault.
B: Admissible, because it is relevant to a determination of the extent of punishment if the defendant is convicted.
C: Not admissible, because whether the defendant is normally a person of good character is irrelevant to the
specific charge.
D: Not admissible, because it is irrelevant without a showing that the former employer was one of the persons among
whom the defendant lived and worked.

Answer 25

A: Admissible, because it is relevant to show the improbability of the defendant’s having committed an
unprovoked assault.

Evidence of a peaceful, nonviolent character, if presented in the form of reputation evidence, is relevant
to show the unlikelihood of attacking another without provocation. The former employer’s testimony of the defendant’s
reputation in the community for peacefulness is admissible.

Question 26

In a tort action, a witness testified against the defendant. The defendant then called a friend to the stand, who testified
that the witness had a bad reputation for veracity. The defendant then also called a second friend to testify that the
witness once perpetrated a hoax on the police.
The second friend’s testimony is

A: admissible, because the hoax involves untruthfulness.
B: admissible, because the hoax resulted in conviction of the witness.
C: inadmissible, because it is merely cumulative impeachment.
D: inadmissible, because it is extrinsic evidence of a specific instance of misconduct.

Answer 26

D: inadmissible, because it is extrinsic evidence of a specific instance of misconduct.

Question 27

A defendant was charged with attempted murder of a victim in a sniping incident in which the defendant allegedly shot
at the victim from a bush as the victim drove his car along an expressway. The prosecutor offers evidence that seven
years earlier the defendant had fired a shotgun into a woman’s house and that the defendant had once pointed a
handgun at another driver while driving on the street.
This evidence should be

A: excluded, because such evidence can be elicited only during cross-examination.
B: excluded, because it is improper character evidence.
C: admitted as evidence of the defendant’s propensity toward violence.
D: admitted as relevant evidence of the defendant’s identity, plan, or motive.

Answer 27

B: excluded, because it is improper character evidence.

The general rule is that evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. The evidence the prosecution is
seeking to admit is being offered only to show the defendant’s bad character and that he was acting in line with that
bad character. Therefore, the evidence should be excluded as improper character evidence.

Question 28

The defendant, charged with armed robbery of a store, denied that he was the person who had robbed the store.
In presenting the state’s case, the prosecutor seeks to introduce evidence that the defendant had robbed two other
stores in the past year.
This evidence is

A: admissible, to prove a pertinent trait of the defendant’s character and the defendant’s action in conformity
therewith.
B: admissible, to prove the defendant’s intent and identity.
C: inadmissible, because character must be proved by reputation or opinion and may not be proved by specific acts.
D: inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice.

Answer 28

D: inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of an accused person in order to show action in conformity therewith. Here, the prosecutor is seeking to introduce evidence that the
defendant robbed two other stores in order to prove that the defendant robbed this particular store. This evidence is
inadmissible because it is attempting to prove bad character. The probative value of the other robberies is
substantially outweighed by the danger of unfair prejudice to the defendant. At this point in the trial, the evidence is
not admissible for any other purpose.

Question 29

A defendant was prosecuted for armed robbery. At trial, the defendant testified on his own behalf, denying that he had
committed the robbery. On cross-examination, the prosecutor intends to ask the defendant whether he had been
convicted of burglary six years earlier.
Assume that the court has already determined that the probative value of the answer outweighs the prejudicial effect
to the defendant. The question concerning the burglary conviction is
A: proper, because the probative value for impeachment outweighs the prejudice to the defendant.
B: proper, because the prosecutor is entitled to make this inquiry as a matter of right.
C: improper, because burglary does not involve dishonesty or false statement.
D: improper, because the conviction must be proved by court record, not by question on cross-examination.

Answer 29

A: proper, because the probative value for impeachment outweighs the prejudice to the defendant.

Prior felony convictions of a defendant who takes the stand can be used to impeach his testimony if the
probative value of the impeachment outweighs the prejudicial effect to the defendant. Since the prior crime (burglary)
is punishable by a sentence of more than a year, the conviction can be used to impeach the defendant’s testimony
because it occurred within the last 10 years. However, since burglary is not a crime involving dishonesty, the court
must make a finding that the probative value of the evidence outweighs its prejudicial effect to the defendant.

Question 30

A defendant was charged with aggravated assault. At trial the defendant did not testify; however, he sought to offer
opinion evidence of his good character for truth and veracity.
This testimony should be
A: admitted, because a criminal defendant is entitled to offer evidence of his good character.
B: admitted, because a party’s credibility is necessarily in issue.
C: excluded, because character is not admissible to prove conduct in conformity therewith.
D: excluded, because it is evidence of a trait not pertinent to the case.

Answer 30

D: excluded, because it is evidence of a trait not pertinent to the case.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action
in conformity therewith on a particular occasion, except when the trait of character offered by an accused is pertinent
to the charge the accused is facing. The defendant’s attempt to introduce evidence of his good character for truth and
veracity is inadmissible because truth and veracity is not a pertinent trait in an aggravated assault case when the
defendant is not testifying.

Question 31

At a civil trial for slander, the plaintiff showed that the defendant had called the plaintiff a thief. In defense, the
defendant called a witness to testify, “I have been the plaintiff’s neighbor for many years, and people in our community
generally have said that he is a thief.”
Is the testimony concerning the plaintiff’s reputation in the community admissible?

A: No, because character is an essential element of the defense, and proof must be made by specific instances of
conduct.
B: Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed.
C: Yes, to prove that the plaintiff is a thief, but not on the issue of damages.
D: Yes, to reduce or refute the damages claimed, but not to prove that the plaintiff is a thief.

Answer 31

B: Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed.

In slander cases, where the defendant makes a statement that the plaintiff has an unsavory character,
the plaintiff’s character is considered “at issue” (i.e., an essential element of the claim or defense under the
substantive law) in two respects.
First, remember that truth is a defense to slander. Thus, the plaintiff’s actual character will determine whether the
defendant is liable for slander. Second, in an action for slander, the plaintiff must allege that he is damaged by the
statement. These “damages” are evidence his true character has been besmirched. If, however, the plaintiff actually
has a bad reputation, then damages are limited. In slander cases like the one in this question, character evidence is
relevant both to whether the plaintiff has a certain character trait and to the extent of damages. Under FRE 405, when
character is “at issue,” it can be proved by evidence of reputation, opinion, or specific acts.

Question 32

A defendant’s house was destroyed by fire and she was charged with arson. To prove that the defendant had a motive
to burn down her house, the government offered evidence that the defendant had fully insured the house and its
contents.
Should the court admit this evidence?
A: No, because the probative value of the evidence of insurance upon the issue of whether the defendant intentionally
burned her house down is substantially outweighed by the dangers of unfair prejudice and confusion of the jury.
B: No, because evidence of insurance is not admissible upon the issue of whether the insured acted
wrongfully.
C: Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive
to burn down the house.
D: Yes, because any conduct of a party to the case is admissible when offered against the party.

Answer 32

C: Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive
to burn down the house.

Although this evidence is certainly not conclusive that the defendant committed arson (many people fully
insure their houses), it is relevant to the issue of whether the defendant would have had a financial incentive to
commit the arson. The defendant might be able to generate cash more quickly by burning down the house and
collecting insurance proceeds than by attempting to sell the house. To be relevant under FRE 401, the evidence need
only have “any tendency to make the existence of a fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Therefore, evidence that has only the slightest
probative value can be admitted under this rule.

Question 33

A plaintiff sued a defendant for breach of contract. The court admitted testimony by the plaintiff that the defendant and
his wife quarreled frequently, a fact of no consequence to the lawsuit. The defendant seeks to testify in response that
he and his wife never quarreled. The court
A: must permit the defendant to answer if he had objected to the plaintiff’s testimony.
B: may permit the defendant to answer, whether or not he had objected to the plaintiff’s testimony.
C: may permit the defendant to answer only if he had objected to the plaintiff’s testimony.
D: cannot permit the defendant to answer, whether or not he had objected to the plaintiff’s testimony.

Answer 33

B: may permit the defendant to answer, whether or not he had objected to the plaintiff’s testimony.

While the defendant’s testimony would normally be considered irrelevant, it is admissible as curative
evidence to respond to the previously admitted irrelevant evidence about his quarreling with his wife. A court may, but
does not have to, admit irrelevant evidence if the evidence is curative and rebuts the previously admitted irrelevant
evidence and the curative evidence is not prejudicial.

Question 34

A plaintiff sued a defendant for a libelous letter received by an investigator. The authenticity and contents of the letter
are disputed. The investigator, if permitted, will testify that, “I received a letter that I cannot now find, which read: ‘Dear
investigator, You inquired about [the plaintiff]. We fired him last month when we discovered that he had been stealing
from the stockroom. [The defendant].’” The testimony should be admitted in evidence only if the

A: jury finds that the investigator has quoted the letter precisely.
B: jury is satisfied that the original letter is unavailable.
C: judge is satisfied that the investigator has quoted the letter precisely.
D: judge finds that the original letter is unavailable.

Answer 34

B: jury is satisfied that the original letter is unavailable.

Pursuant to the Federal Rules of Evidence (FRE), preliminary questions concerning the admissibility of
evidence shall be determined by the court. It is up to the judge to determine whether the investigator can testify as to
the authenticity and contents of the libelous letter. Here, the libelous letter’s authenticity and contents are being
challenged. Thus, under the FRE the plaintiff must prove the content of the writing by using the original letter, if
available. However, other evidence of the contents of the letter will be admissible only if the judge finds that the
original letter is unavailable.