MBE Evidence

Question 1

When can evidence be introduced extrinsically vs. intrinsically, or both for impeachment purposes?

Answer 1

Reputation or Opinion –> EXTRINSICALLY

Specific Instances of Conduct (2 types)
1) Felony Conviction or Crime of Dishonesty –> Either EXTRINSICALLY OR INTRINSICALLY

2) Other Bad Act –> INTRINSICALLY

Question 2

When can a record (e.g. a journal entry) of the witness on the stand be read to the jury vs. introduced?

Answer 2

A PAST RECOLLECTION RECORDED (FRE 803(5) is an exception to hearsay –> the past recollection record is ADMISSIBLE HEARSAY that can be READ to the jury only (and introduced into evidence by the OP ONLY)

If 1) Record contains a matter which the witness once had Knowledge
2) the record was prepared or adopted by the witness when the matter was FRESH in the witness’s memory
3) the record accurately reflect’s the witness’s knowledge;
AND
4) the witness states he/she has insufficient recollection of the event to testify fully and accurately even after consulting the writing/record on the stand

A PRESENT RECOLLECTION REFRESHED/REFRESHING RECOLLECTION (FRE 612)

1) Witness once knew but not can’t recall the facts/event
AND
2) the item will help the witness recall that information

ONLY OP CAN:
– Inspect item
– Compel production
– Use on cross-examination
– Introduce into evidence

1) Use:

Rule 612: Helps the witness refresh their mem

Key Differences:

Question 3

True or False:

A VOICE can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation, as long as the person is familiar with the voice.

It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.

Answer 3

TRUE. Unlike a signature, which cannot become familiar for purposes of litigation.

Question 4

On CROSS, a witness may be asked about SPECIFIC INSTANCES OF CONDUCT (crimes or prior ACTS) if it is probative of the TRUTHFULNESS or UNTRUTHFULNESS of

Answer 4

1) The witness

or

2) another witness about whose character the witness being cross-examined has testified

Question 5

In a CIVIL trial, can a juvenile conviction come in for impeachment?

Answer 5

No;
Only in a CRIMINAL trial under the Judge’s discretion.

Question 6

If an attorney on the stand posed a hypothetical question to an expert, and omitted a clearly significant fact, what’s the best ground to object?

Answer 6

RELEVANCE
–> omitting the clearly significant fact renders the testimony not relevant.

*With these questions, don’t fall for them saying “they didn’t tell opposing counsel about the hypothetical question before trial”

Question 7

Nonverbal conduct by the declarant, such as a map drawn by a witness to the accident that depicts the scene of the accident, is

Answer 7

an assertion –> the map and its photocopy are inadmissible hearsay

*the photocopy would not be a “best evidence rule” issue.

*can’t come in as a “Past recollection recorded” if the declarant is dead or unavailable/not testifying on the stand

*can’t come in as “habit” if the declarant isn’t a party to the action and the habit is not relevant to the crime/case (e.g. negligence of the parties)

Question 8

What is an offer of proof?

Answer 8

A written or oral explanation of the relevance and admissibility of evidence being offered by the proponent on the record (so as to preserve the error for appeal)

Note: it’s done OUTSIDE the presence of the jury b/c it can include hearsay or otherwise inadmissible evidence that can prejudice the jury

Question 9

What four requirements must be met for an expert witness to offer opinion testimony?

Answer 9

1) witness must be QUALIFIED as an expert by knowledge, skill, experience, training, or education;
2) testimony is based on sufficient FACTS/DATA
3) testimony is based on RELIABLE PRINCIPLES/METHODS;
AND
4) witness APPLIED principles/methods reliably to the facts of the case

Note: Expert must also possess a reasonable degree of certainty in opinion, using words like “probably”

*Can’t opine on the mental state/requisite mens rea of Criminal Defendant as to a charge/defense

Question 10

Does SPOUSAL IMMUNITY survive the marriage? In what cases does it apply?

Answer 10

No; witness spouse can only object to testifying while married

CRIMINAL cases only

Question 11

Habit evidence is admissible when

Answer 11

Evidence of a person/or Org’s habit/routine to prove action in accordance on a particular occasion

*does not require corroboration or eyewitness to be admitted

Question 12

What are (3) examples of Habit evidence

Answer 12

Habit evidence can be positive (i.e. person ALWAYS does it) or negative (i.e. person NEVER does it)

Can be of a person or a business practice

E.g.
- Person “NEVER” smokes
- Company “ALWAYS” makes a 401k contribution
- Person “ALWAYS” wears their seatbelt

Question 13

What are the requirements for a Lay Witness’s OPINION to be admissible?

Answer 13

The opinion must be:

1) RATIONALLY based on Witness’s PERCEPTION

AND

2) HELPFUL to clear understanding of Witness’s testimony OR determination of a fact in issue

*Can’t be based on scientific, technical, or advanced knowledge

Question 14

What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?

Answer 14

DMS doesn’t apply in CRIMINAL case

Party w/ with FINANCIAL INTEREST in the outcome of a case is NOT permitted to testify ADVERSLY about a communication/transaction with a person whose estate is a party to the case

*No Federal Rules on this; only applies in Federal Court in Diversity JX cases when Court is applying State Law w/ a DMS

Question 15

What are the (3) types of prior statements by a declarant witness that are defined by the FRE as non-hearsay?

Answer 15

1) Prior INCONSISTENT Statements made under penalty of perjury;
2) Prior CONSISTENT Statement to 1) rehabilitate a witness or 2) rebut suggestions of fabrication/improper motive but only if statement made before witness had reason to fabricate;
3) Prior Statements of IDENTIFICATION of a person after perceiving that person

Question 16

For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon

Answer 16

Pardon–CANT be used for impeachment purposes b/c person is treating as if they never committed the crime (removes punishment/guilt)

Conviction pending appeal–CAN be used for impeachment purposes, so can evidence of the pendency

Question 17

What is the plain error rule?

Answer 17

Error that is so OBVIOUS to the reviewing court, that its ok the parties failed to object/give offer of proof

–Grounds for REVERSAL when it affects a SUBSTANTIAL RIGHT

Question 18

What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?

Answer 18

A statement is non-hearsay if offered:

(1) To prove that STATEMENT was made (i.e., as LEGALLY OPERATE fact);
(2) To show the EFFECT on the LISTENER;
(3) As CIRCUMSTANTIAL EVIDENCE of the declarant’s STATE OF MIND;
(4) As CIRCUMSTANTIAL EVIDENCE of IDENTITY; or
(5) Solely to IMPEACH or REHABILITATE WITNESS

Question 19

Best Evidence Rule requires?

Answer 19

CONTENT of doc is AT ISSUE
OR
Witness is relying on the CONTENTS of the doc

BER requires original document be produced to prove the contents unless:

1) all originals are lost/destroyed and not b/c of BAD FAITH;
2) original can’t be obtained by any available judicial process;
3) party who its offered AGAINST (a) had CONTROL of the OG (b) was on NOTICE that OG would be subject of proof (c) and failed to produce it at the trial or hearing;
OR
4) doc is NOT closely related to controlling issue in the case

Question 20

What (2) questions must the court ask to determine whether the subject matter of an expert’s proposed testimony is proper?

Answer 20

RELIABILITY & RELEVENACE

1) is the subject matter scientific, technical, or other specialized knowledge, (i.e. reliability);
AND
2) will it help trier of fact understand the evidence or determine fact in issue (i.e. relevance)

Question 21

What are (4) exceptions to attorney-client privilege?

Answer 21

1) made for purposes of what client knew/should’ve known was a crime;
2) relevant to legal dispute between attorney & client or former client (malpractice claim);
3) relevant to dispute between parties who claim through the same deceased client;
AND
4) Between former co-clients who are now ADVERSE to each other

Question 22

What (4) categories of witnesses may NOT be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 22

1) a PARTY who is a NATURAL person;
2) an officer/employee of a PARTY who is not a natural persons if designated as that person’s rep. by its attorney;
3) any person whose presence is ESSENTIAL to a PARTY’s presentation of its case;
AND
4) a person whose presence is permitted by statute (e.g. victims)

Question 23

By what (3) methods may a witness who has been impeached be rehabilitated?

Answer 23

1) Explanation/Clarification on REDIRECT examination;
2) Reputation or Opinion evidence of character’s truthfulness, if the witness’s character was attacked on that ground;
3) Prior CONSISTENT statement to rebut express/implied charge witness lied due to improper motive or influence

Question 24

What are the (2) ways to call the court’s attention to an allegedly erroneous evidentiary ruling?

Answer 24

1) If Court ADMITS the evidence –> timely OBJECTION or MOTION TO STRIKE
2) If Court REJECTS the evidence –> Offer of Proof to preserve evidence for appellate review of the ruling

Question 25

What is the rule of completeness?

Answer 25

When a party introduces PART of a statement,
an adverse party may compel the introduction of an OMITTED portion of the statement,
IF,
in FAIRNESS,
it should be considered at the same time

Question 26

How may a party to a telephone conversation AUTHENTICATE statements made during that conversation as having been made by a particular individual?

Answer 26

By testifying that:

1) The caller recognized the speaker’s voice;
2) The speaker knew facts only a particular person would know;
3) The caller dialed a # believed to be the speaker’s, and the speaker identified himself upon answering; or
4) The caller dialed a business and spoke to the person who answered about regularly conducted business over the phone

Note: Voice can be identified by ANY person who has heard the voice at ANY time, including becoming familiar w/ the voice solely for purposes of litigation

Question 27

What five hearsay exceptions only apply when the hearsay declarant is unavailable?

Answer 27

1) Former Testimony;
2) Dying Declaration;
3) Statement Against Interest;
4) Statement of Personal or Family history;
5) Statement offered against a party who wrongfully caused declarant’s unavailability

Question 28

FELONY CONVICTION not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant.

Question 29

When calculating the age of a conviction, the relevant inquiry is whether more than 10 years have passed since

Answer 29

– the witness’s conviction
OR
– release from confinement

whichever is LATER

Question 30

In an arson prosecution the government seeks to rebut the defendant’s alibi that he was in a jail in another state at the time of the fire. The government calls a witness to testify that he diligently searched through all the records of the jail and found no record of the defendant having been incarcerated there during the time the defendant specified.

The testimony of the witness is

Answer 30

HEARSAY EXCEPTION–ABSENCE of a Public Record

The testimony of the witness falls within the hearsay exception allowing a record keeper to testify to the absence of a public record.

Question 31

A party wants to prove there’s no entry in the PUBLIC RECORDS about a certain event, or particular document/filing does not exist in the public records (i.e., jail records)

– there is an exception allowing proof of the lack of a public record

This can be proved in one of two ways

Answer 31

1) by a certificate by the keeper of the records in question, that diligent search has failed to find the record;

OR

2) by testimony of the RECORD KEEPER to that effect

Question 32

By establishing that the defendant dropped a plastic bag as the police were approaching, and that, after only a few minutes, the police officers returned to the same spot and found a plastic bag, has the prosecution introduced sufficient evidence for a finding that the bag was the one the defendant dropped?

Answer 32

Yes.

The requirement of authentication or identification as a condition to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims

Question 33

Does it matter if a Defendant was never convicted of a crime when introducing that crime into evidence?

(e.g. The prosecution called a witness to the stand who testified that three years ago, the same man had stalked her for weeks, installed hidden cameras in her apartment, and then kidnapped her. Although he was put on trial three years ago, the man was never convicted due to a hung jury.)

Answer 33

No, it is irrelevant. It can still come in for non-propensity argument. (e.g. “MIMIC”)

Question 34

Disclosure does not waive attorney-client privilege/work-product doctrine in federal or state proceeding if:

Answer 34

1) disclosure was made in a federal proceeding OR to federal agency
2) disclosure was inadvertent
3) privilege holder took reasonable steps to prevent disclosure
AND
4) privilege holder promptly took reasonable steps to rectify error

Question 35

Waiver does not extend to undisclosed communication or information unless:

Answer 35

1) waiver was intentional
2) disclosed & undisclosed communications or information concern same subject matter
AND
3) communications or information ought, in fairness, to be considered together

Question 36

Objection to use of unavailable declarant’s hearsay statement is forfeited if party:

Answer 36

1) wrongfully caused, or acquiesced in causing, the unavailability
AND
2) did so intending that result

*Party attempting to prove forfeiture must do so by preponderance of evidence—ie, greater weight of evidence (more than 50%) supports argument

Question 37

Party attempting to prove forfeiture must do so by

Answer 37

preponderance of evidence—ie, greater weight of evidence (more than 50%) supports argument

Question 38

STATEMENT AGAINST INTEREST Hearsay Exception [Declarant Unavailable]

Does such a statement require corroborating circumstances to clearly indicate the statement’s trustworthiness?

Answer 38

Yes.

E.g. a woman’s statement against interest is not clearly trustworthy when given in a police interrogation because it may have been motivated by a desire to gain favor with the police officer during her interrogation

Question 39

Physical objects (eg, mail, receipts, clothing) MUST be authenticated before they can be admitted at trial

Authentication requires

Answer 39

“KATE MUST AUTHENTICATE, her receipt from Balenciaga, her mail from Balenciaga, her clothes from Balenciaga”

A prima facie showing that the object is what the proponentclaims it to be.

Question 40

Authenticating physical objects (FRE 901)

What are the different ways to authenticate physical objects?

Note: the Standard of Proof for it to come in is not preponderance of the evidence/clear and convincing/etc. these are way too burdensome, evidence sufficient to support a finding is enough

Answer 40

“KATE MUST AUTHENTICATE her PC in DC with her X”

Personal knowledge
– Testimony by witness with personal knowledge of object (or that reproduction depicts original object)
–**Most COMMON method of authentication

Comparison
– Comparison of object or writing against authenticated specimen by EXPERT or trier of fact (Judge in Bench trial or Jury in Jury Trial)

Distinctive characteristics
– Testimony on object’s appearance, contents, substance, internal patterns, or other distinctive characteristics

Chain of custody
– Substantially unbroken account of object’s whereabouts from time it was obtained until introduction at trial
– **Required method for authenticating objects that could EASILY BE TAMPERED W/ or CONFUSED w/ SIMILAR ITEM (eg, blood sample)

X-ray images & electrocardiograms
– Evidence showing ACCURATE PROCESS was used,
– machine was WORKING PROPERLY,
– machine operator was QUALIFIED &
– chain of custody
**Required method for authenticating physical representations of things that cannot otherwise be seen (e.g. lung x-ray)

Question 41

Attorney-client privileged communications (FRE 502)

Are NOT privileged in what cases?

Answer 41

– Purely factual information
– Client’s identity (generally)
– Existence of attorney-client relationship
– Client’s legal fees & other incidentals
– Attorney’s fee records
– Business advice or opinions

Question 42

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully

But the court may admit this evidence for another purpose, such as

Answer 42

proving a witness’s BIAS/PREJUDICE
proving a defendant’s motive (e.g. to commit arson)
OR
proving agency, ownership, or control

Question 43

If a Lawyer offers U.S. Data in for the court to take judicial notice, is that hearsay?

Answer 43

No b/c it not offered into evidence; the attorney is merely asking the court to judicially notice the data

And even if the data had been offered for its truth, it would likely be admissible under the hearsay exception for business records (if from a U.S. agency, etc.)

Question 44

Plaintiff, a management trainee, brought a sex discrimination lawsuit against her employer for wrongful termination of her employment. At trial, the plaintiff is prepared to testify that a janitor at the company told her that he had heard her supervisor say to other male coworkers about her, “Make it hard for her. Maybe she’ll go home where she belongs.”

Is the plaintiff’s proposed testimony admissible?

A) No b/c Janitor’s statement is hearsay not within any exception
B) No b/c both Janitor’s and Supervisor’s statement are hearsay not within any exception
C) Yes, both statements as then-existing state of mind
D) Yes, both statements were concerning a matter within the scope of their employment

Answer 44

No, b/c the Janitor’s statement is hearsay.

why not the Supervisor’s statement too?
The supervisor’s statement is NOT hearsay b/c it was made WITHIN THE SCOPE OF HIS EMPLOYMENT and is being offered AGAINST THE EMPLOYER (an opposing party’s statement) –> Agent of Opposing Party/Employer/Employee

Question 45

True or False:

Statements offered to show the effect on the listener (e.g. statement of ppl calling the Defendant “speed” and that making others believe it is his name) is not considered hearsay

Answer 45

True. EFFECT ON THE LISTENER Hearsay Exclusion.

Circumstantial evidence

Question 46

When a client seeks an attorney’s advice in furtherance of planning to commit what the client KNEW or SHOULD HAVE KNOWN was a CRIME,
the attorney-client privilege DOES NOT apply (e.g. attorney can be compelled to testify in criminal case against client) regardless of whether the attorney

Answer 46

was/was not aware

Question 47

Leading questions on Direct examination are ok when?

Answer 47

when necessary to develop testimony for

1) preliminary matters;
2) hostile witness;
3) minors or those w/ difficulty communicating