MBE Evidence MC

Question 1

Common preliminary questions for the court

Answer 1

Expert testimony (eg Expert’s qualifications)

Lay witness testimony (Competency)

Physical evidence (Chain of custody;
Legality of search/seizure)

Existence of privilege (Foundational facts for application of privilege)

Out-of-court statement (Foundational facts for hearsay exclusion or exception)

Criminal defendant’s confession (Miranda rights given; Voluntariness of confession)`

Question 3

for preliminary questions for the court, is court bound by rules of evidence to decide?

Answer 3

No

Question 4

under Federal Rule of Evidence (FRE) 403, relevant evidence can be excluded if

Answer 4

its probative value is substantially outweighed by any of the following dangers:

unfair prejudice – evidence tends to encourage the jury to decide the case on improper grounds

confusing the issues – evidence leads the jury to focus on a nonmaterial matter

misleading the jury – evidence creates misconceptions in the jurors’ minds

undue delay or wasting time – presenting the evidence will cause unnecessary delay or waste time

needless cumulation – similar evidence on the same issue has already been admitted

Question 5

The mercy rule allows a criminal defendant to introduce evidence that his/her character is inconsistent with the crime charged—e.g., a defendant’s character for peacefulness is inconsistent with a charge of battery. But under this rule, the defendant only may do so through:

Answer 5

reputation testimony (testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community or)

or

opinion testimony (testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant.)

NOT specific acts

Question 6

Under Federal Rule of Evidence 404, a prosecutor generally may not introduce evidence of a criminal defendant’s bad character to show that the defendant acted in conformity with that character on the occasion in question. However, a defendant “opens the door” to such evidence by offering:

Answer 6

evidence of the defendant’s own good character for a trait pertinent to the charged crime, in which case the prosecution may offer evidence to rebut it or

evidence of the alleged victim’s bad character—e.g., to show that the victim was the first aggressor—in which case the prosecution may offer evidence to rebut it or offer evidence of the defendant’s same trait

Question 7

Examples of claims where character is an essential element

Answer 7

Defamation (P’s character at issue)

Negligent entrustment (person entrusted)

Child custody (parent/guardian)

Entrapment (defendant - lack of predisposition to commit crime)

Negligent hiring (Hiree - dangerous or untrustworthy character)

Question 8

Once the defendant’s character witness has testified about D’s good character (inconsistent with charged crime), the prosecution may:

Answer 8

cross-examine the witness about a specific act committed by the defendant that relates to the trait in question (qs must be in good faith - qs cannot be based on a hunch)

or

call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.

Question 9

Noncharacter purposes for admitting crime or bad act

Answer 9

MIMIC

Motive

Intent
(guilty mind or negate good faith)

Absence of Mistake
(To negate mistake or accident & prove deliberate act)

Identity
(To connect defendant to crime with unique pattern of behavior (ie, criminal signature))

Common plan or scheme
(To show preparation or planning)

Other
(To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.)

Question 10

All evidence is subject to

Answer 10

FRE 403 balancing test

Under this test, a court may exclude relevant evidence if its probative value is substantially outweighed by certain dangers such as unfair prejudice.

Question 11

Every person, including a child, is generally presumed competent to be a witness until proven otherwise. But if a child’s competency is questioned, then the court must evaluate the child’s:

Answer 11

intelligence

ability to differentiate between truth
and falsehood

and

understanding of the importance of telling the truth.

*Additionally, as a non-expert witness, the child must have personal knowledge of the matter on which he/she intends to testify.

Question 12

best evidence rule

Answer 12

Short:

Must produce original or reliable duplicate* to prove contents of document relied on by witness or whose contents are at issue

This rule requires that the original document OR a reliable duplicate be produced to prove the contents of a document—including writings, recordings, and photographs. However, this rule is only implicated in two narrow situations:

1. when a witness is relying on the document while testifying (not seen here)

or

2. when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).

Question 13

Exceptions to best evidence rule

Answer 13

1. Original unavailable
   - originals lost or destroyed (not by proponent’s bad faith)
   - originals not attainable by judicial process
   -opponent had original, knew it was required & failed to produce
   or
   - content not closely related to controlling issue (collateral issue i.e. unimportant or undisputed issue/fact)
2. Admission by party (Contents can be proven by opposing party’s testimony, deposition, or written statement)
3. Public record (contents of public record can be proven by certified copy; copy of records & comparison testimony, or other evidence if those two are not reasonably obtainable)

Question 14

Evidence of subsequent remedial measures - admissible?

(FRE 407)

Answer 14

Inadmissible to:
- prove negligence or other culpable conduct
- prove defect in product or product design
- prove need for product warning or instruction

Admissible to:
- prove feasibility of precautionary measures
- impeach witness
- prove ownership or control

Question 15

A remedial measure undertaken ______ the plaintiff was injured is not subject to exclusion.

Answer 15

before

Question 16

Nonhearsay examples

Answer 16

Dog’s bark

Auto generated timestamp on fax

Printout from computerized telephone-tracing equipment

Data generated by forensic lab’s diagnostic machine

Question 17

The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted therein. A statement is defined as a person’s assertion (oral, written, or nonverbal) that was intended to be an assertion. Therefore, the rule against hearsay is implicated only when the statement is made by a ____.

Answer 17

person. Evidence generated by a machine or an animal does not implicate this rule (nonhearsay, as opposed to exception to hearsay)

Question 18

But an out-of-court statement is excluded from the hearsay rule (i.e., is nonhearsay) and admissible as substantive evidence if

Answer 18

STATEMENT BY DECLARANT-WITNESS

(1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant’s statement satisfies any of the following criteria:

• it is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
• it is consistent with the declarant’s testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds

or

• it identifies a person as someone the declarant perceived earlier.

STATEMENT BY PARTY OPPONENT
- out of ct statement admissible if offered against opposing party & statement was
- made or adopted by party
- made by person authorized by party
- made by party’s agent/employee on matter within scope of relationship or
- made by party’s coconspirator during & in furtherance of conspiracy

Question 19

A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is [admissible/ not admissible] as ______ if ______

Answer 19

admissible as nonhearsay if the declarant testifies and is subject to cross-examination about the statement.

Question 19

Prior inconsistent statement is a past statement that is contrary to a witness’s present testimony. This type of statement is inadmissible as substantive evidence but it will be considered _______ if:

Answer 19

nonhearsay

the statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and

the declarant testifies and is subject to cross-examination at the current trial.

Question 20

Intrinsic v. Extrinsic evidence

Answer 20

Intrinsic: Testimony used to discredit witness elicited only from that witness

Extrinsic: Evidence used to discredit witness from any source other than witness’s own testimony

Question 21

A prior inconsistent statement can also be introduced extrinsically for _______ purposes if

Answer 21

impeachment

the witness has the opportunity to explain or deny,

and

the adverse party can examine the witness about the statement.

Question 22

Ways prior inconsistent statement can come in

Answer 22

Impeachment (intrinsic and extrinsic- for extrinsic, opp to explaint/deny and opp to X)

Substantive evidence (oath; testifies subject to X)

Question 23

No objection necessary to preserve issue for appeal

Answer 23

A judge is absolutely barred from testifying as a witness in a trial over which the judge presides

(not complete list)

Question 24

Juror’s competency as witness

Answer 24

During trial
- May not testify before jury in which juror is sitting
- Objection outside jury’s presence must be permitted

After trial or indictment:
- May not testify about jury deliberations
- May testify about improper extraneous prejudicial information, outside influence, or mistake on verdict form

Question 25

Statement by party-opponent - exception or nonhearsay? Definition

Answer 25

Nonhearsay

Out-of-court statement is nonhearsay if offered against opposing party

AND

• made or adopted by opposing party
• made by person authorized by opposing party to make statement on subject
• made by opposing party’s agent/employee on matter within scope of relationship
  OR
• made by opposing party’s coconspirator during & in furtherance of conspiracy

Question 26

(party opponent statement) Adoption by silence occurs when

Answer 26

the silent party was present and heard and understood the statement

the silent party had the ability and opportunity to deny the statement

and

a reasonable person similarly situated would have denied the statement.

Question 27

Categories

Nonhearsay

Hearsay exception

Answer 27

Not hearsay
- made by not a person
- made for purpose that is NOT to prove truth of matter asserted therin (eg statement’s effect on listener)

Nonhearsay
- Declarant-witness (prior inconsistent, prior consistent for rehab, prior ID)
- Party-opponent

Exceptions
- Unavailable (former testimony, dying, against interest, fam history, against party causing declarant’s absence)
- Other reliable (present sense impression, state of mind (eg motive, intent, plan), emotional sensory or physical condition)

Not inclusive of all!

Question 28

hearsay exception for business records

Answer 28

business records are admissible if they are:

made at or near the time of the recorded event

made by or based on information from someone with personal knowledge of the event

and

made and kept as a regular practice in the course of regularly conducted business activities.

**does not apply to records prepped in anticipation of litigation (lacks trustworthiness)

Question 29

is evidence of a juvenile conviction is admissible in a civil case to impeach a witness for truthfulness?

Answer 29

Under Federal Rule of Evidence 609, evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness

Question 30

Hearsay exceptions for public records

Answer 30

Existing public records: Records or statements of public office/agency admissible if they set forth:
- activities of office or agency
matters observed pursuant to legal duty (excluding police - observations in criminal cases)
OR
- factual findings from legal investigation if offered in civil case or against government in criminal case

Absence of public records: Evidence that diligent search failed to locate public record or statement admissible if:
- introduced through testimony (so long as the public office regularly kept records for a matter of that kind.) or self-authenticating evidence certified under FRE 902
AND
- in criminal cases, prosecutor gives written notice of intent to offer certification 14 days before trial & defendant does not object in writing within 7 days of receiving notice

Question 31

Methods of impeaching witness

Answer 31

Character for truthfulness

Self-interest / bias

Prior inconsistent statement

Specific contradiction

Sensory abilities

Question 32

Past recollection recorded is admissible as _____ if it _______.

Comes in as exhibit if___

Answer 32

exception to hearsay

contains information witness once knew but cannot recall well enough to testify fully & accurately

was made or adopted by witness when matter was fresh in his/her mind

and

accurately reflects witness’s knowledge at time record was made

The recorded recollection hearsay exception allows the proponent (here, the supermarket) to have the witness read the record into evidence.

But the record can only be received as an exhibit if it is then offered by an adverse party.

Question 33

Federal Rule of Evidence (FRE) 410 bars evidence of the following in ______ cases:

Answer 33

Federal Rule of Evidence (FRE) 410 bars evidence of the following in civil and criminal cases (knowing, voluntary waiver allowed):

withdrawn guilty pleas

nolo contendere pleas

statements made during plea proceedings and*

statements made during plea negotiations with the prosecution that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.*

exceptions exist for the latter two statements. Such statements are admissible if another statement from the same proceeding/discussion is introduced and the two statements should in fairness be considered together.

They are also admissible if the current proceeding is for perjury or false statement and the statement was made under oath, on the record, and with counsel present.

Question 34

rule of completeness

Answer 34

The rule of completeness allows a party to immediately respond to a writing or recorded statement that has been introduced by an opposing party. Under this rule, the responding party may introduce any part of the previously admitted writing or recorded statement, or any other writing or recorded statement, that in fairness should be considered at the same time.

A statement made subsequent to the first statement is admissible under this rule (if fairness req).

Question 35

past recollection recorded - Before invoking this exception, the party should

Answer 35

attempt to refresh the witness’s memory

If the witness still cannot sufficiently recall the events recorded, the past recorded recollection may be utilized.

Question 36

The best evidence rule requires production of an original or reliable duplicate of a document when its contents are at issue—i.e., when

Answer 36

(1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts learned from the document.

Question 37

character evidence is admissible substantively in rare instances when character (or a character trait) is an essential element of a ________,—e.g., in a defamation action. In such cases, character evidence can be introduced by any party through either:

Answer 37

civil claim, criminal charge, or asserted defense

reputation or opinion testimony
specific instances of conduct demoing that trait

Question 38

Waive attorney-client privilege by

Answer 38

Only client can waive privilege by:

voluntarily disclosing information to third party

voluntarily giving up privilege (eg, contractually)

failing to timely claim privilege (eg, after inadvertent disclosure)

failing to object to another’s disclosure of confidential information

Question 39

subsequent remedial measure (def)

Answer 39

a precaution taken after an injury has occurred that—if taken earlier—might have prevented the injury.

Question 40

A subsequent remedial measure is inadmissible to prove ______ but allowed for purposes such as…

Answer 40

inadmissible to prove negligence or other culpable conduct

resolving a dispute about the feasibility of precautionary measures

impeaching a witness

or

proving ownership or control.

Question 41

nonhearsay

A statement made by a party’s coconspirator is attributable to that party, and excluded from hearsay if

Answer 41

it was made during and in furtherance of the conspiracy—i.e., was part of the flow of information intended to help each coconspirator perform his/her role.

Question 42

a prior inconsistent statement may be used to impeach a witness on a material issue.

Answer 42

A party may impeach the witness with the statement by:

examining the witness about the statement or

introducing the statement through extrinsic evidence if (1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires.

Question 43

Bias is a basis to ______ witness testimony

Answer 43

impeach (NOT exclude witness testimony)

Question 44

An _______ does not qualify as a bad act that is admissible to attack a witness’s character for truthfulness.

Answer 44

arrest

(e.g. can’t ask witness a Q about being arrested for something he wasn’t convicted for)

Question 45

Statement against interest

Answer 45

Hearsay statement that reasonable person in unavailable declarant’s position would only make if true because it:

is contrary to declarant’s proprietary or pecuniary interest
tends to invalidate declarant’s claim against someone else

or

exposes declarant to civil or criminal liability

Question 46

Methods of Authenticating physical objects

Answer 46

Personal knowledge

Comparison (by expert or trier of fact)

Distinctive characteristics

Chain of custody (req for objects that could be tampered w or confused with similar thing)

X-ray images & electrocardiograms (Evidence showing accurate process was used, machine was working properly, machine operator was qualified & chain of custody - req method for authenticating physical representations of things that cannot otherwise be seen)

Question 47

Bases of expert’s opinion testimony

Answer 47

Expert opinion testimony may be based on facts/data:
- personally observed by expert
- made known to expert during trial OR
- made known to expert before trial if other experts would reasonably rely on fact/data when forming opinion

Otherwise inadmissible facts/data may be admitted if probative value in helping jury evaluate opinion substantially outweighs prejudicial effect

Question 48

Common exceptions to attorney-client privilege

Answer 48

Crime-fraud (furthering ongoing or future crime/fraud)

Deceased client (dispute on client’s testamentary intent)

Self defense (malpractice/ethical claim between client and attorney)

Fiduciary (if stockholders want disclosure and the comm constitutes legal advice between corporate fiduciaries & corp’s attorney)

Joint rep (joint client wants disclosure in subsequent litigation between joint clients for comm made during attorney’s prior representation of joint clients)

Question 49

Communications between an attorney and client are privileged and protected from disclosure, discovery, or admission in a legal proceeding if they were

Answer 49

(1) made to obtain legal advice and/or representation and (2) intended to be and kept confidential

Question 50

Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases. Under this rule, when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases), the court should apply ___________ to determine the effect of a presumption on the claim or defense.

Answer 50

state law

Question 51

When a federal court rules that the amount of damages is inadequate, it may:

Answer 51

order a new trial

(may NOT give the opposing party the option to avoid a new trial by agreeing to an increase in the amount of damages (i.e., additur))

Question 52

When a federal court rules that the amount of damages is excessive, it may offer [party] [relief]

Answer 52

For remittitur (D’s request to reduce jury award of excessive damages), Plaintiff must be offered choice between:

reduced damages or
new trial on damages

Question 53

If D fails to timely serve an answer and P shows this to court clerk, ____ must _____. Then, _____ can be entered by ____

Answer 53

the clerk must enter the defendant’s default into the record of the case.

Then, default judgment can be entered by the clerk or the court.

Question 54

Failure to serve answer.

The clerk must enter a default judgment when:

Answer 54

the plaintiff’s claim is for a sum certain (i.e., a specified or set amount) OR a sum that can be made certain by calculation

the plaintiff’s request for default judgment includes an affidavit establishing the amount due

the defendant failed to appear—i.e., did not file a motion or otherwise act before the court

AND

the defendant is not legally incompetent or a minor.

Question 55

A party must apply to the court for a default judgment ______

Answer 55

only when the court clerk is prohibited from entering a default judgment.

Question 56

Right to jury trial in civil case

Answer 56

Legal claim – seeks monetary remedy to compensate for loss (eg, tort/contract damages)

AND

> $20 in controversy

(No right if equitable claim or ≤ $20 in controversy)

Question 57

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to

Answer 57

(1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness’s testimony.

Question 58

Under Federal Rule of Evidence 104, the court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. In making this decision, the court is only bound by evidentiary rules regarding

Answer 58

privilege

Question 59

Both parties can present evidence at the hearing, but the hearing must occur outside the presence of the jury if:

Answer 59

the matter involves the admissibility of a confession

a defendant in a criminal case is a witness in a hearing on the matter and so requests

or

justice so requires—e.g., when the disputed evidence would prejudice a party if heard by the jury.

Question 60

“bursting bubble” approach

Question 61

A presumption is

Answer 61

a conclusion that can be drawn once a party proves an underlying fact or set of facts.

Question 62

To keep it out, the burden is on ______ to show that the probative value of the felony conviction is substantially outweighed by its prejudicial effect.

Answer 62

The burden is on the defendant—as the party opposing the admission of the conviction—to show that the probative value of the felony assault is substantially outweighed by its prejudicial effect.

Question 63

Self-authenticating evidence

Answer 63

Public documents with official’s signature &
certification by second official or seal

Certified copies of public records & records of regularly conducted activities

Newspapers, periodicals & official publications

Documents with trade inscription

Acknowledged documents

Commercial paper with signature & related documents

Question 64

Then-existing state of mind hearsay exception

Answer 64

State of mind (eg motive, intent plan) - admissible as substance

Emotional or physical condition (fear, pain, bodily health) - admissible as substance

Memory or belief - refelction on prior event or belief about matter is INADMISSIBLE unless related to declarant’s will

Question 65

What a judge can use to determine preliminary questions on admissibility of evidence

Answer 65

Any relevant evidence.

When determining if preliminary facts are met, ct not bound by FRE —except Common law privileges (BUT use state rules for diversity cases):

Attorney-client communications

Work product

Marital communications

Spousal immunity

Psychotherapist-patient communications

Clergy member-penitent communications

Question 66

FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to: ___________

Is this true when the party seeking to introduce such evidence was not a party to the agreement.

Answer 66

prove or disprove the validity or amount of a disputed claim

or

impeach by a prior inconsistent statement or contradiction.

___________

Yes

Question 67

A court may exclude otherwise relevant evidence when _______

Answer 67

its probative value is substantially outweighed by the danger of unfair prejudice

Question 68

Copy of official record—or of document recorded or filed in public office as authorized by law—is self-authenticating if copy is certified as correct by:

Answer 68

custodian or person authorized to make certification

document sealed & signed by government entity

OR

if no seal, document signed by employee of government entity & signature is certified as genuine by another public officer

Question 69

Admissibility of evidence on crim D’s character

Answer 69

Pertinent trait (404a)
- D may offer evidence of pertinent character trait by reputation or opinion testimony
- Prosecution may rebut with (1) reputation or opinion testimony; OR (2) Specific Instance of Conduct (only on cross)

Truthful character (608)
- If D testifies, prosecution may impeach with (1) rep or opinion; (2) SIC (only on cross); OR (3) extrinsic evidence of conviction for felony or crime of dishonesty
- D may rebut with: (1) reputation or opinion; OR (2) SIC (only on cross)

Question 70

curative admission

Answer 70

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal.

This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 71

Exceptions to best evidence rule

Answer 71

(A) Other evidence can be used to prove content if the original is unavailable:
1. originals lost or destroyed (not by proponent’s bad faith)
2. originals not attainable by judicial process
3. opponent had original, knew it was required & failed to produce or
4. content not closely related to controlling issue

(B) Contents can be proven by opposing party’s testimony, deposition, or written statement (Admission by party). Statements or conduct outside testimony/depo does NOT fall within exception.

(C) Public Record - Contents of public record can be proven by:
1. certified copy
2. copy of records & comparison testimony or
3. other evidence if above proof is not reasonably obtainable

Question 72

Admissibility of sexual behavior evidence

Answer 72

Conduct of Accused
- Evidence INadmissible except: cases of sexual assault or child molestation, where similar acts are admissible for any relevant purpose (Crim or Civil)

Conduct of Victim
- Evidence INadmissible except:
- CRIM: (1) to show person other than D was source of semen, injury, etc; (2) to show victim’s sexual behavior with D if offered by D to show consent or by prosecution; (3) when exclusion would violate D’s const rights

• CIVIL: when probative value substantially outweighs harm to victim & prejudice to party

Question 73

Hearsay exception for unavailable declarant’s testimony that:

Answer 73

was given at trial, hearing, or deposition in current case or different proceeding that involved similar parties & issues

and

is offered against party who had opportunity & similar motive to develop testimony by direct or cross-examination

Question 74

Hearsay exception: statements in a learned treatise, periodical, or pamphlet - admissible when_____ and admissible for_________.

Answer 74

the statements are called to the attention of or relied on by an expert witness during examination

and

the publication is established as a reasonably reliable authority by a party’s expert or judicial notice

Substantive evidence (but party may only have the particular statements read into evidence—the treatise itself cannot be received as an exhibit)

Question 75

Common crimes of dishonesty

Answer 75

Embezzlement

False pretenses

Criminal fraud

Perjury

Question 76

AC privilege - disclosure in state court proceeding now being offered in fed proceeding. what law applies?

Answer 76

fed ct will review fed rules and law of state where disclosure occurred - whichever law offers MORE protection will determine the effect of the disclosure
- that procedural rule applies to all federal cases (even those in diversity jx). But it does NOT apply if the state court issued an order concerning the effect of the disclosure - in that case state ct order would control.

Question 77

FRE disclosure of privileged comm operates as waiver unless

Answer 77

• disclosure of inadvertent
• privilege holder had taken reasonable steps to prevent disclosure
  AND
• privilege holder promptly took reasonable steps to rectify the error

Question 78

plain view doctrine

Answer 78

allows police to legally seize an item w/o a warrant if they (1) see the item in plain view, (2) immediately recognize it as contraband, and (3) are in the area lawfully.