MBE Questions Flashcards
In an action by the plaintiff against the defendant, one of the issues is whether the defendant is a licensed physical therapist. Normally, the names of all licensed physical therapists are registered with the office of the state Department of Professional Registrations. The plaintiff wishes to introduce a certified document, signed by the chief registrar of the department (who cannot be located), stating that an examination of the department’s rolls does not disclose the defendant’s name.
Should the document be admitted?
Yes, because a statement of absence from a public record is admissable. Hearsay exception for public records provides that evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially, that a matter did not occur. Here, the defendant’s status as a licensed physical therapist would normally be revealed in the records of the department. The document here at issue is admissible, under the foregoing hearsay exception, as a means of proving that the defendant is in fact not licensed.
A pedestrian sued a driver after the driver’s car hit the pedestrian at an intersection. The pedestrian claims that the driver ran a stop sign and the driver contends that the pedestrian darted out into traffic. The pedestrian seeks to call her friend to the stand to testify that the pedestrian is an extremely cautious person who invariably obeys traffic laws.
Should the judge admit the friend’s testimony?
No because the pedestrians character is not in issue. This is NOT Habit evidence despite the word invariabily, Habit evidence is what one does in a specific set of circumstances, this is too vague.
During the trial of a personal injury case, the plaintiff calls a witness to testify that he saw the defendant spill a slippery substance in the roadway. Following the testimony of the witness, the defendant calls the witness’s neighbor, who testifies that the witness has a poor reputation for truthfulness in the community. The plaintiff’s attorney then cross-examines the neighbor, asking her, in good faith, if she committed the crime of false pretenses last year. Last year, the neighbor had in fact been charged with and convicted of the crime of false pretenses. The defendant’s attorney objects to this question.
Should the objection be sustained?
No because the lawyer asked the question in good faith. allowed to ask of acts of misconduct on cross examination if have reasonable belief witness did it.
A man filed a federal diversity action against a bus company, seeking damages for injuries he had sustained in an accident while riding a bus owned by the company. The man demanded a jury trial.
After the parties’ attorneys examined the prospective jurors and exercised their challenges, six jurors and two alternate jurors were chosen. During the trial, two jurors became ill and were replaced by the alternate jurors. At the conclusion of the trial, a third juror also became ill, and the court excused that juror.
The parties’ attorneys stipulated to the return of a verdict from a five-person jury. The jury then deliberated and returned a verdict for the company. The man timely filed a motion for a new trial, arguing that the five-person jury was not large enough to return a verdict.
Should the court grant the motion?
No because the parties stipulated to a verdict from a jury for fewer than six jurors. usually at least six jurors but issue can be waived if parties stipulate in agreement.
