Bar Exam Evidence 2 — Questions and Answers

Question 1: Under FRE 404(b), which of the following is a proper use of evidence of a defendant's prior bad acts?

To show that the defendant has a bad character and therefore acted in conformity with that character
To show the defendant's identity by demonstrating a unique modus operandi in both the prior act and the charged crime (Correct answer)
To suggest that because the defendant committed crimes before, he probably committed this one
To impeach the defendant's general credibility without any specific relevance

Correct answer: To show the defendant's identity by demonstrating a unique modus operandi in both the prior act and the charged crime

FRE 404(b)(2) allows evidence of prior bad acts (not convictions) for non-propensity purposes: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. A distinctive modus operandi connecting the prior act to the charged crime goes to identity — a permissible purpose.

FRE 404(b)(1) prohibits using evidence of other crimes, wrongs, or acts to prove a person's character and show that on the charged occasion the person acted in conformity with that character. FRE 404(b)(2) creates specific permitted uses: MIMIC (Motive, Intent, absence of Mistake, Identity, or Common plan/scheme) and others listed. For identity specifically, the prior act must be so similar to the charged act as to constitute a 'signature' or distinctive modus operandi — the similarity must be specific enough to identify the defendant as the perpetrator of both. Even when admitted for a proper purpose under 404(b), the evidence must also pass FRE 403 balancing — its probative value must not be substantially outweighed by the danger of unfair prejudice. The proponent must provide reasonable notice of intent to offer 404(b) evidence.

Question 2: Under FRE 801, an out-of-court statement offered to prove the truth of the matter asserted is hearsay. Which of the following is NOT hearsay?

A witness testifying that she heard Defendant say 'I killed him' to prove Defendant committed the murder
A witness testifying that he heard 'the brakes are bad' to show the owner had notice of the defect, not to prove the brakes were actually bad (Correct answer)
A diary entry by the victim stating 'Defendant threatened me yesterday' to prove Defendant made threats
A neighbor's statement to police that 'I saw Defendant running from the house' to prove Defendant was at the scene

Correct answer: A witness testifying that he heard 'the brakes are bad' to show the owner had notice of the defect, not to prove the brakes were actually bad

When a statement is offered not to prove the truth of the matter asserted but for a different purpose — such as proving knowledge, notice, or the effect on the listener — it is not hearsay. The statement about bad brakes, offered to show the owner had notice of the defect (not to prove the brakes were actually bad), is offered for a non-hearsay purpose.

The definition of hearsay under FRE 801(c) has two elements: (1) an out-of-court statement, and (2) offered to prove the truth of the matter asserted. If the statement is not offered to prove the truth of what it says, it is not hearsay and is admissible (subject to relevance and other rules). Common non-hearsay uses include: (1) Verbal acts — words that legally operative (contract formation, defamation, consent); (2) Effect on listener/reader — to show notice, knowledge, motive, or reason for conduct (the 'bad brakes' example); (3) Circumstantial evidence of state of mind — not to prove truth of the statement but to show declarant's mental state; (4) Prior inconsistent statements used only for impeachment (not for truth). If admitted for a limited purpose, the opponent may request a limiting instruction under FRE 105.

Question 3: Under FRE 702, what is required for expert testimony to be admissible after Daubert v. Merrell Dow Pharmaceuticals?

The expert's opinion must be generally accepted in the relevant scientific community
The testimony must be based on sufficient facts, reliable principles and methods, and reliably applied to the case facts (Correct answer)
The expert must be board-certified in the relevant field with at least 10 years of experience
The expert's opinion must be consistent with all other expert opinions offered by both parties

Correct answer: The testimony must be based on sufficient facts, reliable principles and methods, and reliably applied to the case facts

Daubert v. Merrell Dow Pharmaceuticals (1993) replaced the Frye 'general acceptance' test with a federal standard under FRE 702. The court (as gatekeeper) considers whether: (1) the expert's scientific knowledge will help the trier of fact; (2) the testimony is based on sufficient facts or data; (3) it is the product of reliable principles and methods; and (4) those methods are reliably applied to the case facts.

Before Daubert (1993), federal courts used the Frye test: evidence was admissible if it was generally accepted in the relevant scientific community. Daubert replaced Frye for federal courts with a more flexible, trial-court-administered reliability standard. FRE 702 (as amended in response to Daubert) requires: (1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact understand evidence or determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case. Daubert factors (non-exclusive): testability, peer review, error rate, and general acceptance. Kumho Tire Co. v. Carmichael (1999) extended Daubert to all expert testimony, not just scientific. Many state courts still use Frye — the MBE tests federal rules.

Question 4: Under FRE 613, which is the proper procedure for impeaching a witness with a prior inconsistent statement?

The prior statement must always be shown to the witness before questioning about it
The examiner may question the witness about the prior statement and must give the witness an opportunity to explain or deny it, either before or after extrinsic evidence is offered (Correct answer)
The examiner may introduce extrinsic evidence of the prior inconsistent statement without ever confronting the witness with it
Prior inconsistent statements may only be used if they are in writing and signed by the witness

Correct answer: The examiner may question the witness about the prior statement and must give the witness an opportunity to explain or deny it, either before or after extrinsic evidence is offered

FRE 613 allows a witness to be examined about a prior inconsistent statement. If extrinsic evidence of the statement is offered, the witness must be given an opportunity to explain or deny it (at any point, not necessarily before extrinsic evidence) — the rigid common law requirement to show the statement to the witness first was abandoned.

FRE 613 governs impeachment with prior inconsistent statements. Under FRE 613(a), when examining a witness about a prior inconsistent statement, the examiner need not show or disclose the statement to the witness, but must do so upon request by opposing counsel. Under FRE 613(b), extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny it and the opposing party is given an opportunity to examine the witness about it — but the rule is flexible about timing. Contrast with FRE 801(d)(1)(A): if a prior inconsistent statement was given under oath at a prior proceeding, it is not merely impeachment but is substantive evidence (non-hearsay). The key distinction: a prior inconsistent statement used only for impeachment is not hearsay (not offered for its truth); if offered for its truth as well, it must qualify under an exception or the 801(d)(1)(A) exemption.

Question 5: Which of the following is NOT a recognized exception to the hearsay rule under FRE 803?

A business record made in the regular course of business near the time of the event by someone with knowledge
A statement made for purposes of medical diagnosis or treatment
An excited utterance made while the declarant was under the stress of a startling event
A witness's written account of events made one week after the events, prepared for litigation (Correct answer)

Correct answer: A witness's written account of events made one week after the events, prepared for litigation

A written account prepared specifically for litigation, made a week after the events, is not a recognized hearsay exception. The business records exception (FRE 803(6)) requires regularity, near-contemporaneous recording, and knowledge — documents prepared in anticipation of litigation lack the indicia of reliability that justify the exception.

FRE 803 lists hearsay exceptions applicable regardless of whether the declarant is available. Common 803 exceptions include: (1) Present sense impression (803(1)): statement describing event made during or immediately after perceiving it; (2) Excited utterance (803(2)): statement relating to startling event, made while under stress; (3) Then-existing state of mind (803(3)); (4) Statements for medical diagnosis (803(4)); (5) Business records (803(6)): records kept in regular course of business, made at or near the time by a person with knowledge, as a regular practice; (6) Public records (803(8)). The critical limitation on business records: they are inadmissible if 'the source of information or the method or circumstances of preparation indicate a lack of trustworthiness' — documents prepared specifically for litigation, especially by interested parties, lack trustworthiness. Palmer v. Hoffman (2nd Cir. 1943) (adopted in FRE 803(6)) held accident reports prepared in anticipation of litigation do not qualify as business records.

Question 6: Under FRE 407, evidence of subsequent remedial measures is generally inadmissible. For which purpose may such evidence be admitted?

To show that the defendant's product was defective at the time of the accident
To prove negligence or culpable conduct
To prove ownership or control if those are disputed (Correct answer)
To establish that the product was unreasonably dangerous under a strict liability theory

Correct answer: To prove ownership or control if those are disputed

FRE 407 bars subsequent remedial measures to prove negligence, culpable conduct, defect, or a need for a warning. However, the evidence may be admitted for other purposes, including proving ownership, control, or feasibility of precautionary measures — if those issues are controverted.

FRE 407 excludes evidence of subsequent remedial measures (repairs, design changes, policy changes made after the incident) when offered to prove negligence, culpable conduct, a product defect, a need for warning, or the inadequacy of a warning. The policy rationale is to encourage defendants to make safety improvements without fear of that evidence being used against them. However, 407 permits the evidence for other purposes — ownership, control, feasibility of precautionary measures (when feasibility is controverted), or to impeach (when the defendant testifies that no safer design was possible). Controversy exists about whether 407 applies to strict liability claims — the 1997 amendment explicitly states that 407 applies to product liability cases to resolve the circuit split. The key test: is the evidence offered to prove one of the barred purposes, or a permitted purpose?

Bar Exam Evidence 2

Under FRE 404(b), which of the following is a proper use of evidence of a defendant's prior bad acts?