Bar Exam Evidence 2

Question 1

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

Accepted Answer

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

Answer

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.

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?

Accepted 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

Answer

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.

Question 3

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

Accepted Answer

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

Answer

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.

Question 4

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

Accepted 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

Answer

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.

Question 5

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

Accepted Answer

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

Answer

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.

Bar Exam Practice Test

Bar Exam Practice Test

Bar Exam Evidence 2