CO Bar Evidence 2 — Questions and Answers
Question 1: A witness testifies that she heard the defendant's neighbor shout 'Watch out, he has a knife!' during the altercation. The neighbor is unavailable at trial. The statement is most likely admissible as:
- An excited utterance under FRE 803(2) (Correct answer)
- A dying declaration
- A statement against interest
- Former testimony
Correct answer: An excited utterance under FRE 803(2)
A spontaneous statement made under the stress of a startling event qualifies as an excited utterance, admissible regardless of the declarant's availability.
Question 2: In a civil negligence case, the plaintiff offers evidence that the defendant repaired a broken stair railing one week after the plaintiff fell. This evidence is:
- Inadmissible to prove negligence, as a subsequent remedial measure (Correct answer)
- Admissible to prove the defendant's negligence
- Admissible as an admission by conduct
- Inadmissible hearsay
Correct answer: Inadmissible to prove negligence, as a subsequent remedial measure
FRE 407 bars subsequent remedial measures to prove negligence or culpable conduct, though they may be admissible for other purposes like ownership or feasibility if disputed.
Question 3: A prosecutor seeks to impeach a defendant-witness with a 12-year-old felony conviction for embezzlement, and the defendant was released from confinement 11 years ago. The conviction is admissible only if:
- Its probative value substantially outweighs its prejudicial effect and reasonable written notice is given (Correct answer)
- The crime involved dishonesty, making it automatically admissible
- Its probative value outweighs its prejudicial effect
- The defendant opens the door by testifying to his good character
Correct answer: Its probative value substantially outweighs its prejudicial effect and reasonable written notice is given
Under FRE 609(b), convictions more than 10 years old (measured from conviction or release, whichever is later) require the heightened reverse-403 balancing plus written notice.
Question 4: During settlement negotiations in a disputed claim, the defendant said, 'I know my driver ran the red light, but I'll only pay half.' At trial, the plaintiff offers this statement. It is:
- Inadmissible, because statements made during compromise negotiations are excluded (Correct answer)
- Admissible as an opposing party's statement
- Admissible because factual admissions are severable from settlement offers
- Inadmissible only if the defendant objects on hearsay grounds
Correct answer: Inadmissible, because statements made during compromise negotiations are excluded
FRE 408 excludes both offers to compromise and statements made during compromise negotiations of a disputed claim, with no severability for factual admissions.
Question 5: A party offers a properly authenticated photocopy of a signed contract. The opponent objects under the best evidence rule, arguing the original must be produced. The photocopy is:
- Admissible, because duplicates are admissible unless there is a genuine question about the original's authenticity (Correct answer)
- Inadmissible, because the best evidence rule always requires the original
- Admissible only if the original is shown to be lost or destroyed
- Inadmissible unless both parties stipulate to its accuracy
Correct answer: Admissible, because duplicates are admissible unless there is a genuine question about the original's authenticity
Under FRE 1003, a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or admission would be unfair.
Question 6: In a murder prosecution, the defendant offers reputation evidence that the victim was a violent person, to support a self-defense claim. The prosecution may respond by:
- Offering evidence of the victim's peaceful character and the defendant's violent character (Correct answer)
- Offering only rebuttal evidence about the victim's character
- Objecting, because victim character evidence is never admissible
- Offering specific acts of the defendant's violence in its case-in-chief
Correct answer: Offering evidence of the victim's peaceful character and the defendant's violent character
Under FRE 404(a)(2), once the defendant attacks the victim's character, the prosecution may rebut with the victim's good character and offer evidence of the defendant's same character trait.
Question 7: A treating physician is called to testify that the plaintiff told her, 'I was hit by a blue pickup truck and my lower back has hurt ever since.' Which portion is admissible under the medical diagnosis or treatment exception?
- The statement about back pain, but generally not the identification of the truck's color (Correct answer)
- The entire statement, because it was made to a physician
- None of it, because the statement was made after litigation began
- Only statements made to a non-treating expert retained for trial
Correct answer: The statement about back pain, but generally not the identification of the truck's color
FRE 803(4) admits statements reasonably pertinent to diagnosis or treatment, such as symptoms and general cause, but details like the vehicle's color are typically not pertinent to treatment.
CO Bar Evidence 2
A witness testifies that she heard the defendant's neighbor shout 'Watch out, he has a knife!' during the altercation.
The neighbor is unavailable at trial.
The statement is most likely admissible as: