DE Bar Evidence 2 — Questions and Answers
Question 1: Under the Delaware Rules of Evidence, a plaintiff offers a bystander's out-of-court statement, 'That truck just ran the red light!' made seconds after a crash. The statement is most likely admissible as:
- A present sense impression or excited utterance (Correct answer)
- A statement against interest
- A prior consistent statement
- A recorded recollection
Correct answer: A present sense impression or excited utterance
A spontaneous statement describing an event made immediately after perceiving it qualifies as a present sense impression or excited utterance under D.R.E. 803(1) and 803(2).
Question 2: In a Delaware civil trial, a party seeks to impeach a witness with a felony conviction that is 12 years old, measured from release. The conviction is admissible only if:
- Its probative value substantially outweighs its prejudicial effect and reasonable written notice is given (Correct answer)
- The witness is a party to the case
- The conviction involved violence
- The judge finds the witness is lying
Correct answer: Its probative value substantially outweighs its prejudicial effect and reasonable written notice is given
Under D.R.E. 609(b), convictions more than 10 years old require that probative value substantially outweigh prejudice plus reasonable written notice to the adverse party.
Question 3: A defendant in a Delaware assault prosecution offers evidence of the victim's violent character to show the victim was the first aggressor. This evidence is:
- Admissible as pertinent character evidence of the victim offered by the accused (Correct answer)
- Inadmissible because character evidence is never allowed in criminal cases
- Admissible only if the victim testifies
- Admissible only in homicide cases
Correct answer: Admissible as pertinent character evidence of the victim offered by the accused
Under D.R.E. 404(a)(2), an accused may offer evidence of a pertinent character trait of the alleged victim, such as violence, to support a first-aggressor theory.
Question 4: During settlement negotiations over a disputed claim, a defendant says, 'I'll pay you $50,000, and honestly the brakes were bad.' At trial, the plaintiff offers the brake admission. Under D.R.E. 408, the statement is:
- Inadmissible because statements made in compromise negotiations are excluded to prove liability (Correct answer)
- Admissible because factual admissions are always carved out
- Admissible because the offer was accepted
- Inadmissible only if a lawyer was present
Correct answer: Inadmissible because statements made in compromise negotiations are excluded to prove liability
D.R.E. 408 excludes both compromise offers and statements made during compromise negotiations when offered to prove liability or the amount of a disputed claim.
Question 5: A Delaware prosecutor offers a properly authenticated certificate of no record from the DMV to show the defendant was never issued a driver's license. This evidence is:
- Admissible under the hearsay exception for absence of a public record (Correct answer)
- Inadmissible hearsay because no declarant testifies
- Admissible only with live testimony from the DMV custodian
- Inadmissible as improper character evidence
Correct answer: Admissible under the hearsay exception for absence of a public record
D.R.E. 803(10) allows a certification that a diligent search failed to disclose a public record to prove the record's absence or the nonoccurrence of a matter.
Question 6: A witness testifies she cannot recall the license plate number she wrote down right after a hit-and-run. Her contemporaneous note is authenticated and meets D.R.E. 803(5). The note may be:
- Read into evidence, but received as an exhibit only if offered by the adverse party (Correct answer)
- Admitted as an exhibit by the proponent
- Excluded entirely because the witness is available
- Used only to refresh recollection, never read aloud
Correct answer: Read into evidence, but received as an exhibit only if offered by the adverse party
Under the recorded recollection exception, the record may be read into evidence but may be received as an exhibit only if offered by the adverse party.
Question 7: In a Delaware trial, an attorney asks the court to take judicial notice that Wilmington is in New Castle County. The court:
- Must take judicial notice if supplied with the necessary information, since the fact is not subject to reasonable dispute (Correct answer)
- May refuse because geography requires expert proof
- Must submit the question to the jury for an independent finding
- May take notice only in civil cases
Correct answer: Must take judicial notice if supplied with the necessary information, since the fact is not subject to reasonable dispute
Under D.R.E. 201, a court must take judicial notice of an indisputable fact generally known within the jurisdiction if a party requests it and supplies the necessary information.
DE Bar Evidence 2
Under the Delaware Rules of Evidence, a plaintiff offers a bystander's out-of-court statement, 'That truck just ran the red light!' made seconds after a crash.
The statement is most likely admissible as: