DE Bar Evidence 3 — Questions and Answers
Question 1: A murder defendant in Delaware calls a witness to testify to his reputation for peacefulness. On cross-examination, the prosecutor may ask:
- 'Have you heard' or 'did you know' questions about specific violent acts by the defendant, in good faith (Correct answer)
- Nothing about specific acts, since only reputation is at issue
- Only about the witness's own criminal record
- Questions proving the specific acts with extrinsic evidence
Correct answer: 'Have you heard' or 'did you know' questions about specific violent acts by the defendant, in good faith
Once a character witness testifies, the cross-examiner may inquire in good faith into relevant specific instances of the defendant's conduct, though extrinsic proof is not allowed.
Question 2: A plaintiff in a Delaware slip-and-fall case offers evidence that the store installed warning signs the day after her fall. The evidence is offered to prove negligence. It is:
- Inadmissible as a subsequent remedial measure (Correct answer)
- Admissible as an admission by conduct
- Admissible because safety evidence is always relevant
- Inadmissible only if the store objects on hearsay grounds
Correct answer: Inadmissible as a subsequent remedial measure
D.R.E. 407 bars evidence of subsequent remedial measures to prove negligence, though it may be admitted for other purposes like ownership, control, or feasibility if disputed.
Question 3: In a Delaware contract dispute, a party seeks to prove the contents of a written agreement through a witness's testimony, without producing the document or explaining its absence. Under the best evidence rule:
- The testimony is inadmissible because the original or an excuse for nonproduction is required (Correct answer)
- The testimony is admissible because witnesses may always describe documents
- The testimony is admissible if the witness signed the contract
- The rule applies only to photographs
Correct answer: The testimony is inadmissible because the original or an excuse for nonproduction is required
When proving the contents of a writing, D.R.E. 1002 requires the original (or a duplicate) unless its absence is satisfactorily explained under Rule 1004.
Question 4: A criminal defendant in Delaware wants to testify that his co-defendant, now deceased, told a friend, 'I did the robbery alone; my buddy wasn't there.' The statement is best analyzed as:
- A statement against penal interest by an unavailable declarant, admissible if corroborating circumstances indicate trustworthiness (Correct answer)
- An excited utterance
- A dying declaration
- Inadmissible double hearsay with no exception
Correct answer: A statement against penal interest by an unavailable declarant, admissible if corroborating circumstances indicate trustworthiness
Under D.R.E. 804(b)(3), a statement exposing the declarant to criminal liability offered to exculpate the accused requires unavailability plus corroborating circumstances of trustworthiness.
Question 5: A Delaware jury has returned a verdict, and a juror later offers testimony that jurors misunderstood the judge's instructions during deliberations. Under D.R.E. 606(b), this testimony is:
- Inadmissible, because jurors may not testify about statements or mental processes during deliberations (Correct answer)
- Admissible to prove the verdict was mistaken
- Admissible if all twelve jurors agree
- Admissible because instructions are extraneous information
Correct answer: Inadmissible, because jurors may not testify about statements or mental processes during deliberations
Rule 606(b) bars juror testimony about deliberations and mental processes, with narrow exceptions for extraneous prejudicial information, outside influence, or a clerical verdict error.
Question 6: An expert in a Delaware toxic-tort case bases her opinion on unpublished lab data that is inadmissible hearsay. Her opinion is:
- Admissible if experts in the field would reasonably rely on such data (Correct answer)
- Inadmissible because opinions must rest solely on admitted evidence
- Admissible only if the data is first admitted into evidence
- Inadmissible unless the opposing party stipulates
Correct answer: Admissible if experts in the field would reasonably rely on such data
Under D.R.E. 703, an expert may base an opinion on inadmissible facts or data if experts in the particular field would reasonably rely on them.
Question 7: Delaware follows which standard for admitting expert scientific testimony?
- The Daubert reliability standard as adopted by the Delaware Supreme Court (Correct answer)
- The pure Frye general-acceptance test
- A jury-decides-reliability approach
- Automatic admission if the expert is licensed
Correct answer: The Daubert reliability standard as adopted by the Delaware Supreme Court
Delaware has adopted the Daubert framework, requiring the trial judge to act as gatekeeper on the reliability and relevance of expert testimony under D.R.E. 702.
DE Bar Evidence 3
A murder defendant in Delaware calls a witness to testify to his reputation for peacefulness.
On cross-examination, the prosecutor may ask: