Evidence MBE Practice Test 2017

This is a timed quiz. You will be given 60 seconds per question. Are you ready?

In a child sexual abuse case, the prosecution called a doctor to the stand to testify to statements made by the child victim regarding the abuse. She told the doctor during the medical examination after an extended period of abuse that she was slapped, hit and spanked by the defendant who was her mother’s boyfriend. She reported that he also penetrated her with his fingers. At trial, the prosecution put the doctor on the stand to testify, among other things, to those statements of the child. The defense objected on the basis of hearsay. Will the court likely exclude the child’s statements to the doctor?

Yes, the statements are too inflammatory in comparison to their probative value and they will be excluded.

Yes, the statements are hearsay and are inadmissible for the purposes of proving the abuse.

No, the statements are admissible as exceptions to the hearsay rule in that they are given for the purpose of medical diagnosis or treatment.

No, the statements are admissible as exceptions to the hearsay rule in that they are within the present sense impression exception to the rule.

Correct! Wrong!

The describing of the relationship with the mother’s boyfriend was such that his identity as the girl’s abuser was reasonably pertinent to her course of treatment. The abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes `reasonably pertinent' to the victim's proper treatment. The doctor questioned the girl regarding the incidents of abuse and the identification of the abuser for the purpose of deciding on treatment. There is no evidence the girl did not understand that she was seeking medical treatment when she made these revelations to the doctor.

A man slipped and fell on a loose step in a set of stairs leading up to the office of an apartment complex. He sued the apartment owners to collect for serious injuries suffered, and claimed that they were negligent in failing to inspect, maintain, and repair the stairs. The defendant apartment owners repaired the stairs and made improvements to its design shortly after the man filed the lawsuit. At trial, the plaintiff attempted to put into evidence proof of the repairs, mainly to show that the prior condition of the stairs was actually dangerous as the plaintiff claimed. The defendants objected to the evidence. What is the most likely decision of the trial court on the admissibility of the post-accident records of repairs?

Evidence of repairs is always admissible to show that the prior condition of the property was likely in need of repairs.

The evidence is admissible to show the guilty conscience and intent of the defendants.

The evidence is not admissible because its prejudicial effect outweighs its probative value.

The evidence is inadmissible because it is public policy to encourage the repairing of dangerous conditions, and it is felt that if such repairs were admissible that no one would make them.

Correct! Wrong!

Rule 407 of the Federal Rules of Evidence prohibits the introduction into evidence of subsequent remedial measures to prove negligence, culpable conduct, a defect in a product, a defect in product design, or a need for a warning or instruction. The rule is based on relevance and public policy concerns.

A member of a drug ring was arrested for murder and drug dealing. It was alleged that he killed a rival drug dealer in a hit ordered by his drug lord superiors. At trial, the prosecution called another member of the gang to testify that he had observed the defendant killing someone in an uncharged crime that occurred several years earlier. The witness was allowed to describe the prior circumstances to the jury. However, specific reasons why the evidence of past acts should be allowed were not elucidated by the prosecution, nor by the trial court in its decision to admit the uncharged homicide evidence. The defense objected to the evidence on appeal claiming that it was highly prejudicial. Under the circumstances, will the appellate court order a new trial because the evidence of an uncharged murder was presented to the jury?

No, because under Rule 404(b) of the Federal Rules of Evidence, any prior bad acts are admissible to show the bad character of the defendant

Yes, because under Rule 404(b) of the Federal Rules of Evidence, prior crimes, wrongs, or acts are admissible only for certain reasons that must be specifically developed prior to their admission.

No, because evidence of the uncharged murder was proof of the defendant’s propensity to act in accordance with his bad character trait.

Yes, because evidence of a prior uncharged murder is far more probative than it is prejudicial.

Correct! Wrong!

Rule 404(b) allows evidence of prior crimes, wrongs or acts to be admissible for purposes other than showing character, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution provided no further explanation beyond conclusory statements, and the district court similarly gave little explanation for its ruling admitting this highly sensitive evidence. Under the circumstances, its admission was far more prejudicial than its meager probative value. See US v. Murray, 103 F. 3d 310 (3d Cir. 1997).

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted". In a criminal trial, the prosecution wanted to prove that the defendant lived with his wife at a specified address. During a police search of the premises, the wife stated to officers that the defendant would “never come home while the police are still here.” The prosecution offered that statement into evidence at trial to prove that the defendant lived at that address. The defendant objected to admission of the statement because it was hearsay. Will the court exclude the statement under the hearsay rule?

No , the statement is not hearsay in that it was not offered in order to prove the truth of the assertion.

Yes, it is excludable hearsay because it was offered to prove the truth of the assertion.

No, the court will permit it because it is an excited utterance exception to the hearsay rule.

Yes, it will be excluded because its prejudicial effect outweighs its probative value.

Correct! Wrong!

The statement is not hearsay as it is not offered for the truth of the matter asserted. The assertion by the wife that the husband would not come home as long as the police were there, was not a contention in issue. The statement was offered to prove that the defendant lived there. Whether he would come home and, if not, why not, was not in issue. Therefore, the statement was not offered to prove the truth of the matter asserted and, by definition, was not hearsay. See Fed.R.Evid. 801.

A consumer sued a company that makes and installs security alarms, claiming fraud. The consumer alleged that the company knew that some of its representations and hardware did not work as advertised. Prior to purchasing a security system, employees of the company reprinted news articles about the financial worth of the company and about the effectiveness of their security equipment, and distributed the articles to the consumer. These articles contained false and misleading information that made the company appear more established and their equipment more reliable than in reality. At trial, the plaintiff consumer offered these articles into evidence. The defendant company objected to the articles on the basis that they were hearsay. What is the likely decision of the trial court regarding the evidentiary objection?

This non-hearsay evidence is admissible as an adoptive party admission.

This hearsay exception is admissible as a statement against interest.

This non-hearsay evidence is admissible as a prior statement of witness.

This is hearsay evidence that is not admissible.

Correct! Wrong!

Rule 801 of the Federal Rules of Evidence defines hearsay and gives two instances of non-hearsay evidence. One of these non-hearsay categories is Admissions by Party-Opponent. Rule 801(d)(2) covers the situation of an admission by party-opponent. 801(d)(2)(B) covers “a statement of which the party has manifested an adoption or belief in its truth…” In this question, the defendant company adopted the deceptive information in the news articles as its own, therefore making it a party admission, when it copied and distributed the material to customers.

In a personal injury case for damages suffered by plaintiff, a nurse at the treating hospital testified that the plaintiff failed or refused to take his prescribed medications on seven different occasions during his hospital stay. On cross-examination, it became clear that the nurse’s testimony was not based on personal knowledge as she was not at work during several of the instances she mentioned. In these several instances, the sole basis for her testimony was what she read in the medical charts, which were not in evidence at the trial. The defense objected to the evidence and asked that it be stricken. The trial judge overruled the objection. The plaintiff appealed the issue. What was the likely holding of the court of appeals regarding the nurse’s testimony?

The testimony was based on unauthenticated medical records not entered into evidence; the testimony was inadmissible hearsay, and not based on the witness’ personal knowledge.

The testimony was based on the nurse’s knowledge regarding the reliability of the medical records and, as such, she was qualified to testify on information from them.

The testimony was not allowed because it was irrelevant and immaterial.

The nurse, as a treating medical provider, was allowed to make inferences from the medical records and therefore the evidence was admissible.

Correct! Wrong!

Rule 602 of the Federal Rules of Evidence prohibits a witness from testifying to matters about which she has no personal knowledge. A foundation of personal knowledge must first be established. Here, the records upon which she based her opinions were not authenticated and not entered into evidence, making her testimony hearsay. If the records had been properly entered, her testimony might have been allowed if a proper foundation was established based on her familiarity with such records.

A criminal defendant was prosecuted for theft of tons of steel casings piled up on a vacant rural parcel of land. After taking the material, the authorities arrested him and told him that the land and the steel on it were owned by the state government. He defended on the basis that he did not have any criminal intent to steal because he reasonably believed that the steel casings were abandoned and rusting away needlessly. The judge instructed the jury that a man intends the natural consequences of his actions, and that if the defendant took the casings intentionally, then there was a presumption of sufficient mens rea to establish criminal intent. The act of taking in itself established a legal presumption of felonious intent. The defendant was convicted and he appealed on the basis that the judge’s applying of a presumption of criminal intent was erroneous. What is the likely decision on appeal?

The defendant could not have believed that so much steel was abandoned, and it was proper to apply a presumption of criminal intent by the fact of taking it.

The presumption here invaded the fact-finding province of the jury and in effect applied a legal presumption of guilt simply from the act of taking the property.

The presumption of guilty intent was proper because it can never be an innocent act to take property simply because it appears to be abandoned.

The presumption was improper because the court is not allowed to instruct the jury to make presumptions of any kind.

Correct! Wrong!

The jury must decide criminal intent not just from the act of taking, but from all of the circumstances in arriving at a decision of whether there was sufficient evidence of criminal intent. Legal presumptions of criminal intent are generally telling the jury to assume intent from an isolated fact and would prejudge a conclusion which the jury should reach of its own volition. Intent is decided from all of the facts, not just the act of taking something.

A bankruptcy attorney advised a client that he could be committing a crime if he did not disclose all assets on his personal bankruptcy schedules. The client signed a form agreeing that he had received specific legal advice from regarding the legal duty to reveal all assets. The client was later prosecuted for bankruptcy fraud for allegedly not fully disclosing assets in his bankruptcy papers. In the federal court prosecution, the United States Attorney subpoenaed the attorney to testify regarding the advice given to the client and to authenticate the acknowledgment signed by the client. The defendant objects to that evidence on the basis of it being inadmissible and in violation of the attorney-client privilege. What is the most likely decision of the trial court regarding the admissibility of the attorney’s proposed testimony and the exhibit?

The attorney-client privilege does not apply to situations where the lawyer is advising the client on legal duties that the individual has under the criminal laws, so that the evidence is admissible.

The advice and signed document are within the fraud-crime exception to the privilege and would be fully admissible.

The proposed evidence is not admissible because discussions about potential criminal behavior are always protected under the privilege.

The evidence is inadmissible because the communications did not in any way tend to further a crime by the client, and they constituted legal advice normally given with an expectation of confidentiality.

Correct! Wrong!

The privilege protects only communications made for the purpose of facilitating the rendition of professional legal services. If attorney is performing some ministerial act like sending a document to the client or informing him of a date set in the future, these are not the giving of professional legal services and thus are exempt from the privilege. If the attorney is acting as a business adviser or in some non-legal capacity, this is not protected by the privilege. Other exceptions to the privilege are if the material was intended to be disclosed, if they were not communications, or if they were agreed to be non-privileged. Also, if the communications are within the fraud-crime exception, and would tend to further the commission of a crime, they are not protected and are admissible. Here, this was classic legal advice, and it was not followed by the client and the advice did not serve to further the crime. See U.S. v. Bauer, 132 F.3d 504 (1997).

In a civil action for injuries, the plaintiff contended that the highway was slippery on the bridge where the auto accident occurred. She testified that the other driver was going too fast for the slippery conditions. The defendant driver of the other auto denied that the bridge was slippery and claimed that the accident happened when he had to veer his car to escape a pothole. The plaintiff denied that there were potholes on the bridge. Defendant admitted that it had been raining at some point prior to the accident. The judge, being familiar with the bridge, took judicial notice that its surface always gets slippery when there is rain, and that there are no potholes on it. The plaintiff won the case, and the defendant appealed on the basis that it was legal error for the court to take judicial notice of disputed facts. What will the appellate court decide?

It is proper for the court to take judicial notice of something that it knows from personal experience to be true.

The court has wide discretion in deciding what is appropriate for judicial notice, and the judge’s decision will not be disturbed on appeal.

It was reversible legal error for the court to take judicial notice of disputed facts on the basis of the judge’s personal beliefs regarding the issue.

The court could take judicial notice of any fact that was not critical to the decision of the jury, and the condition of the bridge surface was irrelevant to issues of negligence.

Correct! Wrong!

A judge can’t use judicial notice to enforce personal beliefs. Official weather records of precipitation times and amounts of rain, for example, could be a subject of judicial notice, but where there is a dispute about the slipperiness of a surface based on each driver’s testimony, it is up to the jury to decide that. It was reversible error for the judge to effectively take a credibility determination on a key point away from the jury. Judicial notice may be employed only if the facts in question are "not subject to reasonable dispute;" if they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

A man was arrested on a federal crime that prohibits a person who has a prior felony conviction from possessing a firearm. The prosecution is usually satisfied to prove the existence of a prior felony by reading the date and the offense to the jury. Despite objections from the defense, the prosecutor insisted, with the court’s approval, on putting the full details of the man’s prior conviction for sexual assault on the record by reading the indictment and other pertinent details. The man had offered to stipulate to the date and penalty of the offense, and to have the prosecution read that to the jury and nothing else. The prosecution went ahead and read to the jury all of the details of the prior sexual assault conviction. The jury convicted him of the firearm possession charge after deliberating for 30 minutes. On appeal, he objected again to the unfair prejudice that he suffered by the court’s ruling. Considering the case law interpretations of Rule 403 of the Federal Rules of Evidence, what is the most likely outcome.

The appeal will be denied on the basis that the prosecution is always entitled to introduce the details of the man’s prior conviction.

The appeal will be denied because in this case proving the charged crime involved the necessity of proving the details of the prior felony.

A new trial will be ordered because it was unfair to allow the prosecution to use that kind of detailed character evidence to try and inflame the jury to convict on the current charges.

A new trial will be ordered because evidence of sexual offenses is never admissible lest it taint the jury’s objectivity.

Correct! Wrong!

Evidence is unfairly prejudicial if it has an undue tendency to suggest decision on an improper basis. Propensity evidence carries the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment. This creates a prejudicial effect that outweighs ordinary relevance. The court must disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. See Old Chief v. United States, 519 US 172 (1997).

A man was injured in an auto accident. He sued the other driver, claiming that the driver was driving in the middle of the road coming toward him. He claimed that he had to swerve into a ditch to avoid a collision. The defendant driver countered that the plaintiff driver was the one who was speeding and driving in the middle of the road prior to losing control of his vehicle and going off the highway. To prove her contention, the defendant driver was allowed to introduce evidence, over strenuous objections, of several prior speeding convictions the plaintiff had in the past. The jury decided in favor of the defendant driver, and the plaintiff appealed due to the prejudicial admission of the speeding convictions. Will the appellate court likely hold that the convictions should have been excluded?

Yes, there is little probative value to the speeding convictions, and it is a violation of Rule 404(a) of the Federal Rules of Evidence to admit evidence of a character trait to try to prove conformity therewith.

Yes, the speeding convictions were inadmissible because they were only relevant to showing recklessness, which was not an issue in the case.

No, the speeding convictions were direct evidence of the intent of the plaintiff to drive recklessly in the subject accident.

No, the speeding convictions proved that the plaintiff was probably speeding just prior to the accident.

Correct! Wrong!

Federal Rule of Evidence 404(a) provides that evidence of a person's character or a trait of character is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and is excluded under the same principle as is reflected in Rule 403 — any probative value is "substantially outweighed by the danger of unfair prejudice." Such prior acts may be admissible in some cases for other purposes under Rule 404(b), such as motive or intent, but that is not applicable here.

Two businesses were involved in litigation concerning an alleged breach of contract. The plaintiff financial consulting business sued the defendant construction business claiming that the defendant breached the contract by not constructing a small office building properly as promised for the financial company’s specified needs. The construction business is accused of not following the professional engineering and architectural plans, and not getting environmental approvals as promised prior to beginning construction. The defendant offered into evidence a series of letters that were highly supportive of the defendant’s position but which were made and sent to various entities after the dispute with the plaintiff had already mushroomed and within 30 days of the scheduled trial. The material included one in-house memorandum made on the eve of trial which purported to give the “history and background of the transaction.” The plaintiff filed a motion in limine to exclude from the trial these items as being hearsay. Will the trial court likely exclude these alleged business records?

Yes, the documents were not kept in the course of a regularly conducted business activity in that they were essentially drawn up in anticipation of litigation.

Yes, the documents were excludable because they were not the records of public offices or governmental agencies.

No, the documents were admissible as being records of a regularly conducted activity, which is an exception to the hearsay rule.

No, the documents were admissible as recorded recollection, which is an exception to the hearsay rule.

Correct! Wrong!

These documents were not a proper exception to the hearsay rule pursuant to Rule 803 of the Federal Rules of Evidence. Rule 803(6) makes records of regularly conducted activity of a business admissible because, presumably, they would be reliable by being routinely kept. However, here it is strongly suggested by the facts that the records were made up specifically in anticipation of litigation, close to trial and not close to the time when they would have been more reliable and timely.

A woman called 911 from a store near her apartment building stating that “my husband just pulled a gun out and threatened to kill me.” There had been a call from other residents of the building seven minutes earlier complaining about an ongoing disturbance in the couple’s apartment. The police responded and arrested the husband for attempted murder, assault and terroristic threats. The prosecution offered the 911 transcript of the wife’s call into evidence to prove the truth of the matters related by the woman. The defense objected on the basis of hearsay. Will the court exclude the testimony as being hearsay?

Yes, it will be excluded because the prosecution wants to admit the statement to prove the truth of the woman’s statements to 911 and there is no applicable exception to the rule.

No, it will be admitted as being a ‘present sense impression’ exception to the hearsay rule.

Yes, the evidence is hearsay and it is not close enough in time to the actual event to qualify as a present sense impression.

No, the court will admit the evidence as being qualified as a recorded recollection exception to the hearsay rule.

Correct! Wrong!

This exception is set forth in Rule 803(1) of the Federal Rules of Evidence: “A statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The question often arises whether the statement has been made too long after the actual events, which would give the declarant time to reconsider and reconstruct her words. However, there are many cases that have approved the exception on a longer time gap. It is unlikely that ten minutes would be considered too long, especially under these facts where the events were still occurring and the arrest had not even been made. See, for example, United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995).

A small business owner was sued for breach of contract. In his answer, he claimed that he acted upon advice of his prior counsel to return the truckload of widgets that were delivered by the plaintiff company. He later repeated that contention in a deposition but refused to elaborate on the details because of the attorney-client privilege. At trial, the plaintiff company called the business owner’s prior attorney to question him on what advice he gave his client regarding the shipment and refusing to perform on the contract. The business owner objected on the basis that the conversations with his former lawyer were privileged. What is the most likely decision of the trial court regarding the objection to the evidence?

The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege

The testimony will be precluded because the privilege with respect to confidential communications to former counsel remained in effect and could not be waived in a pleading.

The privilege has been waived in the sense that when a party changes counsel, all privileged communications with prior counsel are no longer protected.

The privilege still stands and the testimony will be precluded because the raising of the defense in the answer is in itself privileged and not subject to further revelation.

Correct! Wrong!

A waiver has occurred where a party raises a claim or defense that puts privileged communications in issue. It is considered to be “fair play” to allow the other party to probe into the details of the advice given. See Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162-63 (9th Cir. 1992); United States v. Workman, 138 F.3d 1261 (8th Cir. 1998).

A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611 (c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?

When the direct examination is conducted during a videotaped depositions of a witness.

When the witness being examined on direct is an adverse party or a hostile witness.

When counsel is attempting to rehabilitate the testimony of the witness on re-direct examination.

When both counsel stipulate that they’ll not object to any leading questions during the trial.

Correct! Wrong!

When the witness is hostile or adverse, leading questions as if on cross-examination must be used. Also, a party may in civil cases call the opposing party to the stand “as of cross-examination” -- this requires the usual format of leading questions that one uses against adverse witnesses and parties. If the witness on direct is hostile or adverse, then cross-examination is vital to bring out the full import of the testimony effectively. See, for example, Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 12-13 (1st Cir. 1993) (hostile witness).

Two men discussed how to set up a drug network over the phone. The conversation was tape-recorded inadvertently by one of them. The one who did the recording said on the tape that he had already contacted his cocaine sources to ratchet up the pace for starting up the business. The conspiracy continued from that point and became a full-fledged drug trafficking player within a few years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy about five years after the initial taped conversation. The tape recording was found in the first man’s belongings. The authorities attempted to introduce the tape at the trial of the second man, who had never possessed or seen the tape. The second man objected that the tape was hearsay and should be excluded. Will the court most likely exclude the tape?

No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

No, the tape is admissible because it was an adoptive admission against interest.

Yes, the tape must be excluded because it is pure hearsay without any applicable exception.

Yes, the tape must be excluded because it violated the constitutional right to privacy of the second man.

Correct! Wrong!

Out-of-court statements are not considered hearsay if they were made "by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). The determination of whether a statement was made during the course and in furtherance of a conspiracy "is a determination of fact that will be disturbed only if clearly erroneous." United States v. Bazemore, 41 F.3d 1431, 1434 (11th Cir. 1994).

A man was arrested and prosecuted for importing and selling heroin. In pre-trial proceedings, he objected to the introduction of two guns, one a short-barreled rifle which was modified with a silencer and the other a loaded .38 caliber handgun. They were found in his bedroom during a warranted search for drugs. They were in the drawers of a cabinet that had drug packaging materials and a scale on top of it. He argued that the guns were irrelevant to whether he had imported or sold heroin, and that the introduction of the weapons would unfairly inflame the jury. What is the likely decision of the trial court with respect to the defendant’s motion to exclude the weapons?

Guns are generally considered to be tools of the drug trade and in this case their nature and location made them relevant and admissible.

Evidence of the possession of guns without there being any gun charges makes the evidence always inadmissible.

The guns are inadmissible because they do not tend to prove or disprove whether the defendant was trafficking in drugs.

The evidence is inadmissible because its probative value is not enough to outweigh its probable inflammatory effect on the jury.

Correct! Wrong!

See United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999). (Guns are tools of the drug trade and are commonly recognized articles of narcotics paraphernalia."). There is a well-known and attested-to link between drug distribution and firearms. United States v. Perry, 560 F.3d 246, 251 (4th Cir. 2009). Guns are generally considered tools of the drug trade. It if was a hunting rifle in another room that would be strongly argued to be irrelevant but guns that are configured for violent use that are placed near to the drug operations are relevant to prove the defendant’s participation in drug activities. In addition, their probative value outweighed the prejudicial effect of entering them.

In a civil rights case, a former employee sued her former employer for racial discrimination in terminating her from her job. The employee proved the facts required to raise a presumption of racial discrimination against the employer. At that point, the burden of going forward shifted to the employer, who presented evidence that there was an innocent, non-discriminatory reason for firing her. Which of the following best describes the procedural posture of the case and the plaintiff’s remaining evidentiary burden?

The plaintiff still retains the burden of persuasion of proving discrimination by a preponderance of the evidence.

The plaintiff’s case has been defeated by the defendant’s evidence in rebuttal of the presumption – the court will direct a verdict in favor of the defendant.

The burden of proof and persuasion has shifted to the defendant who must now persuade the jury that there has been no racial discrimination.

The plaintiff retains the burden of persuasion of proving discrimination by a clear and convincing weight of the evidence.

Correct! Wrong!

The presumption imposes on the defendant the burden of going forward with evidence to rebut the presumption. But the defendant does not also assume the burden of proof in the sense of the risk of nonpersuasion. The plaintiff retains the burden of ultimate persuasion of the elements required, by a preponderance of the evidence. In other words, if the defendant presents proof that tends to rebut the presumption of discrimination, the presumption falls away, and the plaintiff must still prove her case by a preponderance of the evidence. See Fed. Rules of Evidence No. 301. See St. Mary's Honor Center v. Hicks, 509 US 502 ( 1993).

The main witness against the defendant in a federal drug prosecution was an individual who was addicted to cocaine, had been hospitalized several times for psychotic experiences, and suffered from several mental illnesses. He arrived in court apparently lucid and ready to testify. The defendant objected to the testimony on the basis that the witness was incompetent to testify due to past mental illnesses. The judge questioned the witness, who stated that he understood the nature of the oath as a witness, that his memory of the events was clear, and he was not under the influence of any chemicals or alcohol. The defense was allowed to cross-examine the witness on his competency. The judge allowed the testimony, which was sufficient to convict the defendant. On appeal, the defendant raised the long mental history of the witness and argued that the judge should have held a detailed fact-finding hearing to determine the competency of the witness. What is the likely decision of the federal appellate court?

The case should be remanded with instructions for the judge to caution the new jury regarding the several hospitalizations and tendency to psychotic episodes of the witness.

The case is remanded because the court should have appointed independent medical experts to examine the witness and report to the court in a formal hearing to determine competency.

The appeal is denied because the judge made appropriate inquiries and she did not abuse her discretion in deciding that the man was capable of testifying.

The appeal is denied because in federal court all witnesses are competent to testify under any circumstances.

Correct! Wrong!

Rule 601 of the Federal Rules of Evidence states the general rule that “[e]very person is competent to be a witness…” This is a broader rule than in most state courts where there are still tests for competency. Despite the sweeping statement of competency in the federal rules, however, it is still held that the trial judge has wide discretion in determining the competency of the witness. Rarely will the trial judge’s determination be overruled, except in an egregious case of complete incompetency of the witness.

In a breach of contract case between two large commercial companies, the issues in dispute involved large amounts of business records. The plaintiff company called its custodian of records to the stand to qualify a set of records as business records for purposes of excepting them from the hearsay rule. On cross-examination the custodian admitted that he did not personally keep the records at the time of the events in dispute because he was only recently hired by the company. He also admitted that he had no knowledge of the contents of the records but could only testify that they were apparently kept in the normal course of business according to set procedures of the company. He testified to the normal record-keeping procedures of the company at the that time, and that it appeared that all of those procedures were followed. The defendant company objected on the basis of hearsay by arguing that the custodian was not qualified to authenticate the records. Will the trial court likely deny admission of the records?

No, the records will be admitted on the basis of past recollection recorded, which is an exception to the hearsay rule.

Yes, the records will be excluded because the custodian is not familiar with the actual procedures that were used at the time of the events.

No, the records will be admitted on the business records exception to the hearsay rule because the custodian is knowledgeable enough about the procedures to verify that they are business records.

Yes, the records will be excluded because the custodian had no way of saying that the records were recorded at or near the time of the recorded event.

Correct! Wrong!

Rule 803(6) of the Federal Rules of Evidence allows admission of records of regularly conducted business activities. The foundation requirement for Rule 803(6) "may be satisfied by the testimony of anyone who is familiar with the manner in which the document was prepared, even if he lacks firsthand knowledge of the matter reported, and even if he did not himself either prepare the record or even observe its preparation." 4 Louisell and Mueller, Federal Evidence, § 446, at 663-64 (1979). Objections to the identity or competency of the actual preparer may be relevant to the evidentiary weight or credibility of the documents, but do not affect their admissibility. See United States v. Smith, 609 F.2d 1294, 1302 (9th Cir.1979) (quoting United States v. Evans, 572 F.2d 455, 490 (5th Cir.1978).

In a lawsuit for personal injuries allegedly arising from a surgical procedure, the plaintiff claimed total disability due to the improper implantation of metallic screws to treat a disabling lumbar spine condition. She offered the testimony of an orthopedic surgeon, whose qualifications were uncontested, to testify to causation. The expert testified in his deposition that he did not examine the plaintiff but did examine medical records, except for x-rays. He testified that the surgery caused the disability. He admitted to other causes that could have the same effect, but testified without explanation that he didn’t think they were applicable. He testified to the surgeon’s negligence but didn’t say how it caused the present disability. The defendant filed a motion to exclude the expert from testifying because the proposed testimony did not satisfy the requirements of Rule 702 of the Federal Rules of Evidence. What is the trial court’s likely decision under these facts?

The testimony is reliable due to the fact that the expert’s qualifications were uncontested, and the testimony will be admitted.

The testimony is reliable because it is based on the expert’s examination of the best evidence, which is the actual medical records of the surgery, and it’s therefore admissible at trial.

The testimony is not admissible at trial because the science related to metallic screws and devices is an inexact science that is not accepted widely in the community of orthopedic surgeons.

The testimony is inadmissible because it’s speculative, recites unsupported conclusions, is not based on a personal examination, and it does not explain how the alleged negligence caused the disability.

Correct! Wrong!

Unsupported speculation and conclusions does not meet the reliability requirements of the Daubert test as embodied in Rule 702. There was no personal examination, and no examination of x-rays, which puts the testimony in the speculative realm from the beginning. No explanation of why other causes are ruled out. These all make this highly speculative testimony. Furthermore, the proposed testimony does not even explain how the alleged negligence caused the actual current symptoms. See, for example, McCollin v. Synthes Inc., 50 F. Supp. 2d 1119 (D. Utah 1999).

In a murder prosecution, the prosecution offered into evidence numerous photos of the decedent lying in a puddle of her own blood, of the bruises and marks on her body, and other aspects of the death scene. The defense objected to the photos on the basis that its probative value was outweighed by the danger of unfair prejudice in allowing the jury to see them. Will the trial court exclude the photos?

Yes, the blood and gory sights will only serve to inflame the passions of the jury and to confuse the jurors.

No, because the photos portray the details of how she was killed and the possible methods used to kill her, which is important information for the jury to consider.

No, because the photos were only background evidence and the judge will simply advise the jury of that fact and to not place much weight on such matters.

Yes, because it is crucial to keep out all evidence that may have the potential of causing prejudice to the defendant.

Correct! Wrong!

Rule 403 of the Fed. Rules of Evidence permits the court to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice or other factors. The rule is to be applied cautiously and sparingly. The fear of unfair prejudice does not work to keep vital details of the murder and how it happened away from the jury. See, for example, U.S. v. McRae, 593 F.2d 700, 707 (5th Cir. 1979), cert. denied, 444 U.S. 1024 (1979).

A criminal defendant was charged with bank robbery. Prior to trial, he filed a motion in limine, asking the court to exclude from the trial evidence of his prior convictions for assault, forgery and involuntary manslaughter. The defendant wanted to testify on his own behalf but needed an advance ruling to determine whether his prior convictions would be allowed into evidence for purposes of impeaching his credibility. Under Rule 609(a)(2) of the Federal Rules of Evidence, certain kinds of prior convictions are always admissible for impeachment purposes. Under Rule 609(a)(2), the following would be definitely admissible for impeachment purposes if the defendant takes the stand, without further analysis:

The prior convictions of assault, forgery and involuntary manslaughter would all be admissible for impeachment purposes under 609(a)(2).

Only the forgery conviction would be per se admissible for impeachment purposes under Rule 609(a)(2).

Both the forgery and the assault convictions are admissible for impeachment purposes under Rule 609(a)(2).

None of the prior convictions are admissible for impeachment purposes under Rule 609(a)(2).

Correct! Wrong!

Rule 609(a)(2) provides for the use of any prior conviction involving “dishonesty or false statement” for purposes of impeaching credibility. Convictions of these crimes are admissible without regard to the balancing test of Rule 403. See United States v. Kiendra, 663 F.2d 349, 353-55 (1st Cir.1981). In fact, admission of these is mandatory, and not within the discretion of the district court. Id.; United States v. Tracy, 36 F.3d 187, 192 (1st Cir.1994), cert. denied, 514 U.S. 1074, 115 S.Ct. 1717, 131 L.Ed.2d 576 (1995) (citing H.R. Conf. Rep. No. 93-1597, 93rd Cong., 2d Sess. 9, U.S. Code Cong. & Admin.News 1974, 9. 7098 (1974)). These “crimen falsi” crimes involve some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify untruthfully. Forgery is clearly in that category but the other two offense would not inherently call up issues of dishonesty. Courts considering forgery in light of Rule 609(a)(2) have concluded it is a crime of dishonesty. See, e.g., United States v. Owens, 23 Fed. Appx. 550 (7th Cir.2001); United States v. Newman, 849 F.2d 156 (5th Cir.1988); United States v. Bay, 748 F.2d 1344 (9th Cir.1984). See also, US v. Mahone, 328 F. Supp. 2d 77 (D. Maine 2004).

A plaintiff in a civil rights action against a municipality offered into evidence a tape recording of a police officer telling another officer to plant incriminating drug evidence on the plaintiff’s property. The plaintiff had received the tape in a large box of material turned over as a result of a discovery request to the municipality. The plaintiff called a city official to authenticate the tape. However, the defense made a motion to exclude the tape based on the prior testimony of the purported two speakers, who both testified that they did not recognize their voices. This raised a factual question regarding the authenticity of the tapes. The court overruled the objections to the tape and allowed it into evidence. The defendants appealed, claiming that the court abused its discretion in approving the authentication of the tape. Will the appellate court rule that the tape should have been excluded?

Yes, because the evidence must be proved to be authentic beyond a reasonable doubt before it can be admitted.

Yes, because the defendants will be severely prejudiced by having the jury listen to a tape that is possibly bogus.

No, because the party offering the evidence must only provide “prima facie” proof that it is what it purports to be; the final question can be decided by the jury.

No, because tapes are self-proving items that don’t have to be authenticated, and are left to the jury to determine the weight to be given to them.

Correct! Wrong!

Rule 901 of Fed.R.Evid. deals with Authentication and Identification. F.R.E. 901(a) requires "evidence sufficient to support a finding that the matter in question is what its proponent claims," but does not definitively establish the extent of the proof that is required. The comparison of a tape-recorded voice and the voice of a witness is primarily a matter for the jury to decide. Thus, the tape will be allowed into evidence if some preliminary evidence is given to support its genuineness, and then it’s up to the fact-finder to determine if the tape is ultimately genuine or not. See, for example, Ricketts v. City of Hartford, 74 F. 3d 1397 (2nd Circ. 1996).

A woman fell on a sidewalk that was covered with ice and snow. The sidewalk was part of the apartment complex where she resided. Another resident of the complex witnessed the woman falling and violently landing on her neck. The witness immediately said in a loud and agitated voice, “I told them an hour ago to clean this spot up but they did nothing.” At trial, the woman’s boyfriend offered testimony that he saw and heard the witness make the statement about informing the defendants to clean it up, thus proving notice and knowledge by defendants of the condition. The apartment management objected to the statement on the basis of hearsay. Which exception to the hearsay rule applies to allow this statement into evidence?

Present sense impression

Excited utterance

Prior statement by witness.

Statement of present state of mind or emotion.

Correct! Wrong!

An excited utterance is made within a very slight passage of time after the incident. It relates to a startling event or condition. The declarant must still be under the stress caused by the incident when she makes the statement. See, for example, David by Berkeley v. Pueblo Supermarket, 740 F.2d 230, 234-35 (3d Cir. 1984).

A witness in a criminal case testified to observing the defendant engaging in certain incriminating activities tending to show guilt of the charged crime. The defense tried to establish on cross-examination that the witness was the member of a street gang, and that he was probably trying to protect other, higher-up members of the gang. The defense attempted to detail the witness’ gang activities, the gang’s rules about protecting and lying for each other, and other in-depth descriptions of gang values and practices. The purpose of the line of questioning was to show the motives for the witness to slant or fabricate testimony against the defendant. The prosecution objected vehemently to the line of questioning and the judge sustained the objections. After the defendant was convicted, he appealed and argued as one of his issues the erroneous decision of the trial judge to preclude necessary cross-examination of the witness. What was the most likely decision and reasoning of the appellate court on that issue?

The witness’ separate activities in a gang are completely irrelevant to the charges in the case.

The witness’ possible motive for being biased against the defendant is a collateral issue that was totally a matter of the discretion of the trial judge.

Questioning the witness’ potential motive to be biased against the defendant should always be allowed even if the testimony will have great likelihood for prejudicial effect.

The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed.

Correct! Wrong!

A defendant has the right to cross-examine witnesses and expose a witness' motivation in testifying. Cross examining a witness to establish bias implicates a core value of the Sixth Amendment's Confrontation Clause. When the defendant is precluded from showing bias, then the Constitution becomes implicated. In this case, the defendant was prevented from getting a major defense proposition on the record, which was the possible plot between the witness and other gang members to frame this defendant.

A civil case for damages depended on whether the defendant was actually the man driving the identified vehicle at the time of the accident. It was established that others had access to the vehicle so that it was important to identify the person driving at that time. The plaintiff’s attorney asked a witness on direct examination if he saw the driver in the courtroom, and while saying that he pointed, almost instinctively, to the defendant’s table and to the defendant. The witness agreed with the pointing, and said, “Yes, that’s him!” The defendant vehemently objected and called for a mistrial, claiming that this was unfair leading of the witness into answering the ultimate issue of identity. The trial court denied the objections. The defendant appealed. Will the appellate court likely order a new trial?

Yes, the plaintiff’s attorney manipulated the witness’ testimony on the ultimate issue of who was driving the car by impermissibly leading the witness to identify the opposing party.

No, cross examination is a far-reaching kind of questioning that cannot be limited in very many instances.

Yes, the examination was in violation of the rule that requires establishing a prior foundation before asking a question like that.

No, the examination was appropriate because the witness was still capable of saying whether he recognized the person or not.

Correct! Wrong!

The asking of leading questions on direct is generally forbidden. Here, it was directed wrongly toward identification of the opposing party, on the main critical issue in contention. That was highly prejudicial to the defendant and could not be corrected after the mistake was made.

The plaintiff’s decedent was an executive who died while piloting a small-engine aircraft made and marketed by the defendant company. The aircraft had plunged to the ground after he reported autopilot irregularities and an icing problem. At trial, the plaintiff tried to present evidence of a fatal plane crash two years earlier involving the same make and model plane. The pilot in that crash called in to report icing problems but didn’t mention autopilot problems. In the present case, the decedent’s aircraft plunged nose-down into a field, whereas in the earlier crash the plane hit the trees at a slight angle only. The two planes had been flying at significantly different altitudes. The theories of causation are different in the two cases. The trial court disallowed the evidence because it had low probative value that was outweighed by a high danger of prejudicial effect. The jury decided against the plaintiff, who then appealed the evidentiary exclusion of the prior accident. What will the appellate court likely decide?

A new trial is required so that the similarities in the two crashes can be reviewed and evaluated by a jury prior to making its decision.

A new trial is necessary because the evidence of the earlier crash has probative value in showing how easily the defendant’s aircraft fail to respond to emergency situations.

The trial court’s decision is affirmed because the evidence of what caused a separate air crash is never relevant or admissible to prove what caused the subject crash.

The trial court’s decision is affirmed because there are too many differences between the two crashes, with the potential for prejudice outweighing any probative effect.

Correct! Wrong!

The main question to be decided is whether the earlier event is similar enough to allow for valid comparisons. See, Nachtsheim v. Beech Aircraft Corp., 847 F. 2d 1261 (7th Cir. 1988). A trial court’s balancing of factors under Fed.R.Evid. 403 is governed by the abuse of discretion standard and will be accorded “great deference” on appeal. Before the proponent can admit evidence of similar accidents it must establish substantial similarity before the evidence will be admitted. Nachtsheim, 847 F. 2d at 1268-69. As the circumstances and conditions of the other accidents become less similar to the accident under consideration, the probative force of such evidence decreases. At the same time, the danger that the evidence will be unfairly prejudicial remains. Id at 1269. See also McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981) (trial court has great discretion). In this case, the two events were clearly too different from each other to allow the earlier one into evidence.

In an employment law litigation, a former police officer sued a municipality for wrongful termination, alleging race discrimination and retaliation. The complaint was filed in a United States District Court. At trial, after the direct and cross-examination of the former officer was completed, the federal trial judge decided to clarify the plaintiff’s testimony for the jury. He asked about a dozen questions, taking the former officer through the procedures for reporting violations of office protocol, which was a key issue. Various details of the proper protocol were elicited by the judge’s questions. He ended the questioning and asked both counsel if they had anything further to add. They declined to add anything further. The jury came in with a substantial verdict in favor of the plaintiff. On appeal, the municipality argued that the judge’s questioning was in effect advocating on behalf of the plaintiff and prejudiced the jury against the defendant. What is the likely decision of the appellate court on that issue?

A judge should not show favoritism toward one party, and that was the general appearance of such extensive questioning, making a new trial necessary.

The judge’s questioning favored the plaintiff’s side of the case by showing how the office ran and what procedures were supposed to be followed -- a new trial will be ordered.

The court has an absolute right to question on behalf of a plaintiff or a defendant at his own discretion.

The judge conducted a fair questioning that brought out necessary details that the jury might have missed – a judge has the absolute authority to question witnesses as long as it is done fairly.

Correct! Wrong!

The trial judge's authority to question witnesses is beyond dispute. See Fed. R.Evid. 614(b). A judge reaches beyond this authority when he or she abandons the proper role and assumes the role of an advocate or betrays "even a hint of favoritism toward either side." Ross v. Black & Decker, Inc., 977 F. 2d 1178 (7th Cir. 1992); see also Fed.R.Evid. 614(b), advisory committee's notes. The questioning here was done for the proper purpose of clarifying the questioning and bringing out objective facts. It was tempered by the judge offering both counsel to add more questioning at the end. A modest 12 questions was not overbearing in any way. See U.S. v. Slone, 833 F.2d 595, 597 (6th Cir. 1987) (discussing situations requiring clarification).

A young man was arrested for statutory rape involving a fifteen-year-old girl. The girl had identified him as the person with whom she was having sexual relations. He asserted in his defense that the girl was sexually active and that she had intercourse with other men but not with him. He tried to offer into evidence testimony regarding the prior sexual activities of the girl and to identify other men with whom she had sexual encounters. Part of the defendant’s evidence would describe the girl’s need and desire to cover-up her other relationships, which gave her a motive to wrongly accuse the young man. Is the evidence admissible on the defendant’s behalf?

It is admissible to show that one or more others may have raped her instead of the defendant, and that she had a motive to want to blame the young man and to cover-up the other relationships.

It is inadmissible under the rape shield provision of the federal rules because it is trying to cast aspersions that are irrelevant to the charges against the defendant.

It is admissible because an individual’s prior sexual activities are always admissible to show bad character of the victim.

It is inadmissible due to the likelihood that the defendant will merely try to dig up “dirt” regarding the victim’s reputation that has no relevancy to his specific charges.

Correct! Wrong!

In Olden v. Kentucky, 488 U.S. 227 (1988), the Supreme Court held that the defendant had a constitutional right to introduce evidence of the complainant’s relationship with another man in order to show that she had a motive to falsely accuse the defendant of rape. Rule 412 of the Federal Rules of Evidence prohibits evidence of prior sexual behavior of the victim, but it excepts from the rule situations where the evidence may prove that a person other than the accused may be the source of the semen, injury or other physical evidence. Further, the Rule makes an exception in criminal cases for evidence that the defendant has a constitutional right to present in his defense.

Evidence MBE Practice Test 2017

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