GA Bar Evidence 2 — Questions and Answers
Question 1: Under the Federal Rules of Evidence adopted in Georgia, a statement qualifies as a present sense impression if it describes an event and was made:
- During or immediately after perceiving the event (Correct answer)
- Within 24 hours of perceiving the event
- Before the declarant had time to consult an attorney
- While the declarant was under oath
Correct answer: During or immediately after perceiving the event
FRE 803(1) requires the statement to be made while or immediately after the declarant perceived the event, ensuring minimal time for fabrication.
Question 2: A defendant in a Georgia criminal trial seeks to admit a dying declaration made by the victim. Which element is NOT required for admissibility?
- The declarant believed death was imminent
- The statement concerned the cause or circumstances of the death
- The declarant actually died before trial
- The statement was made without opportunity for reflection (Correct answer)
Correct answer: The statement was made without opportunity for reflection
Under FRE 804(b)(2), a dying declaration requires belief of imminent death and that the statement concern the cause or circumstances; the absence of reflection time is not a listed element.
Question 3: Plaintiff sues a grocery store after slipping on a wet floor. The store argues the floor was not wet. A customer who was present texts her friend 'I just watched someone slip on a huge puddle in aisle 3!' seconds after the fall. This text is:
- Admissible as a present sense impression (Correct answer)
- Inadmissible hearsay because it is a written statement
- Admissible only if the customer is unavailable to testify
- Inadmissible because the customer is not a party
Correct answer: Admissible as a present sense impression
A text message qualifies as a present sense impression under FRE 803(1) because it was made immediately after perceiving the event regardless of its written form.
Question 4: Under Georgia's rape shield law, evidence of a victim's past sexual behavior is generally inadmissible EXCEPT to:
- Show consent through prior sexual conduct with the defendant or explain the source of physical evidence (Correct answer)
- Impeach the victim's credibility on cross-examination
- Demonstrate the victim's reputation in the community for sexual promiscuity
- Show the victim had motive to fabricate the charge
Correct answer: Show consent through prior sexual conduct with the defendant or explain the source of physical evidence
Georgia's rape shield law permits prior sexual behavior evidence only to show past acts with the accused (for consent) or to explain the origin of physical or forensic evidence.
Question 5: A business record is admissible under FRE 803(6) only if it was made:
- At or near the time of the event by someone with knowledge, kept in the regular course of business (Correct answer)
- By the business owner or a supervisor with personal knowledge
- Within 48 hours and certified by a notary public
- In writing and signed by the person who created it
Correct answer: At or near the time of the event by someone with knowledge, kept in the regular course of business
FRE 803(6) requires the record to be made near the time of the event by someone with knowledge, as a regular business practice, and the custodian must testify or certify it.
Question 6: Which of the following statements about judicial notice in Georgia courts is CORRECT?
- In a civil case, the jury must accept judicially noticed adjudicative facts as conclusive (Correct answer)
- In a criminal case, the jury must accept judicially noticed facts as conclusive
- Judicial notice may be taken of any fact the judge personally knows
- Judicially noticed facts may not be contested by any party once noticed
Correct answer: In a civil case, the jury must accept judicially noticed adjudicative facts as conclusive
Under FRE 201(f), in a civil case the court instructs the jury to accept the judicially noticed fact as conclusive; in criminal cases the jury may but need not accept it.
Question 7: A witness testifies that he heard the defendant say, 'I can't believe I actually hit that pedestrian.' The defendant objects that this is hearsay. The court should:
- Overrule the objection because the statement is a party admission (Correct answer)
- Sustain the objection because the defendant is not available for cross-examination
- Overrule the objection only if the statement was made under oath
- Sustain the objection because it is an out-of-court statement offered for its truth
Correct answer: Overrule the objection because the statement is a party admission
Under FRE 801(d)(2)(A), an opposing party's own statement is defined as non-hearsay when offered against that party, making the admission fully admissible.
GA Bar Evidence 2
Under the Federal Rules of Evidence adopted in Georgia, a statement qualifies as a present sense impression if it describes an event and was made: