GA Bar Evidence 3 ā Questions and Answers
Question 1: Under FRE 404(b), evidence of a defendant's prior crimes may be admitted to prove:
- Motive, opportunity, intent, plan, knowledge, identity, or absence of mistake (Correct answer)
- The defendant's general propensity to commit crimes
- That the defendant likely acted in conformity with prior bad acts
- Any relevant purpose so long as the probative value is not unfairly prejudicial
Correct answer: Motive, opportunity, intent, plan, knowledge, identity, or absence of mistake
FRE 404(b)(2) lists specific permitted purposesāmotive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accidentābut never propensity.
Question 2: The attorney-client privilege in Georgia protects confidential communications between attorney and client made for the purpose of:
- Seeking or providing legal advice (Correct answer)
- Discussing any business matter between them
- Any communication that the client wishes to keep confidential
- Negotiating a settlement on the client's behalf
Correct answer: Seeking or providing legal advice
The attorney-client privilege protects only confidential communications made in the context of seeking or providing legal advice, not all communications between attorney and client.
Question 3: In Georgia, the spousal testimonial privilege (privilege not to testify against a spouse) in a criminal proceeding belongs to:
- The witness spouse, who may choose whether to testify (Correct answer)
- The defendant spouse, who may prevent the other from testifying
- Both spouses jointly, requiring mutual consent to waive
- The court, which determines whether testimony would be unduly burdensome
Correct answer: The witness spouse, who may choose whether to testify
Under Georgia law and the modern federal approach, the witness spouse holds the testimonial privilege and can choose to testify or refuse, regardless of the defendant spouse's wishes.
Question 4: A party seeks to impeach a witness with a prior conviction for misdemeanor theft committed eight years ago. Under FRE 609, this conviction is:
- Admissible only if the court finds the probative value outweighs the prejudicial effect (Correct answer)
- Automatically admissible because theft involves dishonesty
- Inadmissible because misdemeanors may never be used for impeachment
- Inadmissible because it occurred more than five years ago
Correct answer: Admissible only if the court finds the probative value outweighs the prejudicial effect
Misdemeanors not involving dishonesty or false statement require the court to find probative value outweighs prejudice under FRE 609(a)(1); theft is not automatically a crimen falsi offense.
Question 5: A prior inconsistent statement by a non-party witness may be used at trial to:
- Impeach the witness's credibility and, if made under oath at a prior proceeding, as substantive evidence (Correct answer)
- Prove the truth of the matter asserted regardless of how it was made
- Impeach the witness only if the witness is given a chance to explain or deny it
- Admit the statement as a prior consistent statement to rehabilitate the witness
Correct answer: Impeach the witness's credibility and, if made under oath at a prior proceeding, as substantive evidence
Under FRE 613 and 801(d)(1)(A), a prior inconsistent statement is admissible to impeach, and if it was given under oath at a prior proceeding it also comes in as substantive non-hearsay evidence.
Question 6: Under FRE 407, evidence of subsequent remedial measures is inadmissible to prove negligence. This rule does NOT bar such evidence when offered to prove:
- Ownership, control, or feasibility of precautionary measures when those issues are controverted (Correct answer)
- That the defendant acted reasonably before the accident
- The plaintiff's comparative negligence
- The severity of the plaintiff's injuries
Correct answer: Ownership, control, or feasibility of precautionary measures when those issues are controverted
FRE 407 explicitly preserves admissibility of subsequent remedial measures to prove ownership, control, or the feasibility of precautions when those issues are disputed by the opponent.
Question 7: Under FRE 608(b), specific instances of a witness's conduct (not resulting in conviction) may be inquired into on cross-examination to attack credibility ONLY if they:
- Are probative of the witness's character for truthfulness or untruthfulness (Correct answer)
- Resulted in an arrest or formal charge even without conviction
- Were committed within the past ten years
- Relate to a crime punishable by more than one year imprisonment
Correct answer: Are probative of the witness's character for truthfulness or untruthfulness
FRE 608(b) permits cross-examination on specific conduct only when it is probative of truthfulness or untruthfulness; extrinsic evidence to prove the conduct is prohibited.
GA Bar Evidence 3
Under FRE 404(b), evidence of a defendant's prior crimes may be admitted to prove: