IL Bar Evidence 2 — Questions and Answers
Question 1: Expert testimony under FRE 702 (Daubert) is admissible if the expert's opinion is based on sufficient facts, employs reliable methodology, and:
- The expert is licensed in the relevant field
- The reasoning has been reliably applied to the facts of the case (Correct answer)
- The opinion is supported by peer-reviewed publications
- The expert has testified in prior cases
Correct answer: The reasoning has been reliably applied to the facts of the case
Under Daubert and FRE 702, a court must find that the expert's reliable principles and methods have been reliably applied to the specific facts of the case.
Question 2: An excited utterance exception to the hearsay rule (FRE 803(2)) requires that the statement:
- Was made by an eyewitness to the event
- Related to a startling event and was made while the declarant was under the stress of excitement caused by the event (Correct answer)
- Was recorded contemporaneously
- Was made to a medical professional
Correct answer: Related to a startling event and was made while the declarant was under the stress of excitement caused by the event
An excited utterance is admissible if it relates to a startling event or condition and was made while the declarant was still under the stress of excitement from that event.
Question 3: Under FRE 407, subsequent remedial measures are generally inadmissible to prove:
- That a product was defective when manufactured
- Negligence or culpable conduct, but are admissible to show control, feasibility, or impeachment (Correct answer)
- The plaintiff's damages
- Industry standards at the time of the accident
Correct answer: Negligence or culpable conduct, but are admissible to show control, feasibility, or impeachment
FRE 407 excludes subsequent remedial measures to prove negligence or culpable conduct but permits them for other purposes such as proving ownership, control, feasibility, or impeachment.
Question 4: Lay witness opinion testimony is admissible under FRE 701 if it is:
- Based on specialized knowledge
- Rationally based on the witness's own perception, helpful to understanding testimony, and not based on scientific knowledge (Correct answer)
- Consistent with expert testimony
- Corroborated by documents
Correct answer: Rationally based on the witness's own perception, helpful to understanding testimony, and not based on scientific knowledge
Lay opinion under FRE 701 must be rationally based on the witness's perception, helpful to the trier of fact, and not based on specialized knowledge requiring expert qualification.
Question 5: The work product doctrine protects materials prepared in anticipation of litigation from discovery. Which type of work product receives the strongest protection?
- Factual summaries prepared by paralegals
- Ordinary work product subject to substantial need exception
- Opinion work product reflecting mental impressions, conclusions, and legal theories of counsel (Correct answer)
- Witness statements
Correct answer: Opinion work product reflecting mental impressions, conclusions, and legal theories of counsel
Opinion work product — an attorney's mental impressions, conclusions, opinions, and legal theories — receives near-absolute protection and is rarely discoverable even on a showing of need.
Question 6: Under FRE 801(d)(2), a party's own out-of-court statement offered against that party is:
- Hearsay subject to an exception
- An admission by a party-opponent that is defined as non-hearsay (Correct answer)
- Inadmissible unless corroborated
- Admissible only if the party testifies
Correct answer: An admission by a party-opponent that is defined as non-hearsay
FRE 801(d)(2) defines a party-opponent's own statements offered against them as non-hearsay admissions, admissible without satisfying a hearsay exception.
IL Bar Evidence 2
Expert testimony under FRE 702 (Daubert) is admissible if the expert's opinion is based on sufficient facts, employs reliable methodology, and: