IN Bar Evidence 3 — Questions and Answers
Question 1: A 911 call made during a home invasion describing the intruder is offered at trial. The strongest hearsay exception is:
- Excited utterance (Correct answer)
- Business record
- Statement against interest
- Ancient document
Correct answer: Excited utterance
A statement made under the stress of a startling event qualifies as an excited utterance under FRE 803(2).
Question 2: Under the Confrontation Clause as interpreted in Crawford v. Washington, testimonial hearsay is inadmissible against a criminal defendant unless:
- The statement falls within any hearsay exception
- The declarant is unavailable and the defendant had a prior opportunity for cross-examination (Correct answer)
- The judge finds the statement reliable
- The statement was made under oath
Correct answer: The declarant is unavailable and the defendant had a prior opportunity for cross-examination
Crawford requires unavailability plus a prior opportunity to cross-examine for testimonial statements.
Question 3: A party seeks to impeach a witness with a 15-year-old felony conviction for which the witness finished serving her sentence 12 years ago. The conviction is admissible only if:
- It involved dishonesty of any kind
- Its probative value substantially outweighs its prejudicial effect and reasonable notice is given (Correct answer)
- The witness is the criminal defendant
- The conviction was for a violent crime
Correct answer: Its probative value substantially outweighs its prejudicial effect and reasonable notice is given
Under FRE 609(b), convictions over ten years old require probative value substantially outweighing prejudice plus written notice.
Question 4: During settlement negotiations, a defendant says, 'I know my brakes were bad, but I'll only pay half.' At trial, the plaintiff offers this statement. It is:
- Admissible as a party admission
- Admissible because factual statements are severable from offers
- Inadmissible under Rule 408 as a statement made during compromise negotiations (Correct answer)
- Admissible only to prove bias
Correct answer: Inadmissible under Rule 408 as a statement made during compromise negotiations
Rule 408 excludes both offers to compromise and statements made during compromise negotiations when offered to prove liability.
Question 5: A photocopy of a contract is offered at trial. Under the best evidence rule, the copy is:
- Inadmissible because only originals are allowed
- Admissible as a duplicate unless there is a genuine question about the original's authenticity (Correct answer)
- Admissible only if the original is destroyed
- Admissible only with the opponent's consent
Correct answer: Admissible as a duplicate unless there is a genuine question about the original's authenticity
Rule 1003 makes duplicates admissible to the same extent as originals absent a genuine authenticity dispute or unfairness.
Question 6: A treating physician's testimony about a patient's statement that 'the pain started when the forklift hit me' is admissible because:
- It is a statement for medical diagnosis or treatment (Correct answer)
- All statements to doctors are admissible
- It qualifies as a business record
- It is a present sense impression
Correct answer: It is a statement for medical diagnosis or treatment
FRE 803(4) admits statements about the cause of a condition when reasonably pertinent to diagnosis or treatment.
Question 7: In a civil case tried in federal court under diversity jurisdiction, the competency of a witness is determined by:
- Federal common law in all instances
- State law when state law supplies the rule of decision (Correct answer)
- The judge's discretion alone
- The law of the witness's domicile
Correct answer: State law when state law supplies the rule of decision
Under FRE 601, state competency law governs when state law supplies the rule of decision for a claim or defense.
IN Bar Evidence 3
A 911 call made during a home invasion describing the intruder is offered at trial.
The strongest hearsay exception is: