KS Bar Evidence 1 — Questions and Answers
Question 1: Under FRE 401, evidence is relevant if it has what effect on a fact of consequence?
- Any tendency to make the fact more or less probable (Correct answer)
- A substantial tendency to prove the fact
- A direct bearing on the ultimate issue
- Been authenticated by both parties
Correct answer: Any tendency to make the fact more or less probable
FRE 401 sets a low threshold: evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence.
Question 2: Under FRE 404(b), evidence of prior crimes or wrongs is admissible to prove which of the following?
- Character to show conforming conduct
- Motive, intent, knowledge, identity, or absence of mistake (Correct answer)
- The defendant's propensity to commit crimes
- Any purpose the court finds persuasive
Correct answer: Motive, intent, knowledge, identity, or absence of mistake
FRE 404(b)(2) permits prior acts evidence for specific non-character purposes: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Question 3: Which requirement is essential for the attorney-client privilege to apply?
- The communication must be in writing
- The communication must be confidential and made for the purpose of seeking legal advice (Correct answer)
- The communication must occur after litigation has commenced
- Third parties may be present if reasonably necessary
Correct answer: The communication must be confidential and made for the purpose of seeking legal advice
Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining legal advice; confidentiality is the key requirement.
Question 4: Under FRE 802, what is the general rule regarding hearsay?
- Hearsay is admissible if relevant
- Hearsay is not admissible unless a rule or statute provides otherwise (Correct answer)
- Hearsay is admissible at the court's discretion
- Hearsay is inadmissible only in criminal cases
Correct answer: Hearsay is not admissible unless a rule or statute provides otherwise
FRE 802 establishes that hearsay is not admissible unless an exception under the Federal Rules or other federal statute or rule applies.
Question 5: Under FRE 801(d)(1)(A), a prior inconsistent statement made under oath at a prior proceeding is classified as:
- Inadmissible hearsay
- Admissible only for impeachment
- Not hearsay, and admissible as substantive evidence (Correct answer)
- Admissible only if the witness is now unavailable
Correct answer: Not hearsay, and admissible as substantive evidence
FRE 801(d)(1)(A) classifies prior inconsistent statements made under oath at a prior proceeding as 'not hearsay,' making them admissible as substantive evidence.
Question 6: What does the best evidence rule (FRE 1002) generally require when proving the contents of a document?
- The most credible witness must testify about the document
- An original writing, recording, or photograph must be produced (Correct answer)
- A certified copy is always required
- Expert testimony must authenticate the document
Correct answer: An original writing, recording, or photograph must be produced
FRE 1002 requires production of the original writing, recording, or photograph when proving its content, unless an exception under FRE 1003-1004 applies.
Question 7: Under FRE 702 (the Daubert standard), expert testimony is admissible when the expert's opinion:
- Is offered by a witness holding a Ph.D. in the relevant field
- Is based on sufficient facts, reliable principles/methods, and reliable application to the case facts (Correct answer)
- Has been peer-reviewed and published
- Is offered by a court-appointed expert
Correct answer: Is based on sufficient facts, reliable principles/methods, and reliable application to the case facts
FRE 702 requires that expert testimony rest on sufficient facts or data, reliable principles and methods, and that the expert reliably applied those principles and methods to the case facts.
KS Bar Evidence 1
Under FRE 401, evidence is relevant if it has what effect on a fact of consequence?