KS Bar Evidence 2 — Questions and Answers
Question 1: Under FRE 407, evidence of subsequent remedial measures is inadmissible to prove which of the following?
- Ownership of the property
- Negligence or culpable conduct (Correct answer)
- Feasibility of precautionary measures when disputed
- Control over the instrumentality of harm
Correct answer: Negligence or culpable conduct
FRE 407 bars subsequent remedial measures evidence to prove negligence, culpable conduct, a defect in a product, or a failure to warn, encouraging defendants to make safety improvements.
Question 2: For the dying declaration exception (FRE 804(b)(2)) to apply, which element is required?
- The declarant must have died before trial
- The declarant must have believed death was imminent, and the statement must concern the cause or circumstances of the death (Correct answer)
- A medical professional must corroborate the statement
- The statement must have been made to law enforcement
Correct answer: The declarant must have believed death was imminent, and the statement must concern the cause or circumstances of the death
A dying declaration requires that the declarant believed death was imminent at the time of the statement and that the statement concerns the cause or circumstances of that impending death.
Question 3: Under FRE 201, judicial notice is appropriate for adjudicative facts that are:
- Undisputed by the parties at trial
- Not subject to reasonable dispute and generally known or accurately verifiable (Correct answer)
- Contained in government publications
- Agreed upon by expert witnesses
Correct answer: Not subject to reasonable dispute and generally known or accurately verifiable
FRE 201 authorizes judicial notice of adjudicative facts that are not subject to reasonable dispute because they are generally known or can be accurately determined from reliable sources.
Question 4: Under FRE 608(a), which method is permitted to attack a witness's character for truthfulness?
- Extrinsic evidence of specific untruthful acts
- Opinion or reputation evidence of the witness's untruthfulness (Correct answer)
- Prior criminal convictions only
- Polygraph examination results
Correct answer: Opinion or reputation evidence of the witness's untruthfulness
FRE 608(a) allows opinion or reputation evidence regarding a witness's character for untruthfulness; FRE 608(b) bars extrinsic evidence of specific instances of conduct to prove untruthfulness.
Question 5: Under Crawford v. Washington, testimonial hearsay is inadmissible under the Confrontation Clause unless:
- The statement bears sufficient indicia of reliability
- The declarant is unavailable and the defendant had a prior opportunity for cross-examination (Correct answer)
- The statement was made under oath
- The court finds admission is necessary for justice
Correct answer: The declarant is unavailable and the defendant had a prior opportunity for cross-examination
Crawford v. Washington held that the Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.
Question 6: Under FRE 803(6), the business records exception requires that the record be:
- Created near the time of the event by someone with knowledge and kept in the regular course of business (Correct answer)
- Notarized and certified by the business's legal department
- Created specifically for use in litigation
- Signed by a government official
Correct answer: Created near the time of the event by someone with knowledge and kept in the regular course of business
The business records hearsay exception requires the record be made near the time of the recorded event, by someone with knowledge, and kept as a regular business practice.
Question 7: Under FRE 407, which use of subsequent remedial measures evidence is expressly permitted?
- To prove the defendant was negligent
- To prove the product was defective
- To prove feasibility of precautionary measures when the defendant has contested feasibility (Correct answer)
- To prove the defendant had prior knowledge of the risk
Correct answer: To prove feasibility of precautionary measures when the defendant has contested feasibility
FRE 407 explicitly carves out an exception permitting subsequent remedial measures evidence when feasibility of precautionary measures is controverted by the opposing party.
KS Bar Evidence 2
Under FRE 407, evidence of subsequent remedial measures is inadmissible to prove which of the following?