KY Bar Evidence 2 — Questions and Answers
Question 1: During a personal injury trial, plaintiff offers evidence that the defendant store installed new handrails on its staircase two weeks after plaintiff's fall. Defendant claims the staircase was perfectly safe. The evidence of the new handrails is:
- Admissible to prove the staircase was defective
- Admissible to impeach defendant's claim that no safer design was feasible, if defendant controverts feasibility (Correct answer)
- Admissible as an admission by conduct
- Inadmissible for any purpose because it is hearsay
Correct answer: Admissible to impeach defendant's claim that no safer design was feasible, if defendant controverts feasibility
Subsequent remedial measures are inadmissible to prove negligence or defect, but may be admitted for other purposes such as feasibility of precautionary measures if controverted.
Question 2: A witness in a Kentucky criminal trial testifies for the defense. On cross-examination, the prosecutor asks about the witness's 12-year-old felony conviction for theft; the witness was released from confinement 11 years ago. This conviction is:
- Automatically admissible because theft involves dishonesty
- Admissible only if its probative value substantially outweighs its prejudicial effect and the proponent gave advance written notice (Correct answer)
- Inadmissible under all circumstances due to its age
- Admissible only if the witness denies the conviction
Correct answer: Admissible only if its probative value substantially outweighs its prejudicial effect and the proponent gave advance written notice
Convictions more than 10 years old (measured from conviction or release, whichever is later) are admissible only if probative value substantially outweighs prejudice and advance notice is given.
Question 3: In a prosecution for assault, the defendant offers testimony that the alleged victim has a reputation in the community for violence, to show the victim was the first aggressor. This evidence is:
- Inadmissible because character evidence is never allowed in criminal cases
- Admissible because a criminal defendant may offer a pertinent character trait of the victim (Correct answer)
- Admissible only if the victim testifies first
- Inadmissible unless the defendant proves he knew of the reputation
Correct answer: Admissible because a criminal defendant may offer a pertinent character trait of the victim
A criminal defendant may introduce reputation or opinion evidence of a pertinent character trait of the victim, such as violence, to support a first-aggressor theory.
Question 4: A plaintiff in a car accident case offers a properly authenticated hospital record containing the notation: 'Patient states the other driver ran the red light.' The statement about the red light is:
- Admissible as a business record
- Admissible as a statement for purposes of medical diagnosis or treatment
- Inadmissible hearsay because fault attribution is not pertinent to diagnosis or treatment (Correct answer)
- Admissible as a present sense impression
Correct answer: Inadmissible hearsay because fault attribution is not pertinent to diagnosis or treatment
Statements of fault, such as who ran a red light, are generally not pertinent to diagnosis or treatment and remain inadmissible hearsay even inside a business record.
Question 5: During settlement negotiations over a disputed contract claim, the defendant said, 'I know I owe you something; let's settle for half.' At trial, plaintiff offers this statement. It is:
- Admissible as an opposing party's statement
- Inadmissible because statements made in compromise negotiations of a disputed claim are excluded to prove liability (Correct answer)
- Admissible because admissions of fact during settlement talks are always allowed
- Inadmissible only if a written settlement agreement was signed
Correct answer: Inadmissible because statements made in compromise negotiations of a disputed claim are excluded to prove liability
Both offers to compromise and statements made during compromise negotiations of a disputed claim are inadmissible to prove liability or the amount of the claim.
Question 6: A police officer testifies that a bystander, still visibly shaking and crying moments after a shooting, shouted, 'The man in the red jacket shot him!' The bystander is unavailable at trial. The statement is:
- Inadmissible because the declarant is unavailable and was never cross-examined
- Admissible as an excited utterance (Correct answer)
- Admissible only as a dying declaration
- Inadmissible because it identifies the defendant
Correct answer: Admissible as an excited utterance
A statement relating to a startling event, made while the declarant was still under the stress of excitement it caused, is admissible as an excited utterance regardless of availability.
Question 7: In a Kentucky civil trial, a party seeks to prove the contents of a written lease by having a witness testify from memory about its terms. The original lease exists and is available. This testimony is:
- Admissible because a witness may always testify to what she has read
- Inadmissible under the best evidence rule because the contents of a writing are being proved and no excuse for nonproduction exists (Correct answer)
- Admissible because leases are exempt from the best evidence rule
- Inadmissible as hearsay only
Correct answer: Inadmissible under the best evidence rule because the contents of a writing are being proved and no excuse for nonproduction exists
When a party seeks to prove the contents of a writing, the original (or a duplicate) must be produced unless its absence is satisfactorily explained.
KY Bar Evidence 2
During a personal injury trial, plaintiff offers evidence that the defendant store installed new handrails on its staircase two weeks after plaintiff's fall.
Defendant claims the staircase was perfectly safe.
The evidence of the new handrails is: