KY Bar Evidence 3 — Questions and Answers
Question 1: A defendant is charged with burglary. The prosecution offers evidence that the defendant committed three prior uncharged burglaries using the same distinctive method of entry. The evidence is most likely:
- Inadmissible because prior bad acts can never be used against a defendant
- Admissible to show the defendant's propensity to commit burglary
- Admissible to prove identity through a distinctive modus operandi, subject to prejudice balancing (Correct answer)
- Admissible only if the prior burglaries resulted in convictions
Correct answer: Admissible to prove identity through a distinctive modus operandi, subject to prejudice balancing
Other crimes or acts are inadmissible to show propensity but may be admitted for purposes such as identity when the method is sufficiently distinctive, subject to the prejudice balancing test.
Question 2: At trial, a party calls a witness who unexpectedly gives damaging testimony. Under the Kentucky Rules of Evidence, the calling party:
- May impeach its own witness, since any party may attack a witness's credibility (Correct answer)
- May not impeach its own witness under the voucher rule
- May impeach only with prior convictions
- Must first have the witness declared hostile by the jury
Correct answer: May impeach its own witness, since any party may attack a witness's credibility
The credibility of a witness may be attacked by any party, including the party that called the witness, abolishing the common-law voucher rule.
Question 3: A murder victim, knowing she was about to die from her wounds, whispered, 'John poisoned my coffee,' then died. In John's murder prosecution, the statement is:
- Inadmissible because dying declarations apply only in civil cases
- Admissible as a dying declaration because it concerns the cause of death and was made under belief of imminent death (Correct answer)
- Inadmissible because the declarant did not testify
- Admissible only if the defense opens the door
Correct answer: Admissible as a dying declaration because it concerns the cause of death and was made under belief of imminent death
A statement made under belief of imminent death concerning its cause or circumstances is admissible in a homicide prosecution when the declarant is unavailable.
Question 4: A party offers a photocopy of a signed contract. The opponent objects, demanding the original. Absent a genuine question about the original's authenticity or unfairness, the photocopy is:
- Inadmissible because only originals satisfy the best evidence rule
- Admissible as a duplicate to the same extent as the original (Correct answer)
- Admissible only with testimony from the person who made the copy
- Admissible only if the original is proven destroyed
Correct answer: Admissible as a duplicate to the same extent as the original
A duplicate is admissible to the same extent as an original unless a genuine question is raised about the original's authenticity or admission would be unfair.
Question 5: In a negligence action, the defendant offers evidence that the plaintiff carries medical insurance to suggest the plaintiff suffered no real loss. This evidence is:
- Admissible to reduce damages
- Admissible to show plaintiff's motive to sue
- Inadmissible because evidence of liability insurance is barred, and this is analogous
- Inadmissible under the collateral source rule and irrelevant to liability or damages (Correct answer)
Correct answer: Inadmissible under the collateral source rule and irrelevant to liability or damages
The collateral source rule bars evidence that the plaintiff was compensated by an independent source, as it is irrelevant and prejudicial on liability and damages.
Question 6: A witness testifies she cannot remember the license plate number she wrote down right after a hit-and-run. Her contemporaneous note is produced, but reading it does not refresh her memory. The note itself may be:
- Read into evidence as a recorded recollection, but not admitted as an exhibit unless offered by the adverse party (Correct answer)
- Admitted as an exhibit by the proponent as a business record
- Excluded entirely because the witness is present and testifying
- Admitted only as a present sense impression
Correct answer: Read into evidence as a recorded recollection, but not admitted as an exhibit unless offered by the adverse party
A recorded recollection may be read into evidence when the witness's memory fails, but the writing is received as an exhibit only if offered by the adverse party.
Question 7: In a criminal trial, the prosecution offers a certified copy of a public record showing the defendant's driver's license was suspended. The defense objects on hearsay and authentication grounds. The document is:
- Inadmissible without testimony from the records custodian
- Admissible as a self-authenticating certified public record within the public records hearsay exception (Correct answer)
- Inadmissible because public records cannot be used in criminal cases
- Admissible only if the defendant stipulates
Correct answer: Admissible as a self-authenticating certified public record within the public records hearsay exception
Certified copies of public records are self-authenticating and fall within the public records hearsay exception for matters like license status.
KY Bar Evidence 3
A defendant is charged with burglary.
The prosecution offers evidence that the defendant committed three prior uncharged burglaries using the same distinctive method of entry.
The evidence is most likely: