MD Bar Evidence 2 — Questions and Answers
Question 1: A defendant on trial for assault calls a witness to testify that the defendant has a reputation for peacefulness. On cross-examination, the prosecutor asks, "Have you heard that the defendant punched a coworker last year?" Is this question proper?
- Yes, because the prosecutor may test the character witness's knowledge with specific instances of conduct (Correct answer)
- No, because specific instances of conduct are never admissible to prove character
- No, because the prosecutor must first prove the punching incident with extrinsic evidence
- Yes, but only if the coworker incident resulted in a criminal conviction
Correct answer: Yes, because the prosecutor may test the character witness's knowledge with specific instances of conduct
Under FRE 405(a), a character witness may be cross-examined about relevant specific instances of the defendant's conduct to test the witness's familiarity with the defendant's reputation.
Question 2: A plaintiff sues a store after slipping on a wet floor. At trial, the plaintiff offers evidence that the day after the fall, the store installed non-slip mats. The store objects. How should the court rule?
- Exclude it, because subsequent remedial measures are inadmissible to prove negligence (Correct answer)
- Admit it, because it shows the store knew the floor was dangerous
- Admit it, because remedial measures are admissible in premises liability cases
- Exclude it, because it is hearsay not within any exception
Correct answer: Exclude it, because subsequent remedial measures are inadmissible to prove negligence
FRE 407 bars evidence of subsequent remedial measures to prove negligence or culpable conduct, though it may be admissible for other purposes such as ownership or feasibility if disputed.
Question 3: During settlement negotiations in a contract dispute, the defendant said, "I know I breached, but I'll pay you half." The case did not settle. At trial, the plaintiff offers the statement. Is it admissible?
- No, because statements made during compromise negotiations of a disputed claim are inadmissible to prove liability (Correct answer)
- Yes, because it is an admission by a party-opponent
- Yes, because only the settlement offer itself is excluded, not accompanying statements
- No, because it is hearsay without an applicable exception
Correct answer: No, because statements made during compromise negotiations of a disputed claim are inadmissible to prove liability
FRE 408 excludes both offers to compromise and statements made during compromise negotiations when offered to prove the validity or amount of a disputed claim.
Question 4: A witness to a car crash tells a police officer at the scene, moments after the collision and while visibly shaking, "That truck ran the red light!" The witness is unavailable at trial. Is the statement admissible through the officer?
- Yes, as an excited utterance (Correct answer)
- No, because the witness is unavailable and was never cross-examined
- No, because statements to police are testimonial hearsay in all cases
- Yes, but only as a prior inconsistent statement
Correct answer: Yes, as an excited utterance
A statement relating to a startling event made while under the stress of excitement qualifies as an excited utterance under FRE 803(2), which applies regardless of the declarant's availability.
Question 5: In a murder trial, the prosecution offers evidence that the defendant previously committed an unrelated burglary to show the defendant is a criminal by nature. Is the evidence admissible?
- No, because prior bad acts are inadmissible to prove propensity to commit crimes (Correct answer)
- Yes, because prior crimes are always admissible against criminal defendants
- Yes, if the burglary resulted in a conviction
- No, unless the defendant testifies
Correct answer: No, because prior bad acts are inadmissible to prove propensity to commit crimes
FRE 404(b) prohibits using other crimes or bad acts to prove character in order to show action in conformity, though such evidence may be admitted for non-propensity purposes like motive, intent, or identity.
Question 6: A party seeks to introduce a properly authenticated business ledger to prove a debt. The bookkeeper who made the entries is available but is not called. The opponent objects on hearsay grounds. What result?
- Admissible under the business records exception if a qualified custodian lays the foundation (Correct answer)
- Inadmissible, because the person who made the entries must testify
- Inadmissible, because business records require the declarant to be unavailable
- Admissible only if the opponent stipulates to authenticity
Correct answer: Admissible under the business records exception if a qualified custodian lays the foundation
Under FRE 803(6), records of regularly conducted activity are admissible through any qualified witness or certification, without requiring the actual entrant's testimony or the declarant's unavailability.
Question 7: A criminal defendant testifies in her own defense. The prosecutor seeks to impeach her with a nine-year-old felony conviction for tax fraud. How should the court analyze admissibility?
- The conviction must be admitted because crimes involving dishonesty or false statement are automatically admissible within ten years (Correct answer)
- The conviction is excluded because defendants may never be impeached with prior convictions
- The conviction is admissible only if its probative value substantially outweighs its prejudicial effect
- The conviction is inadmissible because it is more than five years old
Correct answer: The conviction must be admitted because crimes involving dishonesty or false statement are automatically admissible within ten years
Under FRE 609(a)(2), convictions for crimes requiring proof of a dishonest act or false statement, such as fraud, must be admitted without balancing if less than ten years old.
MD Bar Evidence 2
A defendant on trial for assault calls a witness to testify that the defendant has a reputation for peacefulness.
On cross-examination, the prosecutor asks, "Have you heard that the defendant punched a coworker last year?" Is this question proper?