Multistate Bar Exam Evidence 2 — Questions and Answers
Question 1: A defendant is charged with assault. The prosecution seeks to admit evidence that the defendant has a prior conviction for battery. Under FRE 404(b), this evidence is:
- Inadmissible as improper character evidence
- Admissible to show intent, knowledge, or common scheme (Correct answer)
- Admissible only if the defendant testifies
- Admissible as substantive evidence of guilt
Correct answer: Admissible to show intent, knowledge, or common scheme
FRE 404(b) prohibits prior bad acts to show propensity but permits them for other purposes such as intent, knowledge, motive, or common scheme.
Question 2: A witness on the stand testifies to facts she personally observed. On cross-examination, opposing counsel asks about a prior inconsistent statement the witness made to police. This is permissible because:
- Prior statements are always admissible as substantive evidence
- Cross-examination may attack credibility by showing inconsistency (Correct answer)
- The statement becomes a business record exception
- Witnesses waive all privileges once they testify
Correct answer: Cross-examination may attack credibility by showing inconsistency
A prior inconsistent statement is a classic tool for impeaching a witness's credibility on cross-examination under FRE 613.
Question 3: A patient sues a doctor for malpractice. The doctor seeks to introduce the patient's medical records to prove the standard of care was met. These records are likely admissible under:
- The business records exception to the hearsay rule (Correct answer)
- The present sense impression exception
- The dying declaration exception
- The prior consistent statement rule
Correct answer: The business records exception to the hearsay rule
Medical records kept in the regular course of business qualify under the business records exception under FRE 803(6).
Question 4: During trial, a plaintiff attempts to introduce evidence that the defendant repaired a hazardous staircase after the plaintiff fell. Under FRE 407, this evidence is:
- Admissible to prove the defendant owned the property
- Admissible to prove negligence
- Inadmissible to prove negligence or culpable conduct (Correct answer)
- Inadmissible unless the repair was done within 30 days
Correct answer: Inadmissible to prove negligence or culpable conduct
FRE 407 bars subsequent remedial measures to prove negligence, culpable conduct, or product defect, but permits such evidence for other purposes.
Question 5: In a personal injury case, plaintiff's counsel asks the defendant on cross-examination, 'Isn't it true you offered to pay the plaintiff's medical bills?' Defendant objects. The court should:
- Overrule the objection because admissions are always admissible
- Sustain the objection under FRE 409 barring offers to pay medical expenses (Correct answer)
- Sustain the objection under the attorney-client privilege
- Overrule the objection as the defendant opened the door
Correct answer: Sustain the objection under FRE 409 barring offers to pay medical expenses
FRE 409 excludes evidence of offers to pay medical or similar expenses as proof of liability for the underlying injury.
Question 6: A witness called to testify has previously been convicted of perjury five years ago. Under FRE 609, this conviction:
- Is inadmissible because more than two years have passed
- Is admissible to attack credibility regardless of the time passed
- Is admissible only if the probative value outweighs prejudice (Correct answer)
- Is inadmissible because perjury is not a felony
Correct answer: Is admissible only if the probative value outweighs prejudice
Under FRE 609(b), convictions more than 10 years old face a higher standard, but convictions within 10 years are admissible if probative value outweighs prejudicial effect.
Question 7: A bystander who witnessed a car accident immediately blurts out, 'That red car ran the light!' This statement is admissible as non-hearsay because it qualifies as:
- A dying declaration
- A present sense impression under FRE 803(1) (Correct answer)
- An excited utterance under FRE 803(2)
- A statement of then-existing mental or emotional condition
Correct answer: A present sense impression under FRE 803(1)
A present sense impression is a statement made while or immediately after perceiving an event, admissible under FRE 803(1).
Multistate Bar Exam Evidence 2
A defendant is charged with assault.
The prosecution seeks to admit evidence that the defendant has a prior conviction for battery.
Under FRE 404(b), this evidence is: