Multistate Bar Exam Evidence 3 — Questions and Answers
Question 1: An attorney-client communication is protected by privilege. Which of the following would DESTROY the privilege?
- The client dies after the communication
- The communication is made in the presence of a third party not essential to the representation (Correct answer)
- The attorney takes notes during the consultation
- The client later uses a different attorney in the same matter
Correct answer: The communication is made in the presence of a third party not essential to the representation
The presence of unnecessary third parties destroys the confidentiality requirement of the attorney-client privilege.
Question 2: A defendant in a criminal trial does not testify. The prosecutor in closing argument comments, 'The defendant chose not to explain away the evidence.' This violates:
- The defendant's Fifth Amendment right against self-incrimination (Correct answer)
- The Sixth Amendment Confrontation Clause
- The Fourth Amendment protection against unreasonable searches
- The defendant's Eighth Amendment rights
Correct answer: The defendant's Fifth Amendment right against self-incrimination
The Fifth Amendment, along with FRE 513 and Griffin v. California, prohibits adverse comment on a criminal defendant's failure to testify.
Question 3: A court must determine whether a contract was formed. Witness testimony and written documents are introduced. Which standard applies to this preliminary question of fact?
- Proof beyond a reasonable doubt
- Clear and convincing evidence
- Preponderance of the evidence under FRE 104(a) (Correct answer)
- The court defers entirely to the jury
Correct answer: Preponderance of the evidence under FRE 104(a)
Under FRE 104(a), the court determines preliminary questions of fact regarding admissibility under a preponderance of the evidence standard.
Question 4: A plaintiff introduces the defendant's apology letter stating 'I'm sorry for what happened, it was my fault.' Under FRE 801(d)(2), this is:
- Hearsay not subject to any exception
- Admissible as an opposing party's statement (admission) (Correct answer)
- Inadmissible under the subsequent remedial measures rule
- Admissible only for impeachment
Correct answer: Admissible as an opposing party's statement (admission)
Under FRE 801(d)(2), a statement made by the opposing party and offered against that party is defined as non-hearsay.
Question 5: A forensic expert testifies about DNA evidence in a murder trial. The judge must determine if the expert's methodology is admissible under:
- The Frye general acceptance test only
- The Daubert standard, requiring reliability and relevance (Correct answer)
- The plain view doctrine
- FRE 403 balancing alone
Correct answer: The Daubert standard, requiring reliability and relevance
Under Daubert v. Merrell Dow Pharmaceuticals and FRE 702, the judge acts as gatekeeper to ensure expert testimony is based on reliable methodology.
Question 6: In a civil case, evidence is offered that the parties entered into settlement negotiations. Under FRE 408, this evidence is:
- Admissible to prove the amount of damages
- Inadmissible to prove or disprove the claim's validity (Correct answer)
- Admissible because civil settlements are public records
- Admissible only if negotiations failed
Correct answer: Inadmissible to prove or disprove the claim's validity
FRE 408 prohibits admission of compromise negotiations to prove or disprove liability or damages to encourage settlement.
Question 7: A witness testifies she cannot recall the events in question. The party who called her seeks to refresh her recollection using a document. Under FRE 612, the opposing party:
- May demand the witness read the entire document into evidence
- Has no rights regarding the document used
- May inspect the document, cross-examine on it, and introduce relevant portions (Correct answer)
- Must stipulate to the document's authenticity
Correct answer: May inspect the document, cross-examine on it, and introduce relevant portions
FRE 612 grants the opposing party the right to inspect any writing used to refresh a witness's recollection and to introduce relevant portions.
Multistate Bar Exam Evidence 3
An attorney-client communication is protected by privilege.
Which of the following would DESTROY the privilege?