Multistate Bar Exam Evidence 5 — Questions and Answers
Question 1: Under the best evidence rule (FRE 1002), which of the following is correct?
- Oral testimony about the contents of a document is always inadmissible
- An original writing must be produced to prove its contents unless an exception applies (Correct answer)
- A photocopy is never acceptable in place of an original
- The rule applies only to documentary evidence in criminal cases
Correct answer: An original writing must be produced to prove its contents unless an exception applies
FRE 1002 requires production of the original writing to prove its contents, but FRE 1003–1004 provide exceptions for duplicates and when originals are unavailable.
Question 2: In a products liability case, plaintiff offers expert testimony that the product was defectively designed. The expert bases his opinion solely on other experts' reports not in evidence. Under FRE 703, this is:
- Inadmissible because the expert must have personal knowledge
- Admissible if experts in the field reasonably rely on such reports (Correct answer)
- Inadmissible because secondary sources cannot support expert opinion
- Admissible only if the underlying reports are also entered into evidence
Correct answer: Admissible if experts in the field reasonably rely on such reports
FRE 703 allows experts to base opinions on facts or data that experts in the field reasonably rely upon, even if not independently admissible.
Question 3: A spouse is called to testify against her husband in a federal criminal case. Regarding the adverse spousal testimony privilege:
- The testifying spouse holds the privilege and may refuse to testify (Correct answer)
- The defendant spouse holds the privilege and may bar the testimony
- Neither spouse holds the privilege in federal criminal cases
- Both spouses must jointly invoke the privilege
Correct answer: The testifying spouse holds the privilege and may refuse to testify
Under Trammel v. United States, in federal courts the witness-spouse holds the adverse spousal testimony privilege and may choose to testify or refuse.
Question 4: A statement made by an employee to her employer's attorney during an internal investigation is sought in litigation. Under Upjohn Co. v. United States, the attorney-client privilege:
- Applies only to communications with top-level corporate officers
- Extends to employee communications made to assist counsel in providing legal advice (Correct answer)
- Does not apply to corporate employees, only to individual clients
- Applies only if the employee was named as a defendant
Correct answer: Extends to employee communications made to assist counsel in providing legal advice
Upjohn extended the corporate attorney-client privilege to communications with lower-level employees when made to assist counsel in advising the company.
Question 5: A trial court admits evidence over a proper objection. For an appellate court to reverse on evidentiary grounds, the appellant must show:
- Any error in admitting the evidence
- The error was harmless but the court should exercise discretion
- The error affected a substantial right — i.e., was not harmless error (Correct answer)
- The objection was made before the evidence was introduced
Correct answer: The error affected a substantial right — i.e., was not harmless error
Under FRE 103(a), an error in admitting or excluding evidence requires reversal only if it affects a substantial right of the party — the harmless error standard.
Question 6: A plaintiff in a negligence case introduces evidence that the defendant's employee had multiple prior accidents on the job. The relevance of this evidence is BEST characterized as:
- Proving the employee's propensity for carelessness
- Showing the employer had notice of the employee's dangerous tendencies (Correct answer)
- Proving the employee was independently negligent
- Establishing strict liability for the employer
Correct answer: Showing the employer had notice of the employee's dangerous tendencies
Prior incidents by an employee are relevant to show the employer had notice of the dangerous propensity, supporting a negligent retention or supervision claim.
Question 7: During cross-examination, counsel asks a witness about a specific instance of conduct to attack the witness's character for truthfulness. Under FRE 608(b), the court:
- Must allow the inquiry if the conduct involved dishonesty
- Has discretion to allow the inquiry but cannot require extrinsic proof of the act (Correct answer)
- Must exclude the inquiry unless the act resulted in a conviction
- Must allow extrinsic evidence if the act is sufficiently recent
Correct answer: Has discretion to allow the inquiry but cannot require extrinsic proof of the act
FRE 608(b) allows the court in its discretion to permit cross-examination on specific instances of conduct bearing on truthfulness, but extrinsic evidence to prove those acts is not admissible.
Multistate Bar Exam Evidence 5
Under the best evidence rule (FRE 1002), which of the following is correct?