NY Bar Evidence 2 — Questions and Answers
Question 1: A dying declaration is admissible as an exception to the hearsay rule. Under FRE 804(b)(2), which element is required?
- The declarant must have died before trial
- The declarant must have believed death was imminent when making the statement
- The statement must concern the cause of the declarant's death
- Both B and C (Correct answer)
Correct answer: Both B and C
A dying declaration under FRE 804(b)(2) requires that the declarant believed their death was imminent and that the statement concerns the cause or circumstances of what the declarant believed was their impending death.
Question 2: Under FRE 609, a prior felony conviction may be used to impeach a witness if it was:
- Any conviction within the last 20 years
- A conviction within the last 10 years, with probative value outweighing prejudicial effect (Correct answer)
- Any crime involving moral turpitude
- A conviction for a crime punishable by imprisonment of more than 90 days
Correct answer: A conviction within the last 10 years, with probative value outweighing prejudicial effect
Under FRE 609, felony convictions are admissible for impeachment within 10 years of conviction or release from confinement, subject to a probative-versus-prejudicial balancing test.
Question 3: A present sense impression is admissible as an exception to the hearsay rule under FRE 803(1) when the statement:
- Describes or explains an event made while or immediately after perceiving it (Correct answer)
- Describes the declarant's then-existing emotional condition
- Is made under the stress of excitement caused by a startling event
- Relates to a medical diagnosis or treatment
Correct answer: Describes or explains an event made while or immediately after perceiving it
A present sense impression is a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter, ensuring reliability through contemporaneity.
Question 4: Under FRE 407, evidence of subsequent remedial measures is inadmissible to prove:
- Ownership or control of the property
- Negligence or culpable conduct (Correct answer)
- That a safer design was feasible
- That the defendant repaired the hazard
Correct answer: Negligence or culpable conduct
FRE 407 bars evidence of subsequent remedial measures when offered to prove negligence, culpable conduct, a defect in product or design, or a need for warning, but permits it for other purposes like proving feasibility of precautions.
Question 5: An excited utterance is admissible as an exception to the hearsay rule because:
- The declarant was under oath when making the statement
- The stress of excitement minimizes the likelihood of deliberate or conscious fabrication (Correct answer)
- The statement was recorded at the time it was made
- The declarant is unavailable to testify at trial
Correct answer: The stress of excitement minimizes the likelihood of deliberate or conscious fabrication
Excited utterances are deemed reliable because the declarant, acting under the stress of a startling event, is unlikely to have the opportunity or capacity to fabricate, reducing the risk of insincerity.
Question 6: Under FRE 803(6), business records are admissible as an exception to the hearsay rule if the record was:
- Prepared by an attorney for litigation purposes
- Made at or near the time by a person with knowledge, kept in the regular course of business, and authenticated by a custodian (Correct answer)
- Any document maintained in a business's files
- Prepared in anticipation of litigation
Correct answer: Made at or near the time by a person with knowledge, kept in the regular course of business, and authenticated by a custodian
Business records are admissible under FRE 803(6) when made at or near the time of the recorded activity, by or from information transmitted by a person with knowledge, in the regular course of business, and authenticated by a qualified witness.
NY Bar Evidence 2
A dying declaration is admissible as an exception to the hearsay rule.
Under FRE 804(b)(2), which element is required?