NY Bar Evidence 1 — Questions and Answers
Question 1: Under the Federal Rules of Evidence, relevant evidence is defined as evidence that:
- Conclusively proves a material fact
- Has any tendency to make a fact of consequence more or less probable (Correct answer)
- Is directly related to the ultimate issue in the case
- Is credible and reliable
Correct answer: Has any tendency to make a fact of consequence more or less probable
Under FRE 401, relevance requires only that evidence have any tendency (even a small tendency) to make a consequential fact more or less probable than it would be without the evidence.
Question 2: Hearsay is defined as an out-of-court statement offered to prove:
- The state of mind of the declarant
- The truth of the matter asserted (Correct answer)
- That the declarant made the statement
- Any fact in the case
Correct answer: The truth of the matter asserted
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement; if offered for another purpose, it is not hearsay.
Question 3: Under FRE 404(b), evidence of prior bad acts by a defendant is inadmissible to show propensity but may be admissible to show:
- The defendant is a bad person
- Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake (Correct answer)
- That the defendant committed similar crimes before
- General character for criminality
Correct answer: Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
Rule 404(b) permits prior act evidence for non-propensity purposes including proving motive, intent, knowledge, identity, plan, opportunity, preparation, or absence of mistake or accident.
Question 4: A witness testifies that the defendant appeared nervous. This is best characterized as:
- Inadmissible lay opinion testimony
- Admissible lay opinion testimony based on personal observation (Correct answer)
- Expert testimony requiring qualification
- Hearsay because it describes another person's state
Correct answer: Admissible lay opinion testimony based on personal observation
Under FRE 701, lay opinion testimony is admissible if rationally based on the witness's perception, helpful to understanding the testimony, and not based on specialized knowledge; nervousness is a classic permissible lay opinion.
Question 5: The attorney-client privilege protects communications that are:
- Any communication between a lawyer and a client
- Confidential communications between attorney and client made for the purpose of seeking or rendering legal advice (Correct answer)
- All conversations in the presence of the attorney
- Communications with any employee of a law firm
Correct answer: Confidential communications between attorney and client made for the purpose of seeking or rendering legal advice
The attorney-client privilege applies to confidential communications between attorney and client made for the purpose of obtaining or providing legal advice, and requires that the confidentiality be maintained.
Question 6: Under the best evidence rule (FRE 1002), to prove the content of a writing, recording, or photograph, a party must generally produce:
- A certified copy
- The original (Correct answer)
- Any reliable reproduction
- A witness who has read the document
Correct answer: The original
The best evidence rule requires production of the original writing, recording, or photograph when a party seeks to prove its content, though duplicates and excuses for non-production are recognized.
NY Bar Evidence 1
Under the Federal Rules of Evidence, relevant evidence is defined as evidence that: