PA Bar Evidence 2 — Questions and Answers
Question 1: Pennsylvania's Dead Man's Act (42 Pa. C.S. § 5930) prohibits a surviving party from testifying about:
- Any conversation they had with any deceased person
- Transactions or communications with a deceased person in a suit against the deceased's estate or representative (Correct answer)
- Business records prepared before the decedent's death
- Events witnessed by the decedent alone
Correct answer: Transactions or communications with a deceased person in a suit against the deceased's estate or representative
Pennsylvania's Dead Man's Act bars a surviving party or person with a financial interest in the outcome from testifying about transactions or communications with a deceased or incompetent person when suit is brought against the decedent's estate.
Question 2: Under Pa. R.E. 702, expert testimony is admissible when the expert's specialized knowledge:
- Has been published in a peer-reviewed journal
- Will help the trier of fact understand evidence or determine a fact in issue, and the expert is qualified by knowledge, skill, training, or experience (Correct answer)
- Has been accepted by all courts in the jurisdiction
- Is based solely on objective measurements
Correct answer: Will help the trier of fact understand evidence or determine a fact in issue, and the expert is qualified by knowledge, skill, training, or experience
Rule 702 requires that expert testimony assist the trier of fact, that the expert be qualified in the relevant field, and that the testimony be based on sufficient facts and a reliable methodology.
Question 3: Pennsylvania uses the Frye standard (not Daubert) to evaluate the admissibility of novel scientific evidence, requiring that the methodology be:
- Generally accepted in the relevant scientific community (Correct answer)
- Peer reviewed and published
- Tested by the opposing party's expert
- Based on a probability of at least 95%
Correct answer: Generally accepted in the relevant scientific community
Pennsylvania has retained the Frye general-acceptance standard for novel scientific evidence, requiring that the underlying methodology be generally accepted by the relevant scientific community.
Question 4: Under Pa. R.E. 609, a witness's prior conviction may be used for impeachment purposes if the crime:
- Was any criminal offense for which the witness was arrested
- Was punishable by death or imprisonment for more than one year, subject to a probative/prejudice balancing test (Correct answer)
- Occurred within the past 5 years only
- Resulted in incarceration regardless of the sentence length
Correct answer: Was punishable by death or imprisonment for more than one year, subject to a probative/prejudice balancing test
Rule 609 permits impeachment with prior convictions for crimes punishable by death or imprisonment exceeding one year, subject to Rule 403 balancing for non-defendant witnesses and additional protections for defendants.
Question 5: Under Pa. R.E. 801(d)(2), which statement is defined as 'not hearsay' when offered against a party?
- A statement by the party's attorney in a deposition
- A party's own out-of-court statement offered against that party (Correct answer)
- A co-conspirator's statement made after the conspiracy ended
- A business record created by the party
Correct answer: A party's own out-of-court statement offered against that party
Rule 801(d)(2) classifies an opposing party's own statement as non-hearsay when it is offered against that party, regardless of whether it was against the party's interest when made.
Question 6: Under Pa. R.E. 612, if a witness uses a writing to refresh their memory before testifying, the adverse party:
- Has no right to see the document
- Is entitled to inspect the writing and may use it to cross-examine the witness (Correct answer)
- Must obtain a subpoena before viewing the document
- May object to its use on hearsay grounds
Correct answer: Is entitled to inspect the writing and may use it to cross-examine the witness
Rule 612 gives the adverse party the right to inspect any writing used to refresh a witness's memory, to cross-examine on it, and to introduce relevant portions into evidence.
PA Bar Evidence 2
Pennsylvania's Dead Man's Act (42 Pa.
C.S. § 5930) prohibits a surviving party from testifying about: