UT Bar Evidence 2 — Questions and Answers
Question 1: A defendant in a Utah assault trial offers testimony that the alleged victim has a reputation for violence. Under Utah Rule of Evidence 404(a)(2), this evidence is:
- Admissible as a pertinent character trait of the victim offered by the accused (Correct answer)
- Inadmissible because character evidence is never allowed in criminal cases
- Admissible only if the victim testifies first
- Inadmissible unless the prosecution opens the door
Correct answer: Admissible as a pertinent character trait of the victim offered by the accused
Rule 404(a)(2) allows a criminal defendant to offer evidence of a pertinent character trait of the alleged victim, such as violence in an assault case.
Question 2: A witness testifies about a car accident. Opposing counsel offers the witness's prior inconsistent statement made in a deposition under oath. The statement is admissible:
- As substantive evidence and for impeachment (Correct answer)
- For impeachment purposes only
- Only if the witness admits making it
- Only in civil cases
Correct answer: As substantive evidence and for impeachment
A prior inconsistent statement given under penalty of perjury at a deposition is non-hearsay under Rule 801(d)(1)(A) and may be used both substantively and to impeach.
Question 3: During a robbery trial, a 911 recording captures the victim shouting, 'He's pointing a gun at me right now!' This statement is most likely admissible as:
- A present sense impression or excited utterance (Correct answer)
- A statement against interest
- A dying declaration
- Inadmissible hearsay with no applicable exception
Correct answer: A present sense impression or excited utterance
A statement describing an event as it occurs, made under the stress of a startling event, fits both the present sense impression and excited utterance exceptions under Rules 803(1) and 803(2).
Question 4: A plaintiff offers evidence that after she slipped on a store's stairs, the store installed a handrail. Under Rule 407, this evidence is:
- Inadmissible to prove negligence, but admissible to prove ownership or control if disputed (Correct answer)
- Admissible to prove the store was negligent
- Admissible for any purpose because it is relevant
- Inadmissible for all purposes
Correct answer: Inadmissible to prove negligence, but admissible to prove ownership or control if disputed
Subsequent remedial measures are barred to prove negligence or culpable conduct but may be admitted for other purposes like disputed ownership, control, or feasibility.
Question 5: A prosecutor seeks to cross-examine a testifying defendant about a felony fraud conviction from four years ago. Under Rule 609, the conviction is:
- Automatically admissible because fraud involves a dishonest act or false statement (Correct answer)
- Admissible only if probative value substantially outweighs prejudice
- Inadmissible because the defendant is the accused
- Inadmissible because more than three years have passed
Correct answer: Automatically admissible because fraud involves a dishonest act or false statement
Under Rule 609(a)(2), convictions for crimes involving dishonesty or false statement must be admitted to impeach, without balancing.
Question 6: At trial, a party offers a photocopy of a signed contract. The opponent objects under the best evidence rule. The copy is:
- Admissible as a duplicate unless a genuine question is raised about the original's authenticity (Correct answer)
- Inadmissible unless the original is produced
- Admissible only with the drafter's testimony
- Inadmissible because contracts require originals
Correct answer: Admissible as a duplicate unless a genuine question is raised about the original's authenticity
Rule 1003 makes duplicates admissible to the same extent as originals unless authenticity of the original is genuinely questioned or admission would be unfair.
Question 7: In a Utah medical malpractice case, the defense calls an engineer to opine on the standard of care for surgeons. The court should:
- Exclude the opinion because the witness lacks qualification in the relevant field (Correct answer)
- Admit it because the witness is an expert in some field
- Admit it and let the jury weigh the credentials
- Exclude it because experts may never opine on the standard of care
Correct answer: Exclude the opinion because the witness lacks qualification in the relevant field
Under Rule 702, an expert must be qualified by knowledge, skill, experience, training, or education in the specific field at issue, and an engineer is not qualified on surgical standards.
UT Bar Evidence 2
A defendant in a Utah assault trial offers testimony that the alleged victim has a reputation for violence.
Under Utah Rule of Evidence 404(a)(2), this evidence is: