UT Bar Evidence 3 — Questions and Answers
Question 1: A criminal defendant's wife is called by the prosecution to testify against him in a Utah trial about events during the marriage. Regarding spousal testimonial privilege, generally:
- The witness-spouse holds the privilege and may choose whether to testify (Correct answer)
- The defendant-spouse can prevent the wife from testifying
- Neither spouse may invoke any privilege
- The judge decides whether the marriage justifies the privilege
Correct answer: The witness-spouse holds the privilege and may choose whether to testify
The testimonial privilege belongs to the witness-spouse, who may testify or refuse, while the defendant cannot block the testimony.
Question 2: During settlement negotiations, a defendant says, 'I'll pay $50,000 because I know my driver ran the red light.' At trial, the admission about the red light is:
- Inadmissible because statements made during compromise negotiations are protected (Correct answer)
- Admissible because it is an admission of fault
- Admissible because only the settlement amount is protected
- Inadmissible only if a settlement was actually reached
Correct answer: Inadmissible because statements made during compromise negotiations are protected
Rule 408 excludes both offers to compromise and statements made during compromise negotiations when offered to prove liability.
Question 3: A murder victim's diary entry reading 'I fear my husband will kill me someday' is offered to prove the husband killed her. The entry is most likely:
- Inadmissible hearsay because the state-of-mind exception does not cover statements of memory or belief to prove the fact believed (Correct answer)
- Admissible under the state-of-mind exception
- Admissible as a dying declaration
- Admissible as a business record
Correct answer: Inadmissible hearsay because the state-of-mind exception does not cover statements of memory or belief to prove the fact believed
Rule 803(3) covers then-existing states of mind but expressly excludes statements of memory or belief offered to prove the fact remembered or believed.
Question 4: A party seeks to authenticate a threatening phone call by testifying she recognized the caller's voice from prior conversations. This authentication is:
- Sufficient, because voice identification may be based on familiarity gained at any time (Correct answer)
- Insufficient without phone company records
- Insufficient because voice identification requires expert testimony
- Sufficient only if the familiarity predates the call
Correct answer: Sufficient, because voice identification may be based on familiarity gained at any time
Rule 901(b)(5) permits lay voice identification based on familiarity acquired at any time, including after the event.
Question 5: In a drug trial, the prosecution offers the defendant's prior drug sale to prove his intent to distribute. Under Rule 404(b), the court should:
- Admit it for the non-character purpose of intent if it survives Rule 403 balancing (Correct answer)
- Exclude it because prior bad acts are always inadmissible
- Admit it to show the defendant's propensity to sell drugs
- Exclude it unless the defendant was convicted of the prior sale
Correct answer: Admit it for the non-character purpose of intent if it survives Rule 403 balancing
Rule 404(b) allows prior acts for non-propensity purposes such as intent, subject to Rule 403's balancing of probative value against unfair prejudice.
Question 6: A hospital record contains a nurse's note: 'Patient states the other car ran the stop sign.' Offered to prove the other car ran the sign, the note is:
- Inadmissible because the patient's statement is hearsay within hearsay not covered by the medical treatment exception (Correct answer)
- Admissible entirely under the business records exception
- Admissible under the medical diagnosis exception because it was said to a nurse
- Inadmissible because hospital records are privileged
Correct answer: Inadmissible because the patient's statement is hearsay within hearsay not covered by the medical treatment exception
The record itself is a business record, but the embedded fault statement is not reasonably pertinent to diagnosis or treatment, so the inner hearsay lacks an exception.
Question 7: A judge in a Utah bench trial takes judicial notice that Salt Lake City is in Salt Lake County. This is proper because:
- The fact is generally known within the jurisdiction and not subject to reasonable dispute (Correct answer)
- Judges may notice any fact they personally know
- The parties stipulated to venue
- Geographic facts are exempt from evidence rules
Correct answer: The fact is generally known within the jurisdiction and not subject to reasonable dispute
Rule 201 permits judicial notice of adjudicative facts that are generally known locally or accurately and readily determinable from reliable sources.
UT Bar Evidence 3
A criminal defendant's wife is called by the prosecution to testify against him in a Utah trial about events during the marriage.
Regarding spousal testimonial privilege, generally: