VA Bar Evidence 3 — Questions and Answers
Question 1: In a Virginia civil negligence case, the defendant's character for carelessness is offered by the plaintiff to prove the defendant acted carelessly on the day in question. This evidence is:
- Admissible as directly relevant to the claim
- Inadmissible because character evidence is generally excluded in civil cases to prove conduct (Correct answer)
- Admissible if proved by reputation testimony only
- Admissible because negligence puts character directly in issue
Correct answer: Inadmissible because character evidence is generally excluded in civil cases to prove conduct
Virginia Rule of Evidence 2:404(a) bars character evidence offered to prove that a person acted in conformity therewith; this prohibition applies in civil cases where character is not itself an element of the claim.
Question 2: In a Virginia rape prosecution, the defendant seeks to introduce evidence that the alleged victim had consensual sex with the defendant on a prior occasion. Under Virginia's rape shield law, this evidence is:
- Admissible as highly relevant to consent
- Inadmissible without exception
- Potentially admissible under the specific exception for prior consensual sex between the parties (Correct answer)
- Admissible only through expert testimony
Correct answer: Potentially admissible under the specific exception for prior consensual sex between the parties
Virginia's rape shield statute (Va. Code §18.2-67.7) bars evidence of a victim's prior sexual conduct but carves out a specific exception for prior consensual intercourse between the complaining witness and the accused.
Question 3: The prosecution charges defendant with bank robbery. It seeks to introduce evidence that defendant robbed a different bank two years earlier under FRE 404(b). What is the most proper purpose for admission?
- To show defendant has a criminal character
- To show defendant's identity using a distinctive modus operandi (Correct answer)
- To show defendant is more likely to have committed this crime
- To show defendant's bad reputation in the community
Correct answer: To show defendant's identity using a distinctive modus operandi
Rule 404(b) allows prior bad acts for non-propensity purposes such as identity; if the prior robbery used a highly distinctive method identical to the charged crime, it may be admitted to prove the same perpetrator.
Question 4: A client consults an attorney about drafting a contract, then later sues the attorney for malpractice. The attorney seeks to testify about what the client said during the consultation. The client asserts attorney-client privilege. Which statement is correct?
- The privilege is waived because the client filed suit
- The privilege protects all client communications made for the purpose of obtaining legal advice, even in a malpractice suit (Correct answer)
- The privilege does not apply because the communication concerned a transactional matter, not litigation
- The attorney may testify because the privilege belongs to the attorney
Correct answer: The privilege protects all client communications made for the purpose of obtaining legal advice, even in a malpractice suit
The attorney-client privilege covers confidential communications made for the purpose of obtaining legal advice; filing a malpractice action does not automatically waive the privilege for all prior communications.
Question 5: Under Virginia's Dead Man's Statute (Va. Code §8.01-397), which witness is incompetent to testify?
- A disinterested bystander to a contract formation
- A surviving party to a transaction with a decedent, testifying against the decedent's estate about that transaction (Correct answer)
- An expert witness retained by the decedent's estate
- A character witness for the surviving party
Correct answer: A surviving party to a transaction with a decedent, testifying against the decedent's estate about that transaction
Virginia's Dead Man's Statute renders a surviving party to a personal transaction with a deceased incompetent to testify on his or her own behalf about that transaction when offered against the decedent's estate.
Question 6: A defendant's prior felony conviction for embezzlement 8 years ago is offered to impeach him as a witness in a current fraud trial. Under FRE 609, what must the court find to exclude it?
- The conviction is more than 10 years old
- The probative value is substantially outweighed by the prejudicial effect, applying a reverse-403 balancing test (Correct answer)
- The crime did not involve dishonesty or false statement
- The defendant has been rehabilitated
Correct answer: The probative value is substantially outweighed by the prejudicial effect, applying a reverse-403 balancing test
Under FRE 609(a)(1), a felony conviction may be excluded if its probative value is substantially outweighed by unfair prejudice to the defendant, which is a modified balancing test in criminal cases.
Question 7: A party calls a witness who gives unexpected adverse testimony. The calling party seeks to introduce the witness's prior inconsistent statement. Which of the following is true in Virginia?
- The prior statement is inadmissible because you cannot impeach your own witness
- Virginia abolished the voucher rule, so a party may impeach its own witness with a prior inconsistent statement (Correct answer)
- The prior statement is admissible only if the witness is declared hostile
- The prior statement is inadmissible hearsay regardless of purpose
Correct answer: Virginia abolished the voucher rule, so a party may impeach its own witness with a prior inconsistent statement
Virginia Rule of Evidence 2:607 abolished the common-law voucher rule and permits any party, including the calling party, to impeach a witness with prior inconsistent statements.
VA Bar Evidence 3
In a Virginia civil negligence case, the defendant's character for carelessness is offered by the plaintiff to prove the defendant acted carelessly on the day in question.
This evidence is: