WV Bar Evidence 2 — Questions and Answers
Question 1: Under West Virginia Rule of Evidence 702, expert testimony is admissible when the expert's opinion is based on:
- Any generally accepted scientific principle
- Sufficient facts or data, reliable principles and methods, reliably applied to the facts of the case (Correct answer)
- Personal experience alone
- Hypothetical questions posed by counsel
Correct answer: Sufficient facts or data, reliable principles and methods, reliably applied to the facts of the case
Rule 702 requires that expert testimony rest on sufficient facts, reliable methodology, and reliable application of that methodology to the case facts, reflecting the Daubert reliability standard.
Question 2: The excited utterance exception to hearsay in West Virginia requires:
- A statement made calmly after the event
- A startling event and a statement made under the stress of excitement caused by that event (Correct answer)
- The declarant to be unavailable to testify
- The statement to be written down immediately after the event
Correct answer: A startling event and a statement made under the stress of excitement caused by that event
Rule 803(2) requires a startling event or condition and a statement relating to that event made while the declarant was still under the stress of excitement caused by it.
Question 3: Lay witness opinion testimony in West Virginia is admissible when the opinion is:
- Based on specialized knowledge
- Rationally based on the witness's first-hand perception and helpful to understanding the testimony (Correct answer)
- Supported by an expert's corroborating opinion
- About technical matters within the witness's occupation
Correct answer: Rationally based on the witness's first-hand perception and helpful to understanding the testimony
WV Rule 701 permits lay witness opinions when rationally based on personal perception, helpful to the fact-finder, and not based on specialized knowledge requiring expert qualification.
Question 4: Under the work-product doctrine in West Virginia, materials prepared by an attorney in anticipation of litigation are:
- Absolutely privileged and can never be discovered
- Protected from disclosure absent a showing of substantial need and inability to obtain equivalent information (Correct answer)
- Discoverable as a matter of right
- Only protected if marked confidential
Correct answer: Protected from disclosure absent a showing of substantial need and inability to obtain equivalent information
The work-product doctrine (WV Rule 26) protects attorney-prepared litigation materials from discovery but can be overcome by showing substantial need and inability to obtain equivalent information without undue hardship.
Question 5: In a West Virginia criminal case, the Confrontation Clause of the Sixth Amendment requires:
- That all witnesses testify in writing
- That testimonial hearsay statements be subject to prior cross-examination if the declarant is unavailable (Correct answer)
- That the defendant be present at all pretrial hearings
- That all prosecution witnesses testify before the defense witnesses
Correct answer: That testimonial hearsay statements be subject to prior cross-examination if the declarant is unavailable
Under Crawford v. Washington, the Confrontation Clause bars admission of testimonial hearsay against a criminal defendant unless the declarant is unavailable and was previously subject to cross-examination.
Question 6: Under West Virginia Rule of Evidence 407, evidence of subsequent remedial measures is inadmissible to prove:
- Ownership or control of the instrumentality
- Negligence or culpable conduct (Correct answer)
- Feasibility of precautionary measures if disputed
- Impeachment of a witness
Correct answer: Negligence or culpable conduct
Rule 407 bars subsequent remedial measures evidence to prove negligence or culpable conduct, but allows it to show ownership, control, or feasibility of precautions when controverted.
WV Bar Evidence 2
Under West Virginia Rule of Evidence 702, expert testimony is admissible when the expert's opinion is based on: