Bar MBE 2022 – Evidence Questions And Answers With Complete Solution

Bar MBE 2022 – Evidence Questions And Answers With Complete Solution 1) each party is then entitled to cross-examine a witness called by the court 2) party may object to the court's examining or calling of a witness ...

Bar MBE 2022 – Evidence Questions And Answers With Complete Solution 1) each party is then entitled to cross-examine a witness called by the court 2) party may object to the court's examining or calling of a witness either at the time or at the next available opportunity when the jury is not present Correct Answers: What can each party do when a court calls or examines its own witness? Despite a juvenile conviction being GENERALLY INADMISSIBLE, a judge in a criminal case has DISCRETION to admit a juvenile conviction committed by a witness (NOT DEFENDANT) if evidence would be admissible to attack the credibility of an adult AND if the evidence is necessary to determine the DEFENDANT's guilt or innocence. Correct Answers: When is a juvenile conviction admissible? Through cross-examination and extrinsic evidence. To impeach a witness by extrinsic evidence of bias/interest, they must be asked about the facts that show bias/interest on a cross-examination. Note: The court has discretion to permit or not permit extrinsic evidence EVEN IF witness admits bias. Correct Answers: How can a witness be impeached because of their bias or interest? -Upon party's request, a trial judge must order witnesses excluded from courtroom -judge may also do this on their own -judge must NOT exclude: 1) a party or designated officer or employee of a party 2) a person whose presence is essential to the presentation of party's claim or defense 3) a person statutorily authorized to be present Correct Answers: When can a judge exclude or sequestrate a witness? Through cross-examination or extrinsic evidence that show that their perceptive senses and recollection were so impaired as to make it doubtful that they could have perceived those fact.s No foundation requirement for proving sensory deficiency with extrinsic evidence. Correct Answers: How can a witness be impeached because of their sensory deficiencies (i.e. bad eyesight/hearing, alcohol or drug use, poor memory)? Through cross-examination and extrinsic evidence. Cross-examination: make the witness admit they lied or were mistaken about some fact that they testified to during direct examination 1) if the witness admits, then impeached 2) if the witness denies, then can use extrinsic evidence Extrinsic Evidence: permitted UNLESS contradictory fact is collateral (meaning no significant relevant to the case or to witness's credibility Correct Answers: How can a witness be impeached because of their contradictory facts? 1) Court's determination of a preliminary question of fact relating to admissibility 2) grand jury proceedings 3) other miscellaneous proceedings (sentencing, extradition, bail, probation) Correct Answers: When does the Federal Rules of Evidence NOT apply? If it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLY than it would be without the evidence. Correct Answers: When is evidence relevant? Unfair prejudice; confusion of issues; misleading jury; wasting time; undue delay; needless presentation of cumulative (repetitive) evidence > (substantially outweighs) probative value Correct Answers: What is the FRE 403 Discretion to Exclude Relevant Evidence? In certain cases, a party may offer evidence that the witness made a timely complaint or prior statement of identification (prior consistent statement) and such prior identification can serve as substantive evidence (even when witness credibility not attacked). Example: identifying defendant as the perpetrator of the crime being charged Correct Answers: When can you bolster witness credibility without the purpose of impeachment/attacking witness credibility? No. Hearsay statements can only be made by a person. What a radar gun "said" or what a drug-sniffing dog did is NOT hearsay, but could be admissible under other rules of evidence. Correct Answers: Can hearsay derive from an animal or machine? misleading, compound, argumentative, narrative answers, calls for speculation, assume facts not in a evidence, conclusions, cumulative, non responsive, unduly harassing or embarrassing, lack of foundation Correct Answers: What are objections to improper questions and answers in direct and cross examinations of witnesses? Call a character witness to testify about the target witness's bad reputation or their low opinion of the target witness. Correct Answers: How can a witness be impeached because of their opinion or reputation evidence as a witness? If cross-examiner has good faith basis to believe the witness committed the misconduct, witness may be interrogated upon cross-examination with respect to misconduct if probative of truthfulness. Extrinsic evidence is NOT permitted. Cross-examination cannot refer to any consequences the witness may have suffered as as result of their bad act. (considered extrinsic evidence) Correct Answers: How can a witness be impeached by bad acts involving untruthfulness? Foundation is not needed if prior inconsistent statement is the opposing party's statement, inconsistent statements is by the hearsay declarant, or the court chooses to disregard where justice so requires. Prior inconsistent statements are hearsay unless they were made under oath (prior hearing, deposition, etc.). If made under oath, then ADMISSIBLE, NONHEARSAY and may be admitted as substantive evidence. Prior statement that omits a fact asserted during current testimony may be inconsistent if it would have been natural for the witness to include the fact if they believed it to be true. However, lack of memory is not the same as an inconsistent statement (unless lack of memory is fake) Prior inconsistent statements are admissible only for impeachment purposes. Extrinsic evidence can be introduced if NOT collateral AND witness has been given the opportunity explain or deny AND the adverse opportunity to examine the witness Correct Answers: How can a witness be impeached by prior inconsistent statements? Witness testimony or extrinsic evidence can both be used. No foundation is necessary. DISHONESTY & FALSE STATEMENT CRIMES: court has not discretion to bar impeachment by these crimes; does not include theft; can be felony or misdemeanor FELONY (NOT dishonesty or false statement): court has discretion to exclude these convictions balancing test required: 1) is the witness a criminal defendant? court excludes the conviction if prosecution has not shown that probative value OUTWEIGHS prejudicial effect 2) is the witness someone other than a criminal defendant? If so, court can exclude if prejudicial effect SUBSTANTIALLY OUTWEIGHS probative value If the conviction is from more than 10 years ago, it is not admissible UNLESS 1) probative value substantially outweighs prejudicial effect AND 2) reasonable written notice is given to the adverse party pending review or appeal does NOT affect use of conviction for impeachment purposes NOTE: Pardons because of innocence or rehabilitation and constitutionally defective convictions are NOT admissible. Correct Answers: How can a witness be impeached by prior convictions of crime? No. If a witness who makes a statement NOT directly relevant to an issue in the case, a party CANNOT prove the statement is untrue by extrinsic evidence or prior inconsistent statement. Correct Answers: Can a witness making a statement on a collateral matter be impeached? 1) evidence of a person's specific acts 2) opinion testimony of a witness who knows the person 3) testimony as to the person's general reputation in the community Correct Answers: What methods can be used to prove character? Witness is allowed to testify even if they have an interest in the outcome of the litigation (i.e. beneficiary) Correct Answers: What is the Dead Man Act? 1) must be limited to the scope of direct examination, including all reasonable inferences that may be drawn from it 2) matters that test credibility of the witness Correct Answers: What is the scope of a crossexamination? Generally yes. However, in a CRIMINAL CASE, in which the defendant's mental state constitutes an element of the crime or defense, the expert witness may NOT state an opinion as to whether the accused did or did not have the mental state at issue. Correct Answers: Can an expert witness render an opinion on an ultimate issue? In a CRIMINAL CASE, when the witness-spouse can refuse to testify against party-spouse DURING MARRIAGE ONLY about information learned before or during marriage. Party-spouse cannot prevent witness-spouse from testifying if they choose to. Correct Answers: What is spousal immunity privilege? In CIVIL OR CRIMINAL PROCEEDING, both spouses have privilege not to disclose confidential marital communications made during marriage either DURING OR AFTER MARRIAGE. Either spouse can prevent the other spouse from testifying. Correct Answers: What is confidential marital communications privilege? 1) communication or acts in furtherance of future joint crime or fraud 2) in legal actions between spouses 3) in cases where spouse is charged with a crime against testifying spouse or either spouse's children Correct Answers: When does neither marital privilege apply? 1) whether any extraneous prejudicial information was improperly brought to the jury's attention 2) whether any outside influence was improperly brought to bear on any juror 3) whether there is a mistake on the verdict form 4) whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant (in this case, court must find that the racial animus was a significantly motivating factor in juror's vote to convict) Correct Answers: What can jurors testify about? Facts generally known within the court's jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned Courts can only take judicial notice of adjudicative facts. Courts CANNOT take judicial notice of legislative facts (legal reasoning, lawmaking, etc.) Courts MUST take judicial notice of federal and state law and official regulations of forum state and federal government. Courts MAY take judicial notice of local municipal ordinances, private acts by Congress or local state legislatures, laws of foreign countries. Correct Answers: What can courts take judicial notice of? Hearsay that is admissible Correct Answers: What is a hearsay exception? Admissible, but NOT hearsay; nonhearsay Correct Answers: What is a hearsay exclusion? In civil cases, judicial notice taken is conclusive. In criminal cases, judicial notice taken is NOT conclusive. Judge must tell jury that they have discretion. Correct Answers: Is judicial notice conclusive? Rules that require a particular inference to be drawn from an ascertained set of facts and doesn't require additional proof. Common ones: 1) properly addressed, stamped, and mailed letters are presumed to be delivered 2) Someone who has been absent and unable to be located for 7 years or more is presumed dead 3) When cause of death is in dispute, the presumption is NOT suicide 4) Everyone is presumed to be born to legally married parents 5) Everyone is presumed to be solvent (able to pay off debts) and every debt is deemed collectible 6) People acting in an official office are presumed to be able to properly perform their duties 7) When ownership of a motor vehicle is established, it is presumed that the owner (or owner's agent) of the vehicle was the driver. Correct Answers: What are presumptions? Burden of production is shifted. (burden of persuasion never shifts in a case) Correct Answers: When presumption established, what kind of burden is shifted? In a CIVIL CASE, presumption can be overcome or destroyed when the adversary produces evidence contradicting the presumed fact. In a CRIMINAL CASE, a judge cannot instruct the jury to find a presumed fact against accused conclusive. The judge can only instruct jury that they MAY regard basic facts as sufficient evidence of presumed fact. (This is because in criminal cases, presumed facts that show guilty must be established beyond a reasonable doubt) Correct Answers: When is presumption rebutted? When part or all of a writing or recorded statement is introduced into evidence, adverse party may require proponent of evidence to introduce any other part or related writing or recorded statement that should in fairness be considered at the same time. (Ex. if a party only shows a clip from a tape recording, adverse party may request that the rest of the recording or another part of the recording be presented for additional relevant context) Correct Answers: What is the Rule of Completeness? To prove the content of a writing, recording, or photograph (including X-rays), the original must be produced IF its terms are MATERIAL. Secondary evidence (like oral testimony) are admissible ONLY IF proponent provides a satisfactory excuse for the original's absence. The original is MATERIAL if: 1) the document is legally operative or dispositive (i.e. contract, will, deed) 2) knowledge of a witness results from reading the document or looking at a photo (or x-ray) Originals and duplicates of documents are generally both admissible to satisfy this rule. Correct Answers: What is the Best Evidence Rule? 1) when the hearing involves admissibility of a confession 2) the defendant in a criminal case testifying at the hearing and requests the jury be excused 3) justice so requires Otherwise, judges have discretion whether or not to excuse the jury during the preliminary fact determination. Correct Answers: When MUST a jury be excused? When the absence of the original is justified: 1) loss or destruction (buy only when not in bad faith) 2) Cannot be obtained by any judicial process (in the hands of a third party outside of the court's jurisdiction and cannot be obtained with any reasonable effort) 3) In the hands of the adversary, but adversary fails to produce it after due notice Examples of secondary evidence: handwritten copies, notes, oral testimony, etc. Correct Answers: When is secondary evidence of contents admissible? When it is relevant and authenticated either by testimony of a witness that can say they recognize the object (such as the weapon found at the crime scene) or by evidence that the object has been held in a substantially unbroken chain of custody. And if the condition of the object is significant, it must be signboard it be in the substantially same condition at trial. Correct Answers: When is real evidence admissible? When the patient puts their mental condition at issue Correct Answers: When does psychotherapist/social worker-patient privilege NOT apply? 1) Copies of certified public records or public records testified to as correct 2) Writing is collateral (minor importance) to the controversy/issue being litigated 3) opponent's testimony, deposition, or written admission about writing's contents 4) When it would be inconvenient to produce voluminous records, a summary or chart of those records is acceptable; however, proponent must make originals/duplicates available for inspection and copying and court may still order proponent to produce the records in court Correct Answers: What are exceptions to the Best Evidence Rule? Confidential communications between attorney (or someone client reasonably believes to be an attorney) and their client. It does not apply to underlying information, pre-existing documents, and physical evidence. Applies indefinitely even after client's death. Privilege is preserved if representatives of attorneys or clients communicate. Confidential communications to third persons (i.e. administrative assistant) privileged if necessary to transmit information between attorney and client. Professional legal consult with the purpose of obtaining or rendering legal services also counts. Joint clients who share the same attorney - the joint clients don't have attorney-client privilege between each other, but privilege still applies as to third parties. Correct Answers: When does attorney-client privilege apply? No privilege if: 1) attorney's services were sought to aid in the planning or commission of the act that the client should have known was a crime or fraud 2) for a communication relevant to an issue of breach of in a dispute between attorney and client 3) where the client has put the legal services at issue in the case 4) regarding a communication relevant to an issue between parties claiming through the same deceased client Correct Answers: What are the exceptions to the attorney-client privilege? Generally, only the disclosed material is waived (intentionally). No waiver if the disclosure of inadvertent and holder took reasonable steps to rectify. Undisclosed privileged material is only subject to the waiver IF 1) waiver is intentional 2) disclosed and undisclosed material contain the same subject matter AND 3) the material should be considered together to avoid unfairness Correct Answers: What are the limitations on attorney-client privilege and attorney work product waivers? Defendant's other acts of sexual assault or child molestation is admissible in a criminal or civil case where defendant is accused of committing an act of sexual assault or child molestation. Relevant and admissible for any purpose including defendant's propensity to commit sex crimes. Party intending to offer this evidence must disclose it to the defendant 15 days before trial or later with good cause. Correct Answers: When is a defendant's similar misconduct admissible in sex crime cases? 1) by pleading or stipulation 2) opponent's admission 3) eyewitness testimony 4) handwriting verifications, lay or expert witness or jury comparison 5) reply letter doctrine - evidence that it was written in response to communication sent to alleged author 6) ancient documents ( at least 20 years old, in a condition that seems authentic found in a place where it would likely be kept) 7) photographs IF identified by witness as portrayal of certain facts relevant to issue and verified by witness 8) x-ray, ECGs, etc. - cannot be authenticated by witness testimony, must establish custodial chain, working machine, process used was accurate, and operator was qualified Correct Answers: What are methods for authenticating documents? INADMISSIBLE: insurance or lack of insurance NOT admissible to prove negligence or wrongful action ADMISSIBLE: to prove anything else - ownership or control (if disputed) - impeach witness (show bias) - admission of liability where reference to insurance coverage cannot be severed without lessening its probative value (ex: "don't worry, my surname will pay for it") Correct Answers: When is liability insurance admissible and when is it inadmissible? INADMISSIBLE: repairs and precautionary measures following injury is NOT admissible to prove negligence, culpable conduct, defect in product/design, need for warning or instruction ADMISSIBLE: to prove ownership or control in dispute; to prove opposing party has destroyed evidence; to rebut claim that precaution was not feasible Correct Answers: When are subsequent remedial measures admissible and when are they inadmissible? INADMISSIBLE: compromise (settlement) or offer to compromise/settle civil claim NOT admissible to 1) prove or disprove validity or amount of disputed claim 2) impeach witness witness by prior inconsistent statement or contradiction (this also includes conduct and statements made during the course of negotiations) ADMISSIBLE: Can be used to impeach witness on grounds of bias; requires a claim or indication that party was going to make a claim and claim must have be in dispute regarding liability or amount In criminal cases, compromises/negotiations regarding civil disputes with government agencies/institutions are admissible (ex: SEC investigation negotiation can be brought into a DOJ trial) Correct Answers: When are civil settlement and settlement negotiations admissible and when are they inadmissible? INADMISSIBLE: in civil and criminal cases against defendant who made the plea/participated in plea discussions, the following are NOT admissible: 1) offers to plead guilty 2) withdrawn guilty pleas 3) actual pleas of nolo contendre (no contest) 4) statements of fact made during any of the above plea discussions ADMISSIBLE: actual guilty pleas (that are not withdrawn) are generally admissible in related litigation as a statement of an opposing party Correct Answers: When are plea discussions admissible and when are they inadmissible? 1) similar accidents/injuries caused by the same condition/event AND under SUBSTANTIALLY SIMILAR circumstances admissible to prove: a) existence of dangerous condition b) dangerous condition cause of present injury c) Defendant had notice of dangerous conditions 2) Plaintiff's prior accident admissible to show plaintiff's condition attributable (in whole or part) to prior accident 3) Evidence of plaintiff's prior false claims admissible to show likelihood that current claim is false 4) Similar conduct committed by party before may be admissible to prove party's present motive/intent in current cafe 5) Similar occurrences can rebut claim of impossibility 6) Sale price of similar property is admissible if it is in the same area and sold around the same time 7) industry and trade customs admissible to show the appropriate standard of care 8) habit & routine evidence Correct Answers: What are exceptions to the general rule that similar occurrences are NOT admissible? 1) to elicit preliminary/introductory matter 2) witness needs help responding because of loss of memory , immaturity, physical or mental weakness 3) witness is hostile, an adverse party, or a witness affiliated with an adverse party Correct Answers: When are leading questions allowed on direct examinations? A hearsay declarant is not a witness on the stand, but their out-of-court statement is admitted in evidence. Correct Answers: Who is considered a hearsay declarant? A hearsay declarant's credibility can be attacked using evidence that would have been admissible if they were an actual in-court witness. A hearsay declarant does NOT need to be given the opportunity to explain or deny their prior inconsistent statement. An adverse party CAN call a hearsay declarant as a witness and conduct a cross-examination. Correct Answers: How can a hearsay declarant be impeached? Yes, courts have the broad discretion to appoint their own expert witnesses. On a party's motion or it's own, the court may order the parties to show cause why the expert should not be appointed and may ask the parties to submit nominations. Any party may depose the court-appointed expert witnesses, call them as a witness, or crossexamine the expert witness Correct Answers: Can the court appoint its own expert witness? Balance the following factors: 1) whether the expert's theory or methodology has been tested 2) whether it has been subject to peer review and publication 3) its known or potential error rate 4) existence and maintenance of standards controlling its operation 5) whether it is generally accepted in the relevant field Correct Answers: What are the Daubert factors for establishing reliability of scientific testimony? Learned treatises can be used to impeach expert witnesses and can be introduced as substantive evidence (must be in the context of expert testimony) Exception to hearsay rule: learned treatises can be read into evidence but CANNOT be received as an exhibit. learned treatises must be established as reliable authority by: 1) testimony of expert on stand 2) testimony of another expert 3) judicial notice Correct Answers: How can learned treatises be used in trial? 1) explain on redirect 2) introduce character witness who can provide reputation or opinion testimony (not allowed to testify about specific acts) 3) introduce prior consistent statements (these can be admissible as substantive evidence) If witness is impeached because of expressed or implied charge that the witness is lying or exaggerating because of some motive, PRIOR CONSISTENT STATEMENT made by witness BEFORE the onset of the alleged motive is ADMISSIBLE If the witness is impeached on other ground (other than truthfulness), such as inconsistency or faulty memory, prior consistent statement may be introduced to rehabilitate witness credibility. Correct Answers: How can an impeached witness be rehabilitated? Sufficient to support a jury finding Correct Answers: What is the standard of proof for authenticating writing? INADMISSIBLE: payments or offers to pay medical, hospital expenses, etc. are NOT admissible to prove liability for injury ADMISSIBLE: admissions of fact accompanying payments /offers are admissible (ex: "I'll pay your hospital bill. I shouldn't have tripped you." The first sentence is INADMISSIBLE. Second sentence is ADMISSIBLE) Note: be careful of wording - is payment or offer to pay absolute or a negotiation/compromise (settlement) (ex: I will offer to pay your medical bills, if.... XYZ) Correct Answers: When are payments and offers to pay medical expenses admissible and when are they inadmissible? It does not waive privilege against self-incrimination. Hence, it does not subject the accused to testifying at trial or cross-examination about other issues in the case. Correct Answers: What are the consequences of testimony by the accused on any preliminary matter? Lay witnesses cannot give an opinion as to whether they acted as an agent or whether a contract made. This is because these are legal conclusions that require specialized knowledge. Correct Answers: When is lay witness opinion testimony inadmissible? In a homicide case in which the defendant pleads self-defense, evidence of ANY KIND (not just character evidence) that victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness. Prosecution can introduce this evidence regardless of whether the defendant introduced character evidence of victim's generally violent propensity. Correct Answers: When can prosecution offer evidence of a victim's good character for peacefulness? Victim character evidence is NOT applicable to sexual assault cases. Defendant may introduce reputation and/or opinion evidence of a bad character trait of the alleged crime victim when relevant to show the defendant's innocence. Relevant when defendant claimed self-defense AFTER defendant introduced evidence of victim's bad character. Prosecution can rebut with reputation/opinion of 1) the victim's good character for the same trait OR 2) defendant's bad character for same trait Victim character evidence is only applicable to propensity related evidence. If evidence of victim's character for non-propensity purpose (like defendant's state of mind), this doesn't apply. Correct Answers: When can victim character evidence be admissible in a criminal case? 1) rationally based on the witness's perception 2) helpful to a clear understanding of the witness's testimony or helpful to determination of a fact in issue AND 3) not based on scientific, technical, or other specialized knowledge ex: state of emotion of a person, general appearance or condition of a person, matters involving sensory recognition, voice/handwriting identification, speed of moving object, intoxication, value of own property or service Correct Answers: When is opinion testimony by a lay witness admissible?...