EVIDENCE MBE PRACTICE QUESTIONS

Transcription

1 EVIDENCE MBE PRACTICE QUESTIONS

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3 Evidence Questions 1. Evidence Questions Question 1 A plaintiff brought an action against a defendant for property damages, alleging that the defendant s car nicked the side of the plaintiff s truck while the defendant was changing lanes on an expressway. At trial, the defendant sought to introduce evidence of her good driving record. Is the evidence admissible? (A) No, because it is character evidence. (B) No, because it is self-serving. (C) Yes, because it is character evidence. (D) Yes, because it is habit evidence. Question 2 A plaintiff sued a defendant for defamation, asserting in her complaint that the defendant had called the plaintiff a thief in front of a number of business associates. The plaintiff calls two witnesses to the stand, both of whom testify that they heard the defendant refer to the plaintiff as a thief in front of the business associates. The plaintiff does not take the stand herself. The defendant pleads truth of the statement as an affirmative defense and calls a witness to the stand. The defense witness is prepared to testify that he was a co-worker of the plaintiff when the plaintiff supplemented her income by tending bar three nights a week. The witness will testify that he saw the plaintiff take a $20 bill from the tavern s cash register and secrete the money in her pocket. The plaintiff s attorney objects. May the defense witness s testimony be allowed? (A) Yes, as substantive evidence that the plaintiff is, in fact, a thief. (B) Yes, because theft is a crime indicating dishonesty. (C) No, because specific bad acts may not be used to show bad character. (D) No, because the plaintiff never took the stand.

4 2. Evidence Questions Question 3 During the defendant s trial for embezzlement, the defense calls a witness to testify as to the defendant s reputation for honesty and veracity. The prosecution objects. Should the court allow the testimony? (A) Yes, because the prosecution put the defendant s character for truthfulness in issue by filing charges against him. (B) Yes, because it is admissible character evidence. (C) No, because a party cannot bolster the testimony of his witness until he has been impeached. (D) No, because the evidence is inadmissible hearsay. Question 4 A defendant is charged with beating a victim to death with a set of brass knuckles during the course of a fight in a tavern. The victim was found to have a pistol on his person at the time of the fight. During the course of the trial, the defendant took the stand in his own defense and testified that the victim threatened him with a gun and the defendant had hit the victim with the brass knuckles in self-defense. To rebut the defendant s claim, the prosecution wishes to place the bartender on the stand, who will testify that two years prior to the attack on the victim, she had seen the defendant approach a customer in her tavern from behind, put on a pair of brass knuckles, and strike the customer a severe blow on the side of the face with a brass-knuckled fist. The prosecutor, in accordance with local court rules, has apprised the defense attorney of the general tenor of the bartender s proposed testimony. As soon as the bartender is sworn in, the defense attorney raises an objection. How should the court rule on the admissibility of the bartender s testimony? (A) Admissible, as substantive evidence that the defendant did not act in self-defense in beating the victim. (B) Admissible, to attack the defendant s credibility. (C) Inadmissible, because prior bad acts cannot be admitted to prove the defendant s propensity to commit the specific crime with which he is charged. (D) Inadmissible, because the defendant has not put his character in issue in this case.

5 Evidence Questions 3. Question 5 A defendant is charged with trafficking in firearms, in violation of federal firearms control laws, as well as receiving stolen property. The charges arise from the defendant s having attempted to sell a semi-automatic weapon identified as one of dozens that were stolen from a warehouse a year ago. The defendant denies intending to sell the gun or knowing that it had been stolen. At trial, which of the following would the court be LEAST likely to allow the prosecution to introduce as evidence against the defendant? (A) Evidence that the defendant was once convicted of armed robbery with a semiautomatic weapon. (B) The testimony of a witness that, the day before the defendant s arrest, he asked the witness how much she would be willing to pay for a semi-automatic weapon. Question 6 While cross-examining a defendant on trial for robbery and assault with a deadly weapon, the prosecutor asks him whether he was convicted of fraud within the previous year. Is this question proper? (A) No, because fraud is not probative of a tendency to commit violence. (B) No, unless the proper foundation was laid. (C) Yes, because fraud is a form of stealing, and so it will tend to show that the defendant could commit robbery. (D) Yes, because it tends to show that the defendant would lie. (C) The testimony of a member of a secret paramilitary group that the defendant had been supplying the group with weapons for several months. (D) Evidence that the defendant had been previously convicted of receipt of stolen weapons.

6 4. Evidence Questions Question 7 A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony. How should the trial court rule on the admissibility of the court record? (A) Admit the record as relevant character evidence because the plaintiff suffered serious personal injuries. (B) Admit the record as impeachment evidence. (C) Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached. (D) Exclude the record because the conviction is too remote and does not necessarily reflect on the defendant s credibility as a witness in the present proceedings. Question 8 The defendant was charged with first degree felony arson under the state's arson statute. The indictment alleged that the defendant burned down his own building to collect the insurance. At the trial, the defense called a witness who testified on direct examination that he was with the defendant at the place of business when the fire started and that some cleaning solvent caught fire and spread out of control. The witness testified that the ignition of the fire was purely accidental. The defense also introduced evidence that the witness is of good character. On cross-examination, the prosecutor asked the witness if he is being prosecuted for first degree felony arson in a separate trial for the burning of the same building. The defense lawyer objects. Should the court allow the prosecutor s question? (A) Yes, because the defense lawyer has introduced evidence tending to establish that the witness is a person of good character. (B) Yes, because the question is appropriate to show bias or interest on the part of the witness. (C) No, because the witness has not been convicted of the crime. (D) No, because the question violates the witness s Fifth Amendment right to be protected from self-incrimination.

7 Evidence Questions 5. Question 9 A witness testified against a defendant in a contract action. The defendant then called a friend to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness s employee to testify that the witness once perpetrated a hoax on an insurance company, for which she was convicted. Is the employee s testimony admissible? (A) No, because it is merely cumulative impeachment. (B) No, because it is extrinsic evidence of a specific instance of misconduct. (C) Yes, because the hoax resulted in a conviction of the witness. (D) Yes, because a hoax involves untruthfulness. Question 10 In a lawsuit over ownership of stereo equipment between two roommates, the plaintiff testified that he purchased the equipment one year ago for his DJ business. The defendant offers the testimony of a clerk at the electronics store where the equipment was purchased. The clerk testifies that she remembers that the sale of the equipment occurred 10 months ago, not one year ago, because the purchase order was signed with such a distinctive signature. However, she cannot remember whether it was purchased by the defendant or the plaintiff. If the plaintiff objects to this testimony, should the trial court admit it? (A) Yes, because the purchase order is a past recollection recorded. (B) Yes, because the purchase order is a business record. (C) No, because the date of purchase is a collateral matter. (D) No, because the content of the purchase order is hearsay not within any exception.

8 6. Evidence Questions Question 11 The plaintiff sued the defendant in a contract dispute. At trial, the plaintiff s sister testifies as a witness on behalf of the plaintiff, stating that the defendant agreed to sell a computer to the plaintiff for $250. To prove that the sister is telling the truth, plaintiff s counsel asks the sister on direct examination about a conversation she had with her mother, in which she told her mother that the defendant agreed to sell a computer to the plaintiff for $250. The defendant objects to the testimony. How should the court rule? (A) Admissible, because it is a prior consistent statement. (B) Admissible, because it is not hearsay. (C) Inadmissible, because leading questions cannot be asked on direct examination. Question 12 A plaintiff sued a defendant railroad company for injuries sustained when his car was hit at a railroad crossing. The plaintiff testified that just before the accident, a bystander yelled, Oh no, the crossing signal isn t working! The defendant wants to place a witness on the stand who will testify that the bystander, who is now dead, told her that the crossing signal was working. Is the witness s testimony admissible? (A) Yes, for the purpose of impeachment only. (B) Yes, for the purpose of impeachment and to show that the crossing signal was working. (C) No, because it is hearsay not within any exception. (D) No, because the bystander is not available to explain or deny the contradiction. (D) Inadmissible, because the sister has not been impeached.

9 Evidence Questions 7. Question 13 A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate. Is the foreman s proposed testimony hearsay? (A) No, because the declarant is testifying as a witness at the hearing. (B) No, because the statement is not offered for its truth. (C) Yes, but it should be admitted under the hearsay exception for present sense impressions. Question 14 The plaintiff sued the defendant for battery. The defendant claimed that he was attacked for no reason by the plaintiff and that he hit the plaintiff with a pipe in self-defense. A witness was called to testify that on the day in question she heard the defendant and his roommate talking outside their apartment. The witness testified that the roommate told the defendant that the plaintiff had been flirting with the defendant s girlfriend, and that the defendant seemed very angry. The defendant s attorney objected to this testimony. Should the court find the evidence admissible? (A) Yes, to show provocation for the battery. (B) Yes, as a legally operative fact. (C) No, because it is hearsay. (D) No, because it is an opinion. (D) Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

10 8. Evidence Questions Question 15 A motorist who failed to stop at a stop sign was struck by a car being taken for a test drive by a mechanic who had repaired the car s brakes. The motorist sued the repair shop that employed her to recover for his injuries. At trial, the motorist called a bystander to testify that when the mechanic saw that the motorist was injured, she ran over and told him, I m really sorry. I guess I didn t fix the brakes as well as I thought. Should the repair shop s objection to the bystander s testimony be sustained? (A) Yes, because the mechanic s statement is inadmissible against the repair shop. (B) Yes, because the motorist did not stop at the stop sign. (C) No, because it is a declaration against interest. (D) No, because it is a statement attributable to a party-opponent. Question 16 A defendant was arrested for the felony of aggravated battery against a victim. A witness testified before a grand jury that she saw the defendant beat the victim with a baseball bat. The defendant was indicted and later convicted. The victim then sued the defendant for personal injuries. The witness could not be located. A second witness was produced and gave testimony similar to that given by the first witness before the grand jury. The victim s attorney offers as evidence, without prior notice to the defendant s attorney, a properly authenticated transcript of the testimony given earlier by the first witness before the grand jury. How should the court rule on the admissibility of the transcript of the grand jury testimony? (A) Admissible under the former testimony exception to the rule against hearsay. (B) Admissible nonhearsay. (C) Inadmissible to rehabilitate the testimony of the second witness because he has not been impeached by a charge of recent fabrication or improper motive. (D) Inadmissible hearsay.

11 Evidence Questions 9. Question 17 The owner of a jewelry store brought a civil action against a former clerk for the value of various pieces of jewelry missing from the store. The defendant had been fired after another employee had reported that the defendant was stealing jewelry. At the trial, the plaintiff calls his employee as a witness. The witness testifies that he does not remember either having seen the defendant take anything from the store or having told the plaintiff that she had done so. The plaintiff then takes the witness stand and proposes to testify to what the witness had told him about seeing the defendant stealing pieces of jewelry from the store. Assuming appropriate objection by the defendant, would such testimony by the plaintiff be admissible? (A) Yes, as a statement against interest by the witness. (B) Yes, as proper impeachment of the witness s testimony. (C) No, as irrelevant. Question 18 The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, I know I don t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident! Should this testimony be admitted? (A) Yes, because it is a statement by an opposing party. (B) Yes, because it falls within the hearsay exception for dying declarations. (C) Yes, because it is a statement by an opposing party and falls within the hearsay exception for dying declarations. (D) No, because it is inadmissible hearsay. (D) No, as inadmissible hearsay if offered to prove theft by the defendant.

12 10. Evidence Questions Question 19 A defendant was tearing up a stretch of pavement with a jackhammer when a rock flew up and struck a plaintiff in the head, causing him to be hospitalized. Because the jackhammer manufacturer had been out of business for several years, the plaintiff filed a lawsuit for his medical costs, lost work time, and pain and suffering solely against the defendant. At trial, the plaintiff s attorney calls a witness who testifies that, at the time of the incident, the defendant stated, It was my fault. The defense attorney objects, but the judge overrules the objection on the ground that this is a declaration against interest. Are the grounds for the judge s decision correct? (A) Yes, because the statement subjected the defendant to tort liability. (B) Yes, because the defendant is a party to the litigation. (C) No, because the statement is not against an important interest. (D) No, because the defendant is available to testify. Question 20 A witness s nephew was visiting her from a foreign country. One evening, the nephew went out with friends. At 11 p.m. that night, he appeared back at the witness s house, pounding loudly on the door. She let him in, and noted that he was panting and out of breath. He immediately told her, You won t believe what I just saw! I was walking past your neighbor s house just now and the wife ran up to me with a gun in her hand. She looked me straight in the eyes and said, I killed the philandering fool before running off down the street. After the nephew returned to his country, the wife was put on trial for the murder of her husband. The prosecution wants to put the witness on the stand to testify regarding the nephew s statement to her. The defense objects. Can the witness testify to the nephew s statement? (A) Yes, because the nephew s statement qualifies as an excited utterance. (B) Yes, because the nephew is not available to testify. (C) No, because the wife did not make her admission to the witness. (D) No, because the witness s testimony would constitute hearsay within hearsay.

13 Evidence Questions 11. Question 21 The defendant was charged with reckless driving after his car hit a car driven by a priest. At trial, the passenger in the defendant s car at the time of the accident testified that the priest slammed on the brakes with no warning before the accident. The defendant was acquitted of the reckless driving charge. Subsequently, the priest sued the defendant for personal injuries and property damages. At the civil trial, counsel for the defendant asked the passenger, Did the priest stop suddenly before the defendant hit him? The passenger, who was angry with the defendant after an argument, responded, I don t remember it that way. The priest may have slowed down a bit. The defense attorney seeks to introduce the transcript of the passenger s statement from the criminal trial. The priest s attorney objects. Is the transcript admissible? (A) Yes, for impeachment purposes only. (B) Yes, for impeachment purposes and as substantive evidence. (C) No, because it is hearsay. Question 22 A plaintiff sued an elevator company for injuries he suffered when his foot got caught in one of its moving walkways. The company s chief engineer prepared a report of the accident at the request of its insurance company, and the report was given to the attorney who was hired to represent the elevator company in this trial. As part of its case-in-chief, the company s attorney seeks to introduce the report into evidence, and states that its expert witness relied on it. The report states that the walkway was in good mechanical condition at the time of the plaintiff s injury. The plaintiff s attorney objects. Is the report admissible? (A) Yes, as a business record. (B) Yes, because it is relied upon by a testifying expert witness. (C) No, because the insurance company is an interested party. (D) No, because it is hearsay not within any exception. (D) No, because the passenger is not unavailable.

14 12. Evidence Questions Question 23 A plaintiff brought a malpractice action against a law firm that had represented him in a personal injury suit. The plaintiff alleges that the firm was derelict in failing to interview a doctor he suggested as a prospective expert witness. The firm s pleadings contend that the doctor was never brought to the attention of anyone at the firm and was never considered as a witness. The plaintiff wants to introduce a proposed witness list from his case file at the firm. After the name of the doctor is the notation, the plaintiff wants us to check this guy out before trial. The notation is in the handwriting of a paralegal with the firm who is responsible for updating various case files as part of his regular duties. The paralegal did no direct work on the plaintiff s case and he cannot remember which attorney in the firm asked him to make the notation. The defense objects to the introduction of the proposed witness list containing the notation. Is the proposed witness list and notation admissible? Question 24 In a claim for damages in a personal injury action, a plaintiff s attorney sought to introduce evidence of the plaintiff s testimony made to her boyfriend several days after her accident that I must have sprained my neck when it happened because it hurts so much. The plaintiff is also planning to offer medical evidence that her neck was sprained. Is the testimony admissible? (A) No, because it is hearsay not within any exception. (B) No, because the plaintiff is not qualified to give testimony as to her medical condition. (C) Yes, because the plaintiff is also going to present medical evidence that her neck was sprained. (D) Yes, to show that the plaintiff had suffered physical pain. (A) Yes, as past recollection recorded. (B) Yes, as a record of a regularly conducted activity. (C) No, as hearsay not within any recognized exception. (D) No, as hearsay within hearsay, and one level is not within an exception.

15 Evidence Questions 13. Question 25 A plaintiff has brought suit in federal district court against the Social Security Administration because it denied her retirement benefits on the asserted ground that she had not reached the requisite age to qualify. At trial, the plaintiff introduced into evidence a family Bible given to her by her father in which is inscribed her date of birth, showing her to be 65 years old. The government introduced a certified copy of the plaintiff s birth certificate, which shows her age to be 55. The court admitted both items over objection of the nonpropounding party. Was this error? (A) Yes, as to the Bible only, because it contained inadmissible hearsay. (B) Yes, as to the birth certificate only, because it was not authenticated by the custodian of records. (C) Yes, as to both, for the reasons stated in the previous answers. (D) No, both records were admissible.

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