MBE PRACTICE QUESTIONS SET 1 EVIDENCE

Transcription

1 MBE PRACTICE QUESTIONS SET 1 EVIDENCE

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3 MBE PRACTICE QUESTIONS 1. EVIDENCE QUESTIONS Question 1 An airline passenger was on trial for attempting to smuggle illegal drugs into the country. The prosecution is seeking to present evidence that when the passenger had passed the entry area carrying a small suitcase, a police dog had sniffed at the suitcase and started barking, prompting the passenger to run into a men s room, open his suitcase, and flush a bag down the toilet before anyone could apprehend him. The dog s handler is prepared to testify that the dog has been trained not to bark unless it detected illegal drugs, and that the dog started barking after sniffing the suitcase. If the defense seeks to exclude the testimony by the dog handler describing the dog s reaction to the suitcase, how should the court proceed? (A) Admit the evidence, under a hearsay exception. (B) Admit the evidence, because the offered evidence shows that the dog would not have barked unless illegal drugs had been present. (C) Exclude the evidence, because it is hearsay not within any recognized exception to the hearsay rule. (D) Exclude the evidence, because it violates the Confrontation Clause of the United States Constitution. Question 2 An engineer sued a business owner, claiming that they had entered into an oral agreement whereby the business owner agreed to hire the engineer as chief engineer of his business, that the engineer agreed to take the job at a specified salary, and that the business owner had subsequently breached their employment contract by refusing to hire the engineer. At the trial of the engineer s suit, the business owner took the stand and denied having any contract with the engineer for employment or otherwise. In response, the engineer offers into evidence an authenticated picture postcard that the business owner had mailed to his wife while on a business trip. One statement on the postcard clearly referring to the engineer reads, Keep it under your hat for now, but I ve offered him the chief engineer position and he s accepted. The business owner s attorney objects. Should the court admit the postcard? (A) Yes, because it is the statement of a partyopponent. (B) Yes, if it is a recent impression. (C) No, because it is a privileged communication between husband and wife. (D) No, because it is hearsay not within any recognized exception to the hearsay rule. PA1

4 2. EVIDENCE Question 3 The plaintiff slipped on a patch of ice at the defendant s home and is suing the defendant for negligence. The defendant denies that the plaintiff was injured in the fall. The defendant calls his neighbor to testify that right after the plaintiff fell, she said that she had a recurring hip injury and was experiencing a flare-up. Should the court admit the neighbor s testimony? (A) No, because it constitutes inadmissible hearsay. (B) No, because it is irrelevant. (C) Yes, because it qualifies as an excited utterance. (D) Yes, because it is a statement of a partyopponent. Question 4 At the defendant s arson trial, the prosecution offers to introduce the testimony of a police officer, who will testify that he showed a photographic lineup containing the defendant s picture to a witness who saw a man run from the building right before it burned down, and the witness selected the defendant s picture. The witness has moved out of state and cannot be persuaded or compelled to return to testify. Should this evidence be admitted over the defendant s objection? (A) Yes, it is a past recollection recorded. (B) Yes, it is a prior identification. (C) No, it is hearsay not within an exception. (D) No, because the picture of the defendant is not properly authenticated.

5 MBE PRACTICE QUESTIONS 3. Question 5 In a wrongful death action, the plaintiff claimed that the defendant intentionally caused the death of the plaintiff s husband, who was the defendant s co-worker. At trial, the plaintiff s attorney called another co-worker to the stand as a witness. The defendant s attorney did not object to the witness s testimony that there had been bad blood at work between the deceased and the defendant. However, the attorney objected to one line of questioning, but he was overruled by the judge. The line of questioning was as follows: Attorney: Now, you ve told us how the deceased came back to the shop after he had obviously been hit hard on the jaw. What did he say at that time? Witness: He said that the defendant did it, and just then I noticed that the defendant was in the shop too. Attorney: What did the defendant do? Question 6 A pedestrian sued a driver, alleging that the driver s car ran a red light and struck the pedestrian in a crosswalk. At trial, the pedestrian s attorney wishes to call an emergency room nurse to testify that, when the pedestrian was brought in, she asked him how he was injured and he replied, I was hit by a car that ran a red light. If the driver s attorney objects, how should the court rule regarding the nurse s testimony? (A) Admit it, as a present sense impression. (B) Admit it, because the statement was made to the nurse for purposes of medical treatment. (C) Exclude it, as hearsay not within any recognized exception to the hearsay rule. (D) Exclude it, because the pedestrian is available to testify. Witness: He just smirked and started laughing. Was the judge correct in overruling the objection to the admission of this portion of the witness s testimony? (A) Yes, because it is a statement against interest by the defendant. (B) Yes, because it is an adoptive statement by a party-opponent. (C) No, because the introduction of the deceased s out-of-court statement would violate the defendant s right to confront witnesses. (D) No, because the deceased s statement that the defendant did it is hearsay, and cannot qualify as a dying declaration.

6 4. EVIDENCE Question 7 In an automobile collision case, the defendant s attorney called the defendant to the stand and asked, Was the traffic light red, amber, or green when you entered the intersection? The defendant replied, It was green. Next, the defendant s attorney asked, What did you tell the first police officer who arrived on the scene about the condition of the traffic light when you entered the intersection? Before the defendant could reply with I told him it was green, the plaintiff s attorney objected. How should the court respond to the objection? (A) Sustain it, because the statement is hearsay not within any recognized exception to the hearsay rule. (B) Sustain it, because the testimony is an irrelevant prior consistent statement. (C) Overrule it, because the statement is made from personal knowledge and, therefore, is nonhearsay. (D) Overrule it, because the defendant is in court and is subject to cross-examination by the plaintiff s attorney. Question 8 At a homicide trial, the prosecution presented evidence that, on the day of the fatal shooting, the defendant and several members of his gang engaged in a running gun battle with the victim and members of his gang. The prosecution additionally presented evidence tending to prove that the defendant had been seen at the scene of the shooting around the time that the victim was killed. In his defense, the defendant proffered testimony of a witness that, one day before the victim s death, the defendant had said to him, I m flying to the state capital tonight for a two-day visit. Should the witness s testimony be admitted over the objection of the prosecution? (A) Yes, because it is not being offered for the truth of the matter asserted. (B) Yes, because it tends to prove that the defendant was in the state capital at the time the charged crime was committed. (C) No, because it is inadmissible hearsay. (D) No, because it violates the propensity rule.

7 MBE PRACTICE QUESTIONS 5. Question 9 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. Question 10 During the defendant s trial for armed robbery, evidence was introduced establishing that a rifle was found in the trunk of the defendant s car when he was arrested. On direct examination, the defendant testified that when he was arrested and the rifle was found, he stated, I keep that with me for protection. Should the court allow the testimony? (A) Yes, because it is a statement of a party. (B) Yes, because it is an excited utterance. (C) No, because it is hearsay not within an exception. (D) No, because it is a self-serving statement. (C) Yes, but it should be admitted as part of the res gestae. (D) Yes, but it should be admitted under the present state of mind exception to the hearsay rule.

8 6. EVIDENCE Question 11 A pedestrian sued a local bar for injuries he suffered when he was struck by a car driven by a bar patron that had run a red light. He claimed that the patron was permitted to drink too much liquor at the bar before leaving. At trial, the pedestrian called a witness to the stand. The witness testified that she and a friend had visited the bar on the night in question. The witness seeks to testify that she remarked about the patron to her friend, Look at that guy. He s so drunk he can t even stand up. Is the witness s testimony concerning her remark to her friend admissible? (A) Yes, as a prior consistent statement. (B) Yes, as a present sense impression. (C) Yes, as an excited utterance. (D) No, because it is hearsay not within any exception. Question 12 In a suit to recover injuries after a car accident at an intersection, the plaintiff testified that she had had the right-of-way at the intersection. The defendant s attorney did not cross-examine the plaintiff. The plaintiff then called a witness to testify that, shortly after the collision, as she pulled the plaintiff from the car, the witness heard the plaintiff say, I think I m dying! Didn t the other driver see I had the right-of-way? Should the court admit the testimony? (A) Yes, because the plaintiff s statement was made under belief of impending death. (B) Yes, because the plaintiff s statement was an excited utterance. (C) No, because the plaintiff s credibility has not been attacked. (D) No, because the plaintiff s belief that she had the right-of-way has already been established without contradiction.

9 MBE PRACTICE QUESTIONS 7. Question 13 The declarant collapsed at her wedding reception after drinking champagne during the wedding toast. A group of guests surrounded her after she collapsed. As she was struggling to maintain consciousness, she declared, I knew my new husband was after my money. Make sure he is brought to justice for murdering me. The declarant lost consciousness and lapsed into a coma; she remains in a vegetative state. It was determined that she was poisoned, and her husband was arrested and charged with attempted murder. At trial, the prosecution wishes to call one of the guests to testify to the declarant s statement after her collapse. Should the court admit the proposed testimony? (A) No, because it is hearsay not within any exception. (B) Yes, as an excited utterance. (C) Yes, as evidence of the declarant s state of mind. (D) Yes, because it is a dying declaration. Question 14 A passenger in a vehicle that was struck by another car sued the other car s driver, claiming that the collision severely injured his right leg. The defendant claimed that the plaintiff s leg injury resulted from an earlier, unrelated industrial accident. At trial, after having testified to his pain from the injury allegedly caused by the defendant, the plaintiff called as a witness the physician who treated him. The physician offers to testify that the plaintiff told him that his earlier leg problems had completely cleared up before the alleged injury caused by the defendant. If the defendant objects to the admission of this testimony, how should the court proceed? (A) Admit it, as a statement of a party. (B) Admit it, as a statement for purposes of diagnosis and treatment. (C) Exclude it, because of the physician-patient privilege. (D) Exclude it, because the statement related to a past physical condition.

10 8. EVIDENCE Question 15 In a medical malpractice action, the plaintiff sought to have her neighbor testify that, the day after receiving treatment on her back from the defendant, the plaintiff told the neighbor that her back was getting worse. Upon proper objection, how should the court rule on this testimony? (A) Admit it, because it is a statement of personal history. (B) Admit it, because it is a statement of a thenexisting physical condition. (C) Exclude it, because it is hearsay not within any exception. (D) Exclude it, because it was not made for the purpose of medical treatment. Question 16 The issue in a civil case was whether the plaintiff was old enough to get married. The defendant sought to prove that the plaintiff was old enough by calling an employee of the county, who authenticated a photocopy of the plaintiff s birth certificate. The plaintiff objected to introduction of the photocopy. Is the photocopy of the birth certificate admissible? (A) Yes, because it is a past recollection recorded. (B) Yes, because it is a public record. (C) No, because it is not the best evidence. (D) No, because it is inadmissible hearsay.

11 MBE PRACTICE QUESTIONS 9. Question 17 One of the issues in dispute at a civil trial was ownership of a particular building over a 50-year period. The plaintiff wishes to introduce into evidence a 25-year-old newspaper that will show that the defendant owned the building at that time. The defendant s attorney objects. Should the newspaper be admitted? (A) Yes, because it is an ancient document. (B) Yes, because it is a self-authenticating document. (C) Yes, because it is an ancient document and it is self-authenticating. (D) No, because it is inadmissible hearsay.

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