Bar MBE 2022 – Evidence Questions And
Answers With Complete Solution
1) each party is then entitled to cross-examine a witness called by the
... [Show More] 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?... [Show Less]