MBE Evidence Questions

A defendant is being prosecuted for conspiracy to possess cocaine with intent to distribute.  At trial, the government seeks to have its agent testify to a conversation that he overheard between the defendant and a coconspirator regarding the incoming shipment of a large quantity of cocaine.  That conversation was also audiotaped, though critical portions of it are inaudible.

The defendant objects to the testimony of the agent on the ground that it is not the best evidence of the conversation.

Is the testimony admissible?

Answer: Yes, because the best evidence rule does not require proof of the conversation through the audiotape.

The best evidence rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (collectively referred to as "document") be produced to prove its contents.  As a result, this rule only applies when a document's contents are at issue—i.e., when:

• the document is used to prove the happening of an event (e.g., video of bank robbery)

• the document has a legal effect (e.g., audiotape of oral contract) or

• the witness is testifying based on facts learned from the document (e.g., x-ray image)

Here, the agent seeks to testify based on his personal knowledge (i.e., what the agent overheard)—not on facts learned from the audiotape.  Therefore, the best evidence rule does not apply, and the agent's testimony is admissible regardless of whether the audiotape is produced (Choice A).

A defendant was charged with aggravated assault.  At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident.  The prosecutor then called a witness to testify that when the beating stopped, the victim screamed: "I'm dying—don't let [the defendant] get away with it!"

Is the testimony of the witness concerning the victim's statement admissible?

Answer: Yes, as an excited utterance

Under the rule against hearsay, an out-of-court statement offered to prove the truth of the matter asserted therein is generally inadmissible.  But one exception to this rule applies to excited utterances—ie, statements:

• relating to a startling event or condition and

• made while the declarant was under the stress of excitement caused by that event or condition.

Such statements are admissible—regardless of the declarant's availability as a witness at trial—because it is unlikely that these spontaneous statements would be fabricated.

Here, the victim's out-of-court statement ("I'm dying—don't let [the defendant] get away with it!") is hearsay because it is being offered to prove that the defendant was her attacker.  But since the statement related to the defendant's savage assault of the victim and was made while she was excited by that startling event, the statement is admissible as an excited utterance (Choice A).

A dying declaration is a statement (1) made while the declarant believed his/her death was imminent (2) concerning the cause or circumstances of that impending death.  These statements are only excepted from the hearsay rule in civil cases and prosecutions for criminal homicide—not aggravated assault.  And though the declarant need not be dead for this exception to apply, he/she must be unavailable (not seen here).

At a defendant's trial for theft, a witness called by the prosecutor testified to the following:  (1) that from his apartment window, he saw thieves across the street break the window of a jewelry store, take jewelry, and leave in a car; (2) that his wife telephoned the police and relayed to them the license number of the thieves' car as the witness looked out the window with binoculars and read it to her; and (3) that he has no present memory of the number, but that immediately afterward he listened to a playback of the police tape recording giving the license number (which belongs to the defendant's car) and verified that she had relayed the number accurately.

Is playing the tape recording for the jury proper?

Answer: Yes, because it is a recorded recollection.

The rule against hearsay generally bars the admission of an out-of-court statement (eg, tape recording) offered to prove the truth of the matter asserted therein (eg, license number).  But if a statement falls within an exclusion or exception to this rule, it is admissible as substantive evidence.  One such exception applies to a recorded recollection, which allows a record to be read—or, in the case of audio recordings, played—into evidence if it:

• concerns a matter that a witness once knew but cannot recall at trial

• was made or adopted by the witness when the matter was fresh in his/her mind and

• accurately reflects the witness's personal knowledge at the time it was made.

Here, the witness testified that he had no memory of the license plate number he had read to his wife as he watched the thieves leave the jewelry store.  But immediately after reporting the burglary—ie, while the matter was fresh in his mind—the witness adopted the recording by verifying that it accurately reflected the number he had read to his wife.  Therefore, the recording is admissible under the hearsay exception for recorded recollections and can be played to the jury (Choice A).

A woman sued her ex-boyfriend for libel.  After the woman testified that the ex-boyfriend wrote to the woman's employer that the woman is a thief, the ex-boyfriend offers evidence that the woman once stole money from a former employer.

Is the evidence of prior theft admissible?

Answer: Yes, as substantive evidence to prove that the woman is a thief

Character evidence is generally inadmissible when it is used to imply (and thereby prove) that a person acted in conformity with his/her character during the litigated event.  But such evidence is admissible in rare instances when character is an essential element of a civil claim, criminal charge, or asserted defense.  Character evidence can then be used as substantive evidence and introduced by any party through:

• reputation or opinion testimony on that essential character trait or

• specific instances of conduct (eg, a prior theft) demonstrating that essential character trait (Choice A).

Here, the woman sued her ex-boyfriend for libel.  Her character is an essential element of this claim since she must prove that she is not a thief to show that the ex-boyfriend's writing was false.  As a result, the ex-boyfriend can introduce the woman's prior theft as substantive evidence to prove that she is a thief and, therefore, that his writing was truthful.

A plaintiff sued a defendant for damages for back injuries received in a car wreck.  The defendant disputed the damages and sought to prove that the plaintiff's disability, if any, resulted from a childhood horseback riding accident.  The plaintiff admitted the childhood accident but contended it had no lasting effect.

The plaintiff calls an orthopedist who had never examined the plaintiff and poses to the orthopedist a hypothetical question as to the cause of the disability that omits any reference to the horseback riding accident.  The question was not provided to opposing counsel before trial.

What is the best ground for objecting to this question?

Answer: The hypothetical question omitted a clearly significant fact.

An expert witness is one who possesses specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in the litigation.  A party may pose a hypothetical question—ie, one that asks the expert to assume certain facts to render an opinion—when examining an expert witness (Choice A).  This allows the expert to offer an opinion about facts of which the witness lacks firsthand knowledge (Choice D).

However, hypothetical questions cannot omit undisputed material facts because an expert opinion lacks probative value when it was formed without all necessary facts.  Therefore, the best ground for objecting to the plaintiff's hypothetical question is that it omitted a clearly significant undisputed fact—the plaintiff's horseback riding accident.

A person purporting to be the defendant makes a threatening telephone call to the plaintiff.

In which instance is the telephone call MOST likely to be admitted against the defendant?

Answer: The plaintiff had given her unlisted number only to the defendant and a few other persons.

Before evidence of a telephone call may be admitted, it must be authenticated by identifying the speaker when that identity is important (as seen here).  This can be accomplished by having a party to the telephone conversation testify that:

• the party recognized the speaker's voice

• the speaker knew facts that only certain persons would know

• the party dialed a number believed to be the speaker's, and the speaker identified him/herself upon answering or

• the party dialed a business and spoke to the person who answered about business regularly conducted over the phone.

Evidence that the plaintiff had given her unlisted number only to the defendant and a few other persons shows that the caller knew a fact that only certain persons would know.  As a result, the telephone call would likely be admitted against the defendant in that instance.

A woman entered a guilty plea to a charge of embezzlement.  Her attorney hired a retired probation officer as a consultant to gather information for the preparation of a sentencing plan for the woman that would avoid jail.  For that purpose, the consultant interviewed the woman for three hours.

Thereafter, the prosecution undertook an investigation of the woman's possible involvement in other acts of embezzlement.  The consultant was subpoenaed to testify before a grand jury.  The consultant refused to answer any questions concerning his conversation with the woman.

The prosecution has moved for an order requiring the consultant to answer those questions.

How should the court rule on the prosecution's motion?

Answer: Deny the motion on the basis of the attorney-client privilege.

Common law privileges apply in all stages of a federal legal proceeding, including grand jury proceedings.*  This includes the attorney-client privilege, which protects communications—even those made with the attorney's agent—that are (1) made for the purpose of obtaining or providing legal assistance for the client and (2) intended to be and kept confidential.

Here, the attorney hired a consultant to help him prepare the woman's sentencing plan.  The consultant therefore acted as the attorney's agent when he interviewed the woman for that purpose.  And since that interview was in furtherance of the woman's legal representation and likely intended to be confidential, it is protected by the attorney-client privilege (Choice D).  As a result, the prosecution's motion should be denied.

A defendant who is an accountant has been charged with fraud for allegedly helping a client file false income tax returns by shifting substantial medical expenses from one year to another.  The defendant has pleaded not guilty, claiming that he made an honest mistake as to the date the expenses were paid.  At trial, the prosecutor offers evidence of the defendant's involvement in an earlier scheme to help a different client falsify tax returns in the same way.

Is the evidence of the defendant's involvement in the earlier scheme admissible?

Answer: Yes, to show absence of mistake.

Evidence that a criminal defendant previously committed a similar crime or bad act is inadmissible if it is being offered to show the defendant's propensity (ie, inclination) to commit the charged crime (Choice D).  But that evidence may be admissible for relevant, noncharacter purposes (ie, MIMIC).  This includes proving the defendant's absence of mistake.  Therefore, evidence that the defendant falsified tax returns in the past is admissible to show that he did not make a mistake in the present case.

A plaintiff has sued the government for injuries she received when her car was allegedly forced off the road by a military convoy.  At trial, an eyewitness testifies for the plaintiff and then is asked on cross-examination whether he belongs to a religious group that refuses on principle to file federal tax returns, because the revenues are used to build weapons of war.

Is the question proper?

Answer: Yes, because the witness's beliefs are relevant to the possibility of bias.

Evidence of a witness's religious beliefs is inadmissible to attack the witness's character for truthfulness, but it is admissible to prove a witness's bias or self-interest (Choice A).  Evidence of bias or self-interest attacks a witness's credibility by showing the witness's motive to lie, partiality to a party, or stake in the outcome of the case.  Therefore, this impeachment evidence is always relevant.

Here, the government seeks to discredit the eyewitness's unfavorable testimony about the military convoy on cross-examination.  The government's question—whether the witness belongs to a religious group that refuses to file federal tax returns because the revenues are used to build weapons of war—goes to the witness's possible anti-military bias.  Since evidence of bias is always relevant, it can be used to impeach the witness.

A homeowner sued a plumber for damages resulting from the plumber's allegedly faulty installation of water pipes in her basement, which caused flooding.  At trial, the homeowner is prepared to testify that when she first detected the flooding, she turned off the water and called the plumber at his emergency number for help and that the plumber responded, "I'll come by tomorrow and redo the installation for free."

Is the homeowner's testimony regarding the plumber's response admissible?

Answer: Yes, as evidence of the plumber's fault.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and is generally inadmissible.  But Federal Rule of Evidence (FRE) 801 excludes some statements from the rule against hearsay and allows them to be offered as substantive evidence (eg, to establish fault).  This includes statements made by an opposing party that are offered against that party.

Here, the homeowner seeks to introduce the plumber's out-of-court statement—that he would redo the installation for free—to prove that his initial pipe installation was faulty.  But since this statement was made by the plumber (a party-opponent) and is being offered against him at trial, it is excluded from the rule against hearsay.  Therefore, the statement can be used as evidence of the plumber's fault (Choice A).

A plaintiff sued a defendant for personal injuries arising out of an automobile accident.

Which of the following would be error?

Answer: The judge, despite the defendant's request for exclusion of witnesses, allows the plaintiff's eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination.

Upon a party's request, the court must exclude witnesses from the courtroom so that they cannot hear—or be influenced by—other witnesses' testimony.  The court may sequester witnesses on its own initiative as well.  However, Federal Rule of Evidence 615 provides that some witnesses cannot be excluded:

• parties or their designated representatives

• persons whose presence is essential to a party's presentation of its case (eg, expert witness) and

• persons authorized by statute to be present.

Here, the defendant requested the exclusion of witnesses.  And the plaintiff's eyewitness is not a type of witness who is immune from exclusion.  Therefore, it would be error for the judge to allow the eyewitness to remain in the courtroom even though the eyewitness is expected to be recalled for further cross-examination.

A woman sued a man for damages for the death of her husband resulting from an automobile collision.  At trial, the man calls the husband's doctor to testify that the day before his death, the husband, in great pain, said, "It was my own fault; there's nobody to blame but me."

Under which hearsay exception should the doctor's testimony be admitted?

Answer: The statement against interest exception.

The statement against interest exception to the rule against hearsay only applies when the declarant is unavailable as a witness.  Additionally, the hearsay statement must be one that a reasonable person in the declarant's position would have made only if that person believed the statement to be true because it:

• was contrary to the declarant's proprietary (ie, ownership) or pecuniary (ie, monetary) interest

• tended to invalidate the declarant's claim against someone else or

• exposed the declarant to civil or criminal liability.

Here, the husband is unavailable as a witness because he is deceased.  And his hearsay statement is one that a reasonable person in his position would have made only if that person believed it to be true because—at a minimum—it exposed the husband to civil liability for the accident.  Therefore, the statement is admissible under the statement against interest exception.

(Choice A)  The dying declaration exception applies to statements that (1) were made while an unavailable declarant believed his/her death was imminent and (2) concerned the circumstances of that impending death.  This exception does not apply here because, though the husband was in great pain, there is no indication that he believed his death was imminent.

The plaintiff sued the defendant, a doctor, for psychiatric malpractice and called another doctor as an expert witness.  During the expert witness's direct testimony, he identified a text as a reliable authority in the field.  He seeks to read to the jury passages from this book on which he had relied in forming his opinion on the proper standard of care.

Are the passages admissible?

Answer: Yes, as a basis for his opinion and as substantive evidence of the proper standard of care.

An out-of-court statement (eg, a passage from a book) is barred by the rule against hearsay when offered to prove the truth of the matter asserted therein.  However, statements in a learned treatise, periodical, or pamphlet are excepted from this rule and are admissible for their truth when:

• the publication is established as a reasonably reliable authority by a party's expert or judicial notice and

• the statements are called to the attention of or relied on by an expert witness during examination.

Expert testimony that a treatise is a reliable authority (as seen here) lays a foundation for admitting the statements therein.  The statements can then be used as a basis for the expert's opinion and as substantive evidence to help prove a material fact (here, the proper standard of psychiatric care) (Choice D).  However, the expert may only read the statements into evidence—the treatise itself cannot be received as an exhibit (Choice B).

A defendant is on trial for bank robbery.  Evidence at the trial has included testimony by a bank teller who was present during the robbery.  The teller testified for the prosecution after having refreshed her memory by looking at an FBI agent's investigative report that was created shortly after the robbery.

The defendant has asked to examine the report.

How should the court respond?

Answer: The court may allow the examination if the report was used by the teller to refresh her memory before testifying and must allow it if she used the report during her testimony.

A party may use a writing (or other evidence) to refresh a witness's memory if (1) the witness once knew but cannot recall a fact or event and (2) the writing will help the witness recall that information.  The opposing party's options depend on whether the writing is used to refresh the witness's memory:

• while testifying – in which case, the court must allow the opposing party to inspect the writing, cross-examine the witness about it, and introduce any relevant portion into evidence or

• before testifying – in which case, the court may allow the opposing party to utilize these options in the interest of justice.

Therefore, the court may allow the defendant to examine the FBI report if the teller used it to refresh her memory before testifying and must allow it if the teller used the report during her testimony (Choice D).

At the start of the trial of a defendant and a codefendant for robbery, the codefendant and her attorney offered to give the prosecutor information about facts that would strengthen the prosecutor's case against the defendant in exchange for leniency toward the codefendant.  The prosecutor refused the offer.  Shortly thereafter, the codefendant committed suicide.

During the defendant's trial, the prosecutor called the codefendant's attorney and asked him to relate the information that the codefendant had revealed to the attorney.

Is the attorney's testimony admissible?

Answer: No, because the codefendant's communications are protected by the attorney-client privilege.

Common law privileges protect confidential communications from disclosure, discovery, or admission in federal legal proceedings.*  One such privilege applies to attorney-client communications that are (1) made for the purpose of obtaining or providing legal assistance for the client and (2) intended to be and kept confidential.

As the holder of the attorney-client privilege, the client can refuse to disclose confidential communications to third parties and prevent the attorney from doing so.  The privilege remains in effect even after the attorney-client relationship terminates or the client dies (as seen here).  However, the client may waive the privilege by:

• voluntarily disclosing the information to a third party

• voluntarily giving up the privilege (eg, contractually)

• failing to timely claim the privilege (eg, after inadvertent disclosure) or

• failing to object to another's disclosure of confidential information (eg, at trial).

Here, the codefendant shared facts about the robbery with her attorney.  That communication was protected by the attorney-client privilege because it was made to obtain legal assistance and was, at least initially, intended to be kept confidential.  And though the codefendant offered those facts to the prosecutor during a plea discussion, she did not actually disclose them.  Her mere offer—regardless of who initiated the discussion—did not waive the privilege, so the attorney's testimony about those facts is inadmissible (Choices B & C).

A company sued the defendant, its former vice president, for return of $230,000 that had been embezzled during the previous two years.  Called by the company as an adverse witness, the defendant testified that his annual salary had been $75,000, and he denied the embezzlement.

The company calls a banker as a witness to show that, during the two-year period, the defendant had deposited $250,000 in his bank account.

Is the banker's testimony admissible?

Answer: Yes, as circumstantial evidence of the defendant's guilt

Evidence is relevant if:

• it has any tendency to make a fact more or less probable than it would be without that evidence (ie, probative) and

• the fact is of consequence to the outcome of the case (ie, material).

Here, the plaintiff offers the banker's testimony that the defendant deposited $250,000 in his bank account over a two-year period—an amount well above his $75,000 annual salary.  This testimony is circumstantial evidence that the defendant took another's money, which is a material fact in this embezzlement case.  Therefore, the banker's testimony is relevant.

Relevant evidence is admissible unless otherwise excluded by law or other rules.  One example is Federal Rule of Evidence 403, which excludes relevant evidence if its prejudicial effect substantially outweighs its probative value.  Testimony about the defendant's deposits is not unfairly prejudicial because it does not tend to encourage the jury to decide the case on improper grounds (Choice A).  And since no other ground for exclusion has been raised, the testimony is admissible as circumstantial evidence of the defendant's guilt.

(Choice D)  One method of impeachment is to specifically contradict the witness's testimony.  But testimony that the defendant deposited $250,000 in his bank account does not directly contradict the defendant's testimony that he made $75,000 a year and did not embezzle money.

A plaintiff sued the manufacturer of a slicing machine for negligent design, after the machine cut off the plaintiff's finger.  The plaintiff claims that while he was cleaning the machine, two wires came into contact with each other and caused the machine to turn on.

At trial, the manufacturer has offered evidence that it was unreasonably expensive to design the machine so that the wires could not come into contact.  In rebuttal, the plaintiff offers evidence that after this action was filed, the manufacturer redesigned the machine to prevent the wires from coming into contact.

Is evidence of this change in design admissible?

Answer: Yes, as evidence tending to show that the machine could be designed to keep the wires from coming into contact.

A subsequent remedial measure is a precaution taken after an injury has occurred that—if taken earlier—might have prevented the injury.  Because social policy encourages taking remedial measures to protect the public, evidence of such measures is inadmissible to prove negligence (eg, negligent design) or other culpable conduct.  But a court may allow evidence of subsequent remedial measures for other limited purposes such as:

• resolving a dispute about the feasibility of precautionary measures

• impeaching a witness or

• proving ownership or control.

Here, the manufacturer changed the slicer's design to prevent the wires from coming into contact after the plaintiff's injury.  Although this evidence is inadmissible to prove the manufacturer's negligence, the manufacturer placed the feasibility of redesigning the slicer in dispute by claiming it was unreasonably expensive (Choices B & D).  Therefore, evidence of this change in design is admissible to prove the feasibility of designing the machine to keep the wires from coming into contact.

A defendant was charged with possession of cocaine with intent to distribute.  He had been stopped while driving a car and several pounds of cocaine were found in the trunk.

In her opening statement, the defendant's counsel asserted that her client had no key to the trunk and no knowledge of its contents.  The prosecutor offers the state motor vehicle registration, shown to have been found in the glove compartment of the car, listing the defendant as the owner.

Should the court admit the registration?

Answer: Yes, as evidence of the defendant's close connection with the car and, therefore, knowledge of its contents.

Evidence is relevant, and admissible unless otherwise provided by law or other rules, if:

• it has any tendency to make a fact more or less probable than it would be without that evidence (ie, probative) and

• the fact is of consequence to the outcome of the case (ie, material).

Whether the defendant knew that there was cocaine in his possession is an issue of material fact in this case.  The defendant's counsel claimed that he had no key to the trunk and no knowledge of the cocaine found therein.  But a state motor vehicle registration found in the glove compartment listing the defendant as the owner provides circumstantial evidence of his close connection with the car.  Since this would make it more probable that the defendant knew that there was cocaine in his trunk, the registration is relevant.

However, one basis for exclusion raised in this question is the hearsay rule, which generally bars the admission of out-of-court statements (eg, vehicle registrations) offered to prove the truth of the matter asserted therein (eg, the vehicle's owner).  Here, the registration is not hearsay because it is being offered to prove the defendant's close connection to the car—not his ownership of it.  Therefore, the registration need not be excepted (eg, as a statement against interest) or excluded from hearsay to be admitted (Choices A & C).

The other basis for exclusion raised here is lack of authenticity.  All tangible evidence must be authenticated—ie, proven to be what the proponent claims it to be—before it can be admitted to prove its contents.  Therefore, a state custodian would have to certify the registration (ie, a public record) to prove that the defendant owned the car, but not to establish his connection to it (Choice B).  And since no other grounds for exclusion have been raised, the court should admit the registration.

A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant's business property.

At trial, without asking that the defendant's property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell.  On cross-examination of the manager, the defendant's attorney sought to establish that the defendant had taken reasonable precautions to make the property safe for business invitees.

Should the defendant's cross-examination of the manager be permitted over the plaintiff's objection?

Answer: No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

Under Federal Rule of Evidence 611(b), the scope of cross-examination is limited to the subject matter of direct examination and matters affecting the witness's credibility.  And though the court has discretion to permit inquiry into additional matters, a party is never entitled to a wider scope of cross-examination (Choice C).

Here, the plaintiff called the defendant's property manager solely to establish that the defendant owned the property where the plaintiff fell.  On cross-examination of the manager, the defendant's attorney sought to establish that the defendant had taken reasonable safety precautions.  But since that issue was not raised on direct examination and does not affect the manager's credibility, the cross-examination should not be permitted.