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MBE Evidence Checkpoint Quiz June 6,

2014


Question 1 of 25

A woman is injured when a building collapses. She brings an action against the building designer alleging negligent construction. At trial, the woman calls a
structural engineer to testify that in his opinion, the building had several flaws in its design that led to the collapse of the building. The structural engineer's
opinion is based on building blueprints and specifications supplied to him before trial.
Is the structural engineer's opinion admissible?


Yes, if the information on which the structural engineer based his opinion is of the type reasonably relied on by experts in his field.


Yes, because the structural engineer is qualified as an expert in his field.


No, because the structural engineer did not personally examine the collapsed building.


No, unless the information on which the structural engineer relied was admissible as evidence.
Explanation
The correct answer is:Yes, if the information on which the structural engineer based his opinion is of the type reasonably relied on by experts in his field.
Discussion of correct answer:An expert witness called to testify at trial may base his opinion testimony on: 1) his perceptions resulting from his personal
examination of the person or object about which he is testifying; 2) facts or data made known to the expert at trial, usually in the form of a hypothetical
question; and 3) facts or data made known to the expert before trial. Even if the facts or data made known to the expert before trial are inadmissible at trial,
the expert may base his opinion on them as long as the facts or data are of "a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject" (FRE 703). Thus, this is the correct answer. The structural engineer's opinion testimony is admissible if the
information on which he based his opinion is of the type reasonably relied on by experts in his field.
Discussion of incorrect answers:
Incorrect. Yes, because the structural engineer is qualified as an expert in his field. The structural engineer's expert testimony is not automatically admissible
if he qualifies as an expert witness. The nature of his testimony itself would be considered in determining whether or not he qualified as a expert witness.
FRE 702 states that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: 1)
the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the
principles and methods reliably to the facts of the case. So this answer would be an incorrect statement of law. Because the structural engineer's testimony
would not hinge on whether or not he qualified as an expert, the testimony itself would be limited by FRE 702.
Incorrect. No, because the structural engineer did not personally examine the collapsed building. The structural engineer need not personally examine the
collapsed building in order to be permitted to testify as to his expert opinion. Facts or data upon which expert opinions are based may, under FRE 703, be
derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. The second
source, presentation at the trial, also reflects existing practice. This is usually used by means of a hypothetical question posed to the expert. The third source
contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect, the rule is
designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the
experts themselves when not in court. The testimony would likely be permissible, because the structural engineer used blue prints and specifications, which
would likely qualify under the third source listed above.
Incorrect. No, unless the information on which the structural engineer relied was admissible as evidence. The information on which the structural engineer
relied in developing his expert opinion need not be admissible at trial. Rule 703 has been amended to emphasize that when an expert reasonably relies on
inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted.
This governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive
purposes. It is not intended to affect the admissibility of an expert's testimony. So, the admissibility of the structural engineer's testimony would not be
affected by whether the information he relied on was admissible, making this answer incorrect.


Question 2 of 25

A defendant is charged with assault and battery. The prosecution calls a witness to testify that he overheard nondescript shouting at the time of the alleged
assault. The witness was several blocks away from the crime scene and did not know from where the shouts came. The defense objects.
What is the best argument against admitting the witness' testimony?


The witness lacked personal knowledge of the event.


The alleged shouting is hearsay not falling within any exception.


The witness is not competent to testify as to such distant shouts.


The witness' testimony is irrelevant.
Explanation

MBE Evidence Checkpoint Quiz June 6,
2014

The correct answer is: The witness' testimony is irrelevant.
Discussion of correct answer:The defense's best argument is that the testimony is irrelevant. Relevant evidence is evidence tending to prove or disprove a
material fact. In this case, the defense can argue that because the witness did not know where the shouts were coming from or what was being said, the
shouting is irrelevant. Because of the vagueness of witness' testimony, this fact would seem to have a very small probative value. Therefore, the defense's
best argument is that the testimony is not relevant to any material fact, including the fact that an assault occurred, and so this is the best answer.
Discussion of incorrect answers:
Incorrect. The witness lacked personal knowledge of the event. A witness may not testify to a matter unless evidence is introduced which is sufficient to
support a finding that the witness has personal knowledge of the matter. In this case the witness could testify to the shouts that they heard, however, witness
would be limited to testifying to the shouts, and could not testify as to where they came from, or what was said, because the witness would not have personal
knowledge of those details. So this answer is incorrect, because the witness' testimony would be limited to the witness' personal knowledge, but it would not
exclude the testimony entirely.
Incorrect. The alleged shouting is hearsay not falling within any exception. The alleged shouting is not hearsay. Hearsay is a statement, other than one
made by the declarant at the time of trial or hearing, offered in evidence to prove the truth of the matter asserted. In this case, the shouting is not offered to
prove the truth or contents of the statements, because it is offered to prove that at the time of the alleged assault witness heard shouting from somewhere in
the area. As a result, since the testimony is not being offered as substantive evidence of the assault, then it would not be excluded by the hearsay rule.
Incorrect. The witness is not competent to testify as to such distant shouts. The distance of the shouts is not related the witness' competence. The defendant
does not lack the competence to testify. Every person is competent to be a witness, except as otherwise provided by statute. The defendant is not
disqualified to testify. A witness is disqualified if he or she is incapable of expressing him or herself as to be understood or incapable of understanding the
duty of a witness to tell the truth. In this case, the witness does not lack the capability of communicating his experience nor misunderstand the duty of a
witness to tell the truth. Therefore, the witness is competent and does not stand to be disqualified.

Question 3 of 25
ID# 13278

The owner of a supermarket fired his employee who had worked at the supermarket for several years. The owner contends that the termination was due to
the fact that the employee's job performance had slipped since he'd started online trading of stocks. The employee files suit, claiming that he was fired
because he spoke to an agent from the Department of Environmental Protection concerning dumping practices of the business. During a meeting in the
supermarket, the owner tells the employee that his claim for damages is too high and that he will give him 60% of his claim i f he goes away. The employee
offers testimony regarding this offer through a supermarket employee.
Is the testimony admissible?


Yes, because it is a statement against pecuniary interest.


Yes, because it is a statement by a party opponent.


No, because it was an offer to settle.


No, because whether or not the owner wrongfully discharged the employee is a legal determination for the jury or judge.
Explanation
The correct answer is:No, because it was an offer to settle.
Discussion of correct answer:As a matter of public policy, offers to settle are not admissible to show liability. As such, the testimony is inadmissible.
Discussion of incorrect answers:
Incorrect. Yes, because it is a statement against pecuniary interest. For the "statement against pecuniary interest" exception to apply, the declarant must be
unavailable to testify at trial. Thus, first, the employee would be required to show that the owner is unavailable to testify at trial. However, regardless of the
owner's availability, offers to settle are, as a matter of public policy, inadmissible to show liability. As such, the testimony is inadmissible.
Incorrect. Yes, because it is a statement by a party opponent. As a matter of public policy, offers to settle are not admissible to show liability. As such, the
testimony is inadmissible regardless of it being a party opponent. While this answer may get around the hearsay issue, it fails to address the offer to settle
issue.
Incorrect. No, because whether or not the owner wrongfully discharged the employee is a legal determination for the jury or judge. Admissions by a party
opponent are considered admissible non-hearsay, despite the fact that they may relate to ultimate issues in the case. Thus, here, the statement is not
inadmissible for the reason that it addresses a matter for the judge or jury to determine. However, as a matter of public policy, offers to settle are not
admissible to show liability. As such, the testimony is inadmissible.


Question 4 of 25

A soccer mom was arrested after striking another parent in the face with her purse. The blow was sufficiently forceful to break the victim's nose. At her trial on
assault and battery charges, the soccer mom claimed that she struck the other woman in self-defense to fend off her attack. The soccer mom further alleged
that the other parent's attack was motivated by the news that the soccer mom's daughter had edged out the other parent's daughter for a spot on the high

MBE Evidence Checkpoint Quiz June 6,
2014

school soccer team. At trial, the soccer mom wished to call the president of the PTA to testify that the soccer mom was a good parent who will go the extra
mile to ensure the welfare of the students at the school.
How will the court rule with respect to the admissibility of the PTA president's testimony?


Her testimony is inadmissible, because the testimony does not address a pertinent character trait.


Her testimony is admissible, because testimony in the form of an opinion is a proper method to bolster the soccer mom's credibility.


Her testimony is admissible, because a defendant in a criminal trial is permitted to introduce opinion evidence of her good character.


Her testimony is inadmissible, because testimony in the form of an opinion is not a proper method of proving character.
Explanation
The correct answer is:Her testimony is inadmissible, because the testimony does not address a pertinent character trait.
Discussion of correct answer:Under Federal Rule of Evidence 404, "evidence of a person's character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion," although the accused in a criminal trial may offer reputation or opinion
evidence of a pertinent trait of his good character to prove that he is innocent of the offense charged. For example, where, as under the facts presented, a
defendant is charged with assault and battery, the accused may offer evidence of her character for peacefulness. In contrast, evidence of a defendant's
propensity for being a good parent is not pertinent to a charge of assault and battery. Thus, under the facts presented, this is the best answer. The PTA
president's testimony will be ruled inadmissible, because it does not address a pertinent character trait.
Discussion of incorrect answers:
Incorrect. Her testimony is admissible, because testimony in the form of an opinion is a proper method to bolster the soccer mom's credibility. There is no
indication in the facts of the question that the soccer mom's credibility as a witness has been attacked. In addition, even if it had been attacked, the credibility
of a witness may be supported by reputation or opinion evidence only as to the witness' character for truthfulness.
Incorrect. Her testimony is admissible, because a defendant in a criminal trial is permitted to introduce opinion evidence of her good character. Although this
choice provides an accurate statement of the law, evidence of a defendant's good character must be offered as to a pertinent character trait. Under Federal
Rule of Evidence 404, "evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion," although the accused in a criminal trial may offer reputation or opinion evidence of a pertinent trait of his good character
to prove that he is innocent of the offense charged. For example, where, as under the facts presented, a defendant is charged with assault and battery, the
accused may offer evidence of her character for peacefulness. In contrast, evidence of a defendant's propensity for being a good parent is not pertinent to a
charge of assault and battery.
Incorrect. Her testimony is inadmissible, because testimony in the form of an opinion is not a proper method of proving character. Under Federal Rule of
Evidence 404, "evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on
a particular occasion," although the accused in a criminal trial may offer reputation or opinion evidence of a pertinent trait of his good character to prove that
he is innocent of the offense charged. For example, where, as under the facts presented, a defendant is charged with assault and battery, the accused may
offer evidence of her character for peacefulness. In contrast, evidence of a defendant's propensity for being a good parent is not pertinent to a charge of
assault and battery. This choice provides an inaccurate statement of the law.

Question 5 of 25
ID# 13280

A state statute provides that a non-deadly assault upon a state official while the official is performing his duties is a misdemeanor. A demonstrator was
expressing his views on toxic waste when a trash collector employed by the city was collecting trash. The trash collector approached the demonstrator to
debate the finer points of waste with him. The debate escalated and turned into a fight. The demonstrator was arrested and charged with a violation of the
above statute. The demonstrator is claiming self-defense. Pursuant to a court order, the city produced the trash collector's confidential personnel file, which
contained three reports of prior incidents of aggressive behavior upon citizens while the trash collector was collecting trash. During the demonstrator's case-
in-chief, the demonstrator offers into evidence the records containing the reports of citizen complaints against the trash collector. The prosecutor objects on
the grounds that the records are inadmissible character evidence.
How should the trial court rule?


For the demonstrator, because as the alleged victim, evidence of the trash collector's character may be introduced.


For the state, because evidence of one's character may only be proved via reputation or opinion.


For the state, because character evidence may not be used to show that a person acted in conformity therewith.


For the demonstrator, because the citizens' reports constitute records kept in the regular course of business and show that the demonstrator would have known of the trash collector's reputation for violence.
Explanation
The correct answer is:For the state, because evidence of one's character may only be proved via reputation or opinion.
Discussion of correct answer:When character evidence is admissible, character may be proven in the form of reputation or opinion testimony only. Evidence
of specific acts of misconduct would be admissible only on cross-examination, as a way of testing the validity of the reputation or opinion evidence. Here,

MBE Evidence Checkpoint Quiz June 6,
2014

evidence of the victim's character for violence would be admissible to support the demonstrator's claim of self defense. However, the specific evidence the
demonstrator seeks to introduce is evidence of specific violent acts of the victim, and not reputation or opinion evidence. Thus, the proffered evidence is
inadmissible, and the court should rule in favor of the state.
Discussion of incorrect answers:
Incorrect. For the demonstrator, because as the alleged victim, evidence of the trash collector's character may be introduced. The court should rule in favor
of the state and not the demonstrator, because the proferred evidence is evidence of specific instances of conduct on the part of the victim, in order to prove
the victim's character for violence. While evidence of the victim's character for violence would support the demonstrator's claim of self defense, F.R.E. 405
provides that such evidence of specific instances of conduct is admissible only during cross-examination, to test the validity of reputation or opinion evidence.
In this case, at this point in the proceedings, only reputation or opinion character evidence would be admissible to support the claim of self defense. Thus, the
court should rule in favor of the state, and this answer choice is incorrect.
Incorrect. For the state, because character evidence may not be used to show that a person acted in conformity therewith. Evidence offered to demonstrate
a person's character or trait of character is not admissible to prove that the person acted in conformity on a particular occasion under Federal Rules of
Evidence 404. However, there is an exception for evidence of a pertinent trait of the alleged victim. The defendant may offer evidence of the victim's
character to show that the victim had a violent character, if defendant is arguing that victim was the initial aggressor. Thus, while this answer choice correctly
concludes that the state should prevail on its motion, the reasoning is incorrect.
Incorrect. For the demonstrator, because the citizens' reports constitute records kept in the regular course of business and show that the demonstrator
would have known of the trash collector's reputation for violence. Reports made to record events are admissible where it can be shown that it was the regular
practice of the entity to make such a report and where there is no indication that there was a lack of trustworthiness in the preparation of such a report.
However, the business records exception to the rule against hearsay will not allow a party to introduce otherwise inadmissibl e evidence. Here, the evidence
purportedly contained in the business records reflects specific alleged acts of violence on the part of the victim. While such evidence would be relevant, only
reputation or opinion evidence are admissible to prove character under F.R.E. 405. Evidence of specific acts of conduct is admissible only on cross-
examination, to test the validity of the reputation or opinion testimony.

Question 6 of 25
ID# 13281

A defendant is arrested and charged with rape. At trial, the prosecution offered evidence to show that the victim suffered severe bruising on her thighs and
arms. The defendant seeks to introduce evidence that the victim had sexual intercourse with another man on the same evening, prior to the defendant's
encounter with the victim, and that the victim's other sexual partner was the cause of the victim's bruises.
Should this evidence be admitted?


Yes, because the evidence is offered by the accused on the issue of whether the accused was the source of the victim's injuries.


No, because evidence of the victim's past sexual behavior is inadmissible.


No, because the defendant may offer only reputation and opinion evidence of the victim's past sexual behavior.


Yes, because the defendant may introduce evidence of the character of the victim.
Explanation
The correct answer is:Yes, because the evidence is offered by the accused on the issue of whether the accused was the source of the victim's injuries.
Discussion of correct answer:Generally, under FRE 404, a defendant may introduce evidence of a "pertinent trait of character of the victim." However, FRE
412 provides an exception to this rule in cases of rape and sexual assault. Under FRE 412, the admissibility of evidence of the victim's past sexual behavior
is strictly limited. Reputation or opinion evidence of the victim's past sexual behavior is not admissible. In addition, evidence of specific acts related to the
victim's past sexual behavior is not admissible unless (1) the evidence pertains to past sexual behavior with persons other than the defendant, offered by the
defendant on the issue of whether the defendant was the source of semen or injury, (2) the evidence pertains to past sexual behavior with the defendant,
offered by the defendant on the issue of whether the victim consented, or (3) the evidence is constitutionally required to be admitted. Thus, according to FRE
412, this is the correct answer. The evidence offered by the defendant is admissible, because it is offered on the issue of whether the accused was the
source of the victim's injuries.
Discussion of incorrect answers:
Incorrect. No, because evidence of the victim's past sexual behavior is inadmissible. While evidence of the victim's past sexual behavior is generally
inadmissible, there are narrow exceptions to this rule. The admissibility of evidence of the victim's past sexual behavior is strictly limited. Reputation or
opinion evidence of the victim's past sexual behavior is not admissible. However, specific acts related to the victims past behavior are admissible for very
limited purposes. Thus, this answer would be an incorrect statement of law.
Incorrect. No, because the defendant may offer only reputation and opinion evidence of the victim's past sexual behavior. Under FRE 412, the defendant
may not introduce any reputation or opinion evidence regarding the victim's past sexual behavior. This rule should be contrasted with the provisions of FRE
404. Under FRE 404 and 405, when evidence is admissible to prove the character of a person, it is generally admissible only i n the form of reputation or
opinion evidence, except in cases in which the character of a person is an essential element of charge, claim, or defense. However, because of the special
and terrible nature of rape, these general provisions do not apply, so any evidence of a victim's past sexual behavior is presumed inadmissible, unless it
meets one of the narrow exceptions to the rule.
Incorrect. Yes, because the defendant may introduce evidence of the character of the victim. In a rape or sexual assault case, the defendant is prohibited
from introducing evidence of the victim's character except under limited circumstances. Generally, a defendant may not introduce character evidence of the

MBE Evidence Checkpoint Quiz June 6,
2014

victim unless it related to a pertinent trait of the victim, and that trait would be a central fact to be proved in the case. Thus, this answer is incorrect.

Question 7 of 25
ID# 13282

In a state that only recognizes common law privileges, a man injured a woman in a snowmobile accident. She sued him for her i njuries in federal court. Her
attorney hired a doctor to conduct an examination of the woman. The man's attorney tried to call the doctor to testify about statements she (the doctor) made
in confidence to the woman's attorney about what the woman had told the doctor during the examination.
Should the doctor's testimony be admitted?


No, since the attorney-client privilege applies to the woman's statements.


No, since the patient-physician privilege applies to the woman's statements.


Yes, since the woman's physical condition was made an issue and the physician-patient privilege was waived.


Yes, since the woman's statements were made for medical diagnosis or treatment.
Explanation
The correct answer is:No, since the attorney-client privilege applies to the woman's statements.
Discussion of correct answer:The attorney-client privilege is created when any person seeks legal advice or representation from an attorney in a confidential
manner. The privilege exists unless it is waived. The client holds the privilege, but the attorney must assert it. When a physician is employed by an attorney to
examine a patient, any confidential communication or disclosure made by the patient to the physician that is later passed along to the attorney is covered by
the attorney-client privilege. This is because the physician is acting as an agent of the attorney. The woman can, thus, prevent the doctor from testifying
about the woman's communications made during the examination.
Discussion of incorrect answers:
Incorrect. No, since the patient-physician privilege applies to the woman's statements. The facts indicate that the woman lives in a state that only recognizes
common law privileges. Federal common law does not recognize a physician-patient privilege, so the woman's statements cannot be protected by it.
Incorrect. Yes, since the woman's physical condition was made an issue and the physician-patient privilege was waived. The facts indicate that the woman
lives in a state that only recognizes common law privileges. Federal common law does not recognize a physician-patient privilege, so the woman's
statements cannot be protected by it.
Incorrect. Yes, since the woman's statements were made for medical diagnosis or treatment. Federal Rule of Evidence 803(4) provides that statements
made for purposes of medical diagnosis or treatment are not hearsay and are admissible. However, this is not the end of the i nquiry. That a statement is
admissible under one rule does not mean that another rule of evidence would not make the same statement inadmissible.

Question 8 of 25
ID# 13283

A woman calls an attorney's office. The attorney was recommended to the woman by a friend who had once been represented by the attorney. When the
attorney's secretary answers the telephone, the woman says, "I need to talk to the attorney right away. I've committed a crime and now I'm in serious
trouble."
May the attorney's secretary disclose the fact that the woman has committed a crime?


No, because the information is protected by the attorney-client privilege.


Yes, because the attorney-client privilege does not apply to the attorney's secretary.


Yes, because it is a declaration against interest.


No, because the information is hearsay.
Explanation
The correct answer is: No, because the information is protected by the attorney-client privilege.
Discussion of correct answer:The attorney-client privilege protects communications between an attorney and his or her client that are made while the client is
seeking the professional services of the attorney. Disclosures made by a client to the attorney are protected even if the attorney has not yet decided whether
to accept or decline the case, as long as the client is seeking the attorney's services at the time the information was communicated.
Discussion of incorrect answers:
Incorrect. Yes, because the attorney-client privilege does not apply to the attorney's secretary. Generally, an attorney is a person whom the client
reasonably believes to be authorized to practice law. The privilege covers communications with representatives of an attorney, such as the attorney's

MBE Evidence Checkpoint Quiz June 6,
2014

secretary or law clerk. Thus, under the facts presented, the woman's statement that she committed a crime is protected from disclosure by the attorney-client
privilege, even though she made the disclosure to the attorney's secretary; she was seeking the professional services of a person she reasonably believed
was authorized to practice law. The attorney-client privilege does apply to the attorney's secretary. The attorney-client privilege applies not only to direct
communications to the attorney, but also to communications made to the attorney's representatives, including anyone employed by the attorney to assist in
the rendition of legal services to clients. Thus, the attorney's secretary may not disclose the woman's admission that she had committed a crime.
Incorrect. Yes, because it is a declaration against interest. Privileges apply to require the exclusion of evidence even if that evidence is otherwise admissible.
Thus, even if the statement made by the woman were a declaration against interest, which is admissible at trial under the proper circumstances if the
attorney-client privilege applies, the attorney-client privilege will prevent the attorney's secretary from disclosing the information.
Incorrect. No, because the information is hearsay. A statement is not classified as hearsay until it is offered at trial to prove the truth of matter asserted in the
statement. That the woman's statement was made out of court, and that there might be circumstances under which the prosecutor might seek to have that
hearsay statement admitted into evidence, does not determine whether or not the attorney's secretary can disclose the information she learned from the
woman.

Question 9 of 25
ID# 13284

A model suffered from terrifying dreams most of her life. Eventually the nightmares developed to the point where she decided to seek help. The model
consulted a licensed psychotherapist. The model was initially hesitant to open up to the psychotherapist, until the psychotherapist assured her that anything
discussed during their sessions would remain privileged and confidential. The model then began to describe her nightmares in great detail. After the third
session, the model said that if the nightmares didn't stop soon she was going to go on a killing spree. Although the psychotherapist did not believe that the
model was a threat to anyone else, she became convinced that the model needed to be hospitalized. At the hospitalization proceedings, the psychotherapist
prepared to take the stand.
Can the model stop the psychotherapist from testifying?


No, the testimony does not fall within a privilege.


No, only if the psychotherapist reasonably believes it will prevent death or serious injury.


Yes, the conversation was made for diagnosis and treatment.


Yes, both the model and the psychotherapist are holders of the privilege.
Explanation
The correct answer is: No, the testimony does not fall within a privilege.
Discussion of correct answer:There is no physician-patient privilege for communications relevant to an issue in proceedings to hospitalize the patient for
mental illness if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization. In this question, the
psychotherapist became convinced that the model needed to be hospitalized. Therefore, the psychotherapist can testify at the hospitalization proceedings.
Discussion of incorrect answers:
Incorrect. No, only if the psychotherapist reasonably believes it will prevent death or serious injury. An exception to the physician-patient privilege applies
when an otherwise confidential communication reveals that the patient is planning to cause serious bodily injury or death to another and the physician has a
reasonable belief that the patient will cause death or serious injury. However, the fact pattern states that the psychotherapist did not believe that the model
would cause death or serious injury to another. Therefore, this exception is inapplicable.
Incorrect. Yes, the conversation was made for diagnosis and treatment. The physicianpatient privilege applies when the patient consults the doctor for
purposes of diagnosis or treatment. The facts state that eventually the nightmares developed to the point where the model decided to seek help. The model
consulted the psychotherapist, a licensed psychotherapist. Therefore, it appears that the privilege should apply. A patient has a privilege to refuse to disclose
and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment. A communication is confidential
if not intended to be disclosed to others. As the model only opened up after being assured that the conversations would be privileged and confidential, the
privilege would apply. However, this privilege is not absolute. An exception applies that will prevent the application of the privilege. However, there is no
privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness if the psychotherapist in the course
of diagnosis or treatment has determined that the patient is in need of hospitalization. The psychotherapist became convinced that the model needed to be
hospitalized. Therefore, the psychotherapist can testify at the hospitalization proceedings.
Incorrect. Yes, both the model and the psychotherapist are holders of the privilege. The person who was the physician or psychotherapist at the time of the
communication is presumed to have authority to claim the privilege but only on behalf of the patient. Therefore, this answer choice is mistaken. Only the
patient is the holder of the privilege.


Question 10 of 25
ID# 7564

A husband was indicted for trafficking cocaine. The state prosecutor called the wife to testify as a key witness against the husband. The husband and wife
both objected, and the court ruled she could not be forced to testify. The husband is acquitted. The parents of a teenager, who died as the result of using
cocaine supplied by the husband, sue the husband in civil court for wrongful death for supplying their son with the cocaine that caused his death. The
parents' lawyer wants the wife to testify against the husband. After hearing the parents' pleas, the wife feels remorse for her husband's drug activity and her

MBE Evidence Checkpoint Quiz June 6,
2014

failure to stop him, so she agrees to testify. The husband objects.
Can the husband prevent the wife from testifying?


No, because the spousal privilege does not apply.


No, because only the witness-spouse can assert the spousal privilege.


Yes, because the spousal privilege applies.


Yes, because the marital communication privilege applies.
Explanation
The correct answer is: No, because the spousal privilege does not apply.
Discussion of correct answer:The spousal privilege can prevent a married person from having to testify against her spouse in a criminal case. The spousal
privilege only applies to criminal cases, however, and does not apply to civil cases. The parents' lawsuit is a civil case, and, therefore, the spousal privilege
does not apply. Therefore, this answer is correct.
Discussion of incorrect answers:
Incorrect. No, because only the witness-spouse can assert the spousal privilege. This answer may be tempting, but it is incorrect. It is true that federal and
most state courts follow the U.S. Supreme Court ruling that held only the witness-spouse--and not the party-spouse--can assert the spousal privilege.
However, the spousal privilege can only be asserted in criminal cases. The parents' lawsuit is a civil case, and, therefore, the spousal privilege does not
apply. Therefore, whether the witness- or party-spouse can assert the privilege is irrelevant, and this answer is incorrect.
Incorrect. Yes, because the spousal privilege applies. The spousal privilege can be asserted to prevent a married person from having to testify against her
spouse. However, the spousal privilege can only be asserted in criminal cases. This case is a civil case, and, thus, the spousal privilege is inapplicable.
Therefore, this answer is incorrect.
Incorrect. Yes, because the marital communication privilege applies. This answer is tempting because it is partially correct. The marital communication
privilege can be used to prevent a spouse from disclosing confidential communications made between the spouses during the marriage. Either spouse may
assert this privilege, and it is applicable to both criminal and civil cases. Therefore, it is true that the husband can assert this privilege during the parents' civil
case against him. However, the privilege only prevents the spouse from testifying regarding confidential communications. It does not prevent the spouse from
being called as a witness to testify about other matters. Therefore, this privilege will not allow the husband to prevent his wife from testifying, but will only limit
what she can testify about. Therefore, this is not the correct answer choice.

Question 11 of 25
ID# 13285

While driving on an interstate freeway, a suspected drug trafficker is pulled over by DEA agents who had received a tip that she was transporting 50
kilograms of cocaine for a drug cartel. The DEA agents search the suspected trafficker's car and find 30 kilograms of cocaine. They question her for over 12
hours, but she denies knowing anything and pleads with the agents to let her go. Finally, the agents offer to cut her a deal for the sake of her two children.
They promise to reduce the charges against her and grant her probation if she tells them the name and address of the person to whom she delivered the first
20 kilograms of cocaine, so that they can complete the delivery with an undercover agent. The suspected trafficker provides the agents the requested
information and agrees to testify at the dealer's trial. Several weeks later, when she testifies, the defendant's counsel asks her about the 12 hours during
which she denied all knowledge of the cocaine cartel and suggests to the jury that she provided this information only because she had been promised
leniency and in order to be able to continue to care for her children.
If the state objects to the defense counsel's statement, how should the court rule on the objection?


Sustained, because the statement is hearsay.


Sustained, because the statement is inadmissible as part of a plea bargain negotiation.


Overruled, because the statement goes to potential bias.


Overruled, because the statement is relevant.
Explanation
The correct answer is:Overruled, because the statement goes to potential bias.
Discussion of correct answer:It is true that plea negotiations cannot be used against a defendant. However, in this case, the plea negotiations in questi on
involved the suspected trafficker, who is not the defendant but only a witness. As such, evidence of the plea negotiations involving the suspected trafficker is
admissible.
Discussion of incorrect answers:
Incorrect. Sustained, because the statement is hearsay. A witness can always be questioned concerning facts tending to show a bias on the part of the
witness. Certainly a deal that would allow a mother to remain with her children rather than go to jail would be a reason to f abricate testimony and is clearly

MBE Evidence Checkpoint Quiz June 6,
2014

relevant as to bias. As such, the statement is admissible.
Incorrect. Sustained, because the statement is inadmissible as part of a plea bargain negotiation. Given that the statement is being offered not to prove the
truth of the matter asserted, but to show the potential bias of the witness and the effect that the plea offer had on the suspected trafficker, it is not hearsay.
Incorrect. Overruled, because the statement is relevant. While it is true that the evidence is relevant, relevance is not the only factor determining
admissibility. Relevant evidence may be excluded for reasons of public policy, as excessively prejudicial, as inadmissible hearsay, or because it involves a
settlement offer. As such, this is not the best response.

Question 12 of 25
ID# 13286

At a trial, which of the following is least likely to be permitted if objected to by opposing counsel?


Defense counsel asks a defense witness, "Wasn't your sister sniffing cocaine?"


Defense counsel asks a plaintiff's witness, "Did you hate the deceased enough to stab him?"


Plaintiff's counsel asks an uncooperative witness for the plaintiff, "Didn't you just decide to go ahead and take the money you found?"


Plaintiff's counsel asks a young child appearing for the plaintiff, "Doesn't your father always come home late from work?"
Explanation
The correct answer is: Defense counsel asks a defense witness, "Wasn't your sister sniffing cocaine?"
Discussion of correct answer:While Federal Rule of Evidence 611 does allow for some use of leading questions, leading questions are not normally permitted
during direct examination. They are usually allowed, however, in cross-examination. In this instance, given that counsel is examining its own witnesses, it is
likely that the court would sustain an objection to the leading question.
Discussion of incorrect answers:
Incorrect. Defense counsel asks a plaintiff's witness, "Did you hate the deceased enough to stab him?" Federal Rule of Evidence 611 does allow for some
use of leading questions. While leading questions are not normally permitted during direct examination, they are usually allowed during cross-examination. In
this instance, as the defense attorney is asking a question of a witness for the plaintiff, the witness is an adverse witness, and the question is most likely
being posed during cross-examination. Because an adverse witness is likely to be on guard in answering leading questions, the risk of a suggestion is
reduced. As such, it is likely that the question will be permitted by the court.
Incorrect. Plaintiff's counsel asks an uncooperative witness for the plaintiff, "Didn't you just decide to go ahead and take the money you found?" Federal Rule
of Evidence 611 does allow for some use of leading questions. While leading questions are not normally permitted during direct examination, they are usually
allowed during cross-examination. Leading questions are also generally permitted when questioning uncooperative witnesses. As such, it is unlikely that the
court would sustain an objection to Plaintiff's counsel's leading question of an uncooperative witness.
Incorrect. Plaintiff's counsel asks a young child appearing for the plaintiff, "Doesn't your father always come home late from work?" Federal Rule of Evidence
611 allows for some use of leading questions. While leading questions are not normally permitted during direct examination, leading questions can be asked
of a child witness or mentally impaired persons, in order to facilitate the witness's testimony. Thus, here, the court is unlikely to sustain an objection to
counsel's leading question of a child witness.


Question 13 of 25
ID# 13287

Which evidence is admissible as proper lay opinion?


Testimony of a witness who will testify that the red car sped through the light.


The testimony of a recent high school graduate who will testify that the plaintiff was an alcoholic.


The testimony of a computer engineer, who will testify that the spam email came from the plaintiff's computer.


Any evidence likely to assist the trier of fact.
Explanation
The correct answer is: Testimony of a witness who will testify that the red car sped through the light.
Discussion of correct answer:The proper scope of non-expert opinion includes such perceptions as speed and other measurements and physical states such
as intoxication or injury. Legal conclusions, however, must be avoided. For example, the lay witness cannot testify that an individual was schizophrenic,
alcoholic, or that an accident victim fractured his spine.

MBE Evidence Checkpoint Quiz June 6,
2014

Discussion of incorrect answers:
Incorrect. The testimony of a recent high school graduate who will testify that the plaintiff was an alcoholic. Legal conclusions must be avoided. For example,
the lay witness cannot testify that an individual was schizophrenic, alcoholic, or that an accident victim fractured his spine.
Incorrect. The testimony of a computer engineer, who will testify that the spam email came from the plaintiff's computer. A lay opinion calls for a non-expert
opinion. When scientific, technical, or other specialized knowledge will assist the trier of fact lay opinion is inappropriate, and expert testimony must be used.
Here, it is likely specialized knowledge and skill was used to determine the source of the spam email. Therefore it would not be proper lay opinion.
Incorrect. Any evidence likely to assist the trier of fact. While opinion testimony must assist the trier of fact, this fact alone does not determine the
admissibility of the testimony.

Question 14 of 25
ID# 13288

A construction worker dies as the result of an on-the-job accident and his wife sues the owner of the construction company, for whom the worker was
contracting, for wrongful death. She alleges that the owner failed to maintain a safe work site. As a result of the accident, all work on the site ceased, as
mandated by OSHA. The next day, an OSHA engineer came to the site and conducted an assessment to determine the cause of the accident. The OSHA
engineer found gross deviations from the standards of safety required by OSHA, and he imposed a substantial fine on the owner. The worker's wife calls the
OSHA engineer to testify.
Which of the following statements regarding the testimony of the OSHA engineer is most accurate?


The testimony is admissible in full as to the condition of the entire work site.


The testimony is admissible as expert testimony if it is restricted to findings in the area of the accident.


The testimony is inadmissible, because OSHA's investigation constitutes a subsequent remedial measure.


The testimony is inadmissible if the OSHA engineer relied on hearsay statements by workers at the site.
Explanation
The correct answer is: The testimony is admissible in full as to the condition of the entire work site.
Discussion of correct answer:Under the prior accident/similar events theory, the condition of the entire site could be used to show that the owner knew of
dangerous conditions and chose to ignore them. The testimony of the OSHA engineer is relevant in tending to show that the accident was foreseeable, given
the general condition of the site. As such, the expert would be allowed to testify as to the condition of the whole site.
Discussion of incorrect answers:
Incorrect. The testimony is admissible as expert testimony if it is restricted to findings in the area of the accident. Under the prior accident/similar events
theory, the condition of the entire site could be used to show that the owner knew of dangerous conditions and chose to ignore them. The testimony of the
OSHA engineer is relevant in tending to show that the accident was foreseeable, given the general condition of the site. As such, the expert would be allowed
to testify as to the condition of the whole site. Thus, the testimony would not be limited to the immediate area of the accident.
Incorrect. The testimony is inadmissible, because OSHA's investigation constitutes a subsequent remedial measure. It is true that evidence of subsequent
remedial measures is inadmissible as a matter of public policy to show a party's negligence, guilt, or fault. Here, however, the owner did not order the OSHA
investigation. Rather, OSHA became involved as mandated by regulatory law to perform an investigation that was quasi-criminal in nature, and OSHA
concluded by fining the owner for his actions. Thus, the investigation was clearly not a remedial measure instituted by the owner.
Incorrect. The testimony is inadmissible if the OSHA engineer relied on hearsay statements by workers at the site. The facts and data used by an expert in
forming his opinion need not be admissible as evidence, so long as they are facts or data generally relied upon by experts in the field. As such, reliance upon
hearsay statements would not necessarily render the engineer's testimony inadmissible.


Question 15 of 25
ID# 13289

A pizza delivery man was on trial for attempted murder. At the time of his arrest, the victim positively identified him in a police line-up. Since then, the delivery
man had grown a beard, lost his two front teeth, gotten gray hair, and walked with a limp. The victim was unable to identify the delivery man at trial. The
prosecution wished to introduce the testimony of the police officer who had administered the line-up and would testify that the victim positively identified the
delivery man at the line-up.
Is the officer's testimony admissible?


Yes, such prior identification is considered non-hearsay.


No, it is hearsay without an objection.

MBE Evidence Checkpoint Quiz June 6,
2014



No, unless the delivery man's change in appearance was so drastic that it would be unfair not to allow the testimony.


Yes, because the officer had a business duty to administer the line-up, and the identification was made in the ordinary course of business.
Explanation
The correct answer is: Yes, such prior identification is considered non-hearsay.
Discussion of correct answer:Under F. R. E. 801(d)(1)(C), where a witness has made a previous out-of-court identification of a person after perceiving that
person, the prior identification statement is not hearsay (even though offered for the truth of the matter asserted; the i dentification). The prior identification
statement will be admissible as substantive evidence. The declarant must testify at the trial and be subject to cross-examination. As long as the victim is
subject to cross-examination, his current ability to recognize the delivery man will not prevent the officer's testimony of the victim's prior identification.
Discussion of incorrect answers:
Incorrect. No, it is hearsay without an objection. At common law, the prior identification would be considered hearsay and would not be allowed as
substantive evidence. It could have possibly been used to impeach a witness who changed his story at trial. However, under F. R. E. 801(d)(1)(C), where a
witness has made a previous out-of-court identification of a person after perceiving that person, the prior identification statement is not hearsay (even though
offered for the truth of the matter asserted; the identification). The prior identification statement will be admissible as substantive evidence. The declarant
must testify at the trial and be subject to cross-examination. As long as the victim is subject to cross-examination, his current ability to recognize the delivery
man will not prevent the officer's testimony of the victim's prior identification.
Incorrect. No, unless the delivery man's change in appearance was so drastic that it would be unfair not to allow the testimony. Under F. R. E. 801(d)(1)(C),
where a witness has made a previous out-of-court identification of a person after perceiving that person, the prior identification statement is not hearsay
(even though offered for the truth of the matter asserted; the identification). The prior identification statement will be admissible as substantive evidence. The
declarant must testify at the trial and be subject to cross-examination. As long as the victim is subject to cross-examination, his current ability to recognize the
delivery man will not prevent the officer's testimony of the victim's prior identification. "Surprise" is not a requirement of F. R. E. 801(d)(1).
Incorrect. Yes, because the officer had a business duty to administer the line-up, and the identification was made in the ordinary course of business. There
is no requirement under F. R. E. 801(d)(1)(C) that the prior identification be made at a police lineup. Thus, it is irrelevant that the officer had a business duty
to administer the line-up, and the identification was made in the ordinary course of business.

Question 16 of 25
ID# 13290

The owner of a cigarette boat usually spends his days off partying and boating around the area. One Saturday, the boat owner was out on the water with two
of his cousins. A swimmer was swimming within the area designated "No Boats" when the boat hit him, severely injuring the swi mmer. There are several
witnesses on the beach, including the beach patrol lifeguards. The police are immediately called to the scene. The swimmer subsequently sues the boat
owner for damages. All the witnesses are willing and available to testify. In his lawsuit, the swimmer claims that at the time of the accident, the boat owner
was intoxicated, within the "no boats" zone and operating his boat excessively fast. The swimmer's counsel calls on the sheri ff to testify that both of the boat
owner's cousins gave statements at the police station that day, and that they stated that on the day of the accident, they and the boat owner had been
partying all day and drinking alcohol for the four hours prior to the accident.
Is Sheriff's testimony admissible?


No, because it is inadmissible hearsay.


Yes, because it is a declaration against interest.


Yes, because it is an admission of a party opponent.


Yes, but only if the cousins testify also.
Explanation
The correct answer is: No, because it is inadmissible hearsay.
Discussion of correct answer:The statements are clearly out of court statements and are being offered for the truth of the matter asserted in the statement,
that the boat owner was drunk. While there are exceptions to the general rule barring admission of hearsay evidence, no exceptions apply in this instance. As
such, the statement is inadmissible.
Discussion of incorrect answers:
Incorrect. Yes, because it is a declaration against interest. The cousins are not parties to the suit and were not in jeopardy of being charged with a crime at
the time the statements were given. As such, they had no interest in a civil or criminal sense in the outcome of the investigation. As such, their statements do
not constitute a declaration against interest.
Incorrect. Yes, because it is an admission of a party opponent. As the cousins are not parties to the suit, they are not "party opponents." Neither were they
agents or employees of the boat owner at the time of the statement (in which case their statements might have constituted an admission made on the boat
owner's behalf). They are simply witnesses.
Incorrect. Yes, but only if the cousins testify also. The statements are clearly out of court statements and are being offered for the truth of the matter

MBE Evidence Checkpoint Quiz June 6,
2014

asserted in the statement (that is, that the boat owner was drunk). While there are exceptions to the general rule barring admission of hearsay evidence, no
exceptions apply in this instance. Whether the cousins testify is irrelevant. As such, the statement is inadmissible.

Question 17 of 25
ID# 13291

The only eyewitness to a robbery made a verbal statement to police less than an hour after the event. The statement was transcribed and the witness
reviewed the statement and signed it under oath. By the time of the trial, the witness has moved out of the country and is unavailable to testify. The
prosecution moves to introduce his transcribed statement, with irrelevant or objectionable parts redacted.
Should the court admit the statement into evidence?


Yes, because the statement is non-hearsay.


Yes, because the statement is recorded testimony.


No, except for purposes of rehabilitation of any witness testifying to his excited utterance/present sense impression.


No, because the statement is inadmissible hearsay.
Explanation
The correct answer is: No, because the statement is inadmissible hearsay.
Discussion of correct answer:The rule excluding hearsay evidence is designed to prevent the introduction of a statement by a witness whom the opposing
party will not have the opportunity to cross-examine. Prior testimony is not admissible unless it was subject to cross-examination with the same issues
present during that cross-examination. Here, at the time of the witness' statement, no such cross-examination occurred. Thus, because the statement is an
out-of-court statement offered for the proof of the matter asserted, and it does not fall within any of the exceptions to the rule excluding hearsay evidence, it is
inadmissible.
Discussion of incorrect answers:
Incorrect. Yes, because the statement is non-hearsay. The rule excluding hearsay evidence is designed to prevent the introduction of a statement by a
witness whom the opposing party will not have the opportunity to cross-examine. Here, the statement is an out-of-court statement offered for the proof of the
matter asserted, and it does not fall within any of the exceptions to the rule excluding hearsay evidence. As such, the statement is inadmissible.
Incorrect. Yes, because the statement is recorded testimony. The rule excluding hearsay evidence is designed to prevent the introduction of a statement by
a witness whom the opposing party will not have the opportunity to cross-examine. Here, the statement is an out-of-court statement offered for the proof of
the matter asserted, and it does not fall within any of the exceptions to the rule excluding hearsay evidence. As such, the statement is inadmissible.
Incorrect. No, except for purposes of rehabilitation of any witness testifying to his excited utterance/present sense impression. The rule excluding hearsay
evidence is designed to prevent the introduction of a statement by a witness whom the opposing party will not have the opportunity to cross-examine. Here,
the statement is an out-of-court statement offered for the proof of the matter asserted, and it does not fall within any of the exceptions to the rule excluding
hearsay evidence. As such, the statement is inadmissible.


Question 18 of 25
ID# 13292

A defendant is on trial for drug possession and intent to distribute. At trial, the prosecution seeks to introduce the statements of several witnesses as
evidence against the defendant.
Which of the following statements is most likely to be admitted as evidence against the defendant?


"Just before the defendant was arrested, I watched her hand a bag of heroin to the other woman, and the woman said, 'this can't be a full gram.'"


"My brother bought heroin from the defendant several times."


"In my neighborhood, the defendant is a known drug dealer."


"My sister told me that she bought heroin from the defendant."
Explanation
The correct answer is: "Just before the defendant was arrested, I watched her hand a bag of heroin to the other woman, and the woman said, 'this can't be
a full gram.'"
Discussion of correct answer:This is the most likely evidence to be admitted because the statement made by the woman is a present sense impression,
which is an exception to the hearsay rule. A present sense impression is a statement describing or explaining an event or condition made while the declarant
was perceiving the event or condition, or immediately thereafter. In this case the woman's statement discussing the weight of what was in her hand would
qualify as her perception of the bag in her hand. Because the defendant gave the bag to her, this interaction would be admissible for the witness to testify to.

MBE Evidence Checkpoint Quiz June 6,
2014

Discussion of incorrect answers:
Incorrect. "My brother bought heroin from the defendant several times." In seeking to introduce this statement as evidence, the prosecution is attempting to
introduce evidence of the defendant's bad character in order prove that she acted in conformity with her character in committing the crime with which she is
charged. Specifically, the statement in this answer choice reflects the prosecution's attempt to introduce prior illegal acts by the defendant to establish the
defendant's propensity for drug dealing. This is unlikely to be admitted into evidence.
Incorrect. "In my neighborhood, the defendant is a known drug dealer." In seeking to introduce this statement as evidence, the prosecution is attempting to
introduce reputation evidence of the defendant's bad character in order prove that she acted in conformity with her character in committing the crime with
which she is charged. Character evidence of the defendant is inadmissible to show bad character, unless to rebut the introduction by the defendant of
evidence of good character. Here the facts don't say that the defendant had introduced any evidence of her good character, so this evidence is unlikely to be
admitted.
Incorrect. "My sister told me that she bought heroin from the defendant." Although the sister's statement might qualify as an exception to the hearsay rule
which permits evidence of a declaration against interest, in seeking to introduce this statement, the prosecution is attempting to introduce evidence of the
defendant's bad character in order prove that she acted in conformity with her character in committing the crime with which she is currently charged.
Specifically, the statement in this answer choice reflects the prosecution's attempt to introduce prior illegal acts by the defendant to establish the defendant's
propensity for drug dealing. Such evidence is not admissible in a criminal case. This is unlikely to be admitted into evidence.

Question 19 of 25
ID# 13293

Which of the following is admissible under an exception to the hearsay rule?


Recorded observations of a police officer in the criminal prosecution of a defendant.


A report of the number of airplane accidents investigated by the FAA.


Factual findings made pursuant to authority granted by law that were compiled by the Defendant's wife.


The official Department of Transportation's pamphlet of holiday cookie recipes.
Explanation
The correct answer is:A report of the number of airplane accidents investigated by the FAA.
Discussion of correct answer:The report will be admissible as a public record. Public records are records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel, or (C) in
civil actions and proceedings and against the government in criminal cases, and factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Here, a report of the number of airplane accidents
investigated by the FAA would be a public record, because it sets forth the activities of the agency.
Discussion of incorrect answers:
Incorrect. Recorded observations of a police officer in the criminal prosecution of a defendant. The recorded observations will not be admissible. The closest
exception would be a public record. Public records normally include matters observed pursuant to duty imposed by law as to which matters there was a duty
to report. Therefore, the observations of the police officer may qualify as a public record. However, in criminal cases, matters observed by police officers and
other law enforcement personnel are excluded from this exception.
Incorrect. Factual findings made pursuant to authority granted by law that were compiled by the Defendant's wife. The factual findings will not be admissible.
The closest exception would be a public record. Public records normally include factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Here, the factual findings were compiled by the
Defendant's wife. Therefore, there is a possibility that the wife may attempt to help her husband. The document could fail as a public record as the report may
lack trustworthiness.
Incorrect. The official Department of Transportation's pamphlet of holiday cookie recipes. The pamphlet will not be admissible. The closest exception would
be a public record. Public records normally include records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth
the activities of the office or agency. Here, the pamphlet is not admissible as a public record, because the cookie recipes do not set forth the activities of the
Department of Transportation.


Question 20 of 25
ID# 13294
Which of the following is admissible under an exception to the hearsay rule?


A man's family bible which contains his family's genealogy.


A birthday card celebrating a father's 42nd birthday.

MBE Evidence Checkpoint Quiz June 6,
2014



Acceptance letter from a university acknowledging that a college freshman's family has attended the school for five generations.


An engineer's written proposal to his girlfriend that indicates his desire to have the wedding in June, which was later rejected by the girlfriend.
Explanation
The correct answer is:A man's family bible which contains his family's genealogy.
Discussion of correct answer:The man's bible would be admissible as a Family Record. Under F.R.E. 803(13), statements of fact concerning personal or
family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc. are admissible. It is important not to confuse this F.R.E.
803 exception (under which availability of the declarant is immaterial) with the exception for Statement of Personal or Famil y History which falls within the
ambit of F.R.E. 804 and requires that the declarant be unavailable.
Discussion of incorrect answers:
Incorrect. A birthday card celebrating a father's 42nd birthday. The birthday card would not be admissible. Here, while the card celebrates the father's birth, it
is not a statement concerning the father's birth.
Incorrect. Acceptance letter from a university acknowledging that a college freshman's family has attended the school for five generations. The acceptance
letter would not be admissible. Here, while the letter acknowledges the freshman's family has attended the college for generations, it will not qualify under the
family records exception.
Incorrect. An engineer's written proposal to his girlfriend that indicates his desire to have the wedding in June, which was later rejected by the girlfriend. The
proposal would not be admissible. Here, while the proposal suggests the engineer wants to get married, the proposal was rejected. Therefore, it will not be
admissible as a statement concerning the engineer's proposal of marriage.

Question 21 of 25
ID# 13295

A motorist files suit against several defendants for injuries arising from a multi-car collision. At trial, the motorist seeks to use a diagram of the accident scene
to illustrate her testimony. The motorist calls the police officer who investigated the accident to testify that the diagram fairly and accurately represents the
accident scene.
Is the diagram admissible?


Yes, as long as the probative value of the diagram is not substantially outweighed by the danger of unfair prejudice.


No, because the diagram did not play an actual part in the accident.


No, because such evidence is calculated to improperly inflame the passions of the jury.


Yes, as substantive evidence.
Explanation
The correct answer is: Yes, as long as the probative value of the diagram is not substantially outweighed by the danger of unfair prejudice.
Discussion of correct answer:A proponent of real or demonstrative evidence must authenticate (or lay a proper foundation for) the evidence before it will be
admitted at trial. "Real evidence" is defined as tangible evidence that had an actual role in the matter at issue. "Demonstrative evidence" is defined as
tangible evidence which is used by the proponent to illustrate a fact at issue in the case or explain some other item of evidence, such as the testimony of a
witness. As a condition precedent to admission, a proponent of real evidence must show that the evidence in question is what its proponent claims it to be. A
proponent of demonstrative evidence must show that the evidence fairly and accurately represents whatever it is supposed to represent. Of course, both real
and demonstrative evidence must also meet the general requirements for admissibility of evidence: (1) it must be relevant and (2) its probative value must not
be substantially outweighed by the danger of unfair prejudice, misleading the jury, waste time, cause confusion of issues, etc. The diagram in the fact pattern
presented above is demonstrative evidence. The motorist called the police officer who investigated the accident to testify that the diagram fairly and
accurately represents the accident scene. Thus, because the motorist laid the proper foundation, this is the correct answer.
Discussion of incorrect answers:
Incorrect. No, because the diagram did not play an actual part in the accident. Evidence that did not play an actual part in the accident is still possibly
admissible. The diagram need not have played an actual part in the accident to be admissible.
Incorrect. No, because such evidence is calculated to improperly inflame the passions of the jury. While it is true that every piece of evidence must meet the
requirement that its probative value substantially outweighs its prejudicial effect, this would easily be met here. Demonstrative evidence is not viewed as
being inherently calculated to inflame the passions of the jury. A judge must perform a case-by-case inquiry into the tendency of items of demonstrative
evidence to unduly prejudice the jury, just as she would for any other kind of evidence. However, given that a diagram might be highly probative, it is unlikely
that it would be excluded due to unfair prejudice.
Incorrect. Yes, as substantive evidence. This answer is incorrect, because the motorist is not offering the diagram as substantive evidence; she is offering it
to illustrate her testimony. Demonstrative evidence is generally not offered as substantive evidence. Charts, maps, diagrams and scale models are generally
used for an explanatory or illustrative purpose, and so would be admissible for those purposes. It is unlikely that the court would allow and that the motorist
would seek to have the diagram admitted to prove that it is a diagram. Though this issue must be addressed, it can be done through testimony laying a

MBE Evidence Checkpoint Quiz June 6,
2014

proper foundation. The motorist intended to lay a proper foundation for the diagram by having the Police Officer testify. As a result the diagram is not
admissible as substantive evidence. It is admissible only for explanatory or illustrative purposes.

Question 22 of 25
ID# 13296

A beginning skier decided to take to the slopes and go skiing for the first time. During the morning session, she took lessons to learn how to ski. By the
afternoon, she was ready to tackle the intermediate slopes, so she thought. When she dismounted the ski lift, her skis got caught in the lift and she fell. She
was not able to get out of the way before the next ski lift unloaded two more skiers. When they unloaded, they collided with the beginning skier. The chair lift
operator thought it was funny to see the pile of skiers, so he took a picture of the accident scene. Hurt and humiliated, the beginning skier decided to file suit
against the ski resort for negligent operation of the ski lifts. The case went to trial one year later, but the chair lift operator who took the picture had left the
country a month before the trial began.
What is the most likely method of authenticating the photograph at trial?


Testimony from another skier who unloaded from the ski lift immediately before the beginning skier did and who saw the whole incident.


Testimony from the person who developed the pictures.


Testimony from the investigator who believes that the photograph is consistent with the beginning skier's description.


Testimony of the chair lift operator's business associate, who will state that the operator took a photography class to learn how to use the proper equipment to guarantee the accuracy of his pictures.
Explanation
The correct answer is: Testimony from another skier who unloaded from the ski lift immediately before the beginning skier did and who saw the whole
incident.
Discussion of correct answer:As a general rule, a document is not admissible unless it has been authenticated (i.e., sufficient proof offered that the document
is what it is purported to be). To establish that a document is genuine, FRE 901 provides that a party may authenticate the document by admission or
stipulation of the opponent, by use of a witness, by jury comparison, or by circumstantial evidence. Testimony from another skier who unloaded from the lift
immediately before the beginning skier, and who saw the whole incident, would provide the most accurate information in identifying what is pictured in the
photograph. The Federal Rules do not require the photographer to authenticate the photograph.
Discussion of incorrect answers:
Incorrect. Testimony from the person who developed the pictures. The person who developed the pictures would be able to testify to the "chain of custody"
for the photograph. However, this person would not be able to identify if the picture depicted the location of the beginning skier's mishap.
Incorrect. Testimony from the investigator who believes that the photograph is consistent with the beginning skier's description. The foundational
requirements necessary to authenticate the photograph have not been met here. The investigator is not a witness with knowledge as required by FRE 901. If
the investigator had knowledge of the location, and it was established that he had such knowledge, then he would be able to authenticate the picture.
Incorrect. Testimony of the chair lift operator's business associate, who will state that the operator took a photography class to learn how to use the proper
equipment to guarantee the accuracy of his pictures. The quality of the picture is not in issue. The issue is whether or not the image of the picture is what it
purports to be. The business associate's testimony is, therefore, irrelevant to the authentication of the photograph.


Question 23 of 25
ID# 13298

Can a summary of a 20-volume collection of photographs be admissible at trial?


No, because it would violate the best evidence rule.


No, unless the originals are produced in court.


Yes, if the originals can not be conveniently examined in court.


Yes, but the originals might be required for examination.
Explanation
The correct answer is: Yes, if the originals can not be conveniently examined in court.
Discussion of correct answer:The contents of voluminous writings, recordings, or photographs that cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other
parties at a reasonable time and place. The court may order that they be produced in court.
Discussion of incorrect answers:
Incorrect. No, because it would violate the best evidence rule. The contents of voluminous writings, recordings, or photographs that cannot conveniently be

MBE Evidence Checkpoint Quiz June 6,
2014

examined in court may be presented in the form of a chart, summary, or calculation.
Incorrect. No, unless the originals are produced in court. The contents of voluminous writings, recordings, or photographs that cannot conveniently be
examined in court may be presented in the form of a chart, summary, or calculation. This option is incorrect, because the court may order that the originals be
produced in court.
Incorrect. Yes, but the originals might be required for examination. The contents of voluminous writings, recordings, or photographs that cannot conveniently
be examined in court may be presented in the form of a chart, summary, or calculation. This option is incorrect, because the originals, or duplicates, shall be
made available for examination or copying, or both, by other parties at a reasonable time and place.

Question 24 of 25

Which of the following is most likely to be admissible under an exception to the hearsay rule?


Statement by a husband who, after his car accident and moments before his death, said, "I wish I remembered to say goodbye to my wife."


Statement by a defendant who, wrongly believing death was imminent, said, "My father shot me."


Statement by a victim who, before falling into an irreversible coma caused by a bullet wound, said, "My wife shot me."


Statement by unavailable declarant made six weeks after a near-death accident that his brother attempted to kill him.
Explanation
The correct answer is:Statement by a victim who, before falling into an irreversible coma caused by a bullet wound, said, "My wife shot me."
Discussion of correct answer:The victim's statement will be admissible as a dying declaration. A dying declaration requires a statement made by a declarant
while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. The declarant must be
unavailable as a witness. Here, the victim's statement pertains to the person who caused the bullet wound. Further, the statement was made just before the
victim fell into a coma caused by the wound. Therefore, it is likely the victim believed his death was imminent. A dying declaration does not require the
declarant to die. The fact that the victim is in a coma indicates he is unavailable to testify.
Discussion of incorrect answers:
Incorrect. Statement by a husband who, after his car accident and moments before his death, said, "I wish I remembered to say goodbye to my wife." The
husband's statement will not be admissible. The closest exception would be a dying declaration. A dying declaration requires a statement made by a
declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. The declarant
must be unavailable as a witness. Here, the husband was in a car accident, and, while he most likely made the statement believing his death was imminent,
his statement does not pertain to the cause or circumstances of his death.
Incorrect. Statement by a defendant who, wrongly believing death was imminent, said, "My father shot me." The defendant's statement will not be
admissible. The closest exception would be a dying declaration. A dying declaration requires a statement made by a declarant while believing that his death
was imminent, concerning the cause or circumstances of what he believed to be his impending death. The declarant must be unavailable as a witness. Here,
while the defendant believed death was imminent and the statement pertains to what he believed would be his imminent death, it appears that as a party to
the action, the defendant is available to testify. Therefore, he is not unavailable.
Incorrect. Statement by unavailable declarant made six weeks after a near-death accident that his brother attempted to kill him. The unavailable declarant's
statement will not be admissible. The closest exception would be a dying declaration. A dying declaration requires a statement made by a declarant while
believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. The declarant must be
unavailable as a witness. Here, while the declarant is unavailable, the statement was made six weeks after the accident. Therefore, it was not made with a
belief that death was imminent.


Question 25 of 25
ID# 7607

The purchaser of a 20-acre parcel brings an action against the vendor. A relevant fact is the legal description of a portion of the property that was deeded in
1922. The original deed was destroyed by a fire in a local attorney's office several years ago. The only remaining record is a microfilm copy of the deed
recorded in 1922, which is kept in the County Recorder's office.
Is the microfilm admissible?


No, because it is not the best evidence.


No, as hearsay not within any exception.


Yes, as a past recollection recorded.


Yes, to prove the legal description of the property in the 1922 transfer.
Explanation

MBE Evidence Checkpoint Quiz June 6,
2014

The correct answer is:Yes, to prove the legal description of the property in the 1922 transfer.Discussion of correct answer:This question requires analysis
under the Best Evidence Rule. Under Federal Rule of Evidence 1004, the original document is not required as proof of the contents if the original is not
available where (1) all originals were lost or destroyed through other than the bad faith of the proponent of the evidence, or (2) the original cannot be obtained
through any available judicial procedure. Here the original deed was destroyed in a fire, making this the correct choice.
Discussion of incorrect answers:
Incorrect. No, because it is not the best evidence. The Best Evidence Rule applies because the parties seek to prove the contents of a writing, i.e., the
transfer of title to real property described in the deed. However, Federal Rule of Evidence 1004 provides an exception that allows for admission of secondary
evidence of the document, because the original was destroyed. Thus, this answer is incorrect.
Incorrect. No, as hearsay not within any exception. Federal Rule of Evidence 803(26) provides that statements contained in any documents (1) 20 or more
years old, and (2) whose authenticity is established are excepted from the hearsay rule. The focus of this question is on the inability to obtain the original
document, not the possibility of hearsay evidence. (Deeds are non-hearsay because they have independent legal significance.) Thus, this answer is
incorrect.
Incorrect. Yes, as a past recollection recorded. Federal Rule of Evidence 803(5) pertains to admission of a writing concerning a matter about which a
witness once had knowledge but at the time of testifying has insufficient recollection. This exception to the hearsay rule is irrelevant to the facts of this
question. Thus, this answer is incorrect.