EVIDENCE

MBE PRACTICE QUESTIONS


EVIDENCE QUESTIONS
Question 1
A plaintiff brought an action against a defen-
dant for property damages, alleging that the
defendant’s car nicked the side of the plaintiff’s
truck while the defendant was changing lanes on
an expressway. At trial, the defendant sought to
introduce evidence of her good driving record.
Is the evidence admissible?
(A) No, because it is character evidence.
(B) No, because it is self-serving.
(C) Yes, because it is character evidence.
(D) Yes, because it is habit evidence.
EVIDENCE QUESTIONS 1.
Question 2
A plaintiff sued a defendant for defamation,
asserting in her complaint that the defendant had
called the plaintiff a thief in front of a number
of business associates. The plaintiff calls two
witnesses to the stand, both of whom testify that
they heard the defendant refer to the plaintiff as
a thief in front of the business associates. The
plaintiff does not take the stand herself. The
defendant pleads truth of the statement as an
affirmative defense and calls a witness to the
stand. The defense witness is prepared to testify
that he was a co-worker of the plaintiff when the
plaintiff supplemented her income by tending
bar three nights a week. The witness will testify
that he saw the plaintiff take a $20 bill from the
tavern’s cash register and secrete the money in
her pocket. The plaintiff’s attorney objects.
May the defense witness’s testimony be
allowed?
(A) Yes, as substantive evidence that the plain-
tiff is, in fact, a thief.
(B) Yes, because theft is a crime indicating
dishonesty.
(C) No, because specific bad acts may not be
used to show bad character.
(D) No, because the plaintiff never took the
stand.
2. EVIDENCE QUESTIONS
Question 3
During the defendant’s trial for embezzlement,
the defense calls a witness to testify as to the
defendant’s reputation for honesty and veracity.
The prosecution objects.
Should the court allow the testimony?
(A) Yes, because the prosecution put the defen-
dant’s character for truthfulness in issue by
filing charges against him.
(B) Yes, because it is admissible character
evidence.
(C) No, because a party cannot bolster the
testimony of his witness until he has been
impeached.
(D) No, because the evidence is inadmissible
hearsay.
Question 4
A defendant is charged with beating a victim
to death with a set of brass knuckles during the
course of a fight in a tavern. The victim was
found to have a pistol on his person at the time
of the fight. During the course of the trial, the
defendant took the stand in his own defense and
testified that the victim threatened him with a
gun and the defendant had hit the victim with
the brass knuckles in self-defense. To rebut the
defendant’s claim, the prosecution wishes to
place the bartender on the stand, who will testify
that two years prior to the attack on the victim,
she had seen the defendant approach a customer
in her tavern from behind, put on a pair of brass
knuckles, and strike the customer a severe blow
on the side of the face with a brass-knuckled fist.
The prosecutor, in accordance with local court
rules, has apprised the defense attorney of the
general tenor of the bartender’s proposed testi-
mony. As soon as the bartender is sworn in, the
defense attorney raises an objection.
How should the court rule on the admissibility
of the bartender’s testimony?
(A) Admissible, as substantive evidence that
the defendant did not act in self-defense in
beating the victim.
(B) Admissible, to attack the defendant’s
credibility.
(C) Inadmissible, because prior bad acts cannot
be admitted to prove the defendant’s
propensity to commit the specific crime
with which he is charged.
(D) Inadmissible, because the defendant has not
put his character in issue in this case.
 EVIDENCE QUESTIONS 3.

Question 5 Question 6

A defendant is charged with trafficking in While cross-examining a defendant on trial

firearms, in violation of federal firearms control
laws, as well as receiving stolen property. The
charges arise from the defendant’s having
attempted to sell a semi-automatic weapon
identified as one of dozens that were stolen from
a warehouse a year ago. The defendant denies
intending to sell the gun or knowing that it had
been stolen.
for robbery and assault with a deadly weapon,
the prosecutor asks him whether he was
convicted of fraud within the previous year.
This question is:
(A) Improper, because fraud is not probative of
a tendency to commit violence.

At trial, which of the following would the (B) Improper, unless the proper foundation was
court be LEAST likely to allow the prosecution laid.
to introduce as evidence against the defendant?
(C) Proper, because fraud is a form of stealing,
(A) Evidence that the defendant was once and so it will tend to show that the defen-
convicted of armed robbery with a semi- dant could commit robbery.
automatic weapon.
(D) Proper, because it tends to show that the
(B) The testimony of a witness that, the day defendant would lie.
before the defendant’s arrest, he asked the
witness how much she would be willing to
pay for a semi-automatic weapon.

(C) The testimony of a member of a secret

paramilitary group that the defendant had
been supplying the group with weapons for
several months.

(D) Evidence that the defendant had been

previously convicted of receipt of stolen
weapons.
4. EVIDENCE QUESTIONS
Question 7
A plaintiff sued a defendant for serious
personal injuries he incurred when the defendant
allegedly drove through a red light and collided
with the plaintiff’s car. Calling the defendant
as an adverse witness, the plaintiff asked her
if she had been drinking before the accident.
The defendant refused to answer, asserting her
privilege against self-incrimination. The plaintiff
then offers in evidence a certified copy of a court
record indicating that, eight years previously, the
defendant had been convicted of reckless driving
while intoxicated that caused serious personal
injury, a felony.
How should the trial court rule on the admis-
sibility of the court record?
(A) Admit the record as relevant character evi-
dence because the plaintiff suffered serious
personal injuries.
(B) Admit the record as impeachment evidence.
(C) Exclude the record as irrelevant because as
yet the defendant has given no testimony to
be impeached.
(D) Exclude the record because the convic-
tion is too remote and does not necessarily
reflect on the defendant’s credibility as a
witness in the present proceedings.
Question 8
A jurisdiction’s arson statute has dropped the
common law requirement that the intentional
burning be of “the dwelling of another.” Under
this statute, the defendant was charged with first
degree felony arson. The indictment alleged that
the defendant burned down his own building to
collect the insurance. At the trial, the defense
called a witness who testified on direct examina-
tion that he was with the defendant at the place
of business when the fire started and that some
cleaning solvent caught fire and spread out of
control. The witness testified that the ignition of
the fire was purely accidental. The defense also
introduced evidence that the witness is of good
character. On cross-examination, the prosecutor
asked the witness if he is being prosecuted for
first degree felony arson in a separate trial for
the burning of the same building. The defense
lawyer objects.
Should the court allow the prosecutor’s
question?
(A) Yes, because the defense lawyer has intro-
duced evidence tending to establish that the
witness is a person of good character.
(B) Yes, because the question is appropriate
to show bias or interest on the part of the
witness.
(C) No, because the witness has not been
convicted of the crime.
(D) No, because the question violates the
witness’s Fifth Amendment right to be
protected from self-incrimination.

Question 9
A witness testified against a defendant in a
contract action. The defendant then called a
friend to the stand, who testified that the witness
had a bad reputation for truth and veracity.
The defendant then also called the witness’s
employee to testify that the witness once perpe-
trated a hoax on an insurance company, for
which she was convicted.
Is the employee’s testimony admissible?
(A) No, because it is merely cumulative im-
peachment.
(B) No, because it is extrinsic evidence of a
specific instance of misconduct.
(C) Yes, because the hoax resulted in a convic-
tion of the witness.
(D) Yes, because a hoax involves untruthful-
ness.
EVIDENCE QUESTIONS 5.
Question 10
In a lawsuit over ownership of stereo equip-
ment between two roommates, the plaintiff
testified that he purchased the equipment one
year ago for his DJ business. The defendant
offers the testimony of a clerk at the electronics
store where the equipment was purchased. The
clerk testifies that she remembers that the sale of
the equipment occurred 10 months ago, not one
year ago, because the purchase order was signed
with such a distinctive signature. However, she
cannot remember whether it was purchased by
the defendant or the plaintiff.
If the plaintiff objects to this testimony,
should the trial court admit it?
(A) Yes, because the purchase order is a past
recollection recorded.
(B) Yes, because the purchase order is a
business record.
(C) No, because the date of purchase is a collat-
eral matter.
(D) No, because the content of the purchase
order is hearsay not within any exception.
6. EVIDENCE QUESTIONS
Question 11
The plaintiff sued the defendant in a contract
dispute. At trial, the plaintiff’s sister testifies as a
witness on behalf of the plaintiff, stating that the
defendant agreed to sell a computer to the plain-
tiff for $250. To prove that the sister is telling
the truth, plaintiff’s counsel asks the sister on
direct examination about a conversation she had
with her mother, in which she told her mother
that the defendant agreed to sell a computer to
the plaintiff for $250. The defendant objects to
the testimony.
How should the court rule?
(A) Admissible, because it is a prior consistent
statement.
(B) Admissible, because it is not hearsay.
(C) Inadmissible, because leading questions
cannot be asked on direct examination.
(D) Inadmissible, because the sister has not
been impeached.
Question 12
A plaintiff sued a defendant railroad company
for injuries sustained when his car was hit at a
railroad crossing. The plaintiff testified that just
before the accident, a bystander yelled, “Oh no,
the crossing signal isn’t working!” The defendant
wants to place a witness on the stand who will
testify that the bystander, who is now dead, told
her that the crossing signal was working.
Is the witness’s testimony admissible?
(A) Yes, for the purpose of impeachment only.
(B) Yes, for the purpose of impeachment and to
show that the crossing signal was working.
(C) No, because it is hearsay not within any
exception.
(D) No, because the bystander is not available
to explain or deny the contradiction.

Question 13
A plaintiff sued a chimney sweeping company
for personal injury and property damages
resulting from an explosion in her chimney the
evening after the company had cleaned it. The
explosion, which occurred when the plaintiff lit a
fire in the fireplace, caused minor damage to the
chimney, roof, and to the plaintiff, who was hit
by falling bricks. As evidence that she assumed
the risk of injury, the company offers to have its
foreman testify that he had told the plaintiff not
to use the fireplace for 24 hours to allow certain
chemicals to evaporate.
Is the foreman’s proposed testimony hearsay?
(A) No, because the declarant is testifying as a
witness at the hearing.
(B) No, because the statement is not offered for
its truth.
(C) Yes, but it should be admitted under the
hearsay exception for present sense impres-
sions.
(D) Yes, but it should be admitted under the
present state of mind exception to the
hearsay rule.
EVIDENCE QUESTIONS 7.
Question 14
The plaintiff sued the defendant for battery.
The defendant claimed that he was attacked for
no reason by the plaintiff and that he hit the
plaintiff with a pipe in self-defense. A witness
was called to testify that on the day in question
she heard the defendant and his roommate
talking outside their apartment. The witness
testified that the roommate told the defendant
that the plaintiff had been flirting with the defen-
dant’s girlfriend, and that the defendant seemed
very angry. The defendant’s attorney objected to
this testimony.
The court should find the evidence:
(A) Admissible, to show provocation for the
battery.
(B) Admissible, as a legally operative fact.
(C) Inadmissible, because it is hearsay.
(D) Inadmissible, because it is an opinion.
8. EVIDENCE QUESTIONS
Question 15
A motorist who failed to stop at a stop sign
was struck by a car being taken for a test drive
by a mechanic who had repaired the car’s
brakes. The motorist sued the repair shop that
employed her to recover for his injuries. At trial,
the motorist called a bystander to testify that
when the mechanic saw that the motorist was
injured, she ran over and told him, “I’m really
sorry. I guess I didn’t fix the brakes as well as I
thought.”
Should the repair shop’s objection to the
bystander’s testimony be sustained?
(A) Yes, because the mechanic’s statement is
inadmissible against the repair shop.
(B) Yes, because the motorist did not stop at the
stop sign.
(C) No, because it is a declaration against
interest.
(D) No, because it is a statement attributable to
a party-opponent.
Question 16
A defendant was arrested for the felony of
aggravated battery against a victim. A witness
testified before a grand jury that she saw the
defendant beat the victim with a baseball bat.
The defendant was indicted and later convicted.
The victim then sued the defendant for personal
injuries. The witness could not be located. A
second witness was produced and gave testi-
mony similar to that given by the first witness
before the grand jury. The victim’s attorney
offers as evidence, without prior notice to the
defendant’s attorney, a properly authenticated
transcript of the testimony given earlier by the
first witness before the grand jury.
How should the court rule on the admissibility
of the transcript of the grand jury testimony?
(A) Admissible under the former testimony
exception to the rule against hearsay.
(B) Admissible nonhearsay.
(C) Inadmissible to rehabilitate the testimony of
the second witness because he has not been
impeached by a charge of recent fabrication
or improper motive.
(D) Inadmissible hearsay.

Question 17
The owner of a jewelry store brought a civil
action against a former clerk for the value of
various pieces of jewelry missing from the store.
The defendant had been fired after another
employee had reported that the defendant was
stealing jewelry. At the trial, the plaintiff calls
his employee as a witness. The witness testifies
that he does not remember either having seen the
defendant take anything from the store or having
told the plaintiff that she had done so. The plain-
tiff then takes the witness stand and proposes to
testify to what the witness had told him about
seeing the defendant stealing pieces of jewelry
from the store.
Assuming appropriate objection by the defen-
dant, would such testimony by the plaintiff be
admissible?
(A) Yes, as a statement against interest by the
witness.
(B) Yes, as proper impeachment of the witness’s
testimony.
(C) No, as irrelevant.
(D) No, as inadmissible hearsay if offered to
prove theft by the defendant.
EVIDENCE QUESTIONS 9.
Question 18
The defendant was on trial for murdering his
mother, who was found dead in her bathtub.
At trial, the prosecutor called the nurse of the
defendant’s aunt to testify to what the aunt told
the nurse just before the aunt died of cancer. The
nurse is prepared to testify that, shortly before
she died, the aunt stated, “I know I don’t have
much longer to live, so I must tell someone what
my nephew said to me yesterday. He told me
that he was very angry with his mother and that
he wanted to kill her and make it look like an
accident!”
Should this testimony be admitted?
(A) Yes, because it is a statement by an oppos-
ing party.
(B) Yes, because it falls within the hearsay
exception for dying declarations.
(C) Yes, because it is a statement by an
opposing party and falls within the hearsay
exception for dying declarations.
(D) No, because it is inadmissible hearsay.
10. EVIDENCE QUESTIONS
Question 19
A defendant was tearing up a stretch of
pavement with a jackhammer when a rock flew
up and struck a plaintiff in the head, causing
him to be hospitalized. Because the jackhammer
manufacturer had been out of business for
several years, the plaintiff filed a lawsuit for
his medical costs, lost work time, and pain
and suffering solely against the defendant. At
trial, the plaintiff’s attorney calls a witness who
testifies that, at the time of the incident, the
defendant stated, “It was my fault.” The defense
attorney objects, but the judge overrules the
objection on the ground that this is a declaration
against interest.
Are the grounds for the judge’s decision
correct?
(A) Yes, because the statement subjected the
defendant to tort liability.
(B) Yes, because the defendant is a party to the
litigation.
(C) No, because the statement is not against an
important interest.
(D) No, because the defendant is available to
testify.
Question 20
A witness’s nephew was visiting her from
a foreign country. One evening, the nephew
went out with friends. At 11 p.m. that night, he
appeared back at the witness’s house, pounding
loudly on the door. She let him in, and noted that
he was panting and out of breath. He immedi-
ately told her, “You won’t believe what I just
saw! I was walking past your neighbor’s house
just now and the wife ran up to me with a gun
in her hand. She looked me straight in the eyes
and said, ‘I killed the philandering fool’ before
running off down the street.” After the nephew
returned to his country, the wife was put on trial
for the murder of her husband. The prosecution
wants to put the witness on the stand to testify
regarding the nephew’s statement to her. The
defense objects.
Can the witness testify to the nephew’s state-
ment?
(A) Yes, because the nephew’s statement quali-
fies as an excited utterance.
(B) Yes, because the nephew is not available to
testify.
(C) No, because the wife did not make her
admission to the witness.
(D) No, because the witness’s testimony would
constitute hearsay within hearsay.

Question 21
The defendant was charged with reckless
driving after his car hit a car driven by a priest.
At trial, the passenger in the defendant’s car at
the time of the accident testified that the priest
slammed on the brakes with no warning before
the accident. The defendant was acquitted of
the reckless driving charge. Subsequently, the
priest sued the defendant for personal injuries
and property damages. At the civil trial, counsel
for the defendant asked the passenger, “Did
the priest stop suddenly before the defendant
hit him?” The passenger, who was angry with
the defendant after an argument, responded, “I
don’t remember it that way. The priest may have
slowed down a bit.” The defense attorney seeks
to introduce the transcript of the passenger’s
statement from the criminal trial. The priest’s
attorney objects.
The transcript is:
(A) Admissible, for impeachment purposes
only.
(B) Admissible, for impeachment purposes and
as substantive evidence.
(C) Inadmissible, because it is hearsay.
(D) Inadmissible, because the passenger is not
unavailable.
EVIDENCE QUESTIONS 11.
Question 22
A plaintiff sued an elevator company for
injuries he suffered when his foot got caught
in one of its moving walkways. The company’s
chief engineer prepared a report of the accident
at the request of its insurance company, and
the report was given to the attorney who was
hired to represent the elevator company in this
trial. As part of its case-in-chief, the company’s
attorney seeks to introduce the report into
evidence, and states that its expert witness relied
on it. The report states that the walkway was in
good mechanical condition at the time of the
plaintiff’s injury. The plaintiff’s attorney objects.
The report is:
(A) Admissible, as a business record.
(B) Admissible, because it is relied upon by a
testifying expert witness.
(C) Inadmissible, because the insurance
company is an interested party.
(D) Inadmissible, because it is hearsay not
within any exception.
12. EVIDENCE QUESTIONS
Question 23
A plaintiff brought a malpractice action
against a law firm that had represented him in a
personal injury suit. The plaintiff alleges that the
firm was derelict in failing to interview a doctor
he suggested as a prospective expert witness.
The firm’s pleadings contend that the doctor was
never brought to the attention of anyone at the
firm and was never considered as a witness. The
plaintiff wants to introduce a “proposed witness
list” from his case file at the firm. After the
name of the doctor is the notation, “the plaintiff
wants us to check this guy out before trial.” The
notation is in the handwriting of a paralegal with
the firm who is responsible for updating various
case files as part of his regular duties. The
paralegal did no direct work on the plaintiff’s
case and he cannot remember which attorney
in the firm asked him to make the notation.
The defense objects to the introduction of the
proposed witness list containing the notation.
Are the proposed witness list and notation
admissible?
(A) Yes, as past recollection recorded.
(B) Yes, as a record of a regularly conducted
activity.
(C) No, as hearsay not within any recognized
exception.
(D) No, as hearsay within hearsay, and one level
is not within an exception.
Question 24
In a claim for damages in a personal injury
action, a plaintiff’s attorney sought to introduce
evidence of the plaintiff’s testimony made to her
boyfriend several days after her accident that “I
must have sprained my neck when it happened
because it hurts so much.” The plaintiff is also
planning to offer medical evidence that her neck
was sprained.
The judge should rule the testimony:
(A) Inadmissible, because it is hearsay not
within any exception.
(B) Inadmissible, because the plaintiff is
not qualified to give testimony as to her
medical condition.
(C) Admissible, because the plaintiff is also
going to present medical evidence that her
neck was sprained.
(D) Admissible, to show that the plaintiff had
suffered physical pain.
 EVIDENCE QUESTIONS 13.

Question 25

A plaintiff has brought suit in federal district

court against the Social Security Administra-
tion because it denied her retirement benefits
on the asserted ground that she had not reached
the requisite age to qualify. At trial, the plaintiff
introduced into evidence a family Bible given to
her by her father in which is inscribed her date
of birth, showing her to be 65 years old. The
government introduced a certified copy of the
plaintiff’s birth certificate, which shows her age
to be 55. The court admitted both items over
objection of the nonpropounding party.

Was this error?

(A) Yes, as to the Bible only, because it con-

tained inadmissible hearsay.

(B) Yes, as to the birth certificate only, because

it was not authenticated by the custodian of
records.

(C) Yes, as to both, for the reasons stated in the

previous answers.

(D) No, both records were admissible.