MBE IMMERSION

EVIDENCE
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Evidence Questions
Question 1
In an automobile collision case, the defen-
dant’s attorney called the defendant to the stand
and asked, “Was the traffic light red, amber,
or green when you entered the intersection?”
The defendant replied, “It was green.” Next, the
defendant’s attorney asked, “What did you tell
the first police officer who arrived on the scene
about the condition of the traffic light when you
entered the intersection?” Before the defendant
could reply with “I told him it was green,” the
plaintiff’s attorney objected.
How should the court respond to the objec-
tion?
(A) Sustain it, because the statement is hearsay
not within any recognized exception to the
hearsay rule.
(B) Sustain it, because the testimony is an irrel-
evant prior consistent statement.
(C) Overrule it, because the statement is made
from personal knowledge and, therefore, is
nonhearsay.
(D) Overrule it, because the defendant is in
court and is subject to cross-examination by
the plaintiff’s attorney.
Evidence Questions 1.
Question 2
In a wrongful death action, the plaintiff
claimed that the defendant intentionally caused
the death of the plaintiff’s husband, who was the
defendant’s co-worker. At trial, the plaintiff’s
attorney called another co-worker to the stand
as a witness. The defendant’s attorney did not
object to the witness’s testimony that there had
been “bad blood” at work between the deceased
and the defendant. However, the attorney
objected to one line of questioning, but he was
overruled by the judge. The line of questioning
was as follows:
Attorney: “Now, you’ve told us how the
deceased came back to the shop after he had
obviously been hit hard on the jaw. What did he
say at that time?”
Witness: “He said that the defendant did it,
and just then I noticed that the defendant was in
the shop too.”
Attorney: “What did the defendant do?”
Witness: “He just smirked and started
laughing.”
Was the judge correct in overruling the
objection to the admission of this portion of the
witness’s testimony?
(A) Yes, because it is a statement against inter-
est by the defendant.
(B) Yes, because it is an adoptive statement by
a party-opponent.
(C) No, because the introduction of the
deceased’s out-of-court statement would
violate the defendant’s right to confront
witnesses.
(D) No, because the deceased’s statement that
the defendant did it is hearsay, and cannot
qualify as a dying declaration.
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2. Evidence Questions
Question 3
A pedestrian sued a local bar for injuries he
suffered when he was struck by a car driven by
a bar patron that had run a red light. He claimed
that the patron was permitted to drink too much
liquor at the bar before leaving. At trial, the
pedestrian called a witness to the stand. The
witness testified that she and a friend had visited
the bar on the night in question. The witness
seeks to testify that she remarked about the
patron to her friend, “Look at that guy. He’s so
drunk he can’t even stand up.”
Is the witness’s testimony concerning her
remark to her friend admissible?
(A) Yes, as a prior consistent statement.
(B) Yes, as a present sense impression.
(C) Yes, as an excited utterance.
(D) No, because it is hearsay not within any
exception.
Question 4
In a civil action against a security guard and
the bank that employed him, the plaintiff alleged
that he was shot after a traffic altercation when
the security guard jumped out of his car and was
waving his loaded gun. The plaintiff alleged that
the bank was negligent in entrusting the weapon
to the guard, and that the guard was negligent in
his handling of the weapon. The plaintiff offers
the testimony of the guard’s former co-worker,
who worked with the guard for 10 years at
another bank. The former co-worker is prepared
to testify that, during the time that he worked
with the guard, the guard had a reputation for
being a hothead, keeping his weapon loaded
during off-duty hours, and threatening people
with his gun whenever he got into an argument.
Assuming proper objection, how should the
court rule regarding the admissibility of the
testimony?
(A) The former co-worker’s testimony is char-
acter evidence, inadmissible in a civil case.
(B) The former co-worker’s testimony is
character evidence admissible against the
bank if it can be established that the bank
knew of the guard’s reputation.
(C) The former co-worker’s testimony is
character evidence admissible against the
bank whether or not the bank knew of the
guard’s reputation.
(D) The former co-worker’s testimony is admis-
sible to help establish that the guard may
have acted negligently at the time of the
accident.
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 Evidence Questions 3.

Question 5

As a result of an automobile accident at an

intersection, the plaintiff sued the defendant,
claiming that the defendant’s car was traveling at
a high rate of speed and went through a red light
just before the crash. A witness for the plaintiff
testified that he observed the accident and that
the plaintiff’s car was traveling at a low speed
with a green light at the time of the accident.

Which of the following will the court find

NOT admissible to admit to impeach the credi-
bility of the witness?

(A) A certified copy of a certificate of convic-

tion for felony assault and battery seven
years ago.

(B) The testimony of the witness’s friend that,

last month, while having a drink at a bar,
the witness told her that the plaintiff’s light
was red.

(C) A record of an arrest one week ago for

embezzlement.

(D) On cross-examination of the witness, the

question, “Isn’t it a fact that you lied to your
employer last year concerning your meal
expenses on a business trip?”

STOP
MBE IMMERSION

EVIDENCE
EXPLANATORY ANSWERS
 Evidence Answers 7.

Evidence Answers

Answer to Question 1

(A) The statement is hearsay not within any exception. This question involves the proposed testimony
of a witness (the defendant) about his prior out-of-court statement (telling the officer that the light
was green) that is consistent with his in-court testimony. It appears that the prior statement is
being offered to prove the truth of the matter asserted in the statement—that the light was green
when the defendant entered the intersection. Thus, the proposed testimony is hearsay evidence
and does not fall within any recognized exception to the hearsay rule. (B) is wrong because it
states that the objection to the defendant’s proposed testimony should be sustained because the
prior consistent statement is irrelevant. Federal Rule 401 establishes a standard for relevance that
is very easy to meet: relevant evidence is evidence having any tendency to make the existence of
a consequential fact more probable or less probable than it would be without the evidence. The
color of the traffic light at the time the defendant entered the intersection is clearly a consequential
fact in the plaintiff’s tort claim against the defendant. That the defendant immediately told the
officer that the light was green would have some tendency to prove that the light was in fact green.
The problem with the defendant’s proposed testimony is not that it is substantively irrelevant, but
rather that it is an unacceptable form of evidence, i.e., hearsay. (C) is wrong because, if an item of
evidence is hearsay and not within any hearsay exception, it does not become admissible simply
because it was made from personal knowledge. Declarants typically make hearsay statements
based on personal knowledge; that does not transform the statements into nonhearsay or somehow
render them admissible. (D) is incorrect; the fact that the defendant is in court and subject to
cross-examination does not change the nature of the statement. Federal Rule 801(d)(l)(B) defines
when a witness’s prior consistent statement is not considered hearsay evidence: (i) when it is
offered to rebut an express or implied charge that the witness is lying or exaggerating because of
some motive (e.g., bias), provided the prior consistent statement was made before the onset of the
alleged motive to lie or exaggerate; or (ii) when it is offered to rehabilitate a witness whose credi-
bility has been impeached on some non-character ground other than a charge of recent motivation
to lie or exaggerate (e.g., an alleged inconsistency or sensory deficiency). Here, there are no facts
indicating that the defendant has been impeached by any method, so the hearsay exclusion for
prior consistent statements does not apply. (Note also that the testimony may be inadmissible on
the additional ground that it is improper bolstering of an unimpeached witness.)

Answer to Question 2

(B) The judge was correct in overruling the objection because it was an adoptive statement. A party
may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an
adoptive admission. One type of adoptive admission is an admission by silence, which occurs
when a party hears an accusation and fails to protest when a reasonable person would have
protested if the accusation were untrue. Under those circumstances, both the accusation and the
lack of protest can be introduced by the party-opponent if relevant. Here, the deceased accused
the defendant of hitting him in the jaw and the defendant failed to deny the accusation. Therefore,
(B) is correct. Regarding (D), it is true that the deceased’s statement would probably not qualify
as a dying declaration. A declaration made by the now-unavailable declarant, while believing
his death was imminent, that concerns the cause or circumstances of what he believed to be his
impending death is admissible. The question does not indicate that the deceased believed that his
death was imminent at the time he made his statement; therefore, the statement would not qualify
as a dying declaration. However, (D) is incorrect because the testimony would be admissible as an
admission by silence. (A) is wrong because the “statement against interest” hearsay exception can
8. Evidence Answers

only be used when the declarant is unavailable to testify. Here, the defendant is available. Further-
more, laughing and smirking would not qualify as statement against interest; the defendant didn’t
make any affirmative statement. The only reason his reaction is admissible is because it quali-
fies as an adoptive admission by silence. (C) is wrong because the Confrontation Clause does not
apply to civil cases.

Answer to Question 3

(B) The witness’s remark is admissible under the present sense impression exception to the hearsay
rule. [Fed. R. Evid. 803(1)] Under this exception, a declarant’s statement describing or explaining
an event or condition is admissible if it was made while the declarant was perceiving the event
or condition or immediately thereafter. Here, the witness made the observation of the intoxicated
patron while she was observing him. (A) is wrong. First, there is no indication that the witness’s
prior statement at the bar is consistent with anything the witness has said on the stand (i.e., she
has not testified that the patron was drunk; she has only testified about her prior statement at the
bar). Furthermore, even if her statement at the tavern is consistent with her current testimony, it is
not admissible on this basis. A witness’s prior consistent statement is admissible when it is offered
to (i) rebut a charge that the witness is lying or exaggerating because of some motive (e.g., bias),
provided the prior consistent statement was made before the onset of the alleged motive; or (ii)
rehabilitate a witness whose credibility has been impeached on some other non-character ground
(e.g., a sensory deficiency). Here the witness has not been impeached, so her prior consistent state-
ment cannot be introduced. (C) is incorrect because the declarant’s statement would be unlikely
to qualify as an excited utterance. For her statement to be admissible as an excited utterance, it
would have to have been made under the stress of excitement produced by a startling event. The
facts do not indicate that the declarant’s observation of the patron was startling or stressful; just
that she noticed that he was drunk. (D) is wrong because the statement comes within the present
sense impression exception to the hearsay rule.

Answer to Question 4

(C) The former co-worker’s testimony is admissible character evidence. Under Federal Rule 404, in a
civil case, evidence of the character of a person generally is inadmissible if offered to prove that
the person may have acted in conformity with his character on a particular occasion. If, however,
the character evidence is offered for some other purpose, such as where a person’s character itself
is an essential element of a claim or defense in the case (e.g., in defamation or negligent hiring/
entrustment cases), Rule 404 will not exclude the evidence. The testimony is evidence of the
guard’s character but, if offered against the bank, it would be offered to show that the bank may
have been negligent when it entrusted the gun to the guard. Thus, the evidence would not be
excluded by Rule 404. In addition, the evidence would be relevant even if the bank did not know
of the guard’s reputation, because the jury could find that a reasonable investigation by the bank
would have uncovered the information and the bank should have known of the guard’s reputation.
(A) is too broad a statement. In a civil case, character evidence is not admissible to help prove
that a person acted in conformity with his character, but it may be admissible for the purpose it is
offered here. (B) is too narrow a statement. The evidence clearly would be admissible if the bank
knew of the guard’s reputation. Thus, (B) is technically a correct statement. However, since the
theory of the case against the bank is “negligent entrustment,” the evidence could be admitted
even if the bank did not know of the guard’s reputation but should have known. Thus, (C) is a
more complete statement than (B). (D) is wrong. Under Rule 404, the evidence is not admissible
to help establish that the guard may have acted negligently.
 Evidence Answers 9.

Answer to Question 5

(C) A record of an arrest, even for a crime such as embezzlement, cannot be used to impeach the
credibility of a witness. Since there was no criminal conviction, this would be classified as
evidence of a prior bad act that demonstrates dishonesty. Federal Rule of Evidence 608 would
allow an inquiry into such a prior bad act during cross-examination of the witness being
impeached, but extrinsic evidence of such acts is not allowed under Rule 608, even if the witness
denies the act on cross-examination. (A) might be admissible to impeach. Under Federal Rule
609, a prior felony conviction for crimes that do not involve dishonesty can be used to impeach,
although the trial judge has discretion to exclude the evidence if its probative value is substan-
tially outweighed by unfair prejudice or other Rule 403 considerations. (B) represents an accept-
able method of impeachment. Prior inconsistent statements can be introduced to show that the
witness’s testimony is not credible. (D) is an acceptable impeachment method. Under Rule 608,
a witness may be interrogated on cross-examination with respect to any act of misconduct that
is probative of truthfulness (i.e., demonstrates dishonesty). Lying on an expense report would be
such an act.