MBE

EVIDENCE WORKSHOP

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EVIDENCE QUESTIONS
Question 1
An airline passenger nearly killed in a crash
is suing the airline for personal injuries. To
prove the extent of his injuries, the passenger
offers a videotape taken by a local news station
immediately after the crash that shows serious
burns covering much of the passenger’s face.
The airline moves to exclude the videotape on
grounds that its probative value is substantially
outweighed by the danger of unfair prejudice.
In making his ruling, which of the following
is NOT appropriate for the judge to consider?
(A) The videotape will make it more likely that
the passenger will win the suit.
(B) There are other methods of proving the
passenger’s damages.
(C) The videotape can be restricted to its proper
purpose by instructing the jury to disregard
any possible emotional appeal.
(D) The videotape will encourage the jury to
decide the suit on an emotional basis.
MPQ 205 workshop evidence S.indd 3
EVIDENCE WORKSHOP 3.
Question 2
A plaintiff is suing members of the police
department in federal court after receiving a
near-fatal beating in jail, alleging a violation of
his federal civil rights.
Which of the following items of evidence will
the court be likely to admit despite timely objec-
tions by the opposing attorney?
(A) Testimony by a witness for the plaintiff,
who was locked up in an adjoining cell,
that the plaintiff was in fact beaten by the
defendant police officers, objected to on
grounds that calling this witness constitutes
an unfair surprise.
(B) Testimony by an expert witness who will
affirm the testimony of a previous expert
that the injuries suffered by the plaintiff
were inconsistent with injuries likely from
the alleged police beating, objected to on
grounds that it will unnecessarily present
cumulative evidence.
(C) Introduction of the bloodstained shirt
that the plaintiff wore on the night of the
beating, objected to on grounds that it will
create a danger of unfair prejudice.
(D) Testimony by a police officer that, because
the plaintiff had drug-related track marks
on his arms and exhibited symptoms of
hepatitis, the officers feared that he might
have hepatitis, and consequently would not
have beaten him for fear of being infected,
objected to on grounds that it may confuse
the issues or mislead the jury.
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 4. EVIDENCE QUESTIONS
Question 3
A defendant is being prosecuted in federal
court for illegally transporting persons across
state lines for immoral purposes. The prosecutor
alleges that her route was from New York to
Tampa. The court takes judicial notice of the
fact that it is impossible to get from New York to
Tampa without crossing a state line.
What is the effect of the court’s action?
(A) The fact judicially noticed is conclusively
established.
(B) The burden of persuasion is shifted to the
defendant.
(C) The burden of proof is shifted to the defen-
dant.
(D) The prosecutor’s burden of producing
evidence on this point is satisfied.
MPQ 205 workshop evidence S.indd 4
Question 4
A defendant charged with murder admitted
to the killing but claimed that he shot the victim
in self-defense as she attacked him with a knife.
At trial, the investigating officer testified about
the scene of the crime and the condition of the
victim at the time of death. The prosecutor
showed the officer a photograph of the scene
of the crime taken by the police photographer
and asked the officer whether the photograph
accurately depicted what he had observed at
the scene. The officer testified that it did. The
photograph showed the deceased lying in a pool
of blood with both her hands cut off.
Should the court admit the photograph?
(A) No, because it does not tend to prove or
disprove that the defendant acted in self-
defense.
(B) No, because it has not been properly
authenticated.
(C) Yes, unless the court determines that its
probative value is substantially outweighed
by the danger of unfair prejudice.
(D) Yes, because it is relevant to the issue of
self-defense.
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Question 5
In a property dispute, a granddaughter claims
that her grandfather gave her a deed to his home
just before he died. The grandfather’s son claims
that the property is rightfully his by a previously
executed will. At issue is the authenticity and
content of the deed. The granddaughter begins to
testify as to the content of the deed, but the son’s
attorney objects.
Should the court sustain the objection?
(A) Yes, because only the original deed itself is
admissible to prove its contents.
(B) Yes, unless the court is satisfied that the
granddaughter is accurately testifying as to
its contents.
(C) No, if the judge is satisfied that the deed
could not be found after a reasonable
search.
(D) No, if the deed is recorded, because
the court can take judicial notice of the
recorded deed.
MPQ 205 workshop evidence S.indd 5
EVIDENCE WORKSHOP 5.
Question 6
A defendant is on trial for first degree
murder and the prosecution wants to introduce
a recorded telephone call by the victim to the
police just before she was killed. Distraught,
the victim failed to identify herself during the
call. A witness is called to testify that the voice
recorded was that of the victim’s.
Under which of the following circumstances
would the trial court most likely sustain an
appropriate objection by the defense counsel to
admission of the tape recording into evidence?
(A) The witness had spoken with the victim
numerous times, but had never heard her
speak over the telephone.
(B) The witness had spoken with the victim
over the telephone many times, but had
never met her in person.
(C) The witness had heard the victim’s voice in
several recorded telephone conversations
between the victim and the victim’s father,
and the victim’s father had told the witness
that it was the victim with whom he was
speaking.
(D) The witness had been present with the
victim when she made the call to the police,
but had heard only the victim’s half of the
conversation.
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 6. EVIDENCE QUESTIONS
Question 7
At the defendant’s trial for a brutal assault, in
which the victim identified the defendant as her
assailant, the defense calls a witness who will
testify that he has worked with the defendant for
20 years and that all of his business associates
regard the defendant as an honest person.
If the prosecution objects to the witness’s
testimony, for which party should the court rule?
(A) The defendant, because the testimony is
relevant to show the defendant’s character
for truth and veracity.
(B) The defendant, because the testimony
demonstrates the defendant’s good
character, which is inconsistent with the
particular crime charged.
(C) The prosecution, because the testimony
presents no evidence of any relevant
character trait.
(D) The prosecution, because the testimony is
hearsay not within any exception.
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Question 8
The defendant, a used car seller, is on trial for
criminal fraud, charged with selling used cars
with major mechanical problems while repre-
senting to buyers that the cars were mechanically
sound. The defendant claims that she had no
knowledge the cars were not fit for sale. At trial,
the prosecution offers evidence to show that,
eight months prior, the defendant was fired from
a different used car lot for knowingly selling
defective automobiles with major mechanical
problems.
What is the best basis for admitting this
evidence?
(A) As evidence tending to show the defen-
dant’s criminal character.
(B) As evidence of the defendant’s criminal
intent.
(C) To impeach the defendant’s credibility.
(D) As evidence that the defendant is not a
competent used car seller.
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Question 9
A disgruntled student was charged with
murder for poisoning his professor by allegedly
sending her a box of chocolates laced with rat
poison immediately after he received a failing
grade in the professor’s class. At trial, he denied
sending her anything. The prosecutor seeks to
have a witness testify that, four years earlier,
the student poisoned his girlfriend on Valen-
tine’s Day by lacing a box of chocolates with rat
poison after he discovered she was unfaithful.
Is this evidence likely to be admitted?
(A) No, because it is improper character evi-
dence.
(B) Yes, but only to impeach the student’s
credibility.
(C) Yes, as relevant evidence of the student’s
identity, plan, or motive.
(D) Yes, as evidence of defendant’s propensity
towards violence.
MPQ 205 workshop evidence S.indd 7
EVIDENCE WORKSHOP 7.
Question 10
A defendant charged with criminal battery
testified on his own behalf at trial and asserted
that he acted in self-defense.
Which of the following offered for
impeaching the defendant’s credibility is most
likely to be barred, if objected to by the defen-
dant?
(A) A public record showing that the defendant
had been convicted of the felony of aggra-
vated battery two years ago.
(B) A public record showing that the defendant
had been convicted of the misdemeanor of
filing a false police report eight years ago.
(C) Testimony from a competent witness that
the defendant regularly cheats at cards.
(D) Testimony from a competent witness that,
in the opinion of the witness, the defendant
is a habitual liar.
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 8. EVIDENCE QUESTIONS
Question 11
A defendant charged with auto theft under a
theory of accomplice liability testified at trial on
his own behalf that although he was in the car
when the police apprehended the driver, he was
unaware that the car was stolen.
On cross-examination, the prosecutor asks
the defendant whether he lied on an employ-
ment application three years ago when he falsely
claimed to hold a college degree.
If the judge allows the question, what is the
most likely reason?
(A) The evidence may tend to establish that
the defendant is a dishonest person and
therefore may have committed the crime
charged.
(B) The prosecutor has a right to inquire about
prior bad acts during cross-examination.
(C) The evidence is relevant to the issue of
the credibility of the witness and the court
determines that its value is not outweighed
by other considerations.
(D) The evidence may tend to establish the
intent of the defendant to commit auto theft.
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Question 12
A defendant on trial for robbery took the stand
in his own defense and testified that the robber
was his neighbor. The jury acquitted the defen-
dant based on this testimony. The neighbor was
then indicted and brought to trial for the robbery.
At that trial the prosecution called the defendant
from the first trial to the stand, expecting him
to incriminate the neighbor. Surprisingly, the
defendant testified: “My neighbor didn’t have
anything to do with that robbery, but I know who
did! I committed the robbery myself.” When
asked about the testimony he gave at his own
trial, the defendant insisted he didn’t remember
anything about it.
Finding her case in shambles, the prosecutor
calls a juror from the first trial to the stand as
a witness, who is prepared to testify that the
defendant said at the first trial that the neighbor
committed the robbery.
On objection by the defense, should the court
admit the juror’s testimony?
(A) Yes, to impeach the first defendant’s cred-
ibility as a witness, but not as substantive
evidence of the neighbor’s guilt.
(B) Yes, to impeach the first defendant’s
credibility as a witness, and as substantive
evidence of the neighbor’s guilt.
(C) No, because former jurors are not compe-
tent to testify concerning cases upon which
they sat as jurors.
(D) No, because a transcript of the first defen-
dant’s testimony at his robbery trial is the
best evidence.
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 EVIDENCE WORKSHOP 9.

Question 13 Question 14

In a wrongful death action after a car accident
involving a drunk driver, the family of the
decedent sued the driver’s employer for allowing
its employee to drink too much at a company
party.
When the company’s attorney asked the
driver-employee on the stand how many drinks
she had, she testified that she had four drinks.
The company’s attorney now wants to question
her about her deposition testimony, in which she
said that she had two drinks.
A defendant is on trial for a murder that
occurred during a robbery at the victim’s home.
A witness helped the police artist compose an
accurate depiction of the defendant. The witness
was unavailable at the time of trial and the
prosecutor offers the sketch into evidence.
Is the sketch admissible?
(A) No, under the best evidence rule.
(B) No, as hearsay not within any exception.

Is this permissible? (C) Yes, as a record by a public employee.

(A) No, because it is hearsay not within any (D) Yes, as prior identification.
exception.

(B) No, because the company cannot impeach

its own witness.

(C) Yes, but only if it is being offered to help

the driver refresh her memory.

(D) Yes, because it can be offered as substantive

evidence, even if it results in impeaching
the driver’s testimony at trial.

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 10. EVIDENCE QUESTIONS
Question 15
The plaintiff is suing the defendant for
serious, life-threatening injuries she suffered
when the defendant’s car collided with the
plaintiff’s at a busy intersection. At trial, the
plaintiff testified that the light was green
when she entered the intersection. She was not
cross-examined. She also testified that she lost
consciousness after the collision but awoke to
find a witness comforting her as she lay on the
ground. The plaintiff calls the witness to testify
that, when she awoke, she said, “Help, I’m
dying! Why did [the defendant] enter the inter-
section when the light was green for me?”
Is the witness’s testimony concerning the
plaintiff’s statement admissible?
(A) No, because it is hearsay not within any
exception.
(B) No, because a party is not permitted to
introduce her own out-of-court statement
that is consistent with her testimony on the
witness stand.
(C) Yes, as an excited utterance.
(D) Yes, as a statement under belief of
impending death.
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Question 16
The issue at trial is whether the sun was
shining in a particular city on a particular day
at 11 a.m. A witness testified that he was lying
beside his wife on the beach in that city at 11
a.m. that day and she said to him, “Now that the
sun is out, I’ll be able to get my great tan!”
Is the statement admissible?
(A) No, as hearsay not within any exception.
(B) No, because the witness does not have first-
hand knowledge.
(C) Yes, but only if the witness’s wife is
unavailable.
(D) Yes, whether or not the witness’s wife is
unavailable.
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Question 17
A pedestrian is suing a driver after being run
over by the driver. At trial, a copy of a hospital
record is offered into evidence. The record
indicates that hospital personnel took the pedes-
trian’s statement 30 minutes after the accident,
and includes the following statement: “The
pedestrian’s leg was run over by a car.” The
driver’s counsel objects to the admission of the
pedestrian’s statement in the hospital record.
Should the court admit the pedestrian’s state-
ment in the record?
(A) Yes, even though hearsay within hearsay,
because there is an applicable exception to
each level of hearsay.
(B) Yes, as an admission by a party.
(C) No, as hearsay not within any exception.
(D) No, because of the physician-patient privi-
lege.
MPQ 205 workshop evidence S.indd 11
EVIDENCE WORKSHOP 11.
Question 18
At a trial in which a pedestrian is suing a
driver, a hospital record was admitted into
evidence that included the following statement:
“The pedestrian’s leg was run over by a car
driven by a driver who blew through a red light
while the pedestrian was crossing in a cross-
walk.”
The driver’s attorney now wishes to admit the
other portion of the hospital record, which says,
“The pedestrian stepped off the curb without
first looking both ways for traffic.”
How should the court rule?
(A) Admit the statement on fairness grounds
because the plaintiff has the other portion
of the record.
(B) Admit the statement as a past recollection
recorded.
(C) Exclude it because it is hearsay not within
any exception.
(D) Exclude it because it is self-serving.
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 12. EVIDENCE QUESTIONS
Question 19
A music fan sued a well-known groupie of a
rock band, alleging that she was assaulted by the
groupie during a melee at a concert. The fan’s
attorney calls the custodian of records for the
hospital that treated her. He wishes to introduce
a portion of the record by the emergency room
physician, who is now deceased, reporting that
the fan said she was assaulted by the groupie.
Assuming the custodian testifies that the
record is an original, kept in the ordinary
course of hospital business, is that portion of the
hospital record admissible?
(A) Yes, as hearsay within the exception for
records of regularly conducted activity.
(B) Yes, as a statement made for the purpose of
medical diagnosis or treatment.
(C) No, because the physician who made the
record is not available for cross-examina-
tion.
(D) No, as hearsay not within any exception.
MPQ 205 workshop evidence S.indd 12
Question 20
A town’s public works director was being
sued by a resident for directing the dumping
of hazardous waste in a vacant parcel of land
owned by the town that was adjacent to the
resident’s property. The resident is prepared
to testify that she encountered a public works
employee in a town dump truck dumping some
debris on the parcel of land. When she asked
him what he was doing, he said that he was just
following his boss’s orders but that she should
not go anywhere near the debris.
Should the court admit this testimony?
(A) Yes, as a statement of a co-conspirator.
(B) Yes, as a statement of an employee of the
party-opponent.
(C) No, because there is no showing that the
employee was authorized to speak for the
party.
(D) No, because it is hearsay not within any
exception.
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Question 21
A wife is on trial for murdering her husband.
At trial, the prosecution entered into evidence
the fact that the wife fired the gun which killed
her husband. The wife testified in her defense
that her husband was threatening her with a
knife when she picked up the gun and shot him.
In rebuttal, the prosecution calls one of the
officers who responded to the wife’s 911 call
right after the shooting. The officer will testify
that the wife said, “I accidentally dropped my
gun on the floor and it went off, killing my
husband.”
Is the officer’s testimony admissible?
(A) Yes, as an excited utterance.
(B) Yes, to impeach the wife and as evidence
that she did not act in self-defense.
(C) No, because of the wife’s privilege against
self-incrimination.
(D) No, for the purpose of impeaching the wife,
because the prosecutor did not call her
attention to her statement to the officer on
cross-examination.
MPQ 205 workshop evidence S.indd 13
EVIDENCE WORKSHOP 13.
Question 22
A passenger injured in a car accident is suing
the owner of a bar for allegedly allowing the
driver to become intoxicated. The passenger
wants to show that, after the accident, the bar
owner visited him in the hospital and offered
to pay all of the passenger’s medical expenses,
stating, “That’s the least I can do after letting
your driver leave the bar so drunk last night.”
Is the statement that the driver was drunk
when he left the bar on the night of the accident
admissible?
(A) Yes, as an admission by the bar owner that
the driver was drunk when he left the bar.
(B) Yes, as a factual admission made in connec-
tion with an offer of compromise.
(C) No, as hearsay not within any exception.
(D) No, as a statement made in connection with
an offer to pay medical expenses.
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 14. EVIDENCE QUESTIONS
Question 23
The son of a famous author who has not been
seen in two years brings an action against an
insurance company to compel payment of the
proceeds of the author’s insurance policy, for
which the son is the sole beneficiary.
The son introduced evidence that, on the day
the author disappeared, a plane left from the
city where she lived and was lost while traveling
over the ocean. The manifest of the airline was
introduced showing that a passenger with a name
similar to hers was aboard the airliner. The son
wants to testify that his mother told him that she
was going to be on that plane and, to preserve
her privacy, was going to travel under the name
that matches the name in the manifest.
Is the son’s testimony admissible?
(A) Yes, because it is a relevant indication of
state of mind.
(B) Yes, provided that there is corroborative
evidence in addition to the son’s mere state-
ment.
(C) No, because it is hearsay not within any
exception.
(D) No, because it is not relevant.
MPQ 205 workshop evidence S.indd 14
Question 24
A 12-year-old child was injured in an automo-
bile accident. The child’s father brought the
child to see an attorney to bring suit against the
defendant. During the paid consultation with the
attorney, the seriousness of the child’s injuries
was discussed with candor. After the discus-
sion, the attorney told the father and child that
they would be better off with a lawyer who
specialized in personal injury work. Eventually,
another attorney was hired to bring the child’s
lawsuit against the defendant. Defense counsel
has reason to believe that the child’s injuries are
not serious at all. She therefore subpoenas the
first attorney for an oral deposition. During the
course of the deposition she asks the attorney
about his discussion with the child regarding the
child’s injuries.
May the attorney invoke the attorney-client
privilege?
(A) No, because the child never hired the at-
torney as her counsel.
(B) No, because the privilege is held by the
client rather than the attorney.
(C) Yes, because the child paid the attorney for
consultation.
(D) Yes, because the presence of a third party
did not negate the privilege.
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 EVIDENCE WORKSHOP 15.

Question 25

A camper sued the manufacturer of thermal

underwear, alleging that while he was attempting
to stomp out a fire, the camper’s underwear
caught fire and burned in a melting fashion up
to his waist because it was defective, and that,
a half hour later, he suffered a heart attack as a
result of the burns he suffered.

A physician hearing the camper testify to the

events that occurred is called by the camper and
asked whether the camper’s heart attack could
have resulted from the burns.

Is his opinion admissible?

(A) Yes, as a response to a hypothetical ques-

tion.

(B) Yes, because the physician’s expertise

enables him to judge the credibility of the
camper’s testimony.

(C) No, because a hypothetical question may

not be based on prior testimony.

(D) No, because an expert’s opinion may not be

based solely on information provided by lay
persons.

STOP

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