Free Evidence MBE Questions And Answers — Questions and Answers
Question 1: A witness in a murder case doesn't always offer the same account truthfully; instead, he has given many accounts of his observations to various people and investigators throughout the course of time. The witness was called to the stand by the prosecution during the trial to describe what he saw. By referencing earlier contradictory statements and charging him with fabricating his testimony, the defendant's attorney attacked the credibility of the witness's testimony. The prosecution then made an effort to restore his credibility by bringing up earlier, reliable remarks. Since prior consistent comments are alleged to be repetitive, cumulative, and to unfairly enhance the witness's credibility, they are typically not admissible. Will the court probably permit the prosecution to rehabilitate the witness based on earlier reliable testimony in light of these circumstances?
- Yes, because it is being used to rehabilitate a witness whose credibility was attacked. (Correct answer)
- Yes, because all repetitive prior statements are important to show the consistency of the witness’ testimony.
- No, because the witness cannot be rehabilitated once a successful impeachment has occurred.
- No, because it would tend to confuse the jury with too much conflicting evidence.
Correct answer: Yes, because it is being used to rehabilitate a witness whose credibility was attacked.
Explanation: <br> Repeated prior consistent remarks improperly support the witness' evidence. There is one exception, nevertheless, in which the previous reliable <br> statement is required to restore the witness' credibility after being called into question on cross-examination. Rule 801(d)(1)(B) of the Federal Rules of <br> Evidence was amended in 2014 to add two grounds for allowing the prior consistent statement: ""(i) to rebut an express or implied charge that the <br> declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a <br> witness when attacked on another ground. The rule provides enough justification for the rehabilitation inquiries to be permitted. Observe Mason v. US, <br> 53 A, for instance. (DC Ct of App 2012) 3d 1084, 1090.
Question 2: When she was seven months pregnant, a female executive assistant employee was let go from her job. She filed a Title VII civil rights lawsuit against the company in federal court alleging gender discrimination. The proposed witness had been a vice-president of the company and a close adviser to the president; at trial, she was not permitted to testify that she heard the human relations manager say in an informal meeting that the plaintiff and her predecessor were both fired due to what the manager described as "pregnancy complications." The jury rendered a verdict in favor of the defendant employer without the benefit of such crucial testimony. The plaintiff maintained that the testimony should have been accepted and that it did not qualify as hearsay under federal regulations in the appeal. The court is likely to rule in favor of the appeal and mandate a fresh trial.
- No, because it was based on things that the co-worker heard from others, making double-hearsay that is never admissible.
- Yes, because that kind of testimony is reliable and not excludable as hearsay. (Correct answer)
- Yes, because it was admissible under the "spontaneous utterance" exception to the hearsay rules.
- No, because the statement is clearly hearsay with no exception to the hearsay rule being applicable.
Correct answer: Yes, because that kind of testimony is reliable and not excludable as hearsay.
Explanation: <br> A statement submitted against a party and made by the party's agent or servant about an issue within the scope of the agency or employment is not <br> considered hearsay, according to Rule 801(d)(2)(D). during the duration of the relationship. The case is Zaken v. Boerer, 964 F. (2d Cir. 1992) 2d 1319, <br> 1322–23. These elements give the statement a high level of dependability and tend to favor its admission as a non-hearsay statement. In essence, this <br> statement was made against the employer's interest by the employer's agent or servant while performing their duties.
Question 3: An undergraduate went to a fraternity party. He caught a young woman making sexually provocative eye contact with him. He took her home, raped her without her consent, and then left. After being raped, she ran away and went straight to the police. The rape case was reported by the police. Many guys agreed to testify that the woman was promiscuous, that they had intercourse with her, and that she was quite prolific in her sexual life, according to the student-defendant, who found them willing witnesses. According to the Federal Rules of Evidence, will the trial court likely allow the witnesses to testify about the woman's sexual propensities?
- No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions. (Correct answer)
- No, because the rules of evidence prohibit all evidence of a victim’s prior sexual history.
- Yes, because the rules permit evidence of a victim’s sexual predisposition to test credibility.
- Yes, because the evidence will help the jury see that there may be two sides to the story and that the woman was thus the sexual predator instead of the man.
Correct answer: No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions.
Explanation: <br> Fed.R.Evid. 412 forbids showing signs of sexual proclivity or previous sexual behavior. The exception is when information about past behaviors will <br> directly affect the defendant's innocence. Additionally, it can be necessary to demonstrate the victim's permission in specific factual circumstances. <br> However, testimony about the rape victim's general reputation or testimony about specific acts with other people are typically not probative of the <br> victim's overall credibility as a witness or of her consent to having sex with the defendant. Instead, such evidence of a rape victim's chastity relates to <br> her sex life in general. American v. Kasto, 584 F. 8th Cir. 1978), 2d 268, 271–72. Additionally, see Grant v. Demskie, 75 F. Supp. ""The [rape shield] bill] <br> limits the introduction of such evidence and attempts to strike a reasonable balance between protection of a victim's privacy and reputation while not <br> infringing on the defendant's right to a fair trial based on the presumption of innocence... "" Answer 1 is inappropriate because it falls under the <br> category of questions covered by Rule 412, which forbids inquiries concerning the victim's sexual propensity.
Question 4: When a truck rushing on the sand mowed down an elderly person sunbathing, the man was peacefully and relaxedly resting in a beach chair. Oh my God, see what that truck driver did, the man exclaimed aloud. The truck's driver was racing while traveling at a speed of roughly 100 mph. Please dial 911.When the case goes to trial, would the court allow both the guy and the lady to testify about the man's statements? " A woman, who was sitting on the beach close but looking the other direction, heard the man's outcry.
- No, neither of them can testify because the man was impaired due to being too relaxed from his meditation, and the woman cannot repeat the utterances of an impaired witness.
- No, neither can testify because the utterances do not fit any of the exceptions to the hearsay rule.
- Yes, both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case. (Correct answer)
- Yes, because this is not hearsay and it is not being entered for the truth of the statement by either witness so that they can both testify.
Correct answer: Yes, both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case.
Explanation: <br> This is an example of an enthusiastic utterance, which is defined as a statement made hastily in response to an unexpected or upsetting incident or <br> circumstance. It is an exception to the hearsay rule that enables testimony from both parties. According to US v. Boyce, 742 F.3d at 748, "" <br> circumstances may produce an excitement condition which temporarily stills the capacity of reflection and produces utterances free of conscious <br> fabrication."" 2014; 3d 792, 796–97 (7th Cir.). To put it another way, the phrase couldn't have come from deliberate thought; it had to have been an <br> immediate response to the shocking event. 272 in McCormick on Evidence, 7th edition (2013).
Question 5: After his home theater ignited a devastating fire that destroyed the equipment and a portion of his home, the owner filed a lawsuit against the maker of video and home theater products. He filed a federal lawsuit against the manufacturer. The plaintiff's expert's report and testimony were challenged at trial by the defendants in a motion made according to Federal Rule of Evidence. 702. The defendants assert bias, a lack of scientific backing, a lack of testing, differences in expert opinions, and the fact that the expert was prepared to deal with big commercial fires. Over 500 fires had been investigated by the expert, who also published a book that was used in classrooms across the country and instructed a course in forensic fire investigations at a university. Her report ruled out every other scenario. As required by Rule 702, the court conducted a gate-keeping review and determined that the expert was highly competent and that she had followed recognized scientific procedures to form her conclusion. The verdict was appealed by the defendants. Given these circumstances, is the appellate court likely to disagree with the judgment?
- Yes, because whenever the expert does not back up her conclusion with experimental testing, an expert's opinion will be insufficiently reliable to be allowed.
- No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies. (Correct answer)
- No, the court has absolute discretion in deciding the competency of the expert for purposes of giving expert trial testimony and evidence.
- Yes, because the charge of bias against an expert witness requires a "trial within a trial" and that was not done.
Correct answer: No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies.
Explanation: <br> Check out Westfield Ins. Co. v. J.C. In Penney Corp., 466 F.Supp.2d 1086, 1094 (W.D.Wis. 2006), the court rejected a challenge to the opinion testimony <br> of the fire investigator based on the investigator's failure to conduct tests. CNH Am., LLC v. Shuck, 498 F.3d 868, 875 n. Additionally, critiques of <br> methodology are typically best addressed during cross-examination at trial. 3 (8th Cir.2007) (clarifying that there is no rule requiring that expert <br> opinions in fire cases always must be backed by testing). (Dist. Court, D. N.H. 2013) (Civil No. 11-cv-430-JL, Opinion No. 2013 DNH 061) See MMG <br> Insurance Company v. Samsung Electronics America, Inc. 671 F. Meyers Builders, Inc. Supp. 2009 Dist. Ct. N.H. 2d 262).
Question 6: A painting was stolen collectively from an art gallery. One of them—the driver—was apprehended while committing another crime. "I didn't even get any money from the art museum," he admitted to the cops. Is the driver's statement admissible in court when the first and second guy stand trial for the theft of the art painting?
- No, because it was made while in custody and therefore is unreliable.
- No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay. (Correct answer)
- Yes, as an admission by a party opponent.
- Yes, as a statement against the interests of the other defendants.
Correct answer: No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay.
Explanation: <br> To establish a basis for admission of evidence under the co-conspirator exception to the hearsay rule, the government must demonstrate that (1) there <br> was a conspiracy, (2) the statement was made by a co-conspirator of a party, (3) it was made during the course of the conspiracy, and (4) it was made <br> in furtherance of the conspiracy. The statement cannot be admitted as evidence by itself. El-Mezain v. United States, 664 F.3d 467, 502 (5th Cir. 2011). <br> See U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999), which discusses the co-conspirator exception to the hearsay rule in more detail.
Question 7: A foreign visitor who had abducted a young child was on trial. The prosecutor claimed that the visitor personally knew the youngster, which is why the child accompanied him, and that the offender was aware that the child's parents were wealthy. A witness was produced by the prosecution to attest that the offender informed him, "I am looking forward to visiting with the boy and his parents. The suggested testimony was rejected by the defense because of the couple's gorgeously opulent home. Will the court probably uphold the protest?
- Yes, the prejudice of the statement will greatly outweigh its probative value.
- Yes, the statement is irrelevant to the issue of guilt or innocence.
- No, the statement is admissible to impeach the accused and establish he is lying on cross, if he takes the stand.
- No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money. (Correct answer)
Correct answer: No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money.
Explanation: <br> Fed.R.Evid. An opposing party's out-of-court comment is considered non-hearsay under 801(d)(2)(A) and (B). All of the aforementioned purposes <br> are relevant to the case and proper uses of a party admission, and impeachment is permitted for important problems of the case. Because the <br> offender made the claim, it is not hearsay because it is a party's admission. Fed. R. Evid. Out-of-court statements are admissible according to 801(d)(2) <br> if they are used against the person who made them. FED. R. EVID is cited. 801(d)(2)(A) (accepting remarks made by a party against the other party as <br> admissible); see also Rodriguez v. Modern Handling Equip. 604. of NJ, Inc. Supp. 2d 612, 622 (S.D.N.Y. 2009) (statements made by the plaintiff in the <br> complaint regarding an OSHA report are admissible under 801(d)(2)(B)).
Free Evidence MBE Questions And Answers
A witness in a murder case doesn't always offer the same account truthfully; instead, he has given many accounts of his observations to various people and investigators throughout the course of time.
The witness was called to the stand by the prosecution during the trial to describe what he saw.
By referencing earlier contradictory statements and charging him with fabricating his testimony, the defendant's attorney attacked the credibility of the witness's testimony.
The prosecution then made an effort to restore his credibility by bringing up earlier, reliable remarks.
Since prior consistent comments are alleged to be repetitive, cumulative, and to unfairly enhance the witness's credibility, they are typically not admissible.
Will the court probably permit the prosecution to rehabilitate the witness based on earlier reliable testimony in light of these circumstances?
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