ID Bar Evidence 1 — Questions and Answers
Question 1: Under the Federal Rules of Evidence (as tested on the MBE portion of the Idaho Bar Exam), which of the following is the definition of hearsay?
- Any statement made outside of court
- An out-of-court statement offered to prove the truth of the matter asserted (Correct answer)
- A statement made by a witness who is unavailable
- Any written document offered into evidence
Correct answer: An out-of-court statement offered to prove the truth of the matter asserted
FRE 801(c) defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted in the statement.
Question 2: Which of the following is a non-hearsay prior statement under FRE 801(d)(1)?
- A witness's prior consistent statement offered to explain a motive to fabricate
- A witness's prior statement identifying a person made after perceiving them (Correct answer)
- A witness's diary entry describing the event
- A co-conspirator's statement made after the conspiracy ended
Correct answer: A witness's prior statement identifying a person made after perceiving them
FRE 801(d)(1)(C) classifies a prior statement of identification of a person made after perceiving them as non-hearsay when the declarant testifies and is subject to cross-examination.
Question 3: Under FRE 404(b), evidence of prior bad acts may be admissible to prove:
- Character to act in conformity with the prior acts
- Intent, knowledge, identity, or absence of mistake (Correct answer)
- That the defendant is a dangerous person
- The defendant committed the charged crime
Correct answer: Intent, knowledge, identity, or absence of mistake
FRE 404(b)(2) allows prior act evidence for non-propensity purposes such as proving intent, knowledge, identity, plan, or absence of mistake.
Question 4: Under FRE 407, evidence of subsequent remedial measures is inadmissible to prove:
- Ownership or control
- That a safer alternative was feasible
- Negligence or culpable conduct (Correct answer)
- The identity of persons who made repairs
Correct answer: Negligence or culpable conduct
FRE 407 bars evidence of subsequent remedial measures to prove negligence, culpable conduct, a defect, or need for warning, but allows it to prove ownership, control, or feasibility.
Question 5: Under FRE 702, expert testimony is admissible when the expert's opinion is:
- Based on the expert's personal experience alone
- Based on sufficient facts, a reliable method reliably applied to the case (Correct answer)
- Helpful to the trier of fact even without a reliable methodology
- Stipulated to by both parties
Correct answer: Based on sufficient facts, a reliable method reliably applied to the case
FRE 702 (the Daubert standard) requires expert testimony to be based on sufficient facts, a reliable methodology, and the reliable application of that methodology to the facts of the case.
Question 6: Under the attorney-client privilege, which of the following communications is NOT protected?
- A client's statement to an attorney seeking legal advice
- An attorney's legal advice communicated to the client
- Communications made in furtherance of a crime or fraud (Correct answer)
- Communications made in confidence to the client's attorney
Correct answer: Communications made in furtherance of a crime or fraud
The crime-fraud exception removes attorney-client privilege protection from communications made to facilitate future crime or fraud.
