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Evidence: Mbe Practice Questions
Evidence: Mbe Practice Questions
Evidence Questions
Question 1 Question 2
A plaintiff brought an action against a defen- A plaintiff sued a defendant for defamation,
dant for property damages, alleging that the asserting in her complaint that the defendant had
defendant’s car nicked the side of the plaintiff’s called the plaintiff a thief in front of a number
truck while the defendant was changing lanes on of business associates. The plaintiff calls two
an expressway. At trial, the defendant sought to witnesses to the stand, both of whom testify that
introduce evidence of her good driving record. they heard the defendant refer to the plaintiff as
a thief in front of the business associates. The
Is the evidence admissible? plaintiff does not take the stand herself. The
defendant pleads truth of the statement as an
(A) No, because it is character evidence. affirmative defense and calls a witness to the
stand. The defense witness is prepared to testify
(B) No, because it is self-serving. that he was a co-worker of the plaintiff when the
plaintiff supplemented her income by tending
(C) Yes, because it is character evidence. bar three nights a week. The witness will testify
that he saw the plaintiff take a $20 bill from the
(D) Yes, because it is habit evidence. tavern’s cash register and secrete the money in
her pocket. The plaintiff’s attorney objects.
Question 3 Question 4
During the defendant’s trial for embezzlement, A defendant is charged with beating a victim
the defense calls a witness to testify as to the to death with a set of brass knuckles during the
defendant’s reputation for honesty and veracity. course of a fight in a tavern. The victim was
The prosecution objects. found to have a pistol on his person at the time
of the fight. During the course of the trial, the
Should the court allow the testimony? defendant took the stand in his own defense and
testified that the victim threatened him with a
(A) Yes, because the prosecution put the defen- gun and the defendant had hit the victim with
dant’s character for truthfulness in issue by the brass knuckles in self-defense. To rebut the
filing charges against him. defendant’s claim, the prosecution wishes to
place the bartender on the stand, who will testify
(B) Yes, because it is admissible character that two years prior to the attack on the victim,
evidence. she had seen the defendant approach a customer
in her tavern from behind, put on a pair of brass
(C) No, because a party cannot bolster the knuckles, and strike the customer a severe blow
testimony of his witness until he has been on the side of the face with a brass-knuckled fist.
impeached. The prosecutor, in accordance with local court
rules, has apprised the defense attorney of the
(D) No, because the evidence is inadmissible general tenor of the bartender’s proposed testi-
hearsay. mony. As soon as the bartender is sworn in, the
defense attorney raises an objection.
Question 5 Question 6
At trial, which of the following would the (B) No, unless the proper foundation was laid.
court be LEAST likely to allow the prosecution
to introduce as evidence against the defendant? (C) Yes, because fraud is a form of stealing,
and so it will tend to show that the defen-
(A) Evidence that the defendant was once dant could commit robbery.
convicted of armed robbery with a semi-
automatic weapon. (D) Yes, because it tends to show that the defen-
dant would lie.
(B) The testimony of a witness that, the day
before the defendant’s arrest, he asked the
witness how much she would be willing to
pay for a semi-automatic weapon.
Question 7 Question 8
A plaintiff sued a defendant for serious The defendant was charged with first degree
personal injuries he incurred when the defendant felony arson under the state's arson statute. The
allegedly drove through a red light and collided indictment alleged that the defendant burned
with the plaintiff’s car. Calling the defendant down his own building to collect the insur-
as an adverse witness, the plaintiff asked her ance. At the trial, the defense called a witness
if she had been drinking before the accident. who testified on direct examination that he
The defendant refused to answer, asserting her was with the defendant at the place of business
privilege against self-incrimination. The plaintiff when the fire started and that some cleaning
then offers in evidence a certified copy of a court solvent caught fire and spread out of control. The
record indicating that, eight years previously, the witness testified that the ignition of the fire was
defendant had been convicted of reckless driving purely accidental. The defense also introduced
while intoxicated that caused serious personal evidence that the witness is of good character.
injury, a felony. On cross-examination, the prosecutor asked the
witness if he is being prosecuted for first degree
How should the trial court rule on the admis- felony arson in a separate trial for the burning of
sibility of the court record? the same building. The defense lawyer objects.
(A) Admit the record as relevant character evi- Should the court allow the prosecutor’s
dence because the plaintiff suffered serious question?
personal injuries.
(A) Yes, because the defense lawyer has intro-
(B) Admit the record as impeachment evidence. duced evidence tending to establish that the
witness is a person of good character.
(C) Exclude the record as irrelevant because as
yet the defendant has given no testimony to (B) Yes, because the question is appropriate
be impeached. to show bias or interest on the part of the
witness.
(D) Exclude the record because the convic-
tion is too remote and does not necessarily (C) No, because the witness has not been
reflect on the defendant’s credibility as a convicted of the crime.
witness in the present proceedings.
(D) No, because the question violates the
witness’s Fifth Amendment right to be
protected from self-incrimination.
Evidence Questions 5.
Question 9 Question 10
Question 11 Question 12
The plaintiff sued the defendant in a contract A plaintiff sued a defendant railroad company
dispute. At trial, the plaintiff’s sister testifies as a for injuries sustained when his car was hit at a
witness on behalf of the plaintiff, stating that the railroad crossing. The plaintiff testified that just
defendant agreed to sell a computer to the plain- before the accident, a bystander yelled, “Oh no,
tiff for $250. To prove that the sister is telling the crossing signal isn’t working!” The defendant
the truth, plaintiff’s counsel asks the sister on wants to place a witness on the stand who will
direct examination about a conversation she had testify that the bystander, who is now dead, told
with her mother, in which she told her mother her that the crossing signal was working.
that the defendant agreed to sell a computer to
the plaintiff for $250. The defendant objects to Is the witness’s testimony admissible?
the testimony.
(A) Yes, for the purpose of impeachment only.
How should the court rule?
(B) Yes, for the purpose of impeachment and to
(A) Admissible, because it is a prior consistent show that the crossing signal was working.
statement.
(C) No, because it is hearsay not within any
(B) Admissible, because it is not hearsay. exception.
(C) Inadmissible, because leading questions (D) No, because the bystander is not available
cannot be asked on direct examination. to explain or deny the contradiction.
Question 13 Question 14
A plaintiff sued a chimney sweeping company The plaintiff sued the defendant for battery.
for personal injury and property damages The defendant claimed that he was attacked for
resulting from an explosion in her chimney the no reason by the plaintiff and that he hit the
evening after the company had cleaned it. The plaintiff with a pipe in self-defense. A witness
explosion, which occurred when the plaintiff lit a was called to testify that on the day in question
fire in the fireplace, caused minor damage to the she heard the defendant and his roommate
chimney, roof, and to the plaintiff, who was hit talking outside their apartment. The witness
by falling bricks. As evidence that she assumed testified that the roommate told the defendant
the risk of injury, the company offers to have its that the plaintiff had been flirting with the defen-
foreman testify that he had told the plaintiff not dant’s girlfriend, and that the defendant seemed
to use the fireplace for 24 hours to allow certain very angry. The defendant’s attorney objected to
chemicals to evaporate. this testimony.
Is the foreman’s proposed testimony hearsay? Should the court find the evidence admissible?
(A) No, because the declarant is testifying as a (A) Yes, to show provocation for the battery.
witness at the hearing.
(B) Yes, as a legally operative fact.
(B) No, because the statement is not offered for
its truth. (C) No, because it is hearsay.
(C) Yes, but it should be admitted under the (D) No, because it is an opinion.
hearsay exception for present sense impres-
sions.
Question 15 Question 16
A motorist who failed to stop at a stop sign A defendant was arrested for the felony of
was struck by a car being taken for a test drive aggravated battery against a victim. A witness
by a mechanic who had repaired the car’s testified before a grand jury that she saw the
brakes. The motorist sued the repair shop that defendant beat the victim with a baseball bat.
employed her to recover for his injuries. At trial, The defendant was indicted and later convicted.
the motorist called a bystander to testify that The victim then sued the defendant for personal
when the mechanic saw that the motorist was injuries. The witness could not be located. A
injured, she ran over and told him, “I’m really second witness was produced and gave testi-
sorry. I guess I didn’t fix the brakes as well as I mony similar to that given by the first witness
thought.” before the grand jury. The victim’s attorney
offers as evidence, without prior notice to the
Should the repair shop’s objection to the defendant’s attorney, a properly authenticated
bystander’s testimony be sustained? transcript of the testimony given earlier by the
first witness before the grand jury.
(A) Yes, because the mechanic’s statement is
inadmissible against the repair shop. How should the court rule on the admissibility
of the transcript of the grand jury testimony?
(B) Yes, because the motorist did not stop at the
stop sign. (A) Admissible under the former testimony
exception to the rule against hearsay.
(C) No, because it is a declaration against
interest. (B) Admissible nonhearsay.
(D) No, because it is a statement attributable to (C) Inadmissible to rehabilitate the testimony of
a party-opponent. the second witness because he has not been
impeached by a charge of recent fabrication
or improper motive.
Question 17 Question 18
The owner of a jewelry store brought a civil The defendant was on trial for murdering his
action against a former clerk for the value of mother, who was found dead in her bathtub.
various pieces of jewelry missing from the store. At trial, the prosecutor called the nurse of the
The defendant had been fired after another defendant’s aunt to testify to what the aunt told
employee had reported that the defendant was the nurse just before the aunt died of cancer. The
stealing jewelry. At the trial, the plaintiff calls nurse is prepared to testify that, shortly before
his employee as a witness. The witness testifies she died, the aunt stated, “I know I don’t have
that he does not remember either having seen the much longer to live, so I must tell someone what
defendant take anything from the store or having my nephew said to me yesterday. He told me
told the plaintiff that she had done so. The plain- that he was very angry with his mother and that
tiff then takes the witness stand and proposes to he wanted to kill her and make it look like an
testify to what the witness had told him about accident!”
seeing the defendant stealing pieces of jewelry
from the store. Should this testimony be admitted?
Assuming appropriate objection by the defen- (A) Yes, because it is a statement by an oppos-
dant, would such testimony by the plaintiff be ing party.
admissible?
(B) Yes, because it falls within the hearsay
(A) Yes, as a statement against interest by the exception for dying declarations.
witness.
(C) Yes, because it is a statement by an
(B) Yes, as proper impeachment of the witness’s opposing party and falls within the hearsay
testimony. exception for dying declarations.
Question 19 Question 20
A defendant was tearing up a stretch of A witness’s nephew was visiting her from
pavement with a jackhammer when a rock flew a foreign country. One evening, the nephew
up and struck a plaintiff in the head, causing went out with friends. At 11 p.m. that night, he
him to be hospitalized. Because the jackhammer appeared back at the witness’s house, pounding
manufacturer had been out of business for loudly on the door. She let him in, and noted that
several years, the plaintiff filed a lawsuit for he was panting and out of breath. He immedi-
his medical costs, lost work time, and pain ately told her, “You won’t believe what I just
and suffering solely against the defendant. At saw! I was walking past your neighbor’s house
trial, the plaintiff’s attorney calls a witness who just now and the wife ran up to me with a gun
testifies that, at the time of the incident, the in her hand. She looked me straight in the eyes
defendant stated, “It was my fault.” The defense and said, ‘I killed the philandering fool’ before
attorney objects, but the judge overrules the running off down the street.” After the nephew
objection on the ground that this is a declaration returned to his country, the wife was put on trial
against interest. for the murder of her husband. The prosecution
wants to put the witness on the stand to testify
Are the grounds for the judge’s decision regarding the nephew’s statement to her. The
correct? defense objects.
(A) Yes, because the statement subjected the Can the witness testify to the nephew’s state-
defendant to tort liability. ment?
(B) Yes, because the defendant is a party to the (A) Yes, because the nephew’s statement quali-
litigation. fies as an excited utterance.
(C) No, because the statement is not against an (B) Yes, because the nephew is not available to
important interest. testify.
(D) No, because the defendant is available to (C) No, because the wife did not make her
testify. admission to the witness.
Question 21 Question 22
The defendant was charged with reckless A plaintiff sued an elevator company for
driving after his car hit a car driven by a priest. injuries he suffered when his foot got caught
At trial, the passenger in the defendant’s car at in one of its moving walkways. The company’s
the time of the accident testified that the priest chief engineer prepared a report of the accident
slammed on the brakes with no warning before at the request of its insurance company, and
the accident. The defendant was acquitted of the report was given to the attorney who was
the reckless driving charge. Subsequently, the hired to represent the elevator company in this
priest sued the defendant for personal injuries trial. As part of its case-in-chief, the company’s
and property damages. At the civil trial, counsel attorney seeks to introduce the report into
for the defendant asked the passenger, “Did evidence, and states that its expert witness relied
the priest stop suddenly before the defendant on it. The report states that the walkway was in
hit him?” The passenger, who was angry with good mechanical condition at the time of the
the defendant after an argument, responded, “I plaintiff’s injury. The plaintiff’s attorney objects.
don’t remember it that way. The priest may have
slowed down a bit.” The defense attorney seeks Is the report admissible?
to introduce the transcript of the passenger’s
statement from the criminal trial. The priest’s (A) Yes, as a business record.
attorney objects.
(B) Yes, because it is relied upon by a testifying
Is the transcript admissible? expert witness.
(A) Yes, for impeachment purposes only. (C) No, because the insurance company is an
interested party.
(B) Yes, for impeachment purposes and as
substantive evidence. (D) No, because it is hearsay not within any
exception.
(C) No, because it is hearsay.
Question 23 Question 24
Is the proposed witness list and notation (D) Yes, to show that the plaintiff had suffered
admissible? physical pain.
Question 25