Evidence — UBE practice questions

Under FRE 403, relevant evidence may be excluded when its probative value is:

1. Any amount less than the value the offering party proposes
2. Below the threshold approved by the American Bar Association
3. Merely equal to the danger of any conceivable confusion
4. Substantially outweighed by unfair prejudice or confusion

Answer: D — Substantially outweighed by unfair prejudice or confusion

A) The standard is not the offering party's view. D) Correct — 403 requires probative value to be 'substantially outweighed' by unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless duplication. C) Equal is not enough. B) ABA has no such threshold.

After a customer fell on a wet floor, a store installed nonslip mats and issued a new mopping policy. The customer offers proof of both changes to show the store had been negligent. The store objects. The evidence is:

1. Admissible, because conduct after an event is relevant to show awareness of danger
2. Inadmissible to show negligence, though it may come in to prove disputed ownership or control
3. Admissible, because policies are business records rather than remedial measures
4. Inadmissible for every purpose, because remedial measures are categorically excluded

Answer: B — Inadmissible to show negligence, though it may come in to prove disputed ownership or control

B) Correct — subsequent remedial measures are barred to prove negligence or a defect but may be admitted for other disputed purposes such as ownership, control, or feasibility. A) states the intuitive relevance that the exclusionary policy overrides. C) mislabels an internal policy change to avoid the rule. D) overstates the bar, which is purpose-specific rather than categorical.

Under FRE 404, character evidence is generally inadmissible to:

1. Prove intent through prior similar acts
2. Show a witness's motive to fabricate testimony
3. Establish a distinctive modus operandi at issue
4. Prove the accused acted in conformity with character

Answer: D — Prove the accused acted in conformity with character

A) Intent is a permissible non-propensity purpose under 404(b)(2). B) Bias/motive of a witness is permissible impeachment (609/608/402). C) Modus operandi (identity) is a permissible non-propensity purpose. D) Correct — 404(a)(1) forbids using character evidence to prove action in conformity therewith (propensity).

Under FRE 801(c), an out-of-court statement offered to prove the truth of the matter asserted is:

1. Always admissible if the declarant testifies
2. Hearsay, inadmissible absent an exception
3. Admissible in criminal cases only
4. Admissible only if made under oath

Answer: B — Hearsay, inadmissible absent an exception

A) The declarant's testimony does not automatically cure hearsay unless a rule such as 801(d)(1) exclusion applies. B) Correct — FRE 802 bars hearsay unless an exception or exclusion under 801(d), 803, 804, or 807 applies. C) Hearsay rules apply in civil and criminal cases. D) An oath does not convert an out-of-court statement into non-hearsay.

Under FRE 609, prior convictions may be used to impeach a witness's character for truthfulness when:

1. Any minor traffic violation occurred in the past two years
2. The witness has been arrested but never convicted at trial
3. The witness has a felony or crimen-falsi conviction under the rule
4. The prosecution simply asks the witness about arrests generally

Answer: C — The witness has a felony or crimen-falsi conviction under the rule

A) Minor traffic offenses do not qualify. B) Arrests without convictions do not qualify. C) Correct — 609(a) allows felony convictions (subject to 403 balancing) and any crimen-falsi conviction (regardless of grade); 10-year limit applies unless probative value substantially outweighs prejudicial effect. D) Arrests are not usable under 609.

The Federal Rule 803(2) 'excited utterance' exception applies to a statement:

1. Made during rehearsed testimony recorded on video
2. Made under stress of a startling event about that event
3. Written in a private diary later that same evening
4. Reflected upon carefully days after the underlying event

Answer: B — Made under stress of a startling event about that event

A) Rehearsed statements lack the requisite spontaneity. B) Correct — 803(2) requires a statement relating to a startling event, made while the declarant is still under the stress caused by it. C) A calm diary entry does not meet the standard. D) Later reflection destroys the requisite excitement.

Under the best-evidence rule (FRE 1002), to prove the content of a writing a party must generally:

1. Produce the original or an admissible duplicate
2. Rely only on the testimony of any subpoenaed witness
3. Present a certified courtroom transcript of the writing
4. Waive attorney-client privilege as to internal drafts

Answer: A — Produce the original or an admissible duplicate

A) Correct — FRE 1002 requires the original; FRE 1003 admits duplicates unless a genuine question is raised about authenticity or unfairness. B) Testimony without the writing is generally insufficient. C) Transcripts are not required. D) Privilege waiver is unrelated.

A party offers an email printout and authenticates it only by testimony that the address in the header belonged to the opposing party. The opponent objects that authorship is not established. The court should MOST likely:

1. Exclude it, because electronic writings require certification by the service provider
2. Exclude it, because a header alone can never make out a prima facie case of authorship
3. Admit it, because authentication requires only evidence sufficient to support a finding
4. Admit it, because email is self-authenticating as a record of a regularly conducted activity

Answer: C — Admit it, because authentication requires only evidence sufficient to support a finding

C) Correct — authentication is a low bar requiring only enough evidence for a reasonable juror to find the item is what the proponent claims; contrary proof goes to weight. B) demands conclusive proof rather than a prima facie showing. A) invents a certification requirement for electronic evidence. D) confuses self-authentication categories with the business records hearsay exception.

In a negligence case, a plaintiff offers a bystander's excited exclamation, made moments after a crash while the bystander was still visibly agitated, that a truck ran the red light. The bystander is available but not called. The statement is:

1. Admissible as an excited utterance, which does not require the declarant's unavailability
2. Admissible as a present sense impression, but only if the declarant is first shown unavailable
3. Inadmissible, because the bystander is available and could simply be called to testify
4. Inadmissible, because a bystander's opinion about fault is not based on personal knowledge

Answer: A — Admissible as an excited utterance, which does not require the declarant's unavailability

A) Correct — an excited utterance relating to a startling event made while under its stress qualifies whether or not the declarant is available. B) mixes exceptions and adds an unavailability requirement neither one has. C) applies the unavailability-required category to an exception that does not need it. D) mischaracterizes an eyewitness account of the light as opinion.

Under Crawford v. Washington, the Sixth Amendment Confrontation Clause bars testimonial hearsay unless:

1. The out-of-court declarant is a well-known public figure
2. The prosecution shows the statement was reliable enough
3. The trial judge personally interviews the absent witness
4. The declarant is unavailable and defendant had prior cross-examination

Answer: D — The declarant is unavailable and defendant had prior cross-examination

A) Fame is not the test. D) Correct — Crawford requires unavailability of the declarant and a prior opportunity for cross-examination on testimonial statements. C) Judicial interviews do not satisfy confrontation. B) Roberts' reliability test was abrogated by Crawford.

Confrontation Clause (Crawford)?

6th Amendment. Testimonial hearsay inadmissible unless declarant unavailable + prior cross-examination opportunity.

Privileges?

Attorney-client, spousal (testimonial + communication), doctor-patient (some states), priest-penitent, 5th Amendment.

Excited utterance?

Statement made under stress of startling event. Hearsay exception (803).

Hearsay exceptions (FRE 803)?

Present sense impression, excited utterance, then-existing mental/physical state, statement for medical diagnosis, recorded recollection, business records, public records.