Evidence Practice Exam Questions

1. 1.(a) 911 call: Hearsay (out-of-court statement offered for truth), but qualifies as an excited utterance (FRE 803(2)) -- made under the stress of a startling event. Also qualifies as a present sense impression (803(1)). If the victim is unavailable (deceased), also consider the forfeiture-by-wrongdoing exception (804(b)(6)) and dying declaration (804(b)(2)) if the victim believed death was imminent.
2. 2.(b) Prior domestic battery conviction: Under FRE 404(b), prior bad acts are inadmissible to show propensity but admissible for other purposes (motive, intent, plan, identity). The domestic battery conviction against the same victim is highly probative of motive and pattern. Under FRE 403, the court must weigh probative value against prejudicial effect. Also consider FRE 413-415 (prior similar crimes in sexual assault/domestic violence cases).
3. 3.(c) Coworker's testimony about violent temper: This is character evidence offered as reputation testimony (FRE 405(a)). In a criminal case, the prosecution cannot introduce character evidence in its case-in-chief unless the defendant opens the door (FRE 404(a)(1)). If the defendant has offered good character evidence, this testimony becomes admissible as rebuttal.
4. 4.(d) Text message 'If anything happens to me': Hearsay, and it does not fit neatly into standard exceptions. Not a dying declaration (no belief of imminent death two weeks before). Not an excited utterance (no startling event at time of text). It may be offered as a statement of the victim's then-existing state of mind (FRE 803(3)) to show fear of the defendant, but Hillmon doctrine limits this to the declarant's own future conduct, not to prove the defendant acted.
5. 5.(e) Expert on domestic violence patterns: Admissible under FRE 702 if the expert is qualified and the testimony is based on reliable methods (Daubert). DV pattern evidence is generally accepted to help the jury understand the dynamics of abusive relationships. Subject to FRE 403 balancing.

1. 1.Attorney-client privilege elements: (1) Communication (2) between a client and attorney (3) made in confidence (4) for the purpose of seeking legal advice. The initial conversation satisfies these elements.
2. 2.Presence of paralegal: The privilege extends to communications made in the presence of agents of the attorney who are necessary for the provision of legal services. A paralegal is an agent of the attorney. The privilege is not waived by the paralegal's presence.
3. 3.Disclosure to business partner: Voluntary disclosure to a third party outside the privilege waives the privilege as to the substance of the communication. Discussing the conversation at a restaurant with a business partner is a waiver. The waiver extends to the subject matter of the disclosed communication.
4. 4.Crime-fraud exception: The attorney-client privilege does not protect communications made in furtherance of a crime or fraud. If the communication was made to obtain advice in furtherance of the ongoing fraud (as opposed to seeking advice about past conduct), the crime-fraud exception applies. The court may conduct an in camera review.
5. 5.Burden of proof: The party asserting the privilege bears the burden of establishing it. The party challenging the privilege bears the burden of showing an exception (waiver or crime-fraud).

Correct Answer: B

A party's interest in the outcome of litigation goes to the weight the jury gives the testimony, not its admissibility. Under FRE 601, every person is competent to be a witness. The defendant is free to cross-examine the plaintiff about bias and interest, and the jury will assess credibility accordingly.

Correct Answer: A

Under FRE 803(3), statements of the declarant's then-existing state of mind, including intent to do a future act, are admissible as an exception to the hearsay rule. Under the Hillmon doctrine, a statement of intent to perform a future act ('I'm going to rob the bank') is admissible to show that the declarant subsequently carried out that intention.

Correct Answer: B

Under FRE 703, an expert may base an opinion on facts or data that are not independently admissible, provided they are of a type reasonably relied upon by experts in the field. Medical experts commonly rely on medical textbooks. The textbook does not need to be independently admitted for the expert to rely on it in forming her opinion.