AL Bar Evidence 2 — Questions and Answers
Question 1: Under the attorney-client privilege, communications are protected if they are:
- Made by the client to any attorney for any purpose
- Confidential communications between client and attorney for the purpose of seeking legal advice (Correct answer)
- Made in writing only
- Witnessed by the attorney's staff
Correct answer: Confidential communications between client and attorney for the purpose of seeking legal advice
The attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining legal counsel.
Question 2: The work-product doctrine protects from discovery materials prepared by an attorney:
- At any time for any purpose
- In anticipation of litigation or for trial preparation (Correct answer)
- Only after a lawsuit is filed
- Only if the materials are marked confidential
Correct answer: In anticipation of litigation or for trial preparation
FRCP 26(b)(3) and the work-product doctrine shield documents and tangible things prepared in anticipation of litigation or for trial preparation.
Question 3: Relevant evidence may be excluded under FRE 403 when its probative value is substantially outweighed by the danger of:
- Being cumulative alone
- Unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time (Correct answer)
- Being disbelieved by the jury
- Exceeding the scope of direct examination
Correct answer: Unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time
FRE 403 permits exclusion when probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, or needless waste of time.
Question 4: Under FRE 613, prior inconsistent statements are used in cross-examination primarily to:
- Prove the truth of the prior statement
- Impeach the witness's credibility by showing inconsistency (Correct answer)
- Refresh the witness's recollection
- Establish the witness was unavailable at trial
Correct answer: Impeach the witness's credibility by showing inconsistency
Prior inconsistent statements are admissible under FRE 613 to impeach the witness by demonstrating inconsistency, not as substantive proof of the earlier statement's truth.
Question 5: The dying declaration exception to hearsay (FRE 804(b)(2)) requires the declarant to have:
- Actually died before trial
- Believed death was imminent and made the statement about the cause or circumstances of death or injury (Correct answer)
- Made the statement to law enforcement
- Been competent to testify at the time
Correct answer: Believed death was imminent and made the statement about the cause or circumstances of death or injury
FRE 804(b)(2) requires the declarant to have believed death was impending and the statement must concern the cause or circumstances of the expected death.
Question 6: Authentication of a document under FRE 901 requires the proponent to produce evidence sufficient to support a finding that:
- The document is genuine beyond a reasonable doubt
- The item is what the proponent claims it to be (Correct answer)
- An expert has verified the document
- The document was created by the opposing party
Correct answer: The item is what the proponent claims it to be
FRE 901 requires only enough evidence to allow a reasonable jury to conclude the item is what the proponent claims; absolute certainty is not required.
AL Bar Evidence 2
Under the attorney-client privilege, communications are protected if they are: