FL Bar Evidence 2 — Questions and Answers
Question 1: Under FRE 801(d)(2), an admission by a party-opponent is classified as:
- An exception to the hearsay rule
- Non-hearsay (not hearsay by definition) (Correct answer)
- Hearsay but always admissible
- Inadmissible character evidence
Correct answer: Non-hearsay (not hearsay by definition)
FRE 801(d)(2) classifies party admissions as non-hearsay — they are definitionally excluded from the hearsay rule, not merely excepted from it.
Question 2: The excited utterance exception to hearsay requires that the statement be made:
- Immediately while perceiving the event
- While the declarant is under the stress of excitement from a startling event, relating to that event (Correct answer)
- By an unavailable declarant only
- In writing
Correct answer: While the declarant is under the stress of excitement from a startling event, relating to that event
FRE 803(2) requires the statement to relate to a startling event and be made while the declarant is still under the stress of excitement caused by that event.
Question 3: Lay witness opinion testimony is admissible under FRE 701 when it is:
- Based on specialized knowledge
- Rationally based on the witness's perception, helpful to the fact-finder, and not based on specialized knowledge (Correct answer)
- Only about the witness's own conduct
- Offered to prove character
Correct answer: Rationally based on the witness's perception, helpful to the fact-finder, and not based on specialized knowledge
FRE 701 allows lay opinion when it is rationally based on perception, helpful to the jury, and does not require specialized knowledge that crosses into expert testimony.
Question 4: Subsequent remedial measures are inadmissible under FRE 407 to prove:
- Ownership or control of the premises
- Negligence or culpable conduct (Correct answer)
- That the measure was feasible, if disputed
- The identity of the tortfeasor
Correct answer: Negligence or culpable conduct
FRE 407 bars evidence of subsequent remedial measures to prove negligence or culpable conduct, but allows it for ownership, control, feasibility, or impeachment.
Question 5: Under FRE 609, a prior felony conviction may be used to impeach a witness's credibility if the crime was punishable by more than one year in prison and:
- Was committed in the last 5 years
- The probative value outweighs the prejudicial effect (for non-defendant witnesses) (Correct answer)
- Was a crime involving dishonesty or false statement
- Only if the witness opens the door
Correct answer: The probative value outweighs the prejudicial effect (for non-defendant witnesses)
For non-defendant witnesses, FRE 609(a)(1)(A) allows felony convictions for impeachment if the probative value outweighs the prejudicial effect; for defendants, Rule 403 balancing applies.
Question 6: The physician-patient privilege in Florida protects communications made to a physician when the purpose is:
- Social conversation
- Diagnosis or treatment of a physical or mental condition (Correct answer)
- Expert testimony preparation
- Public health reporting
Correct answer: Diagnosis or treatment of a physical or mental condition
Florida § 90.502 protects confidential communications between a patient and healthcare practitioner made for the purpose of diagnosis or treatment.
FL Bar Evidence 2
Under FRE 801(d)(2), an admission by a party-opponent is classified as: