ID Bar Evidence 2 — Questions and Answers
Question 1: Under FRE 803(1), a present sense impression is admissible as an exception to the hearsay rule when the statement:
- Describes the declarant's then-existing mental state
- Describes an event made while perceiving it or immediately after (Correct answer)
- Was made under the stress of excitement caused by a startling event
- Was made by a party opponent
Correct answer: Describes an event made while perceiving it or immediately after
FRE 803(1) covers statements describing an event made while the declarant was perceiving it or immediately thereafter, capturing the contemporaneous nature as a guarantee of trustworthiness.
Question 2: Under FRE 609, a prior felony conviction may be used to impeach a non-criminal-defendant witness if:
- The probative value substantially outweighs the prejudicial effect
- The probative value outweighs the prejudicial effect (Correct answer)
- The judge finds the witness lied about the conviction
- The conviction is fewer than 15 years old
Correct answer: The probative value outweighs the prejudicial effect
For a non-defendant witness, FRE 609(a)(1)(A) permits impeachment with a prior felony conviction if the probative value outweighs the prejudicial effect (a standard more favorable than Rule 403).
Question 3: Under FRE 615, a court must exclude witnesses from the courtroom during trial upon the motion of a party, EXCEPT for:
- Expert witnesses retained for the case
- A party that is a natural person (Correct answer)
- A designated representative of an organizational party
- A witness whose presence is shown to be essential
Correct answer: A party that is a natural person
FRE 615 mandates witness exclusion on motion, but excepts a party who is a natural person, a designated organizational representative, a party whose presence is essential, and persons authorized by statute.
Question 4: Under the best evidence rule (FRE 1002), which of the following is required when proving the contents of a writing?
- Two witnesses must testify about the writing
- The original writing must be produced unless an exception applies (Correct answer)
- A certified copy must be submitted
- The writing must be authenticated by a notary
Correct answer: The original writing must be produced unless an exception applies
FRE 1002 requires production of the original writing to prove its content, though FRE 1003 and 1004 provide exceptions for duplicates and situations where the original is unavailable.
Question 5: Under FRE 801(d)(2), which of the following is a party admission not subject to the hearsay rule?
- A statement by a co-party who has no agency relationship with the opposing party
- A statement by an authorized agent of a party regarding a matter within the scope of agency (Correct answer)
- A statement by the opposing party's expert witness
- A statement made by a party before the litigation began, offered against a different party
Correct answer: A statement by an authorized agent of a party regarding a matter within the scope of agency
FRE 801(d)(2)(C)-(D) classifies statements by an agent authorized to make the statement, or by an agent within the scope of employment, as non-hearsay admissions.
Question 6: Which of the following hearsay exceptions requires the declarant to be unavailable?
- Excited utterance (FRE 803(2))
- Business records (FRE 803(6))
- Statement against interest (FRE 804(b)(3)) (Correct answer)
- Present sense impression (FRE 803(1))
Correct answer: Statement against interest (FRE 804(b)(3))
FRE 804 exceptions — including statement against interest — require the declarant's unavailability; FRE 803 exceptions apply regardless of the declarant's availability.
ID Bar Evidence 2
Under FRE 803(1), a present sense impression is admissible as an exception to the hearsay rule when the statement: