MBE Evidence Missed

A woman is on trial for a burglary that took place at about six in the evening on November 1. A surveillance video from a local gas station shows that the woman visited the gas station at seven in the evening on November 1. The woman alleges as an alibi that she was actually at the gas station at six in the evening. She argues that the gas station failed to change the time display on its camera to reflect the end of Daylight Savings Time on the morning of November 1. The judge, on his own initiative and after first giving the prosecutor the opportunity to object, took judicial notice of the fact that Daylight Savings Time did end in the year in question on November 1. The judge instructed the jury that it may or may not accept any judicially noticed fact as conclusive. Were the judge's actions with regard to judicial notice of this fact proper? Yes, because the court may take judicial notice on its own initiative. Yes, because the court gave the prosecution an opportunity to be heard on the propriety of taking judicial notice before doing so. No, because the fact is not one that is generally known within the territorial jurisdiction of the trial court. No, because the court should have instructed the jury that it is required to accept the noticed fact as conclusive.

Answer choice A is correct. A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court's own initiative. Answer choice B is incorrect. When a party makes a timely request, the judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact. Answer choice C is incorrect. Although judicial notice may be taken of an adjudicative fact that is not subject to reasonable dispute because it is generally known within the territorial jurisdiction of the trial court, judicial notice may also be taken of an adjudicative fact that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Here, the date on which Daylight Savings Time ends is such a fact. Answer choice D is incorrect because this is a criminal case, and in a criminal case, the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive, as the judge properly did here.

A truck was struck by a train while the truck was crossing railroad tracks. Although the crossing gate had malfunctioned, the train engineer had blown a warning whistle before entering the crossing. Among the legal actions precipitated by this accident, the trucking company sued the railroad for damages stemming from the destruction of its truck and the contents of the truck. The railroad sought to introduce a written statement given to police by a passenger in the truck, who alternated driving duties with the person driving the truck at the time of the accident, that the driver had left his hearing aids at a rest stop shortly before the accident. Both the passenger and the driver of the truck, who are employees of the trucking company, are available to testify. Is this statement admissible against the trucking company? Yes, because the statement was made by the trucking company's employee. Yes, under the business records hearsay exception. No, because the passenger was not employed as a spokesperson for the trucking company. No, because both the passenger and the driver of the truck are available to testify.

Answer choice A is correct. A statement made by a party's agent or employee constitutes an opposing party's statement if it was made concerning a matter within the scope of and during the course of the relationship. Here, the statement was made by a passenger in the truck who was an employee of the trucking company and who alternated driving the truck with the person who was driving the truck at the time of the accident. The statement concerns the driver's negligence that, according to the railroad company, was at least a contributing cause of the accident. Thus, the statement was within the scope and during the course of the passenger's employment relationship with the trucking company. Consequently, the statement is admissible as a vicarious statement of an opposing party. Answer choice B is incorrect because the passenger's statement to police after the accident does not fall within the business records exception to hearsay because the passenger was not under a business duty to make the statement of the police. Answer choice C is incorrect. Although one way in which a statement made by an employee is imputed to the employer is when the employee is a spokesperson for the employer, this is not the only way for a vicarious admission to occur. Here, the statement was made within the scope of and during the course of the passenger's employment relationship with the trucking company—the statement was about the driver's negligence in driving the truck without his hearing aids while both the speaker and the truck driver were employed by the trucking company to drive the truck. Answer choice D is incorrect because a statement that is admissible as an opposing party's statement does not require the declarant or the person about whom the statement is made to be available to testify.

The holder of a patent for hybrid corn sued both an unlicensed wholesaler of that product and a retailer who purchased the corn from the wholesaler for alleged patent infringement. The patent holder reached an agreement with the retailer in which the holder released the retailer from liability in exchange for the payment of a nominal amount. After properly authenticating the agreement, the wholesaler sought to introduce it into evidence solely for the purpose of determining damages. The patent holder objected to the introduction of the agreement. Should the court admit the agreement into evidence? No, because the agreement constituted the acceptance of a settlement offer. No, because the danger of unfair prejudice outweighs the probative value of the agreement. Yes, because the agreement is being introduced solely for the purpose of determining the amount of damages. Yes, because the wholesaler was not a party to the agreement.

Answer choice A is correct. Evidence of a settlement offer, including evidence of the acceptance of such an offer, is not admissible for the purpose of establishing the validity of a claim or the amount of damages. For this reason, answer choice C is incorrect. Answer choice B is incorrect because it fails to correctly state the law. In order for evidence to be inadmissible under Federal Rule 403, the dangers of unfair prejudice must substantially outweigh its probative value. Answer choice D is incorrect because when there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the amount of an unsettled claim.

A son and a daughter are opposing parties in federal court. At trial, the daughter presented evidence that her father has been missing for ten years, and that no one has heard from him in that time. The son testified that he received a phone call three years ago from a person that he believes was his father. In the jurisdiction, a rebuttable presumption arises that a person is dead when a party establishes that the person has been missing and not heard from for more than seven years. Which of the following is correct? The jury must find that the father is dead. The jury may find that the father is dead. The burden has shifted to the son to persuade the jury that the father is alive. The judge must instruct the jury to conclude that the father is dead.

Answer choice B is correct. A presumption is a conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts (i.e., basic facts). A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. However, a rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, as is the case here, then the presumption no longer has a preclusive effect. At this point, the jury may, but is not required to, draw the conclusion from the basic facts. Thus, the jury may determine the weight and credibility of all of the evidence. For this reason, answer choice A is incorrect. Answer choice C is incorrect because a rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. Answer choice D is incorrect because it is an incorrect statement of law. After a rebuttable presumption no longer has a preclusive effect due to the introduction of contrary evidence, a judge may instruct the jury that it may, but is not required to, draw the conclusion from the basic facts.

A defendant, his cousin, and a friend planned to rob a convenience store. The friend watched the defendant and his cousin put on ski masks and enter the convenience store. Moments later, the friend heard a gunshot, and the defendant fled. The cousin stumbled out of the convenience store, pointed at his bleeding foot, and told the accomplice, "He shot me! The moron dropped his gun and shot me, I'm going to kill that idiot!" The cousin ran after the defendant, and the friend called the police. The police found the cousin dead from a bullet wound to the chest and charged the defendant with murder. At trial, the defendant wants to introduce the cousin's statement to the friend as evidence that the cousin was the initial aggressor. The prosecution objects. What is the defendant's best argument for finding that the statement is admissible? The declarant is unavailable as a witness. The statement indicates the cousin's present intent. The statement was a dying declaration. The statement was made by a co-conspirator.

Answer choice B is correct. A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. Here, the defendant is trying to offer the statement to show that his cousin intended to attack him to help establish his defense. Because a statement of the declarant's then-existing state of mind falls within a hearsay exception, this is the defendant's best argument. Answer choice A is incorrect because a declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial. Because of the possibility that the defendant killed his cousin in order to silence him at trial, this is not the defendant's strongest argument. Answer choice C is incorrect because it would be very difficult to argue that the cousin believed his death was imminent from a gunshot wound to his foot at the time he made the statement. This is evidenced by the fact that he ran after the defendant and made no statement indicating that he believed his death was imminent. Answer choice D is incorrect because, although a statement made by a co-conspirator during and in furtherance of a conspiracy is admissible as an opposing party's statement against other co-conspirators, the cousin's outburst was not made in furtherance of the already failed robbery.

An artist entered into a written agreement to sell a patron a partially finished painting once it was complete. The patron later learned that the artist planned to sell the painting to a third party who offered to pay the artist more than the contract price. The patron filed suit to compel the artist to sell the painting to her in accord with the terms of their agreement, while the artist denied that the painting the artist planned to sell to the third party was the subject of the agreement with the patron. At trial, the patron did not introduce the written agreement or explain its absence. Rather, the patron sought to testify that, when she signed the agreement, the artist had pointed to the painting in question and stated that it was the patron's painting. The artist's attorney objected to the testimony that the artist identified the painting as belonging to the patron. How should the court rule? Sustain the objection, because the artist's statement was hearsay. Sustain the objection, because the patron failed to produce the written agreement or explain its absence. Overrule the objection, because the statement is not hearsay. Overrule the objection, because the statement was relevant.

Answer choice B is correct. Under the best evidence rule, the original document or a reliable duplicate must be used to prove the contents of a writing unless its absence is satisfactorily explained. Here, the plaintiff intends to introduce the statement to prove that the written agreement refers to a specific painting without introducing the written agreement itself. Consequently, the patron may not introduce that statement to establish that the painting in question was the painting that was the subject of the agreement. Answer choice A is incorrect because, although the artist's statement was being introduced for its truth, it is non-hearsay as a statement of a party to the action. Answer choice C is incorrect because, although the artist's oral statement was non-hearsay, the best evidence rule prevents its admission into evidence. Answer choice D is incorrect because, while the statement meets the test for relevancy, in that it is both probative and material, it is inadmissible on other grounds.

A man was prosecuted for the false imprisonment of a woman after he allegedly pretended to have a broken arm, asked the woman to help him carry a box into the back of his van, and then pushed her into the van and locked it. At trial, the prosecution attempted to introduce evidence during a female witness's direct examination that five years ago, the man had impersonated a policeman, entered the witness's home, and made serious threats of harm if the witness did not stay in the home and answer his questions. Is this evidence admissible? Yes, because it shows that the man has the propensity to falsely imprison women. Yes, because it is relevant evidence that shows the man's preparation and planning. No, because it is improper character evidence. No, because it can only be introduced during cross-examination.

Answer choice C is correct. Evidence of a bad act is not admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion. Here, the man's conduct is being admitted to prove that the man acted in accordance with his criminal propensity to falsely imprison women. Therefore, the evidence is inadmissible. Answer choice A is incorrect because character evidence cannot be admitted to show a defendant's criminal propensity in order to prove that he committed the crime for which he is charged. Answer choice B is incorrect. Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Here, the circumstances of the man's prior bad act are so unrelated to the current charge of false imprisonment that they do not tend to prove preparation or common plan. The only common denominator in both bad acts is that the man falsely imprisoned women. Answer choice D is incorrect. When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying. However, even on cross-examination, specific acts cannot be admitted to prove that, because the defendant had a propensity to commit crimes, the defendant committed the charged crime. Therefore, this evidence would also have been inadmissible during cross-examination.

A car struck a truck at an intersection. The driver of the truck sued the driver of the car, claiming that the car driver ran a red light. In the investigating officer's report, the only witness is quoted saying, "I saw the whole thing. The car had the green light." At trial, the witness testified that he clearly remembered that the car's traffic light had been red, and that the car ran the light. The defendant did not cross-examine the witness and the witness was dismissed and left the jurisdiction. After the plaintiff had presented his case, the defendant moved to introduce the witness's statement from the investigating officer's report solely to impeach the witness's testimony. The plaintiff objected. How should the court rule? Overrule the objection, and admit the statement as substantive evidence that the car driver did not run the red light. Overrule the objection, and admit the statement as impeachment evidence only. Sustain the objection, because the statement is inadmissible hearsay. Sustain the objection, because extrinsic evidence may not be used to impeach a witness under the circumstances.

Answer choice D is correct. A witness's prior statement that is inconsistent with a material part of the witness's testimony may be used to impeach the witness. However, extrinsic evidence of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. In this case, because the witness was not given an opportunity to explain or deny the statement, the evidence should be excluded. Answer choice A is incorrect because, although the statement is relevant evidence on the substantive issue of whether the car driver did run the red light, the defendant has sought to use the statement only for impeachment purposes (i.e., to call into question the veracity of the witness's testimony at trial). Answer choice B is incorrect because extrinsic evidence is not admissible for impeachment purposes unless the witness is given the opportunity to explain or deny it. Answer choice C is incorrect because, while the statement would be inadmissible hearsay if it were introduced for its truth, the statement is being introduced for impeachment purposes only.

A plaintiff sued a defendant for negligence arising out of an automobile accident that occurred just prior to noon. At trial, the defendant took the stand. On direct examination, the defendant's attorney asked the defendant whether he stopped at a stop sign prior to entering the intersection where the accident with the plaintiff occurred. After the defendant responded that he had, the defendant's attorney indicated that he had no further questions for the defendant. On cross-examination, the first question posed by the plaintiff's attorney to the defendant was, "Even though it was raining heavily, you didn't have your headlights on at the time of the accident, correct?" The defendant's attorney objected to the question. Of the following, which is the best basis for this objection? The question is irrelevant. The question does not impeach the defendant's testimony. The question is a leading question. The question is a compound question.

Answer choice D is correct. The question contains independent issues—whether it was raining at the time of the accident, and whether the defendant had his headlights on at the time of the accident. Consequently, the question is a compound question. By objecting, the defense attorney can compel the plaintiff's attorney to separately inquire about each issue. Answer choice A is incorrect because, while the issue of the defendant's use of his headlights would generally be irrelevant to an accident that occurred during the day as this one had, the question suggests that it was raining at the time of the accident. Consequently, the issue of the defendant's use of his headlights would be relevant if it is established that it was raining at the time of the accident. Answer choice B is incorrect because cross-examination may address substantive issues as well as the credibility of witness. The scope of cross-examination generally is limited to the subject matter of the direct examination and the credibility of the witness. It is at least arguable that, based on a narrow definition of the subject matter of the direct examination, this question deals with a matter (i.e., the failure to use headlights during rain) that is beyond the matter addressed in direct examination (i.e., the failure to stop at the stop sign). However, even under this narrow definition, FRE 611(b) permits the court to allow inquiry into additional matters. Consequently, the best basis for objecting to this particular question is the compound question basis. Answer choice C is incorrect because there is generally no restriction on the use of leading questions during cross-examination.