Answers to Evidence Quiz #1

Some general remarks:

Many of you did very well indeed and the majority of the class performed creditably.
The class average was a bit over 11. Some folks did rather worse than I’m sure they
hoped. Certainly, if you got less than 10 out of 15, you need to think hard about why that
happened. One point that will surely emerge from a review of the correct answers and
their explanations is that Evidence is a highly detailed and technical subject. You need to
read questions very carefully and have a thorough understanding of the applicable rules if
you are answer them correctly. The same observation is true of life in practice. Mastery
of evidence law takes a lot of work and genuine attention to detail.

The answers:

Question #1

Leading questions are those which suggest the answer desired by the interrogator. They are often
recognizable because they call for yes or no answers. Question 6 meets both of these tests.
Question 5 calls for a yes or no answer, but does not suggest the desired answer. None of the
other questions meet either test.

83% got this right.

Question # 2

The correct answer is “C and D only. You were given a number of questions and asked which
were not objectionable as to form. The first question – “When did you get off the bus and what
did you see when you alighted?” – is objectionable as compound. The second – “You testified
that George and Johnny were fighting. Which hand did he hit him with?” – is objectionable as
vague or confusing. (I actually used exactly this example in the powerpoint on objections to form
of the question.)

Answer C was: ‘After you climbed over the wall, what did you do next?” There is nothing
objectionable about this question.

Answer D was: “During the examination of the criminal defendant by the prosecuting attorney,
‘When you shot Mr. Jones, you weren’t acting in self-defense, were you?’” – is a classic leading
question. The phrase “were you” invites the witness to agree with the assertion of the questioner;
in other words, it suggests what the questioner believes to be the correct answer. It’s leading.
BUT, since this was asked on cross-examination, leading questions are permissible.

32% got this right.

Question #3

The question asks which of a list of statements about the law of evidence are correct in federal
court. The correct answer is #4: “A child aged six months or less is presumed competent to
testify" – while a child aged six months necessarily lacks the capacity to accurately perceive and
interpret sensory data and to relate it to a court and lacks the capacity to take and appreciate the
significance of an oath, and thus would in the end certainly be determined to be incompetent,
under FRE 601, every witness starts out “presumed” competent.

As to Answer 1, that a wife requires consent of her husband to be competent to testify against
him, well, no. There are some privilege rules about spousal testimony, but they are not rules of
competence. As for Answer 2, an atheist is competent to testify – no religious test is now applied.
The answer is not #5. Rule 603 does not require that a witness swear an "oath" -- an
"affirmation" is sufficient. The Rule is phrased in this way precisely in order to avoid
disqualifying the devout.

53% got this right.

Question #4

The correct answer is “Either answer 1 or 2.” To be “relevant,” as that term is defined under the
Federal Rules, evidence must make some fact either more probable than it would be without the
evidence (Answer #1) or less probable than it would be without the evidence (Answer 2). Also,
the fact must be material. A material fact is one that is of consequence to the action. Remember
that we discussed in class the distinction at common law between "relevance" and "materiality."
At common law, logical relevance related to the property of evidence to make the existence of a
fact more or less probable, while materiality concerned whether the fact is one of consequence.
The FRE combine common law relevance and materiality into a single rule defining "relevant
evidence," FRE 401. Therefore, to be “relevant” under the FRE, evidence must be both logically
relevant AND material. Moreover, materiality is always, not just “sometimes,” a precondition of
FRE relevance.

93% got this right.

Question #5

The correct answer is Number 6, “Answers 2, 3 and 4 only.” The answer is not #1: “May be
proven by evidence of specific instances of conduct except in cases where character is an element
of a charge, claim, or defense.” If you read this answer carefully, you will realize that it is the
exact opposite of the law. I.e., specific instances of conduct may be introduced to prove character
IF character is an element of the charge, claim, or defense, but not otherwise. See FRE 405(b).
Answers 3 and 4 are correct because, if character evidence is admissible, it may be proven either
by reputation or opinion testimony. Answer 2 is correct – character evidence is strongly
disfavored in federal trials if used to prove propensity.

63% got this right.

Question #6

The correct answer is #7 (none of the above). The prosecution may not initiate the introduction
of character evidence about a defendant under FRE 404(a)(1).

90% got this right.

Question #7
The correct answer is #2. Here the defense is seeking to introduce evidence about a "pertinent"
trait of character of an alleged victim, which it may do under 404(a)(2)(B). Answers 1 and 4 are
not correct because 2 and 4 relate to character traits irrelevant to the question of whether the
victim started a fight (honesty and sexual morality), and 3 is a specific instance of conduct not
admissible under FRE 405. (The character of the victim is not an element of any claim, charge,
or defense.)

86% got this right.

Question #8

The correct answer is “Answers 2 and 5.” When the defense introduces evidence of a victim’s
character for peaceableness, the gov’t may respond by introducing evidence of the same
characteristic of the accused, FRE 404(a)(2)(B)(ii). Once the trait of character may be
introduced, FRE 405 permits evidence in the form of either reputation or opinion.

82% got this right.

Question #9

This is about the application of FRE 404(b) regarding the admissibility of a crime, wrong, or
other act to prove motive, intent, opportunity, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. Answer #1 is incorrect because the proffered evidence (that Diana
shoplifted five years before the current instance of alleged embezzlement) has nothing to do with
proving a plan. Answer #2 incorrect because the proffered evidence does not contradict anything
Diana said. The correct answer is #3, “The court should sustain the objection because this is
inadmissible character evidence.” The fact that the proposed bad act took placed before the event
charged in the indictment does not bar it as proof that the charged act was part of an ongoing
plan.

72% got this one right

Question #10

The correct answer is 6 – “3 and 4 only.” As for 1, photographs of the deceased’s body are
virtually always relevant in a murder prosecution inasmuch as they tend to prove an essential
element of the crime – death of a person. Particularly in a case involving a claim of self-defense,
a photo showing a wound to the back of the victim’s head takes on added significance. Thus,
Answer #2 is wrong because, although there will surely be a 403 balancing by the judge here, it is
by no means certain what the outcome will be. Answer #3 is one of the correct statements.
Answer 4 is correct because it goes to the point raised in the casebook about whether gory photos
may be excludable on 403 grounds.

77% got this right.

Question #11

The correct answer is 5. This question is almost an exact repetition of the facts in Old Chief v.
United States.

86% got this right,

The correct answer is #2. The evidence regarding the peaceful character of the victim is not
admissible under 404(a)(2). First, the government is not using it to rebut "character" evidence
offered by the defendant. The defendant said nothing about the victim's character -- he simply
testified that Charlie started the fight. That's not character evidence. Likewise, the gov't can't get
in evidence that Charlie is peaceful to rebut an allegation that Charlie was the "first aggressor"
because this is not a homicide case.

We discussed almost this exact hypothetical in class. 49% got it right.

Question #13

The correct answer is #5: "The statement will be admitted in neither case, but the documents will
be admitted in Jacques' case only." This is a question about the admissibility of subsequent
remedial measures under FRE 407 and settlement discussions under FRE 408. The statement was
made in settlement negotiations and is thus inadmissible in either case under FRE 408. The
admissibility of the redesign of the blade depends on the timing rule created by the wording FRE
407. Here, Henri's accident occurred before the redesign in 1988; therefore, the exclusionary rule
of FRE 407 applies. By contrast, Jacques's accident occurred after the redesign; therefore the
exclusionary rule of FRE 407 doesn't apply.

67% got this right.

Question #14

The correct answer is #4: “Overruled pursuant to FRE 407.” Although one might think this
testimony is barred by the rule against evidence of subsequent remedial measures, evidence of
this sort is permitted to prove, among other things, ownership or control. Where the City is
claiming that the road in question is a private one for which it had no responsibility, testimony
that it maintained the road shortly after the accident is relevant and admissible under FRE 407.

89% got this right.

Question #15

The correct answer is #2. This is prior bad act evidence which, under FRE 404(b), is
presumptively inadmissible unless it fits into one of the excepted permissible categories. Motive
is such a category.

81% got this right