If you happened to glance at the other Evidence questions I posted a few months back, you’ll have read that Evidence was probably my least favorite subject in law school. Perhaps some of you would feel the same way! Still, I’m going to grind away and forge three more Evidence MBE questions for you to review. Maybe there’s a small lesson in that. Just as I’m choosing to write up additional questions in my least favorite subject, you may also have to focus on your least favorite subject(s) while studying for the bar exam. You can’t just play to your strengths on this one!
Disclaimer – these are not actual Evidence MBE questions. However, I can say with confidence that they are fairly representative of the types of questions you will see, and cover concepts you will need to know. Alright, let’s dive in!
Evidence Question No. 1:
Solo, a renowned smuggler, was caught and charged with drug trafficking. Solo had attempted to conceal the source of these drug trafficking funds by intermingling them with those of his transport company. The funds had been well documented in the financial records of that company for years. The prosecutor eventually requested the financial records of this transport company via subpeona, which Solo had given over to his attorney, Saul. Saul refused to hand these records over, and court-ordered compliance was sought.
Will the court compel production of these documents?
A) No, because compelling production would violate the attorney-client privilege existing between Solo and Saul.
B) No, because forcing Solo to produce these documents would violate his privilege not to incriminate himself.
C) Yes, because there is nothing to indicate that these documents were intended to be confidential.
D) Yes, because compelling production would not violate the attorney-client privilege existing between Solo and Paul.
Evidence Question No. 2:
Barry J. Bluejeans was in line at a recreational ziplining facility. His harness was attached and he jumped off the platform as instructed. The zipline between the trees snapped and he fell, severely fracturing a leg. Barry sued the facility operator, alleging that they were negligent in the proper maintenance of their lines. The facility operator’s attorney took a deposition from Magnus, who had been standing behind Barry in line and had witnessed the accident. Magnus, a thrillseeker by nature, died in a tragic skydiving accident two weeks after the deposition. Barry’s attorney wishes to offer this deposition into evidence.
Will it be admissible?
A) No, because it is hearsay with no relevant exception.
B) No, because the facility operator has a right to confront this witness.
C) Yes, because it is former testimony.
D) Yes, if no other reasonably accessible source of the information contained in the deposition is available.
Evidence Question No. 3:
Thomas the Train Company Inc. makes realistic toy trains that connect to their track via a metal line. Thomas was sued after Tina received an electrical shock and was injured when she touched this line. Later, it was determined by Bob and Linda, Tina’s parents, that Thomas was the only company that did not have a cover over these exposed electric lines to prevent accidental exposure, and that Thomas began using a cover on these lines after Tina was hurt.
In what manner may Bob and Linda use this evidence?
A) To show that Thomas should have realized that using covers over the electric lines would have resulted in a safer toy.
B) To show that Thomas was negligent in not covering the electric lines.
C) To show that Thomas’ train was defective because an easily manufactured, different design could have been used.
D) To show that Thomas made the particular toy train that injured Tina.
Answer Question No. 1: D)
Here we’re reviewing the bounds of attorney-client privilege, a topic that will likely be important for the bar exam. Documents that existed before the attorney-client relationship won’t necessarily be protected just because they were given over to an attorney. The types of documents contemplated by the attorney-client privilege are those prepared specifically for that relationship, such as communications from the client to the attorney concerning the matter.
A is incorrect for the reasons noted above – these financial records are not the type of documents covered by the attorney-client privilege. B is incorrect because business and financial records in existence prior to a case are usually accessible by the government, and are not seen as violating the privilege against self-incrimination. Here, the financial records have been compiled for years before any government involvement, so they alone won’t be seen as self-incrimination. C is incorrect because the intended confidentiality of the documents won’t be the deciding factor, a specific analysis of privilege is required.
Answer Question No. 2: C)
Former testimony is allowed in instances where an individual isn’t now available (such as by death), but gave testimony in a prior instance (such as in court, in hearing, or a deposition), and the opposing party had the opportunity to examine as well. Here the facility took the deposition itself, so they certainly had ample opportunity to examine, which means this deposition will be allowed as former testimony.
A is incorrect because the exception noted in C Applies. B is incorrect because, while strict adherence to the right of a defendant to confront a witness against them is certainly true in criminal cases, this is a civil matter. D is incorrect because it is too strong a statement – the requirements noted in C are all that must be met, not that no other source for the information be available.
Answer Question No. 3: D)
Usually subsequent remedial measures are not allowed to show proof of responsibility. This is due to a public policy concern of not wanting to discourage safety. However,they are allowed to show ownership or control over a thing or space. Since Thomas the Train Company was the only company that did not cover these toy train lines, this could be used to prove that they did indeed make the train that hurt Tina.
A is incorrect because this would be using subsequent remedial measures in an attempt to show culpability, something that is not allowed. B is incorrect for a similar reason – the Federal Rules of Evidence (Rule 407) specifically states that subsequent remedial measures are not allowed to show negligence. The rule also states that subsequent remedial measures are not permitted to show a defect in design, making C incorrect.
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