Bar MBE 2022 – Evidence Questions And
Answers With Complete Solution
1) each party is then entitled to cross-examine a witness called by the court
2) party may object to the court's examining or calling of a witness either at the time or at the next
available opportunity when the jury is not present Correct Answers: What can each party do when a
court calls or examines its own witness?
Despite a juvenile conviction being GENERALLY INADMISSIBLE, a judge in a criminal case has
DISCRETION to admit a juvenile conviction committed by a witness (NOT DEFENDANT) if evidence
would be admissible to attack the credibility of an adult AND if the evidence is necessary to determine
the DEFENDANT's guilt or innocence. Correct Answers: When is a juvenile conviction admissible?
Through cross-examination and extrinsic evidence.
To impeach a witness by extrinsic evidence of bias/interest, they must be asked about the facts that
show bias/interest on a cross-examination.
Note: The court has discretion to permit or not permit extrinsic evidence EVEN IF witness admits
bias. Correct Answers: How can a witness be impeached because of their bias or interest?
-Upon party's request, a trial judge must order witnesses excluded from courtroom
-judge may also do this on their own
-judge must NOT exclude:
1) a party or designated officer or employee of a party
2) a person whose presence is essential to the presentation of party's claim or defense
3) a person statutorily authorized to be present Correct Answers: When can a judge exclude or
sequestrate a witness?
Through cross-examination or extrinsic evidence that show that their perceptive senses and
recollection were so impaired as to make it doubtful that they could have perceived those fact.s
No foundation requirement for proving sensory deficiency with extrinsic evidence. Correct Answers:
How can a witness be impeached because of their sensory deficiencies (i.e. bad eyesight/hearing,
alcohol or drug use, poor memory)?
Through cross-examination and extrinsic evidence.
Cross-examination: make the witness admit they lied or were mistaken about some fact that they
testified to during direct examination
1) if the witness admits, then impeached
2) if the witness denies, then can use extrinsic evidence
Extrinsic Evidence: permitted UNLESS contradictory fact is collateral (meaning no significant relevant
to the case or to witness's credibility Correct Answers: How can a witness be impeached because of
their contradictory facts?
1) Court's determination of a preliminary question of fact relating to admissibility
,2) grand jury proceedings
3) other miscellaneous proceedings (sentencing, extradition, bail, probation) Correct Answers: When
does the Federal Rules of Evidence NOT apply?
If it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the
determination of the action MORE OR LESS PROBABLY than it would be without the evidence.
Correct Answers: When is evidence relevant?
Unfair prejudice; confusion of issues; misleading jury; wasting time; undue delay; needless
presentation of cumulative (repetitive) evidence > (substantially outweighs) probative value Correct
Answers: What is the FRE 403 Discretion to Exclude Relevant Evidence?
In certain cases, a party may offer evidence that the witness made a timely complaint or prior
statement of identification (prior consistent statement) and such prior identification can serve as
substantive evidence (even when witness credibility not attacked).
Example: identifying defendant as the perpetrator of the crime being charged Correct Answers: When
can you bolster witness credibility without the purpose of impeachment/attacking witness credibility?
No. Hearsay statements can only be made by a person.
What a radar gun "said" or what a drug-sniffing dog did is NOT hearsay, but could be admissible
under other rules of evidence. Correct Answers: Can hearsay derive from an animal or machine?
misleading, compound, argumentative, narrative answers, calls for speculation, assume facts not in a
evidence, conclusions, cumulative, non responsive, unduly harassing or embarrassing, lack of
foundation Correct Answers: What are objections to improper questions and answers in direct and
cross examinations of witnesses?
Call a character witness to testify about the target witness's bad reputation or their low opinion of the
target witness. Correct Answers: How can a witness be impeached because of their opinion or
reputation evidence as a witness?
If cross-examiner has good faith basis to believe the witness committed the misconduct, witness may
be interrogated upon cross-examination with respect to misconduct if probative of truthfulness.
Extrinsic evidence is NOT permitted.
Cross-examination cannot refer to any consequences the witness may have suffered as as result of
their bad act. (considered extrinsic evidence) Correct Answers: How can a witness be impeached by
bad acts involving untruthfulness?
Foundation is not needed if prior inconsistent statement is the opposing party's statement,
inconsistent statements is by the hearsay declarant, or the court chooses to disregard where justice
so requires.
Prior inconsistent statements are hearsay unless they were made under oath (prior hearing,
deposition, etc.). If made under oath, then ADMISSIBLE, NONHEARSAY and may be admitted as
substantive evidence.
, Prior statement that omits a fact asserted during current testimony may be inconsistent if it would
have been natural for the witness to include the fact if they believed it to be true.
However, lack of memory is not the same as an inconsistent statement (unless lack of memory is
fake)
Prior inconsistent statements are admissible only for impeachment purposes.
Extrinsic evidence can be introduced if NOT collateral AND witness has been given the opportunity
explain or deny AND the adverse opportunity to examine the witness Correct Answers: How can a
witness be impeached by prior inconsistent statements?
Witness testimony or extrinsic evidence can both be used. No foundation is necessary.
DISHONESTY & FALSE STATEMENT CRIMES: court has not discretion to bar impeachment by
these crimes; does not include theft; can be felony or misdemeanor
FELONY (NOT dishonesty or false statement): court has discretion to exclude these convictions
balancing test required:
1) is the witness a criminal defendant? court excludes the conviction if prosecution has not shown
that probative value OUTWEIGHS prejudicial effect
2) is the witness someone other than a criminal defendant? If so, court can exclude if prejudicial
effect SUBSTANTIALLY OUTWEIGHS probative value
If the conviction is from more than 10 years ago, it is not admissible UNLESS 1) probative value
substantially outweighs prejudicial effect AND 2) reasonable written notice is given to the adverse
party
pending review or appeal does NOT affect use of conviction for impeachment purposes
NOTE: Pardons because of innocence or rehabilitation and constitutionally defective convictions are
NOT admissible. Correct Answers: How can a witness be impeached by prior convictions of crime?
No. If a witness who makes a statement NOT directly relevant to an issue in the case, a party
CANNOT prove the statement is untrue by extrinsic evidence or prior inconsistent statement. Correct
Answers: Can a witness making a statement on a collateral matter be impeached?
1) evidence of a person's specific acts
2) opinion testimony of a witness who knows the person
3) testimony as to the person's general reputation in the community Correct Answers: What methods
can be used to prove character?
Witness is allowed to testify even if they have an interest in the outcome of the litigation (i.e.
beneficiary) Correct Answers: What is the Dead Man Act?
1) must be limited to the scope of direct examination, including all reasonable inferences that may be
drawn from it
2) matters that test credibility of the witness Correct Answers: What is the scope of a cross-
examination?
Answers With Complete Solution
1) each party is then entitled to cross-examine a witness called by the court
2) party may object to the court's examining or calling of a witness either at the time or at the next
available opportunity when the jury is not present Correct Answers: What can each party do when a
court calls or examines its own witness?
Despite a juvenile conviction being GENERALLY INADMISSIBLE, a judge in a criminal case has
DISCRETION to admit a juvenile conviction committed by a witness (NOT DEFENDANT) if evidence
would be admissible to attack the credibility of an adult AND if the evidence is necessary to determine
the DEFENDANT's guilt or innocence. Correct Answers: When is a juvenile conviction admissible?
Through cross-examination and extrinsic evidence.
To impeach a witness by extrinsic evidence of bias/interest, they must be asked about the facts that
show bias/interest on a cross-examination.
Note: The court has discretion to permit or not permit extrinsic evidence EVEN IF witness admits
bias. Correct Answers: How can a witness be impeached because of their bias or interest?
-Upon party's request, a trial judge must order witnesses excluded from courtroom
-judge may also do this on their own
-judge must NOT exclude:
1) a party or designated officer or employee of a party
2) a person whose presence is essential to the presentation of party's claim or defense
3) a person statutorily authorized to be present Correct Answers: When can a judge exclude or
sequestrate a witness?
Through cross-examination or extrinsic evidence that show that their perceptive senses and
recollection were so impaired as to make it doubtful that they could have perceived those fact.s
No foundation requirement for proving sensory deficiency with extrinsic evidence. Correct Answers:
How can a witness be impeached because of their sensory deficiencies (i.e. bad eyesight/hearing,
alcohol or drug use, poor memory)?
Through cross-examination and extrinsic evidence.
Cross-examination: make the witness admit they lied or were mistaken about some fact that they
testified to during direct examination
1) if the witness admits, then impeached
2) if the witness denies, then can use extrinsic evidence
Extrinsic Evidence: permitted UNLESS contradictory fact is collateral (meaning no significant relevant
to the case or to witness's credibility Correct Answers: How can a witness be impeached because of
their contradictory facts?
1) Court's determination of a preliminary question of fact relating to admissibility
,2) grand jury proceedings
3) other miscellaneous proceedings (sentencing, extradition, bail, probation) Correct Answers: When
does the Federal Rules of Evidence NOT apply?
If it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the
determination of the action MORE OR LESS PROBABLY than it would be without the evidence.
Correct Answers: When is evidence relevant?
Unfair prejudice; confusion of issues; misleading jury; wasting time; undue delay; needless
presentation of cumulative (repetitive) evidence > (substantially outweighs) probative value Correct
Answers: What is the FRE 403 Discretion to Exclude Relevant Evidence?
In certain cases, a party may offer evidence that the witness made a timely complaint or prior
statement of identification (prior consistent statement) and such prior identification can serve as
substantive evidence (even when witness credibility not attacked).
Example: identifying defendant as the perpetrator of the crime being charged Correct Answers: When
can you bolster witness credibility without the purpose of impeachment/attacking witness credibility?
No. Hearsay statements can only be made by a person.
What a radar gun "said" or what a drug-sniffing dog did is NOT hearsay, but could be admissible
under other rules of evidence. Correct Answers: Can hearsay derive from an animal or machine?
misleading, compound, argumentative, narrative answers, calls for speculation, assume facts not in a
evidence, conclusions, cumulative, non responsive, unduly harassing or embarrassing, lack of
foundation Correct Answers: What are objections to improper questions and answers in direct and
cross examinations of witnesses?
Call a character witness to testify about the target witness's bad reputation or their low opinion of the
target witness. Correct Answers: How can a witness be impeached because of their opinion or
reputation evidence as a witness?
If cross-examiner has good faith basis to believe the witness committed the misconduct, witness may
be interrogated upon cross-examination with respect to misconduct if probative of truthfulness.
Extrinsic evidence is NOT permitted.
Cross-examination cannot refer to any consequences the witness may have suffered as as result of
their bad act. (considered extrinsic evidence) Correct Answers: How can a witness be impeached by
bad acts involving untruthfulness?
Foundation is not needed if prior inconsistent statement is the opposing party's statement,
inconsistent statements is by the hearsay declarant, or the court chooses to disregard where justice
so requires.
Prior inconsistent statements are hearsay unless they were made under oath (prior hearing,
deposition, etc.). If made under oath, then ADMISSIBLE, NONHEARSAY and may be admitted as
substantive evidence.
, Prior statement that omits a fact asserted during current testimony may be inconsistent if it would
have been natural for the witness to include the fact if they believed it to be true.
However, lack of memory is not the same as an inconsistent statement (unless lack of memory is
fake)
Prior inconsistent statements are admissible only for impeachment purposes.
Extrinsic evidence can be introduced if NOT collateral AND witness has been given the opportunity
explain or deny AND the adverse opportunity to examine the witness Correct Answers: How can a
witness be impeached by prior inconsistent statements?
Witness testimony or extrinsic evidence can both be used. No foundation is necessary.
DISHONESTY & FALSE STATEMENT CRIMES: court has not discretion to bar impeachment by
these crimes; does not include theft; can be felony or misdemeanor
FELONY (NOT dishonesty or false statement): court has discretion to exclude these convictions
balancing test required:
1) is the witness a criminal defendant? court excludes the conviction if prosecution has not shown
that probative value OUTWEIGHS prejudicial effect
2) is the witness someone other than a criminal defendant? If so, court can exclude if prejudicial
effect SUBSTANTIALLY OUTWEIGHS probative value
If the conviction is from more than 10 years ago, it is not admissible UNLESS 1) probative value
substantially outweighs prejudicial effect AND 2) reasonable written notice is given to the adverse
party
pending review or appeal does NOT affect use of conviction for impeachment purposes
NOTE: Pardons because of innocence or rehabilitation and constitutionally defective convictions are
NOT admissible. Correct Answers: How can a witness be impeached by prior convictions of crime?
No. If a witness who makes a statement NOT directly relevant to an issue in the case, a party
CANNOT prove the statement is untrue by extrinsic evidence or prior inconsistent statement. Correct
Answers: Can a witness making a statement on a collateral matter be impeached?
1) evidence of a person's specific acts
2) opinion testimony of a witness who knows the person
3) testimony as to the person's general reputation in the community Correct Answers: What methods
can be used to prove character?
Witness is allowed to testify even if they have an interest in the outcome of the litigation (i.e.
beneficiary) Correct Answers: What is the Dead Man Act?
1) must be limited to the scope of direct examination, including all reasonable inferences that may be
drawn from it
2) matters that test credibility of the witness Correct Answers: What is the scope of a cross-
examination?
