BAR PREP HERO QUESTIONS AND ANSWERS
1. Two men discussed how to set up a drug network over the phone. The conversation was tape-
recorded inadvertently by one of them. The one who did the recording said on the tape that he had
already contacted his cocaine sources to ratchet up the pace for starting up the business. The
conspiracy continued from that point and became a full-fledged drug trafficking player within a few
years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy
about five years after the initial taped conversation. The tape recording was found in the first man’s
belongings. The authorities attempted to introduce the tape at the trial of the second man, who had
never possessed or seen the tape. The second man objected that the tape was hearsay and should
be excluded. Will the court most likely exclude the tape?
a) No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement
by a co-conspirator of a party during the course and in furtherance of the conspiracy.
b) No, the tape is admissible because it was an adoptive admission against interest.
c) Yes, the tape must be excluded because it is pure hearsay without any applicable exception.
d) Yes, the tape must be excluded because it violated the constitutional right to privacy of the
second man.
2. A man slipped and fell on a loose step in a set of stairs leading up to the office of an apartment
complex. He sued the apartment owners to collect for serious injuries suffered, and claimed that
they were negligent in failing to inspect, maintain, and repair the stairs. The defendant apartment
owners repaired the stairs and made improvements to its design shortly after the man filed the
lawsuit. At trial, the plaintiff attempted to put into evidence proof of the repairs, mainly to show that
the prior condition of the stairs was actually dangerous as the plaintiff claimed. The defendants
objected to the evidence. What is the most likely decision of the trial court on the admissibility of
the post-accident records of repairs?
a) Evidence of repairs is always admissible to show that the prior condition of the property
was likely in need of repairs.
b) The evidence is admissible to show the guilty conscience and intent of the defendants.
c) The evidence is not admissible because its prejudicial effect outweighs its probative value.
d) The evidence is inadmissible because it is public policy to encourage the repairing of
dangerous conditions, and it is felt that if such repairs were admissible that no one would
make them.
,3. A man was arrested on a federal crime that prohibits a person who has a prior felony conviction from
possessing a firearm. The prosecution is usually satisfied to prove the existence of a prior felony by
reading the date and the offense to the jury. Despite objections from the defense, the prosecutor
insisted, with the court’s approval, on putting the full details of the man’s prior conviction for sexual
assault on the record by reading the indictment and other pertinent details. The man had offered to
stipulate to the date and penalty of the offense, and to have the prosecution read that to the jury
and nothing else. The prosecution went ahead and read to the jury all of the details of the prior
sexual assault conviction. The jury convicted him of the firearm possession charge after deliberating
for 30 minutes. On appeal, he objected again to the unfair prejudice that he suffered by the court’s
ruling. Considering the case law interpretations of Rule 403 of the Federal Rules of Evidence, what is
the most likely outcome.
a) The appeal will be denied on the basis that the prosecution is always entitled to introduce the
details of the man’s prior conviction.
b) The appeal will be denied because in this case proving the charged crime involved the necessity
of proving the details of the prior felony.
c) A new trial will be ordered because it was unfair to allow the prosecution to use that kind of
detailed character evidence to try and inflame the jury to convict on the current charges.
d) A new trial will be ordered because evidence of sexual offenses is never admissible lest it taint
the jury’s objectivity.
4. A consumer sued a company that makes and installs security alarms, claiming fraud. The consumer
alleged that the company knew that some of its representations and hardware did not work as
advertised. Prior to purchasing a security system, employees of the company reprinted news articles
about the financial worth of the company and about the effectiveness of their security equipment,
and distributed the articles to the consumer. These articles contained false and misleading
information that made the company appear more established and their equipment more reliable
than in reality. At trial, the plaintiff consumer offered these articles into evidence. The defendant
company objected to the articles on the basis that they were hearsay. What is the likely decision of
the trial court regarding the evidentiary objection?
a) This non-hearsay evidence is admissible as an adoptive party admission.
b) This hearsay exception is admissible as a statement against interest.
c) This non-hearsay evidence is admissible as a prior statement of witness.
d) This is hearsay evidence that is not admissible.
, 5. A 58-year-old male sales engineer was employed by an industrial products manufacturer for over 30
years. A new supervisor took over the department. He took the sales engineer off one account
because the customer had younger employees and the sales engineer was “too old.” The supervisor
also referred to the sales engineer as the “old man” at staff meetings. The sales engineer heard him
tell others that he “needed to build a younger sales staff.” After several months, the company gave
the sales engineer notice of termination due to necessary “downsizing.” He sued the company for
wrongful termination. At trial, he tried to testify to the age-related statements made by the
supervisor, but the employer objected, arguing that these were out-of-court hearsay. Will the trial
court likely grant the objection and rule the statements to be inadmissible hearsay?
a) No, the statements are not hearsay because they are not being offered to prove the truth of
the assertions made.
b) Yes, they are excludable hearsay because they were offered to prove the truth of the assertions.
c) No, the statements are admissible as excited utterance exceptions to the hearsay rule.
d) Yes, they are inadmissible because they are highly prejudicial against the defendant company.
6. In a breach of contract case between two large commercial companies, the issues in dispute involved
large amounts of business records. The plaintiff company called its custodian of records to the stand
to qualify a set of records as business records for purposes of excepting them from the hearsay rule.
On cross-examination the custodian admitted that he did not personally keep the records at the time
of the events in dispute because he was only recently hired by the company. He also admitted that
he had no knowledge of the contents of the records but could only testify that they were apparently
kept in the normal course of business according to set procedures of the company. He testified to
the normal record-keeping procedures of the company at the that time, and that it appeared that all
of those procedures were followed. The defendant company objected on the basis of hearsay by
arguing that the custodian was not qualified to authenticate the records. Will the trial court likely
deny admission of the records?
a) No, the records will be admitted on the basis of past recollection recorded, which is an exception
to the hearsay rule.
b) Yes, the records will be excluded because the custodian is not familiar with the actual
procedures that were used at the time of the events.
c) No, the records will be admitted on the business records exception to the hearsay rule because
the custodian is knowledgeable enough about the procedures to verify that they are business
records.
d) Yes, the records will be excluded because the custodian had no way of saying that the records
were recorded at or near the time of the recorded event.
1. Two men discussed how to set up a drug network over the phone. The conversation was tape-
recorded inadvertently by one of them. The one who did the recording said on the tape that he had
already contacted his cocaine sources to ratchet up the pace for starting up the business. The
conspiracy continued from that point and became a full-fledged drug trafficking player within a few
years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy
about five years after the initial taped conversation. The tape recording was found in the first man’s
belongings. The authorities attempted to introduce the tape at the trial of the second man, who had
never possessed or seen the tape. The second man objected that the tape was hearsay and should
be excluded. Will the court most likely exclude the tape?
a) No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement
by a co-conspirator of a party during the course and in furtherance of the conspiracy.
b) No, the tape is admissible because it was an adoptive admission against interest.
c) Yes, the tape must be excluded because it is pure hearsay without any applicable exception.
d) Yes, the tape must be excluded because it violated the constitutional right to privacy of the
second man.
2. A man slipped and fell on a loose step in a set of stairs leading up to the office of an apartment
complex. He sued the apartment owners to collect for serious injuries suffered, and claimed that
they were negligent in failing to inspect, maintain, and repair the stairs. The defendant apartment
owners repaired the stairs and made improvements to its design shortly after the man filed the
lawsuit. At trial, the plaintiff attempted to put into evidence proof of the repairs, mainly to show that
the prior condition of the stairs was actually dangerous as the plaintiff claimed. The defendants
objected to the evidence. What is the most likely decision of the trial court on the admissibility of
the post-accident records of repairs?
a) Evidence of repairs is always admissible to show that the prior condition of the property
was likely in need of repairs.
b) The evidence is admissible to show the guilty conscience and intent of the defendants.
c) The evidence is not admissible because its prejudicial effect outweighs its probative value.
d) The evidence is inadmissible because it is public policy to encourage the repairing of
dangerous conditions, and it is felt that if such repairs were admissible that no one would
make them.
,3. A man was arrested on a federal crime that prohibits a person who has a prior felony conviction from
possessing a firearm. The prosecution is usually satisfied to prove the existence of a prior felony by
reading the date and the offense to the jury. Despite objections from the defense, the prosecutor
insisted, with the court’s approval, on putting the full details of the man’s prior conviction for sexual
assault on the record by reading the indictment and other pertinent details. The man had offered to
stipulate to the date and penalty of the offense, and to have the prosecution read that to the jury
and nothing else. The prosecution went ahead and read to the jury all of the details of the prior
sexual assault conviction. The jury convicted him of the firearm possession charge after deliberating
for 30 minutes. On appeal, he objected again to the unfair prejudice that he suffered by the court’s
ruling. Considering the case law interpretations of Rule 403 of the Federal Rules of Evidence, what is
the most likely outcome.
a) The appeal will be denied on the basis that the prosecution is always entitled to introduce the
details of the man’s prior conviction.
b) The appeal will be denied because in this case proving the charged crime involved the necessity
of proving the details of the prior felony.
c) A new trial will be ordered because it was unfair to allow the prosecution to use that kind of
detailed character evidence to try and inflame the jury to convict on the current charges.
d) A new trial will be ordered because evidence of sexual offenses is never admissible lest it taint
the jury’s objectivity.
4. A consumer sued a company that makes and installs security alarms, claiming fraud. The consumer
alleged that the company knew that some of its representations and hardware did not work as
advertised. Prior to purchasing a security system, employees of the company reprinted news articles
about the financial worth of the company and about the effectiveness of their security equipment,
and distributed the articles to the consumer. These articles contained false and misleading
information that made the company appear more established and their equipment more reliable
than in reality. At trial, the plaintiff consumer offered these articles into evidence. The defendant
company objected to the articles on the basis that they were hearsay. What is the likely decision of
the trial court regarding the evidentiary objection?
a) This non-hearsay evidence is admissible as an adoptive party admission.
b) This hearsay exception is admissible as a statement against interest.
c) This non-hearsay evidence is admissible as a prior statement of witness.
d) This is hearsay evidence that is not admissible.
, 5. A 58-year-old male sales engineer was employed by an industrial products manufacturer for over 30
years. A new supervisor took over the department. He took the sales engineer off one account
because the customer had younger employees and the sales engineer was “too old.” The supervisor
also referred to the sales engineer as the “old man” at staff meetings. The sales engineer heard him
tell others that he “needed to build a younger sales staff.” After several months, the company gave
the sales engineer notice of termination due to necessary “downsizing.” He sued the company for
wrongful termination. At trial, he tried to testify to the age-related statements made by the
supervisor, but the employer objected, arguing that these were out-of-court hearsay. Will the trial
court likely grant the objection and rule the statements to be inadmissible hearsay?
a) No, the statements are not hearsay because they are not being offered to prove the truth of
the assertions made.
b) Yes, they are excludable hearsay because they were offered to prove the truth of the assertions.
c) No, the statements are admissible as excited utterance exceptions to the hearsay rule.
d) Yes, they are inadmissible because they are highly prejudicial against the defendant company.
6. In a breach of contract case between two large commercial companies, the issues in dispute involved
large amounts of business records. The plaintiff company called its custodian of records to the stand
to qualify a set of records as business records for purposes of excepting them from the hearsay rule.
On cross-examination the custodian admitted that he did not personally keep the records at the time
of the events in dispute because he was only recently hired by the company. He also admitted that
he had no knowledge of the contents of the records but could only testify that they were apparently
kept in the normal course of business according to set procedures of the company. He testified to
the normal record-keeping procedures of the company at the that time, and that it appeared that all
of those procedures were followed. The defendant company objected on the basis of hearsay by
arguing that the custodian was not qualified to authenticate the records. Will the trial court likely
deny admission of the records?
a) No, the records will be admitted on the basis of past recollection recorded, which is an exception
to the hearsay rule.
b) Yes, the records will be excluded because the custodian is not familiar with the actual
procedures that were used at the time of the events.
c) No, the records will be admitted on the business records exception to the hearsay rule because
the custodian is knowledgeable enough about the procedures to verify that they are business
records.
d) Yes, the records will be excluded because the custodian had no way of saying that the records
were recorded at or near the time of the recorded event.
