Evidence (Foundational) Question Pack - Questions

1. At trial, a witness was shown a photo from the crime scene and asked, “What do you see?” The witness paused and said, “I don’t remember.” The attorney then handed her a copy of her pretrial statement. She read it silently, nodded, and answered the question.

What evidentiary rule permits this procedure?

  1. Use of a leading question on direct examination.
  2. Refreshing recollection with a prior recorded statement.
  3. Admission of hearsay under the recorded recollection exception.
  4. Impeachment using a prior inconsistent statement.

2. At a personal injury trial, a pedestrian testified that “drivers like the defendant always speed on that street.”

The defense objected. How should the court rule?

  1. Sustain the objection; it’s speculative.
  2. Overrule; the statement describes habit.
  3. Sustain; this is inadmissible character evidence.
  4. Overrule; the statement is admissible opinion testimony.

3. During trial, an expert economist testified about future earnings using data and formulas published in industry journals. On cross, the defense objected, claiming hearsay.

Is the testimony admissible?

  1. Yes, because experts may rely on inadmissible hearsay if it's reasonably relied upon in their field.
  2. No, because learned treatises must be introduced by opposing counsel.
  3. Yes, under the business records exception.
  4. No, because the journals were not authenticated.

4. In a criminal case, the defendant’s spouse was called to testify about conversations they had in private. The spouse refused, claiming privilege.

Which privilege applies?

  1. Spousal immunity.
  2. Confidential marital communications.
  3. Attorney-client privilege.
  4. Work product privilege.

5. A police officer testifies that a dispatcher told him, “A red truck just fled the scene.” The red truck’s driver is on trial.

Is this statement admissible?

  1. No, because it’s hearsay and not covered by an exception.
  2. Yes, as an excited utterance.
  3. Yes, as a present sense impression.
  4. No, because it violates the confrontation clause.

6. An eyewitness is cross-examined and admits he received $500 from the prosecutor’s office after testifying.

Which type of impeachment is this?

  1. Bias or interest.
  2. Prior conviction.
  3. Character for truthfulness.
  4. Contradiction.

7. A doctor testifies that a patient said, “My back hurts and I can’t sleep.” The statement is offered to prove the patient's condition.

Is it admissible?

  1. No, because it's hearsay.
  2. Yes, under the present sense impression exception.
  3. Yes, as a statement made for medical diagnosis or treatment.
  4. Yes, as a statement of physical condition.

8. An attorney seeks to admit a written contract. The opposing party objects, claiming the writing is not the original.

Which rule governs admissibility?

  1. Best evidence rule.
  2. Parol evidence rule.
  3. Authentication rule.
  4. Business records exception.

9. At trial, a witness’s credibility is attacked. The attorney calls another witness to testify that the first is "always honest and truthful."

How should the court rule?

  1. Allow the testimony only if the witness’s truthfulness was attacked.
  2. Exclude, because bolstering is never allowed.
  3. Allow under character evidence rules.
  4. Exclude unless the declarant is unavailable.

10. A plaintiff’s medical expert testifies using hospital records. On cross, the defense challenges the records’ accuracy.

What is the proper standard for admitting the records?

  1. They must be created by the treating physician.
  2. They must be created during litigation.
  3. They must be kept in the regular course of business and made at or near the time of events.
  4. They must be shown to be 100% accurate.

11. At trial, a witness testified, “I heard the victim scream, ‘He’s stabbing me!’ just before collapsing.”

Which hearsay exception is most appropriate?

  1. Present sense impression.
  2. Excited utterance.
  3. Statement against interest.
  4. Prior consistent statement.

12. At a contract dispute trial, a witness testifies that a coworker said, “I signed the agreement, and I regret it.”

Which rule governs admissibility?

  1. Statement for medical treatment.
  2. Statement of mental or emotional condition.
  3. Business record exception.
  4. Statement against interest.

13. During a civil fraud case, a party offers into evidence an authenticated audio recording of a prior deposition taken in a related proceeding.

Is the recording admissible?

  1. Yes, under the former testimony exception to hearsay.
  2. No, because depositions are inadmissible in subsequent trials.
  3. Yes, because the recording is self-authenticating.
  4. No, because the speaker was not present to testify.

14. A plaintiff claims she slipped on a wet floor. The defense offers evidence that she previously sued another store for a similar injury.

What is the best basis to exclude the evidence?

  1. Improper impeachment.
  2. Violation of attorney-client privilege.
  3. Character evidence rule.
  4. Irrelevant and prejudicial.

15. In a breach of contract case, an accountant was called to testify about business projections based on a spreadsheet. The spreadsheet is offered into evidence.

What is required under the best evidence rule?

  1. The accountant must testify from personal knowledge.
  2. The spreadsheet must be the original or a duplicate.
  3. The projections must be in the accountant’s handwriting.
  4. The spreadsheet must be publicly available.

16. At trial, a defendant seeks to admit his spouse’s testimony that she saw someone else commit the crime. The prosecution objects.

Which rule applies?

  1. Spousal immunity prevents her from testifying.
  2. Marital communications privilege prevents her from testifying.
  3. She may testify because the privilege doesn’t apply to observations.
  4. The testimony is barred due to hearsay.

17. A forensic technician testifies about lab results based on work done by another technician. The original analyst is unavailable.

What hearsay rule applies?

  1. Business records exception.
  2. Past recollection recorded.
  3. Hearsay within hearsay,  inadmissible.
  4. Public records exception.

18. At trial, a lay witness testifies that “the driver looked drunk to me, she was slurring her words.” 

Is the testimony admissible?

  1. No, because lay opinions are never permitted.
  2. Yes, because it’s based on rational perception.
  3. No, because it’s a legal conclusion.
  4. Yes, only if confirmed by breathalyzer results.

19. An investigator testifies in a trial about a statement made by a bystander who witnessed the event. The bystander is unavailable.

Which hearsay exception is most likely to apply?

  1. Present sense impression.
  2. Prior inconsistent statement.
  3. Statement against interest.
  4. Residual exception.

20. A defendant’s prior conviction for fraud is introduced during trial. The conviction occurred five years ago.

Under Rule 609, is the evidence admissible?

  1. Yes, because fraud is a crime of dishonesty.
  2. No, because it is over one year old.
  3. Yes, if the court finds the probative value outweighs prejudice.
  4. No, because the defendant did not testify.

21. At trial, a witness testifies, “I saw the defendant at the scene.” On cross-examination, the witness admits he was intoxicated at the time and didn’t have his glasses.

What is the purpose of this impeachment?

  1. To challenge the witness’s character for truthfulness.
  2. To show bias against the defendant.
  3. To attack the witness’s ability to perceive events.
  4. To contradict the witness with prior statements.

22. In a negligence case, a defendant offers evidence that the plaintiff had sued three other businesses for similar injuries in the past.

What’s the likely ruling?

  1. Admit, to show plaintiff’s propensity to sue.
  2. Exclude, as irrelevant character evidence.
  3. Exclude, under Rule 403 balancing.
  4. Admit, as impeachment by prior inconsistent conduct.

23. At trial, an attorney asks a witness, “You’ve been fired twice for lying to your employer, haven’t you?”

What evidentiary rule governs this question?

  1. Prior bad acts offered to show propensity.
  2. Impeachment by specific instances of conduct reflecting truthfulness.
  3. Hearsay exception for statements of party-opponents.
  4. Character evidence admissible on direct examination.

24. A trial court took judicial notice that July 4 is a federal holiday.

What effect does judicial notice have in a criminal case?

  1. It conclusively establishes the fact.
  2. It shifts the burden of persuasion.
  3. The jury may accept or reject the fact.
  4. It applies only in civil cases.

25. During direct examination, a lawyer asked a nervous witness, “You saw the defendant fleeing, didn’t you?”

Was the question appropriate?

  1. Yes, if the witness previously gave a consistent statement.
  2. No, leading questions are generally not allowed on direct.
  3. Yes, because witnesses must be guided when hostile.
  4. No, because it violates the hearsay rule.

26. In a sexual assault trial, the defense sought to introduce evidence that the victim had previously engaged in consensual relations with the defendant.

What governs admissibility?

  1. Exclusion under the rape shield rule.
  2. Admission as character evidence.
  3. Relevance as motive evidence.
  4. Admission under prior consistent statements.

27. A physician testified, “The patient told me she was experiencing chest pain.”

Is the statement admissible?

  1. No, because it’s hearsay.
  2. Yes, as a statement made for medical diagnosis.
  3. No, because the patient didn’t testify.
  4. Yes, under present sense impression.

28. At trial, the prosecution introduces a properly authenticated duplicate of a lost original contract.

 The defense objects. How should the court rule?

  1. Exclude unless the original is produced.
  2. Admit, if the duplicate is accurate and no bad faith is shown.
  3. Exclude under the completeness rule.
  4. Admit only if both parties agree.

29. A witness testified, “The defendant’s friend told me the defendant confessed.”

How should the court rule?

  1. Exclude, because it’s hearsay within hearsay.
  2. Admit, if both statements fall within exceptions.
  3. Exclude under the confrontation clause.
  4. Admit, as a party-opponent statement.

30. During cross-examination, the defense asked a witness about a prior shoplifting conviction from eight years ago.

The prosecution objected. How should the court rule?

  1. Admit, because it relates to dishonesty.
  2. Exclude, due to age of the conviction.
  3. Admit, only if the witness denies it.
  4. Exclude, unless used to show bias.

31. An expert witness testified about the chemical composition of a product using a widely accepted formula. On cross, the opposing attorney challenged the formula’s scientific reliability.

What rule governs admissibility of this expert testimony?

  1. Rule 403 balancing test.
  2. Hearsay exceptions for scientific data.
  3. Rule 702’s reliability and relevancy standards.
  4. Rule 801(d)(2) party-opponent statements.

32. An injured party offers hospital records showing vital signs and treatment decisions made during emergency care. The records were made as part of normal procedures.

What exception allows admission?

  1. Business records.
  2. Statements for medical diagnosis and treatment.
  3. Public records.
  4. Past recollection recorded.

33. A defendant in a fraud trial wishes to call a psychologist to testify about the mental state required to appreciate the wrongfulness of the charged conduct.

What must be established for admissibility?

  1. The expert must have personally observed the defendant during the crime.
  2. The expert must rely only on statements made in court.
  3. The expert must be qualified and testimony must assist the trier of fact.
  4. The expert must have specialized legal training.

34. An attorney offers a photocopy of a receipt to prove payment. The opposing party claims the original is available and was deliberately withheld.

 What should the court consider?

  1. Whether the original would be more persuasive to the jury.
  2. Whether the copy was made in good faith.
  3. Whether there is a genuine question about the original’s authenticity.
  4. Whether the receipt includes handwriting or signatures.

35. A party offers testimony that an unavailable declarant once said, “Only a fool would sign that lease.” The statement is offered to show the declarant's state of mind.

Is it admissible?

  1. No, because it is hearsay without an applicable exception.
  2. Yes, under the exception for statements against interest.
  3. Yes, under the state-of-mind exception.
  4. No, because the declarant is unavailable.

36. A prosecutor attempts to impeach a witness by offering evidence that the witness was previously convicted of a felony not involving dishonesty.

When is this admissible?

  1. Always, regardless of prejudice.
  2. Only if the witness denies the conviction.
  3. Only if the court finds probative value outweighs unfair prejudice.
  4. Never, unless the witness testifies falsely.

37. During trial, an eyewitness cannot recall a key detail. She previously signed a detailed written statement recorded shortly after the incident.

What is the appropriate evidentiary route?

  1. Refresh the witness’s memory and resume testimony.
  2. Offer the writing as an excited utterance.
  3. Admit the statement under past recollection recorded.
  4. Exclude the writing due to hearsay.

38. A defendant claims attorney-client privilege to prevent disclosure of an email between him and his accountant discussing investment strategy.

Should the privilege apply?

  1. Yes, because communications with any professional are protected.
  2. No, because the accountant is not acting as a lawyer.
  3. Yes, if the email involves confidential business strategy.
  4. No, unless the accountant also prepared the defendant’s tax returns.

39. A judge offers to exclude a witness from the courtroom until she is called to testify, over party objection.

What rule allows this?

  1. Rule 403.
  2. Rule 615 — exclusion of witnesses.
  3. Rule 702 — expert control.
  4. Rule 104 — preliminary questions.

40. In a federal trial, a party asks the court to take judicial notice that the sun rose at 6:07 a.m. on a given date in that jurisdiction.

How should the court respond?

  1. Deny the request, the fact is subject to reasonable dispute.
  2. Grant judicial notice if the fact is not central to the case.
  3. Grant judicial notice, the fact is capable of accurate determination.
  4. Deny unless both parties agree.

41. An expert in metallurgy was called to testify about the strength of a bridge component. The expert then testified that the contractor was “negligent and acted irresponsibly.”

Is this testimony admissible?

  1. Yes, because experts may testify to any ultimate issue.
  2. No, because experts cannot opine on legal conclusions.
  3. Yes, if the expert has personal knowledge.
  4. No, unless the defendant calls the expert.

42. In a trial for arson, the defendant offered testimony that he has a peaceful nature and avoids conflict.

Should the evidence be admitted?

  1. No, because peacefulness is not pertinent to arson.
  2. Yes, as general character evidence.
  3. Yes, because character is always admissible if offered by a defendant.
  4. No, because it constitutes hearsay.

43. A witness testifies, “I remember writing the memo about the meeting, but I don’t recall the contents.” The memo is shown, and the witness confirms she wrote it but still cannot recall details.

What is the proper evidentiary path?

  1. Refresh her recollection and continue questioning.
  2. Admit the memo under the business records exception.
  3. Read the memo into the record under past recollection recorded.
  4. Exclude the memo as hearsay.

44. At trial, a prosecutor introduces a police report detailing the events of the crime. The officer who created it is available to testify.

Is the report admissible?

  1. No, because criminal police reports are barred under the public records exception.
  2. Yes, if authenticated and the officer is available.
  3. No, because of the business records rule.
  4. Yes, if offered by the defense.

45. A witness is impeached using a prior inconsistent statement. The attorney wants to admit the prior statement as substantive evidence.

 When is this permitted?

  1. Only if the witness admits the statement.
  2. Only if the statement was made under oath during a formal proceeding.
  3. Always, as impeachment overrides hearsay rules.
  4. Only if the statement was recorded and signed.

46. During settlement negotiations, a party stated, “Let’s not drag this out — I may owe something.”

Is this statement admissible?

  1. Yes, as an admission by a party-opponent.
  2. No, because it occurred during compromise talks.
  3. Yes, because it expresses present intent.
  4. No, unless the party testifies at trial.

47. An eyewitness said, “He ran toward the alley and dropped something,” moments after the crime.

Which hearsay exception applies?

  1. Excited utterance.
  2. Statement against interest.
  3. Present sense impression.
  4. Former testimony.

48. A defense attorney seeks to admit evidence that a prosecution witness has a reputation for dishonesty.

What method of proving character is being used?

  1. Specific acts.
  2. Opinion testimony.
  3. Reputation testimony.
  4. Prior convictions.

49. An officer testifies that he recognized a suspect in surveillance footage. On cross, defense asks whether he previously misidentified another person in a case.

Is this line of questioning proper?

  1. Yes, to impeach ability to perceive or recall.
  2. No, because character evidence must come through conviction.
  3. Yes, because it introduces prior inconsistent statements.
  4. No, unless the officer denies it.

50. In a personal injury case, the plaintiff offers evidence that the defendant regularly failed to maintain property and often ignored safety rules.

 Is this admissible?

  1. Yes, to show negligence based on propensity.
  2. No, because prior acts are inadmissible character evidence.
  3. Yes, to show intent under Rule 404(b).
  4. No, because evidence must be limited to the incident at issue.