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NALA ACP Trial Practice study materials
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NALA ACP Trial Practice practice questions

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Question 1Trial Practice

Under the Federal Rules of Civil Procedure, a party who has been served with a complaint must respond within how many days after service of the summons and complaint?

  1. 60 days
  2. 30 days
  3. 10 days
  4. 21 days Correct answer.

Explanation

Rule 12(a)(1)(A)(i) gives a defendant 21 days after being served with the summons and complaint to serve an answer. This period runs from service, not from the filing of the complaint, and the 2015 amendments shortened it from 20 to 21 days to align with the summary judgment response period.

Question 2Trial Practice

A plaintiff wants to add a new claim against the existing defendant after the answer has been filed. Which pleading permits this without leave of court or the opposing party's consent, provided it is filed within 21 days after service of the answer?

  1. A third-party complaint
  2. A crossclaim
  3. A supplemental complaint
  4. An amended complaint as a matter of course Correct answer.

Explanation

Rule 15(a)(1)(B) allows a party to amend once as a matter of course within 21 days after service of a responsive pleading or a Rule 12(b) motion. A supplemental complaint instead addresses events occurring after the original pleading, and a third-party complaint brings in a new party.

Question 3Trial Practice

During voir dire, a litigant suspects that the opposing party used a peremptory strike to remove a juror because of the juror's race. Under Batson v. Kentucky, what must the litigant do first?

  1. Make a prima facie showing that the strike was exercised on a discriminatory basis Correct answer.
  2. Demand that the judge dismiss the entire venire
  3. Prove discriminatory intent beyond a reasonable doubt
  4. Request a mistrial before the jury is sworn

Explanation

Batson established a three-step framework: the objecting party must first make a prima facie showing of purposeful discrimination, then the proponent must offer a race-neutral explanation, and finally the court decides whether purposeful discrimination occurred. The burden of persuasion stays with the objecting party throughout.

Question 4Trial Practice

In a civil jury trial, a party moves for judgment as a matter of law after the opposing party has been fully heard on an issue. Under Rule 50, what must the moving party show?

  1. That a reasonable jury would have no legally sufficient evidentiary basis to find for the opposing party on that issue Correct answer.
  2. That the movant has newly discovered evidence
  3. That the evidence preponderates slightly in the movant's favor
  4. That the opposing party failed to object to any evidentiary ruling

Explanation

Rule 50(a) permits judgment as a matter of law when a party has been fully heard and a reasonable jury would lack a legally sufficient evidentiary basis to find for the nonmovant. The court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor.

Question 5Trial Practice

Which of the following is a peremptory challenge rather than a challenge for cause?

  1. A strike granted because a juror cannot read or understand English
  2. A strike granted because a juror is a close relative of a party
  3. A strike exercised without the need to state any reason, subject to constitutional limits Correct answer.
  4. A strike granted because a juror admits bias toward the defendant

Explanation

A peremptory challenge allows a party to excuse a prospective juror without stating a reason, though it remains subject to the Equal Protection limits of Batson. Challenges for cause require the court to find actual disqualifying bias or statutory incapacity.

Question 6Trial Practice

A witness testifies that the defendant told her, "I burned the warehouse down." The statement is offered against the defendant. Which evidence rule most directly permits its admission?

  1. Present sense impression under Rule 803(1)
  2. An opposing party's statement under Rule 801(d)(2) Correct answer.
  3. Ancient documents under Rule 803(16)
  4. Excited utterance under Rule 803(2)

Explanation

Rule 801(d)(2) treats an opposing party's own statement as nonhearsay when offered against that party, so no exception analysis is needed. The statement is admissible because the defendant is the party against whom it is offered.

Question 7Trial Practice

At trial, counsel asks a witness to identify the signature on a contract. The witness is not a handwriting expert but has seen the signer's signature many times in the ordinary course of business. Under the Federal Rules, may the witness give a lay opinion identifying the handwriting?

  1. Yes, but only if the witness is a certified document examiner
  2. Yes, lay witnesses may identify handwriting if they are familiar with it and the familiarity was not acquired for litigation Correct answer.
  3. No, only the signer may authenticate a signature
  4. No, handwriting identification requires expert testimony in all cases

Explanation

Rule 901(b)(2) permits nonexpert opinion on handwriting based on familiarity acquired other than for the litigation, and Rule 701 permits lay opinion testimony rationally based on the witness's perception. A witness familiar with a signature from ordinary business dealings may therefore authenticate it.

Question 8Trial Practice

Opposing counsel asks a witness a question that assumes facts not yet in evidence and is argumentative. Which objection is most appropriate?

  1. Objection, lack of foundation for a business record
  2. Objection, hearsay
  3. Objection, best evidence
  4. Objection, compound and assumes facts not in evidence Correct answer.

Explanation

A question that assumes facts not in evidence is improper because it asks the witness to accept a premise the jury has not heard, and a compound question combines multiple inquiries in one. Counsel should object on that ground and request rephrasing.

Question 9Trial Practice

A party wishes to impeach its own witness with a prior inconsistent statement. Under Rule 613, what generally must be done before the statement is used?

  1. The prior statement must be recorded verbatim
  2. The witness must first be declared hostile
  3. The witness must be given an opportunity to explain or deny the statement, and the opposing party must be given an opportunity to examine the witness about it Correct answer.
  4. The prior statement must be sworn under oath

Explanation

Rule 613(b) requires that the witness have an opportunity to explain or deny the prior inconsistent statement and that the opposing party have an opportunity to examine the witness about it, unless justice requires otherwise. Extrinsic evidence of the statement is not admissible if the witness is not given that chance.

Question 10Trial Practice

In closing argument, counsel for the plaintiff tells the jury that the defendant's expert "lied on the stand" and that the jury should "send a message to this company." The defendant objects. How should the court most likely rule?

  1. Sustain the objection only as to the "send a message" remark
  2. Overrule the objection because the expert was subject to cross-examination
  3. Overrule the objection because closing argument permits wide latitude
  4. Sustain the objection because counsel may not assert personal beliefs about truthfulness or urge a verdict based on passion or prejudice Correct answer.

Explanation

Counsel may argue reasonable inferences from the evidence but may not express personal beliefs about witness credibility or appeal to passion and prejudice. Calling a witness a liar and asking the jury to send a message exceed the bounds of proper argument, so the court should sustain the objection and may give a curative instruction.

Question 11Trial Practice

Which of the following statements about the order of trial in a civil action is correct?

  1. The defendant always presents its case before the plaintiff
  2. The plaintiff may not present rebuttal evidence after the defendant's case
  3. The plaintiff presents its case-in-chief, then the defendant may move for judgment as a matter of law before presenting evidence Correct answer.
  4. Closing arguments precede the presentation of evidence

Explanation

After the plaintiff rests, the defendant may move for judgment as a matter of law under Rule 50(a) before putting on evidence. This sequencing allows the court to test the sufficiency of the plaintiff's case before the defense invests further trial time.

Question 12Trial Practice

A juror tells the bailiff during deliberations that she visited the accident scene overnight and measured skid marks herself. What is the proper course of action for the court?

  1. Ignore the report because juror deliberations are secret
  2. Replace the juror with an alternate without notifying counsel
  3. Allow the jury to continue because the measurements corroborate the evidence
  4. Investigate the misconduct, and if it prejudiced the parties, consider a curative instruction or declare a mistrial Correct answer.

Explanation

A juror's independent investigation introduces evidence outside the record and violates the defendant's right to confront and contest evidence. The court should hold an inquiry and determine whether the misconduct prejudiced the parties, considering a curative instruction, removal of the juror, or a mistrial.

Question 13Trial Practice

A party seeks to introduce a photograph of the accident scene taken two years after the accident. The scene has since been repainted and the lighting differs. What is the best ground for opposing admission?

  1. The photograph is hearsay
  2. The photograph requires expert testimony to authenticate
  3. The photograph violates the best evidence rule
  4. The photograph is not a fair and accurate representation of the scene at the relevant time Correct answer.

Explanation

Photographs are admissible when a witness testifies that they fairly and accurately depict the scene at the relevant time. A photograph that materially differs from the scene at the time of the event may be excluded or admitted with a limiting instruction.

Question 14Trial Practice

A defendant in a criminal trial wishes to introduce evidence that a third party confessed to the crime. The third party is unavailable to testify. Under the Federal Rules, what is the principal obstacle?

  1. The evidence is barred by the rule against character evidence
  2. The evidence is barred because the third party was not under oath
  3. The evidence is barred by the best evidence rule
  4. A third party's confession is generally inadmissible hearsay that does not fall within a firmly rooted exception and may violate the Confrontation Clause Correct answer.

Explanation

Statements against penal interest are recognized under Rule 804(b)(3) when the declarant is unavailable, but a third party's confession offered to exculpate the accused must be examined carefully for reliability. Confrontation Clause concerns arise because the declarant cannot be cross-examined.

Question 15Trial Practice

Which motion, if granted, results in a new trial rather than a judgment for the moving party?

  1. A motion under Rule 50 for judgment as a matter of law
  2. A motion under Rule 12(b)(6) to dismiss
  3. A motion under Rule 56 for summary judgment
  4. A motion under Rule 59 for a new trial Correct answer.

Explanation

A Rule 59 motion asks the court to set aside the verdict and conduct a new trial, typically because of errors or because the verdict is against the weight of the evidence. Rule 50 and Rule 56 motions instead ask the court to enter judgment for the movant.

Question 16Trial Practice

During direct examination, counsel asks a witness a series of leading questions about the witness's own name, address, and employment. Opposing counsel objects. How should the court rule?

  1. Overrule the objection because the witness is presumed hostile
  2. Sustain the objection because leading questions are never allowed on direct
  3. Sustain the objection because the witness has not been qualified as an expert
  4. Overrule the objection because leading questions on preliminary background matters are permitted Correct answer.

Explanation

Rule 611(c) permits leading questions on direct examination when they are necessary to develop testimony, such as preliminary background matters. The rule discourages leading on direct but does not prohibit it categorically.

Question 17Trial Practice

A plaintiff offers a redacted internal memo from the defendant company to prove notice of a defect. The defendant objects that the memo contains hearsay within hearsay. How should the court analyze the objection?

  1. The memo is inadmissible because it contains two levels of hearsay
  2. The memo is admissible if any one layer of hearsay qualifies
  3. The memo is admissible because business records are always admissible
  4. Each layer of hearsay must independently satisfy an exception or exclusion Correct answer.

Explanation

When a statement contains hearsay within hearsay, each layer must be analyzed separately, and each must fall within an exclusion or exception. A business record may satisfy one layer while the embedded statement must satisfy another.

Question 18Trial Practice

A witness testifies that she heard a bystander shout, "The light was green!" immediately after a crash. The statement is offered to prove the light was green. Which rule most directly supports admission?

  1. Business records under Rule 803(6)
  2. Present sense impression under Rule 803(1)
  3. Then-existing mental condition under Rule 803(3)
  4. Excited utterance under Rule 803(2) Correct answer.

Explanation

An excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event. A shout immediately after a crash fits that exception, though a present sense impression may also be argued if the statement described the event contemporaneously.

Question 19Trial Practice

A party wants to use a learned treatise to impeach an expert witness on cross-examination. Under Rule 803(18), which condition must be satisfied?

  1. The treatise must be established as reliable authority by expert testimony, judicial notice, or the witness's own admission Correct answer.
  2. The treatise must be authored by a government agency
  3. The treatise must be entered into evidence as an exhibit
  4. The treatise must have been published within the last five years

Explanation

Rule 803(18) allows statements from a treatise to be used on cross-examination or in the direct examination of an expert if the publication is established as reliable authority. The statements may be read into the record but may not be received as exhibits.

Question 20Trial Practice

A lawyer learns that a witness intends to testify falsely. Under the Model Rules of Professional Conduct, what is the lawyer's obligation?

  1. The lawyer must refuse to offer the evidence and, if necessary, seek to withdraw Correct answer.
  2. The lawyer must disclose the perjury to the opposing party
  3. The lawyer may present the testimony and argue its truth to the jury
  4. The lawyer may present the testimony if the client consents

Explanation

Model Rule 3.3 prohibits a lawyer from offering evidence the lawyer knows to be false and requires the lawyer to take reasonable remedial measures, including disclosure to the tribunal if necessary. Withdrawal may be required if the client insists on the false testimony.

Question 21Trial Practice

A defendant offers evidence of a prior bad act by the plaintiff to show the plaintiff acted in conformity therewith on the day of the incident. The plaintiff objects. How should the court rule?

  1. Exclude the evidence only if the prior act was a crime
  2. Exclude the evidence because character evidence is not admissible to prove conduct in conformity Correct answer.
  3. Admit the evidence because prior acts are always relevant
  4. Admit the evidence because the plaintiff opened the door by filing suit

Explanation

Rule 404(a) prohibits using evidence of a person's character or a trait of character to prove conduct in conformity therewith. Prior bad acts may be admissible for other purposes such as motive, intent, or absence of mistake, but not to show propensity.

Question 22Trial Practice

In a bench trial, the judge states on the record that she will not consider certain inadmissible hearsay but later relies on it in her findings. What is the best appellate argument?

  1. The appellant waived the issue by not objecting at trial
  2. The judgment is not supported by competent evidence because the court relied on inadmissible hearsay Correct answer.
  3. The appellant must show the hearsay was harmful beyond a reasonable doubt
  4. The judge's statement cured any error

Explanation

In a bench trial the judge is presumed to consider only competent evidence, but that presumption can be rebutted if the record shows reliance on inadmissible material. The appellant should argue that the findings rest on evidence that should have been excluded.

Question 23Trial Practice

Which of the following best describes the purpose of a motion in limine?

  1. To obtain a pretrial ruling on the admissibility of evidence before it is offered at trial Correct answer.
  2. To challenge the sufficiency of the complaint
  3. To dismiss the case for lack of jurisdiction
  4. To compel discovery responses

Explanation

A motion in limine asks the court to rule before trial on whether specific evidence may be offered, so counsel can plan examination and avoid prejudice from inadmissible matter. It is a pretrial evidentiary tool, not a pleading or discovery motion.

Question 24Trial Practice

A party wants to call an expert who will testify that a particular tire design is defective. Under Daubert and Rule 702, what must the trial court assess?

  1. Whether the expert's opinion is unanimous with other experts
  2. Whether the expert has testified in prior cases
  3. Whether the expert's methodology is reliable and will assist the trier of fact Correct answer.
  4. Whether the expert has a license in the relevant field

Explanation

Daubert requires the court to act as gatekeeper and assess whether the expert's reasoning or methodology is scientifically valid and can be applied to the facts. Licensing, unanimity, and prior testimony are not the governing criteria.

Question 25Trial Practice

After the jury returns a verdict, a party discovers that a juror failed to disclose during voir dire that she was a close friend of the plaintiff's key witness. What is the strongest basis for relief?

  1. The verdict was against the weight of the evidence
  2. The jury deliberated for only two hours
  3. Juror nondisclosure during voir dire that prevented the party from exercising a challenge Correct answer.
  4. The damages award was inadequate

Explanation

A juror's failure to disclose material information during voir dire can support a new trial if the information would have provided a basis for a challenge and the party was prejudiced. Courts examine whether the nondisclosure was intentional and material to the party's jury selection.

Question 26Trial Practice

During voir dire in a civil battery trial, plaintiff's counsel asks a prospective juror whether she could follow an instruction that a defendant may use reasonable force to defend himself. The juror hesitates. Counsel then asks whether she would 'automatically' find for any defendant who claims self-defense. How should the court treat that second question?

  1. Sustain an objection, because questions about self-defense are matters of law the judge alone addresses
  2. Sustain an objection, because the question is argumentative and improperly asks the juror to commit to a verdict before hearing evidence Correct answer.
  3. Overrule the objection, because counsel may ask jurors any question bearing on bias during voir dire
  4. Overrule the objection, because the juror opened the door by hesitating at the prior question

Explanation

Voir dire permits inquiry into bias, but counsel may not extract a commitment to vote a particular way or pose argumentative questions that pressure the venire. Asking whether a juror would 'automatically' rule for any self-defense claimant seeks a prejudgment of the case and is properly excluded. Counsel may instead ask neutral questions probing whether the juror can fairly apply the court's instructions.

Question 27Trial Practice

In a criminal trial, defense counsel uses a peremptory challenge to strike the only juror of a particular racial group from the panel. The prosecution objects. Under Batson v. Kentucky, what must defense counsel do next?

  1. Remain silent, because peremptory challenges need no justification
  2. Provide a race-neutral explanation for the strike, after which the court decides whether the stated reason is credible Correct answer.
  3. Show that the strike was supported by a valid attorney-client communication
  4. Ask the court to seat the juror as an alternate instead

Explanation

Batson applies to any party exercising a peremptory strike, including a criminal defendant. Once the opponent raises an inference of purposeful discrimination, the striking party must articulate a race-neutral reason. The court then evaluates whether that explanation is genuine or pretextual.

Question 28Trial Practice

At the close of the plaintiff's case in a negligence action, the defendant moves for judgment as a matter of law. The evidence, viewed in the light most favorable to the plaintiff, would permit a reasonable jury to find for the plaintiff. How should the court rule?

  1. Grant the motion, because the defendant has not yet presented its own evidence
  2. Deny the motion, because a reasonable jury could return a verdict for the plaintiff on this record Correct answer.
  3. Defer ruling until after the jury returns a verdict
  4. Grant the motion, because the plaintiff bears the burden of proof

Explanation

Judgment as a matter of law is proper only when no reasonable jury could find for the nonmoving party on the evidence presented. The court must draw all reasonable inferences in favor of the nonmovant. Because a reasonable jury could find for the plaintiff here, the motion fails.

Question 29Trial Practice

A witness called by the plaintiff gives testimony that surprises counsel and damages the plaintiff's case. Counsel wants to impeach the witness with a prior inconsistent statement. What is the general requirement under Federal Rule 613(b)?

  1. The witness must be given an opportunity to explain or deny the statement, and the opposing party must be afforded an opportunity to examine the witness about it, unless the court excuses these steps Correct answer.
  2. The statement must be shown to the witness in writing before any question about it
  3. Leave of court must be obtained before any reference to the statement
  4. The prior statement must be sworn and recorded

Explanation

Rule 613(b) requires that the witness have an opportunity to explain or deny the prior inconsistent statement and that the adverse party have an opportunity to examine the witness about it. The court may excuse these requirements in the interests of justice. Extrinsic evidence of the statement is otherwise admissible if the statement is relevant.

Question 30Trial Practice

Plaintiff's counsel calls a witness who is the plaintiff's treating physician. Counsel asks, 'You examined the plaintiff on March 3, correct?' The defendant objects on leading grounds. How should the court likely rule?

  1. Overrule the objection only if counsel first establishes the physician's bias
  2. Sustain the objection, because the physician is a retained expert rather than a fact witness
  3. Sustain the objection, because leading questions are never permitted on direct examination
  4. Overrule the objection, because leading questions are generally permitted on direct examination of a hostile or adverse witness and for preliminary matters Correct answer.

Explanation

Leading questions are ordinarily disfavored on direct examination but are permitted when necessary to develop testimony, such as with a hostile or adverse witness, a child, or a witness with communication difficulty, and for preliminary matters. A treating physician who is aligned against the calling party may be treated as adverse. The question also concerns a preliminary matter.

Question 31Trial Practice

During cross-examination of the defendant in a fraud case, plaintiff's counsel asks whether the defendant has ever been convicted of a felony involving dishonesty. The defendant objects, arguing the conviction is too old. Under Rule 609, what is the general approach for a crime involving a dishonest act or false statement?

  1. The conviction is admissible only if the defendant opens the door by testifying about character
  2. The conviction is automatically excluded if more than five years old
  3. The conviction may be proved only by extrinsic evidence, not by questioning the defendant
  4. The conviction is admissible to impeach regardless of the ten-year limit, subject to the court's Rule 403 discretion Correct answer.

Explanation

Under Rule 609(a)(2), a conviction for a crime involving a dishonest act or false statement is admissible to attack character for truthfulness without the ten-year balancing limitation that applies to other felonies. The court retains Rule 403 discretion to exclude. The conviction may be elicited by questioning the witness directly.

Question 32Trial Practice

A plaintiff offers into evidence a business record consisting of a computer-generated monthly sales report prepared by the defendant's accounting software. The defendant objects that the report is hearsay and lacks a custodian's testimony. What is the most accurate analysis?

  1. The report may qualify under the business records exception if a qualified witness testifies to the system's regular operation and the report's creation in the ordinary course Correct answer.
  2. The report is inadmissible because computer-generated records cannot satisfy the business records exception
  3. The report is admissible as a public record regardless of its source
  4. The report is admissible only if the original programmer testifies

Explanation

Rule 803(6) covers records of a regularly conducted activity, including electronically generated records, when a custodian or other qualified witness lays the foundation. The witness need not be the record's author or the programmer; knowledge of the system and regular practice suffices. The report must have been made at or near the time by someone with knowledge, kept in the course of business, and made as a regular practice.

Question 33Trial Practice

In a personal injury trial, the plaintiff's counsel asks an accident reconstruction expert, 'Did you review the police report in forming your opinion?' The report contains the responding officer's conclusion that the defendant ran a red light. The defendant objects. How should the court rule?

  1. Permit the question, because an expert may base an opinion on facts or data of a type reasonably relied upon by experts, and the underlying basis may be explored on cross or direct as the rules allow Correct answer.
  2. Permit the question only if the officer who wrote the report testifies first
  3. Exclude the question, because police reports are never admissible in civil trials
  4. Exclude the question, because an expert may rely only on evidence already admitted

Explanation

Rule 703 permits an expert to base an opinion on facts or data that need not be admissible if of a type reasonably relied upon by experts in the field. The expert may testify about the basis of the opinion, and the court may instruct the jury about the limited use of otherwise inadmissible underlying facts. The opposing party may explore the basis on cross-examination.

Question 34Trial Practice

A defendant wishes to offer evidence that the victim had a reputation for violence to support a claim of self-defense. The defendant knew of the victim's reputation before the encounter. What is the correct statement of the rule?

  1. Evidence of the victim's character is admissible only if the prosecution first offers character evidence
  2. Evidence of the victim's violent character is never admissible in a self-defense case
  3. Evidence of the victim's character for violence may be offered by the accused to show the victim was the first aggressor and to show the defendant's state of mind when the defendant knew of the reputation Correct answer.
  4. The defendant must prove the victim's violent acts by clear and convincing evidence before any character evidence is admitted

Explanation

Under Rule 404(a)(2), an accused may offer evidence of a pertinent trait of the alleged victim, and Rule 405 permits proof by reputation or opinion. When the defendant knew of the victim's violent reputation, the evidence is also relevant to the defendant's apprehension and state of mind. Specific acts may be admissible under Rule 405(b) when character is an essential element.

Question 35Trial Practice

During closing argument, defense counsel tells the jury that the plaintiff's economist 'manufactured numbers to fit a lawsuit' and that the plaintiff's entire case is 'a fiction built on greed.' Plaintiff's counsel objects. What is the court's best course?

  1. Sustain the objection only if the remarks were made outside the presence of the jury
  2. Overrule the objection, because the statements are based on evidence in the record
  3. Overrule the objection, because counsel may characterize the evidence forcefully in closing
  4. Sustain the objection and give a curative instruction, because the argument attacks the witness's character and the party's integrity rather than the evidence Correct answer.

Explanation

Closing argument may draw reasonable inferences from the evidence and comment forcefully on credibility, but it may not inject personal attacks, accuse a witness of fabricating testimony without record support, or appeal to prejudice. The court may sustain the objection and instruct the jury to disregard the improper remarks. A curative instruction is the usual remedy, and the court may also consider a mistrial if the prejudice is incurable.

Question 36Trial Practice

A plaintiff seeks to admit a photograph of an intersection to show sight lines. The photograph was taken three years after the accident, and the trees at the corner have grown substantially. The defendant objects on relevance and authentication grounds. What should the court do?

  1. Admit the photograph only if the photographer testifies
  2. Exclude the photograph because photographs are demonstrative rather than substantive evidence
  3. Exclude the photograph automatically because of the time gap
  4. Admit the photograph if a witness testifies that it fairly and accurately depicts the scene as it appeared at the relevant time, or that the differences do not affect what it is offered to show Correct answer.

Explanation

Photographs are admissible if a witness with knowledge testifies that they fairly and accurately depict the scene at the relevant time. Changes between the event and the photograph do not require exclusion if the changes are immaterial to the purpose for which the photograph is offered or are explained to the jury. The court has discretion to admit with a limiting instruction.

Question 37Trial Practice

In a civil trial, the plaintiff calls a witness who testifies, 'My brother told me the brake pedal felt soft the day before the crash.' The statement is offered to prove the brake pedal was soft. The defendant objects. How should the court rule?

  1. Exclude the statement as hearsay, because it is offered for its truth and no exception applies Correct answer.
  2. Admit the statement as a present sense impression
  3. Admit the statement as a statement of a then-existing mental condition
  4. Admit the statement as an excited utterance

Explanation

The statement is an out-of-court assertion offered to prove the truth of the matter asserted, so it is hearsay. None of the listed exceptions applies: there is no indication of contemporaneous perception, startling event, or statement of the declarant's then-existing state of mind. The statement is therefore inadmissible unless another exception or a non-hearsay purpose applies.

Question 38Trial Practice

A defendant charged with assault wants to introduce evidence that the victim had a pending civil suit against the defendant arising from the same incident. The defendant argues the suit shows the victim's motive to fabricate. How should the court rule?

  1. Exclude the evidence, because pending litigation is collateral and cannot be shown
  2. Admit the evidence, because a witness's bias or motive to testify falsely is always relevant and may be explored Correct answer.
  3. Exclude the evidence, because the victim is not a witness
  4. Admit the evidence only if the victim first denies any bias in writing

Explanation

Evidence of a witness's bias, interest, or motive to testify falsely is always relevant to credibility and is not collateral. A pending civil suit arising from the same incident may give the victim a financial motive to testify favorably. The court may permit inquiry into the suit and, within its discretion, allow extrinsic evidence of bias.

Question 39Trial Practice

A plaintiff's attorney receives a document from the defendant's former employee that appears privileged. The attorney is unsure whether the privilege was waived. What is the most appropriate course under the professional conduct rules governing trial practice?

  1. Notify the opposing party promptly and follow the court's procedures for resolving a claim of inadvertent disclosure Correct answer.
  2. Conceal the document until the eve of trial
  3. Use the document at trial without disclosure, because the client received it
  4. Destroy the document to avoid any taint

Explanation

Model Rule 4.4(b) requires a lawyer who receives a document and knows or reasonably should know it was inadvertently sent to notify the sender promptly. The lawyer should not review, use, or destroy the document without following applicable procedures, which may include seeking a court ruling on privilege. Concealment or destruction risks sanctions and ethical violations.

Question 40Trial Practice

A judge presiding over a jury trial learns that a juror has been researching the case on the internet and reading news accounts. The judge questions the juror, who admits the conduct but says it did not affect her. What is the appropriate judicial response?

  1. Dismiss the juror and replace her with an alternate, then instruct the jury to decide the case only on the evidence presented in court Correct answer.
  2. Take no action, because the juror says she was not influenced
  3. Declare a mistrial automatically in every case of juror misconduct
  4. Allow the juror to remain but instruct her to disregard the outside information in deliberations

Explanation

A juror's independent research and exposure to outside information about the case violates the defendant's right to confrontation and an impartial jury. The court should investigate, remove the tainted juror if necessary, and instruct the remaining jurors to consider only the evidence presented. Whether a mistrial is required depends on the circumstances and the prejudice to the parties.

Question 41Trial Practice

In a civil case, the plaintiff calls the defendant's employee as an adverse witness. The employee is not a party but is under the defendant's control. Plaintiff's counsel asks leading questions. The defendant objects. How should the court rule?

  1. Permit leading questions only after the witness gives inconsistent testimony
  2. Sustain the objection, because only named parties may be asked leading questions
  3. Permit leading questions, because the witness is identified with an adverse party and may be treated as hostile Correct answer.
  4. Sustain the objection, because the employee is not the defendant

Explanation

Leading questions may be used on direct examination when the witness is hostile, adverse, or identified with an adverse party. An employee under the defendant's control may be treated as an adverse witness for this purpose. The court has discretion to permit leading questions to develop the witness's testimony efficiently.

Question 42Trial Practice

A defendant in a criminal case moves to suppress a confession obtained after six hours of interrogation without food or water. The prosecution argues the confession was voluntary. At the suppression hearing, who bears the burden of proof, and what is the standard?

  1. The judge must exclude any confession obtained after more than four hours of questioning
  2. The defendant must prove by clear and convincing evidence that the confession was involuntary
  3. The prosecution must prove by a preponderance of the evidence that the confession was voluntary Correct answer.
  4. The prosecution must prove voluntariness beyond a reasonable doubt

Explanation

The prosecution bears the burden of proving that a confession was voluntary, and the standard at a suppression hearing is a preponderance of the evidence. Voluntariness turns on the totality of the circumstances, including the duration of interrogation, deprivation of food and sleep, and coercive police conduct. A confession obtained through coercion violates due process and is inadmissible.

Question 43Trial Practice

A plaintiff offers a copy of a contract because the original was lost in a fire. The defendant objects that the best evidence rule requires the original. How should the court rule?

  1. Admit the copy, because secondary evidence is admissible when the original is shown to be lost or destroyed without the proponent's bad faith Correct answer.
  2. Exclude the copy, because the best evidence rule is absolute
  3. Admit the copy only if the defendant stipulates to its accuracy
  4. Exclude the copy, because only a certified copy is admissible

Explanation

The best evidence rule prefers the original writing to prove its contents, but secondary evidence is admissible if the original is lost or destroyed, unless the proponent acted in bad faith. The proponent must lay a foundation showing the loss and a diligent search. The copy may then be admitted.

Question 44Trial Practice

During trial, the plaintiff's attorney asks the defendant, 'Isn't it true you have never apologized to my client?' The defendant's counsel objects. What is the most likely basis and ruling?

  1. Overrule the objection, because apologies are always relevant to liability
  2. Sustain the objection, because the question is argumentative and seeks to elicit an emotional response rather than relevant testimony Correct answer.
  3. Overrule the objection, because the defendant may be asked anything on cross-examination
  4. Sustain the objection, because the defendant cannot be cross-examined about his own conduct

Explanation

An argumentative question is one that pressures the witness to accept counsel's characterization or invites an emotional response rather than seeking factual testimony. Asking whether the defendant has apologized is designed to suggest callousness rather than to elicit relevant facts. The court may sustain the objection and require counsel to rephrase.

Question 45Trial Practice

A defendant seeks to introduce evidence of a prior act of domestic violence by the alleged victim against a third party to show the victim was the aggressor. The jurisdiction follows the Federal Rules of Evidence. What is the best argument for admissibility?

  1. The evidence is inadmissible because only the prosecution may offer character evidence
  2. The evidence may be admissible under Rule 404(b) or Rule 405(b) to show the victim's motive, intent, or character as an essential element of the self-defense claim, subject to Rule 403 Correct answer.
  3. The evidence is admissible only if the victim was convicted of the prior act
  4. The evidence is automatically admissible because the victim is not a party

Explanation

Evidence of a victim's prior violent acts may be admissible in a self-defense case to show the victim was the first aggressor or to show the defendant's state of mind if the defendant knew of the acts. Rule 404(b) permits such evidence for purposes other than propensity, and Rule 405(b) allows specific instances when character is an essential element. The court must still weigh probative value against prejudice under Rule 403.

Question 46Trial Practice

A plaintiff in a products liability case wants to call an expert who will testify about a design defect. The expert has a Ph.D. in materials science and has published extensively but has never testified in court. What must the court determine under Daubert and Rule 702?

  1. Whether the expert has previously testified as an expert witness
  2. Whether the expert's methodology is reliable and whether the testimony will assist the trier of fact, considering factors such as testing, error rate, peer review, and general acceptance Correct answer.
  3. Whether the expert has personally inspected the product
  4. Whether the expert's opinion is supported by a majority of the scientific community

Explanation

Daubert requires the trial court to act as gatekeeper and assess whether the expert's reasoning or methodology is scientifically valid and can be applied to the facts. Rule 702 lists factors such as whether the theory has been tested, subjected to peer review, has a known error rate, and is generally accepted. Prior testimony experience is not a prerequisite.

Question 47Trial Practice

After the jury returns a verdict for the plaintiff, the defendant discovers that a juror failed to disclose during voir dire that she was a close friend of the plaintiff's brother. The defendant moves for a new trial. What is the strongest basis for the motion?

  1. The motion must be denied because juror deliberations are secret
  2. The verdict is automatically void because any nondisclosure during voir dire requires a new trial
  3. The juror's failure to disclose a close relationship with the plaintiff's family deprived the defendant of an impartial jury and warrants a new trial if the relationship was material and concealed Correct answer.
  4. The motion must be granted only if the juror was bribed

Explanation

A party is entitled to a new trial when a juror's concealment of a material relationship deprived the party of an impartial jury. The court examines whether the relationship was material and whether the juror's failure to disclose was intentional. Not every nondisclosure requires a new trial, but a close friendship with the plaintiff's family may be sufficiently material.

Question 48Trial Practice

In a civil trial, the plaintiff calls a records custodian to authenticate a hospital record. The custodian testifies that the record was made by hospital staff in the regular course of business at or near the time of the events. The defendant objects that the record contains a physician's opinion about causation. How should the court rule?

  1. Admit the record under the business records exception, but the causation opinion may be excluded if it is not the type of record regularly kept or if it is otherwise unreliable Correct answer.
  2. Exclude the entire record because it contains an opinion
  3. Exclude the record because hospital records are hearsay
  4. Admit the record only if the physician testifies

Explanation

Hospital records are typically admissible under the business records exception when the foundation is laid. A causation opinion within the record may still be admissible if it is the type of information regularly recorded by the hospital, but the court may exclude particular statements if they lack trustworthiness. The court may admit the record with a limiting instruction or redact improper portions.

Question 49Trial Practice

A defendant in a criminal trial wants to introduce evidence that the alleged victim had a reputation for violence to support a self-defense claim, but the defendant did not know of that reputation at the time of the encounter. How does that affect admissibility?

  1. The evidence is admissible only to impeach the victim's character for truthfulness
  2. The evidence may still be admissible to show the victim was the first aggressor, though it cannot be used to show the defendant's state of mind Correct answer.
  3. The evidence is inadmissible for any purpose because the defendant lacked knowledge
  4. The evidence is admissible only if the victim testifies

Explanation

Evidence of a victim's violent character may be offered to show the victim was the first aggressor, independent of the defendant's knowledge. Knowledge matters when the evidence is offered to show the defendant's apprehension or state of mind. The court must still weigh the evidence under Rule 403 and determine the proper form of proof.

Question 50Trial Practice

A plaintiff's attorney wants to introduce a learned treatise to impeach the defendant's expert on cross-examination. Under Rule 803(18), what foundation is required?

  1. The treatise must be published within the last five years
  2. The treatise must be admitted into evidence as a full exhibit before it can be used
  3. The treatise must be authored by a government agency
  4. The treatise must be established as reliable authority through the expert's testimony, another expert's testimony, or judicial notice Correct answer.

Explanation

Rule 803(18) permits statements in a learned treatise to be used on cross-examination or direct examination of an expert if the treatise is established as reliable authority. The statement may be read into evidence but is not admitted as an exhibit. The court may take judicial notice of the treatise's authority.