Character for truthfulness or untruthfulness - Next Generation Bar Exam

1. Under FRE 609(a)(2), when must a conviction be admitted to impeach regardless of the punishment?

   When proving the elements required proof or admission of a dishonest act or false statement. The court has no discretion to exclude such convictions, whether felonies or misdemeanors.

2. Under Luce v. United States, what must a criminal defendant do to preserve for appeal a challenge to a ruling admitting a prior conviction to impeach?

   Testify at trial. Without the defendant's testimony, a reviewing court cannot assess the harm of the ruling.

3. Under FRE 608(b), how may specific instances of a witness's conduct bearing on truthfulness be used?

   They may be inquired into on cross-examination, but not proved by extrinsic evidence. The examiner must take the witness's answer, though a good-faith basis for the question is required.

4. Under FRE 609(a)(1)(A), when is a felony conviction of a witness other than a criminal defendant admissible?

   When the crime was punishable by more than a year, subject to Rule 403. The court excludes the conviction only if its probative value is substantially outweighed by a Rule 403 danger.

5. Under FRE 609(d), when is a juvenile adjudication admissible to impeach?

   Only in a criminal case, against a nondefendant witness, if necessary to fairly determine guilt. Juvenile adjudications are otherwise inadmissible under Rule 609.

6. Under FRE 609(e), what is the effect of a pending appeal on a conviction's admissibility?

   It does not make the conviction inadmissible, though the pendency may be shown. The conviction may be used to impeach even while the appeal is pending.

7. Under FRE 609(b), when is a conviction more than 10 years old admissible?

   Only if its probative value, supported by specific facts, substantially outweighs its prejudicial effect, and written notice is given. The 10 years run from the later of conviction or release from confinement.

8. Under FRE 609(c), when is a conviction inadmissible because of a pardon or similar procedure?

   When it was based on a finding of innocence, or on rehabilitation and the person has no later felony conviction. A pardon not based on innocence or rehabilitation does not bar the conviction's use.

9. On cross-examination, a witness denies lying on a job application. The cross-examiner then calls the employer to prove the lie. What objection applies?

   FRE 608(b), because extrinsic evidence of specific instances may not be used to attack character for truthfulness. The examiner may ask the question but must accept the witness's answer.

10. Under FRE 608(a), how may a witness's character for truthfulness be attacked or supported?

    By reputation or opinion testimony about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

11. A witness was convicted three years ago of misdemeanor perjury. What is the status of the conviction for impeachment?

    It must be admitted under FRE 609(a)(2). Perjury requires proof of a false statement, so the court has no discretion to exclude it.

12. Under FRE 609(a)(1)(B), when is a criminal defendant's prior felony conviction admissible to impeach?

    When its probative value outweighs its prejudicial effect to the defendant. This test favors exclusion more than Rule 403 does.

Study these flashcards