Evidence Flashcards
Is a criminal admission made while a doctor is treating a patient barred from admission by physician-patient privilege?
No. Under the physician-patient privilege, a physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity. Information given by a patient that deals with a NONmedical matter is not protected by the privilege.
EG - D’s admission to doctor that she was shot while running from a jewelry store that she robbed is NOT barred by the privilege.
When may a chart that summarizes voluminous documents be admissible?
Under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.
May a D’s prior felony conviction be admissible in a subsequent civil trial if to prove any fact essential to the judgment?
Under the Federal Rules, judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty.
EG - Criminal arson conviction admissible in civil case regarding property damage resulting from the arson
Will a court admit a copy of a record (eg - a deed) if the original copy cannot be loacated after a reasonable search?
Yes. When a proponent is attempting to prove the contents of a document, the best evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents. A proper foundation for the admissibility of secondary evidence–such as a copy of the original–may be laid by a showing that the original has been lost and cannot be found despite diligent search.
Does a prosecutor have the right to inquire into a D’s prior bad acts involving dishonesty on cross examination?
No, because a RIGHT is too strong. Under Federal Rule 608, the trial court is given the DISCRETION to allow counsel to inquire, during cross-examination, about specific instances of bad conduct on the part of the witness which show a lack of credibility. Thus, the prosecutor’s right is not absolute.
When is extrinsic proof of a prior inconsistent statement admissible to impeach the witness AND as substantive evidence?
As long as the witness is given an opportunity to explain or deny the statement, extrinsic proof of a prior inconsistent statement is admissible to impeach the witness’s testimony.
Further, if the witness is subject to cross-examination and the prior inconsistent statement was made under penalty of perjury at a prior trial or proceeding, or in a deposition, it is admissible nonhearsay; i.e., it is admissible as substantive evidence.
Must a victim giving a statement believing their death is imminent be available or unavailable for the statement to be a valid dying declaration?
Dying declaration is an exception to the rule against hearsay. The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be UNAVAILABLE to testify before the dying declaration is admissible on those grounds.
Will a court admit a portion of a statement that is relevant to another statement that has already been admitted?
Yes. Federal Rule 106 provides that, when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.
Are vicarious statements of an opposing party admissible?
Statements by an agent concerning any matter within the scope of his agency, made during the existence of the employment relationship, are admissible against the principal.
What is the difference between statements made in association with an offer to pay medical expenses and statements made in association with an offer to settle?
Statements made in connection with an offer to pay medical expenses, unlike statements made in connection with a settlement offer, are admissible.
Does attorney client privilege exist when a parent accompanies a child to an attorney consultation? Does it matter whether they have paid for the consultation?
A communication is confidential if it is not intended to be disclosed to third persons; thus, communications made in the known presence and hearing of a stranger are not privileged. However, statements made in front of third persons whose presence is reasonably necessary to the consultation (e.g., this client’s parent) are still considered confidential.
Does attorney client privilege hinge on payment for services?
No. Application of the privilege does not hinge on payment for services. The confidential communications of a client receiving a professional consultation free of charge are protected to the same extent as those made to a lawyer charging for his time.
May an expert witness give an opinion in response to a hypothetical question?
Yes. An expert witness may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence. If the underlying facts have been introduced in evidence, such an opinion is admissible.
Is it permissible for an expert witness to gain personal knowledge upon which his opinion may be based by attending trial and listening to other testimony?
Yes. Facts or data upon which expert opinions are based may be derived from presentation at trial. One acceptable method of doing this is to have the expert attend the trial and hear testimony establishing the facts. However, this can be prohibited by invoking the rule of sequestration.
When may silence constitute an adoption of the other person’s statement?
When the circumstances establish that the party would naturally have responded to the statement if it were untrue.
A statement made by a party that is offered against that party (commonly called an admission) is admissible nonhearsay. A party may expressly or impliedly adopt someone else’s statement as her own, thus giving rise to an adoptive statement. However, for silence to constitute an adoption of the other person’s statement, the circumstances must establish that the party would naturally have responded to it were it untrue.
