Evidence

Question 1

Sources of Evidence Law

Answer 1

Federal Rules of Evidence

Question 2

Major topics

Answer 2

(1) Relevance
(2) Witnesses
(3) Hearsay

Question 3

Minor Topics

Answer 3

(1) Authentication
(2) Best Evidence Rule
(3) Privileges

Question 4

Other Topics

Answer 4

(1) Procedural considerations
(2) Burden of proof
(3) Presumptions
(4) Judicial notice
(5) Real evidence

Question 5

Relevance: Basic principles

Answer 5

Evidence is relevant is it has ANY TENDENCY to make a material fact more probable or less probable than would be the case without the evidence

All relevance evidence is admissible, unless (a) a specific exclusionary rule applies or (b) the court makes a discretionary determination that probative evidence is outweighed by a pragmatic consideration

Question 6

Relevance: Pragmatic Considerations

Answer 6

All relevance evidence is admissible, unless (a) a specific exclusionary rule applies or (b) the court makes a discretionary determination that probative evidence is outweighed by a pragmatic consideration (see below)

Seek to promote accuracy:

(a) Danger of unfair prejudice
(b) Confusion of the issues
(c) Misleading the jury

Seel to promote efficiency

(d) Undue delay
(e) Wast of time
(f) Unduly cumulative

Question 7

Relevance: Similar Occurrences - General Rule

Answer 7

In general, evidence that concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible.

Question 8

Relevance: Similar Occurrences - Plaintiff’s Accident History

Answer 8

Plaintiff’s Accident History:

(a) Generally, plaintiff’s accident history is INADMISSIBLE because it shows nothing more than fact that plaintiff is accident-prone.
(b) Exception: plaintiff’s accident history is ADMISSIBLE if the event that caused the plaintiff’s injury is in question.

Question 9

Relevance: Similar Occurrences - Similar Accidents Caused by Same Instrumentality or Condition

Answer 9

Similar Accidents Caused by Same Instrumentality or Condition:

(a) Generally, other accidents involving defendant are inadmissible because they show nothing more than character for carelessness.
(b) Exception: other accidents involving the same instrumentality or condition may be admitted for three potential purposes IF the other accident occurred under substantially similar circumstances: (i) Existence of dangerous situation; (ii) Causation of the accident; (iii) Prior notice to defendant

Question 10

Relevance: Similar Occurrences - Intent in Issue

Answer 10

If intent is in issue, prior similar conduct of a person may be admissible to raise an inference of the person’s intent on a later occasion

Question 11

Relevance: Similar Occurrences -Comparable Sales on issue of value

Answer 11

Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue

Question 12

Relevance: Similar Occurrences - Habit

Answer 12

Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation

Distinguish from character evidence, which refers to a person’s general disposition or propensity.

Definition: Habit is a repetitive response to a particular set of circumstances; defining characteristics: (a) frequency of conduct, (b) particularity of conduct

Question 13

Relevance: Similar Occurrences - Industrial Custom as Standard of Care

Answer 13

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted – as evidence of the appropriate standard of care

Question 14

Relevance: Policy-Based Exclusions - Liability Insurance

Answer 14

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of fault or absence of fault.

Exception: evidence of insurance may be admissible for some other relevant purpose, such as: (a) proof of ownership/control of instrumentality or location, if that issue is disputed by defendant; or (b) for the purpose of impeachment of a witness

Question 15

Limiting Instructions

Answer 15

Limiting instructions should be given to the jury whenever evidence is admissible for one purpose but not another. The judge should tell the jury to consider the evidence only for the admissible purpose.

Question 16

Relevance: Policy-Based Exclusions - Subsequent Remedial Measures

Answer 16

Post-accident repairs, design changes, policy changes etc. are INADMISSIBLE for the purpose of proving (a) negligence, (b) culpable conduct, (c) product defect, or (d) need for warning

Exception: Subsequent remedial measures may be ADMISSIBLE for some other relevant purpose, such as (a) proof of ownership/control or (b) feasibility of safer condition, if either is disputed by the defendant

Note: in a products liability action based on strict liability, the manufacturer’s subsequent remedial measures are inadmissible to show the existence of a defect in the product as the time of the accident. (The federal/multistate rules differ from the rule in some states)

Question 17

Relevance: Policy-Based Exclusions - Settlements of Disputed Civil Claims

Answer 17

In the event of disputed civil claims, the following are INADMISSIBLE to show liability or impeach a witness’s prior statement: (a) evidence of settlement, (b) offer to settle, (c) statements of fact made during settlement.

Exceptions:

(1) Settlement evidence admissible for the purpose of impeaching a witness on the ground of bias
(2) Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case

Note: Exclusionary rule only applies if there is a CLAIM that is DISPUTED at time of settlement discussion either as to validity of the claim or the amount of damages

Question 18

Relevance: Policy-Based Exclusions - Offer to Pay Hospital or Medical Expenses

Answer 18

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is INADMISSIBLE to prove liability.

Note: this rule DOES NOT exclude other statements made in connection with an offer to pay hospital or medical expenses

Question 19

Character Evidence: Basic Concepts

Answer 19

Character evidence refers to a person’s general propensity or disposition, e.g. honesty, fairness, peacefulness, or violence

Potential purposes for the admissibility of character evidence:

(1) Person’s character is an ESSENTIAL ELEMENT int he case (rare in civil, never in criminal)
(2) Character evidence as CIRCUMSTANTIAL EVIDENCE of a person’s CONDUCT on a PARTICULAR OCCASION
(3) Witness’s bad character for truthfulness to IMPEACH CREDIBILITY

Question 20

Character Evidence: Criminal Cases - Defendant’s Character

Answer 20

(a) Evidence of a defendant’s character to prove defendant’s conduct on a particular occasion is inadmissible during the prosecutor’s case in chief
(b) Defendant, during the defense, may introduce evidence of a RELEVANT character trait - by reputation (community) or opinion (of witness) testimony of a character witness - to prove his conduct; this OPENS THE DOOR TO REBUTTAL by the prosecution

(c) Prosecution’s rebuttal: IF defendant has opened the door by calling character witnesses, prosecution may rebut by:
(i) cross-examining the defendant’s character witnesses with “have you heard” or “did you know” questions about specific acts of defendant that reflect adversely on the character trait D introduced (P must have good faith, purpose must be impeach witness’s knowledge of D); or
(ii) calling its own reputation or opinion witnesses to contradict D’s witnesses

Question 21

Character Evidence: Criminal Case - Victim’s Character, Self-Defense Case

Answer 21

Criminal defendant may introduce evidence of victim’s violent character as circumstantial evidence that the victim was the first aggressor

Character witness can testify to victim’s reputation for violence and may give opinion

Prosecution’s rebuttal: (a) evidence of victim’s good character for peacefulness (reputation or opinion); (b) may prove defendant’s character for violence

Question 22

Character Evidence: Victim’s Character, Self-Defense Case - Defendant’s State of Mind

Answer 22

If the defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant’s state of mind, i.e. fear, to help prove that he acted reasonably in responding as he did to the victim’s aggression

Question 23

Character Evidence: Victim’s Character, Sexual Misconduct Case

Answer 23

Under rape shield law, in criminal and civil cases, where the defendant is alleged to have engaged in sexual misconduct, the following evidence about the VICTIM is ordinarily INADMISSIBLE:

(a) Opinion or reputation about the victim’s sexual propensity
(b) Evidence of specific sexual behavior of the victim

Exceptions in CRIMINAL cases:

(1) Specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim
(2) Victim’s sexual activity with the defendant if the defense of consent is asserted
(3) Where exclusion would violate defendant’s right of due process

Exceptions in CIVIL cases: court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party

Question 24

Character Evidence: Civil Cases

Answer 24

General rule: Character evidence is INADMISSIBLE to prove a person’s conduct on a particular occasion

Exception: Evidence of a person’s character is ADMISSIBLE in civil action where such character is an essential element of a claim or defense (can use reputation, opinion, specific acts):

(1) Tort action alleging negligent hiring or entrustment
(2) Tort of defamation (libel/slander)
(3) Child custody dispute

Question 25

Character Evidence: Defendant’s Prior Crimes for Non-Character Purposes

Answer 25

General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest propensity

Exception: Defendant’s bad acts or other crimes are admissible to show something specific about the crime currently charged:
M - Motive
I - Intent
M - Mistake or accident (the absence thereof)
I - Identity
C - Common scheme or plan

Proof of MIMIC: can establish (a) by conviction, or (b) by evidence (conditional relevancy standard: prosecution need only prove sufficient evidence from which a reasonable juror could conclude D committed the crime)

*If a MIMIC category is satisfied, prosecution may use other crimes/ bad acts as part of its case-in-chief

Question 26

Character Evidence: Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action

Answer 26

In a case alleging sexual assault, the defendant’s prior acts of sexual assault are ADMISSIBLE as part of the prosecution’s case-in-chief or plaintiff’s case for the purpose of showing defendant’s propensity for sexual assault.

Same rule for child molestation.

Only allows prior acts, not reputation or opinion.

Question 27

Authentication: Definition

Answer 27

If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e. that it is what it purports to be. This process is authentication.

Question 28

Authentication: Methods

Answer 28

Issue: whether X is the author of document:

(1) Witness’s personal knowledge (e.g., witness observed X sign the document)

(2) Proof of handwriting:
(a) Lay person’s opinion, on the basis of familiarity with X’s handwriting in the normal course of affairs
(b) Expert comparison opinion: handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample of X’s handwriting
(c) Jury comparison: jury compares document with exemplar of X’s handwriting

(3) Proof by circumstantial evidence: a party may rely on circumstantial evidence, such as appearance, contents, substance, internal patterns or other distinctive characteristics

(4) Ancient document rule: authenticity may be inferred IF document is:
(a) At least 20 years old,
(b) Facially free of suspicion (e.g., no erasure marks), and
(c) Found in a place of natural custody

(5) Solicited Reply Doctrine: Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Question 29

Authentication: Self-Authentication

Answer 29

Following documents are presumed authentic (no need for foundation testimony, thus shifting burden to other party to show inauthentic)

(1) Official publications
(2) Certified copies of public or private records on file in public office
(3) Newspapers or periodicals
(4) Trade inscriptions and labels
(5) Acknowledged document (certified by notary)
(6) Commercial paper (e.g. promissory note)

Question 30

Authentication: Photographs

Answer 30

Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed

Question 31

Best Evidence Rule: Definition

Answer 31

A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If the court finds the excuse acceptable, the party may then use secondary evidence–oral testimony or a copy.

The definition of a writing includes sound recordings, X-rays, and films.

Question 32

Best Evidence Rule: When the rule applies

Answer 32

When a party is seeking to prove the contents of a writing, the best evidence rule applies.

Two principal situations:

(1) The writing is a legally operative document, i.e. the writing itself creates rights and obligations (e.g., patent, deed, mortgage, divorce decree, written contract)
(2) Witness is testifying to facts that she learned solely from reading about them in a writing

Question 33

Best Evidence Rule: When the rule does NOT apply

Answer 33

When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact, the best evidence rule does not apply.

Question 34

Best Evidence Rule: Original Writing

Answer 34

Whatever the parties intended as the original, any counterpart intended to have the same effect, any negative of film or print from the negative, computer print-out.

Duplicate rule: duplicate is admissible to the same extent as original UNLESS it would be unfair or genuine question is raised as to authenticity of original
Duplicate definition: any counterpart produced by mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy)

Handwritten copy is neither an original nor a duplicate

Question 35

Best Evidence Rule: Excuses for Non-Production of Original

Answer 35

(1) Lost or cannot be found with due diligence
(2) Destroyed without bad faith
(3) Cannot be obtained with legal process

StandardL court must be persuaded by preponderance of the evidence that excuse has been established – then secondary evidence is admissible (e.g., testimony based on memory, handwritten copy)

Question 36

Best Evidence Rule: Escapes

Answer 36

Escapes from BER:

(1) Voluminous records: can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection
(2) Certified copies of public records
(3) Collateral documents (i.e. not very important to the case) (can use secondary evidence)

Question 37

Witnesses: Competency

Answer 37

Witness must satisfy following requirements to be considered a competent witness:

(1) Personal knowledge: something she saw or heard
(2) Oath or affirmation: promise/willingness to tell the truth

Question 38

Witnesses: Dead Man’s Statute

Answer 38

(1) Witness is not ordinarily incompetent merely because she has an interest, i.e. a direct legal stake, in the outcome of the litigation.
(2) BUT some states have a Dead Man’s Act, which typically provides (a) in a CIVIL action (b) an INTERESTED witness (c) is INCOMPETENT to testify (d) AGAINST the estate of a decedent (e) concerning a transaction or communication between the interested witness and the decedent

Question 39

Witnesses: Leading Questions

Answer 39

(a) Generally, know leading questions on direct examination of a witness
(b) Generally, leading questions are allowed on cross-examination

(c) BUT leading questions are allowed on direct examination as follows:
(1) Preliminary introductory matters
(2) Youthful or forgetful witness
(3) Hostile witness (ask judge to declare witness hostile)
(4) Witness is adverse party or someone under the control of the adverse party (e.g. nurse in malpractice suit against doctor)

Question 40

Witnesses: Writing in Aid of Oral Testimony - Refreshing Recollection

Answer 40

Basic Rule: Witnesses may not read from prepared memorandum; must testify on basis of current recollection

BUT if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory

Safeguards against abuse: adversary has the right to:

(a) Inspect the memory-refresher
(b) Use it on cross-examination
(c) Introduce it into evidence

Question 41

Witnesses: Writing in Aid of Oral Testimony - Past Recollection Recorded (hearsay exception)

Answer 41

If the written aid fails to jog the witness’s memory, and is is unable to testify on the basis of current recollection, attorney may read the contents of the written aid into evidence IF

(a) Showing writing to witness fails to jog memory
(b) Witness had personal knowledge at former time
(c) Writing was either made by witness or adopted by witness
(d) making or adoption occurred while the event was still fresh in the witness’s memory
(e) witness can vouch for accuracy of writing when made or adopted

Question 42

Witnesses: Opinion Testimony - Lay Witness

Answer 42

Lay witness: no experience, education, or specialized training in the matter about which he is to testify

Lay witness opinion generally inadmissible

Lay opinion admissible IF:

(a) Opinion must be rationally based on witness’s own perception (personal knowledge), and
(b) Opinion must be helpful (court’s discretion)
(c) Not based on scientific, technical, or other specialized evidence

Examples: drunk/sober, speed of vehicle., sane/insane, emotions of another person, odors, handwriting, character (when permitted)

Question 43

Witnesses: Opinion Testimony - Expert Witness, Contents

Answer 43

(a) Qualifications: education and/or
(b) Proper subject matter: scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact

(c) Basis of opinion: expert must have opinion based on “reasonable degree of probability or reasonable certainty”; expert may draw upon three permissible data sources:
(1) Personal knowledge (e.g. treating physician)
(2) Other evidence in trial record (testimony by other witnesses, exhibits) made known to expert by hypothetical question
(3) Facts outside the record (hearsay) IF of a type reasonable relied upon by experts in the particular field in forming opinions

• In general, contents of out-of-court material should not be disclosed to the jury unless the judge decides it would help the jury evaluate the testimony

Question 44

Witnesses: Opinion Testimony - Expert Witness, Reliability and Relevance

Answer 44

To be admissible, expert opinion must be relevant to the issue at hand and sufficiently reliable

Court serves as “gatekeeper” and will use four principal factors to determine reliability of principles and methodology expert used:
T - Testing of principles/methods
R - Rate of error (high = not reliable)
A - Acceptance by other experts in same discipline (don’t need general acceptance)
P - Peer review and publication

Question 45

Witnesses: Opinion Testimony - Expert Witness, Learned Treatise in Aid of Expert Testimony

Answer 45

Hearsay Exception

(1) On direct examination of party’s own expert, can read from learned treatise - may be read into substantive evidence (if established as reliable authority)
(2) On cross-examination of opponent’s expert: read into evidence to impeach and contradict opponent’s expert; comes in as substantive evidence

BUT learned treatise may not be introduced as exhibit

Question 46

Witnesses: Opinion Testimony - Ultimate Issues

Answer 46

Opinion testimony (expert or lay) is not objectionable just because it embraces an ultimate issue in the case (e.g., DWI case, layperson testifies that D seemed drunk). BUT, all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful

Question 47

Witnesses: Cross-examination

Answer 47

Party has a RIGHT to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony

Proper subject matter: (a) Matters within the scope of direct examination; (b) Matters that test the witness’s credibility

Question 48

Witnesses: Credibility and Impeachment - Bolstering own Witness

Answer 48

Not allowed to bolster own witness until after witness’s credibility has been attacked

Exception: Prior identification of o a person

Question 49

Witnesses: Credibility and Impeachment - Impeachment of Own Witness

Answer 49

Impeachment of party’s own witness is permitted without limitation

Question 50

Witnesses: Impeachment Methods

Answer 50

Overview of methods:

(1) Prior inconsistent statements
(2) Bias, interest or motive to misrepresentation
(3) Sensory deficiencies
(4) Bad reputation or opinion about witness’s character for truthfulness
(5) Criminal convictions
(6) Bad acts (without conviction) that reflect adversely on character for truthfulness
(7) Contradiction

Question 51

Witnesses: Impeachment Procedure

Answer 51

Two possible ways to impeach:

(1) Confronting the witness: Ask the witness about the impeaching fact with the aim of having the witness admit it
(2) Prove the impeaching fact with “extrinsic” evidence (documentary evidence of testimony from other witnesses

Question 52

Witnesses: Impeachment Procedure - Extrinsic Evidence

Answer 52

Impeaching fact may be proven with extrinsic evidence as to all impeachment methods, EXCEPT: (a) bad acts and (b) contradictory facts that are collateral

Do not need to ask the witness about the impeaching fact before the extrinsic evidence is introduced EXCEPT for bias

Question 53

Witnesses: Impeachment - Prior Inconsistent Statements

Answer 53

(1) Any witness may be impeached by showing that on some prior occasion she made a material statement (orally or in writing) that is inconsistent with her trial testimony
(2) Can (a) question about the prior statement; (b) if witness given opportunity to explain or deny, can use extrinsic evidence
(3) Admissible for the purpose of impeachment, NOT as substantive evidence

(a) EXCEPTION: A prior inconsistent statement of a witness may be admitted to impeach and as SUBSTANTIVE evidence if the witness is currently subject to CROSS-examination and the prior inconsistent statement was made:
(i) Orally under OATH AND
(ii) as part of a FORMAL hearing, proceeding, trial, or deposition (hearsay exception)

Question 54

Witnesses: Impeachment - Bias, Interest, or Motive to Misrepresent

Answer 54

Bias may be based on any fact that would give a witness a reason to testify favorably or negatively about a party’s case

Procedure: Witness must be confronted with alleged bias while on the stand; if confrontation is satisfied, bias may be proven by extrinsic evidence

Question 55

Witnesses: Impeachment - Sensory Deficiencies

Answer 55

Anything that could affect witness’s perception or memory

Procedure: do not need to confront the witness; extrinsic evidence is allowed

Question 56

Witnesses: Impeachment - Bad Reputation or Opinion About Witness’s Character for Truthfulness

Answer 56

Any witness is subject to impeachment by this method

Procedure: do not need to confront; extrinsic evidence allowed – call character witness to testify that target witness has bad reputation for truthfulness or that character witness has low opinion of target witness’s character for truthfulness

Question 57

Witnesses: Impeachment - Criminal Convictions

Answer 57

Permissible Types of Convictions:

(1) Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element of the crime (narrowly construed)

(2) If conviction did not require proof of false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party
- Factors that make a felony conviction probative on credibility: seriousness of crime relation to deception and stealth
- Prejudice Factors: similarity to case being tried, inflammatory nature of prior crime

(c) Time Limitation: as to both conviction or release from prison, whichever is later, generally must be within 10 years of trial; if more than 10 years have elapsed, the conviction may not be used for impeachment UNLESS proponent shows probative value on credibility is substantial

Procedure: (a) Ask a witness to admit to prior conviction; or (b) Introduce record of conviction (extrinsic) – confrontation is not required

Question 58

Witnesses: Impeachment - Inquiry About Bad Acts

Answer 58

Limited to acts of untruthfulness (i.e. deceit, lying)

Procedure: Confront the witness on cross-examination (and hope witness admits, no extrinsic evidence allowed

Cross-examiner must have good faith basis for inquiry, and permission to make the inquiry is subject to court’s discretion

Question 59

Witnesses: Impeachment - Contradiction

Answer 59

Cross-examiner, through confrontation, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination

Procedure: (1) Confrontation, then (2) extrinsic evidence is not allowed IF the fact at issue is collateral (i.e. no significant relevance to the case or witness’s credibility)

Question 60

Witnesses: Rehabilitation

Answer 60

After a witness has been impeached, can rehabilitate in one of two ways:

(1) Showing witness’s good character for truthfulness: (a) can do it only when impeachment suggested your witness was lying as compared to merely mistaken; (b) method: character witness to rehab impeached witness through reputation or opinion

(2) Prior consistent statement to rebut: prior consistent statement is admissible to (i) rehabilitate credibility AND (ii) as substantive evidence (hearsay exception)
(a) To rebut a charge of recent fabrication: if trial testimony is charged as fabrication, prior consistent statement by witness will be admissible to rebut the charge if made before the motive to fabricate arose
(b) To rebut a contention of inconsistency
(c) To rebut a contention of sensory deficiency

Question 61

Privileges: Federal Procedural Rules

Answer 61

(1) Federal court action arising under federal substantive law, privileges are governed by principles of common law as the may be interpreted by the federal courts in light of reason and experience

(2) Federal court action based on diversity jurisdiction, federal court must apply the privilege law of the state whose substantive law applies
- Additionally, in diversity action federal court can also apply state law on competency (e.g. Dead Man Statute) and state law on burdens of proof and presumptions

Question 62

Privileges: Attorney-Client Privilege - Elements

Answer 62

Privilege applies to

(1) Confidential communication
(2) Between an attorney and client (or a representative of either)
(3) Made during professional legal consultation, unless privilege waived by client or unless an exception applies

Question 63

Privileges: Attorney-Client Privilege - Definitions

Answer 63

Confidential communication: client must have reasonable expectation of confidentiality

Joint client rule: If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties; BUT, if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them

Attorney: member of the bar or person that client reasonably believes is a member of the bar

Representative of attorney: any agent reasonably necessary to facilitate the provision of legal services

Client: includes a person seeking to become a client

Representative of client: any agent reasonably necessary to facilitate the provision of legal services

Professional legal consultation: primary purpose of communication must be to obtain or render legal services, not business or social advice

Question 64

Privileges: Attorney-Client Privilege - Waiver

Answer 64

(1) Voluntary waiver: Only the CLIENT has the power to waive the privilege. After the client’s death, the privilege continues and only the client’s estate may waive it.

(2) Subject matter waiver: A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
(a) Partial disclosure was intentional
(b) Disclosed and undisclosed communications concern the same subject matter, and
(c) Fairness requires that the disclosed and undisclosed communications be considered together

(3) Inadvertent waiver: an inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:
(a) Took reasonable steps to prevent the disclosure, and
(b) Takes reasonable steps to correct the error

Question 65

Privileges: Physician-Patient Privilege

Answer 65

Usually created by state statute

Elements:

(1) Confidential communication or information acquired by physician from patient for purpose of diagnosis or treatment of a medical condition
(a) Also applies to psychotherapists (MD or other certified professional)

Federal law distinction: in federal court actions based on substantive federal law, privilege exits only for psychotherapy

Exception applicable to physician and psychotherapist privileges: if patient expressly or impliedly puts physical or mental condition in issue, privilege n/a

Question 66

Privileges: Spousal Privileges - Spousal Immunity

Answer 66

Spousal immunity only applies to criminal cases

Rule: a spouse cannot be compelled to testify about anything against the defendant spouse (sometimes called “privilege against adverse spousal testimony”)

Holder of the privilege: witness-spouse, not defendant – witness-spouse may voluntarily choose to testify against defendant-spouse if he wants to

Question 67

Privileges: Spousal Privileges - Confidential Communication Between Spouses

Answer 67

Applies to all cases – civil or criminal

A spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose confidential communication (statements or acts) made by one to the other during the marriage

If a spouse reveals the information to a third party, that spouse cannot invoke the immunity (but the other spouse still can on own behalf)

Holder of the privilege: both spouses – so either can invoke

Question 68

Privileges: Spousal Privileges - Exceptions

Answer 68

Exceptions applicable to Spousal Immunity AND Confidential Communication Privileges

(1) Communications or acts in furtherance of jointly-perpetrated future crime or fraud
(2) Communications or acts destructive of family unit (e.g. spousal or child abuse)
(3) In litigation between the spouses themselves (e.g., divorce, breach of contract)

Question 69

Hearsay: Definition & Rule

Answer 69

Definition:

(1) Out of court statement of a person (written or oral) (n/a machines or animals)
(2) Offered to prove the truth of the matter asserted

Rule: Hearsay is inadmissible unless an exception or an exclusion applies

Question 70

Hearsay: Non-Hearsay Statements

Answer 70

Some out-of-court statements are not hearsay if they are not offered for the truth of the matter asserted in the statement

Question 71

Hearsay: Principle Categories of Non-Hearsay Purposes

Answer 71

(1) Verbal Acts (legally operative words): A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken
(2) To show effect on person who heard or read the statement: if a person hears someone else make certain statements, this may be relevant to put listener on notice, create fear, create motive etc.
(3) Circumstantial evidence of speaker’s state of mind: e.g., giving a false alibi implies consciousness of guilt, asking a question may imply lack of knowledge

Question 72

Hearsay: Prior Statements of Trial Witness

Answer 72

General rule: a witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies

Exclusions (i.e. Non-Hearsay):

(1) Witness’s prior identification of a person
(2) Witness’s prior inconsistent statement IF oral, under oath, made during formal trial, proceeding, or deposition
(3) Witness’s prior consistent statement to rebut charge of recent fabrication, contention of inconsistency, or sensory deficiency

Question 73

Hearsay: Party Admissions (Statement of an Opposing Party)

Answer 73

Any statement made by an opposing party is admissible for its truth IF it is offered against the opposing party

(a) Adoptive admission: if a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.
(i) Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false

(b) Vicarious party admission: Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship

Question 74

Hearsay: Exceptions - Overview

Answer 74

(1) Forfeiture by wrongdoing
(2) Former testimony
(3) Statement against interest
(4) Dying declaration
(5) Excited utterance
(6) Present sense impression
(7) Present state of mind
(8) Declaration of intent
(9) Present physical condition
(10) Statement for purpose of medical treatment or diagnosis
(11) Business records
(12) Public records

Also, Past Recollection Recorded and Learned Treatises

Question 75

Hearsay: Criminal Defendant’s Right of Confrontation

Answer 75

Sixth Amendment right of confrontation requires that the criminal defendant be confronted with witnesses against him. Confrontation is the opportunity for cross-examination by the defendant.

Rule: In the context of hearsay, PROSECUTION may NOT USE a hearsay statement against the criminal defendant IF

(a) the statement is TESTIMONIAL
(b) the declarant is UNAVAILABLE and
(c) the defendant has had no opportunity for cross-examination

Testimonial statements:

(a) Grand jury testimony is testimonial
(b) Statements in response to police interrogation: (i) Testimonial if primary purpose of questioning is to establish or prove past events that are potentially relevant to a later criminal prosecution; (ii) Non-testimonial if primary purpose of questioning is to enable police assistance to meet an on-going emergency
(c) Documents: (i) Business records are non-testimonial; (ii) Sworn affidavits are testimonial; (iii) Forensic laboratory report is testimonial if primary purpose is to accuse a targeted individual of criminal conduct, but DNA report is non-testimonial if it analyzes bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected at time of analysis; even if forensic report is testimonial, no confrontation violation if prosecutor calls testifying expert who performed an independent analysis of the data and only generally refers to the report to show a partial basis for her opinion

Question 76

Hearsay Exception: Forfeiture (Declarant Unavailable Due to Defendant’s Wrongdoing)

Answer 76

Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds:
(1) by a preponderance of the evidence (2) that the defendant’s wrongdoing was designed to prevent a witness from testifying

Question 77

Hearsay : Former Testimony of Unavailable Witness

Answer 77

Former testimony of a now unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on a prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. The issue in both proceedings must be essentially the same

Question 78

Hearsay: Grounds for Unavailability

Answer 78

(1) Privilege
(2) Absence from jurisdiction (cannot be found with due diligence or beyond the court’s subpoena power)
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify

Unavailability only applies to:

(a) Former testimony of unavailable witness
(b) Statement against interest
(c) Dying declaration
(d) Forfeiture hearsay exception

Question 79

Hearsay Exception: Statement Against Interest (Unavailable)

Answer 79

An UNAVAILABLE declarant’s statement against his or her (i) pecuniary, (ii) proprietary, or (iii) penal interest is admissible as a hearsay exception

Differs from a party admission in four ways:

(1) Must be against interest when made
(2) Any person (not merely party) can make a statement against interest
(3) Personal knowledge is required
(4) Declarant must be unavailable

Question 80

Hearsay Exception: Dying Declaration (Unavailable)

Answer 80

A statement made under the belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death

Criminal case: must be a charge of homicide

Civil case: any type of civil case

Dying declaration made to a police officer may be testimonial, but it most likely qualifies as an exception to the confrontation requirement

Question 81

Hearsay Exception: Excited Utterance

Answer 81

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event

Factors to consider in determining whether a statement qualifies as an excited utterance:

(1) Nature of event (e.g., traumatic accident, gun fight)
(2) Passage of time (closer in time to event, more likely under stress)
(3) Visual clues (exclamatory phrase, excitement oriented verb, exclamation point)

Question 82

Hearsay Exception: Present Sense Impression

Answer 82

Description of an event made while the event is occurring or immediately thereafter

Question 83

Hearsay Exception: Present State of Mind

Answer 83

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions

Question 84

Hearsay Exception: Declaration of Intent

Answer 84

Statement of the declarant’s intent to do something in the future, including intent to engage in conduct with another person

Question 85

Hearsay Exception: Present Physical Condition

Answer 85

Statement made to anyone about declarant’s current physical condition

Question 86

Hearsay Exception: Statement Made for the Purpose of Obtaining Medical Treatment or Diagnosis

Answer 86

Statement made to anyone (usually medical personnel) for the purpose of obtaining medical treatment or diagnosis (including a diagnosis for expert testimony) if it concerns the declarant’s physical symptoms, past symptoms, or the general cause of the condition, but not including statements describing the details of liability or the identity of a tortfeasor, unless it is the identity of the abuser in a domestic abuse or child abuse case

Question 87

Hearsay Exception: Business Records

Answer 87

Elements:

(1) Records of a business (of any type)
(2) Made in the regular course of business
(3) The business routinely makes such records
(4) Made contemporaneously (at or about the time of the event recorded)
(5) Contents consist of: (a) information observed by employees of the business, or (b) a statement that falls within an independent hearsay exception

Proving foundation:

(a) Call sponsoring witness to testify to five elements of the exception; witness need not be author of the report (can be custodian or any other knowledgeable person in the business); or
(b) Written certification under oath attesting to elements of business records exception (with advance notice to opposing party

Question 88

Hearsay Exception: Public Records

Answer 88

Records of a public (government) office or agency setting forth:

(1) The activities of the office or agency (e.g. payroll); or
(2) Matters observed pursuant to a duty imposed by law (e.g. Weather Bureau records of temperature); or
(3) Findings of fact or opinion resulting from an investigation authorized by law (e.g. OSH inspection report on safety conditions of a factory)

Exclusion: Police reports prepared for prosecutorial purposes are NOT admissible against the defendant in a criminal case. (Not acceptable under business records exception either)

Question 89

Hearsay: Hearsay within Hearsay

Answer 89

If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within an exception

Question 90

Hearsay: Impeachment of Hearsay Declarants

Answer 90

Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.

If the impeachment consists of prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.

Question 91

Hearsay Exception: Personal or Family History

Answer 91

Statements of fact concerning personal or family history contained in family Bibles, engravings on tombstones, etc. are admissible (regardless of whether the defendant is available)

Question 92

Clergy-Penitent Privilege

Answer 92

Federal courts recognize clergy-penitent privilege that prevents clerics from testifying as to confidential communications made to them in their capacity as spiritual adviser