Evidence MBE issues Flashcards
A judicially noticed fact must be one which is not subject to reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Explain the difference between marital communications and spousal privilege communications.
The privilege for marital communications extends to any confidential statement made between spouses during the existence of a legal marriage. When the privilege applies, either spouse can prevent the other from disclosing such confidential marital communications.
In contrast to the spousal privilege, the marital communication privilege protects only communications made during, not before, a valid marriage.
The physician-patient privilege prevents disclosure of confidential communications made for the purpose of diagnosis or treatment. The privilege does not apply, however, in
malpractice lawsuits the patient brings against the physician involved in that diagnosis or treatment.
T or F for purposes of the doctor patient privilege, as a general rule, if the communication is overheard by a third party, the confidentiality–and the privilege–are destroyed.
True
Most states protect confidential communications made by a patient to a physician for the purpose of obtaining medical treatment. The patient is the holder of the privilege, but the physician may assert the privilege on the patient’s behalf. Certain exceptions do exist, however. Most jurisdictions do not apply this privilege:
(1) if the patient’s physical condition or competency is in issue;
(2) in cases where the patient is suing the physician for malpractice; or
(3) where the communication was made to assist in the commission of a future crime or fraud
a statement regarding the declarant’s state of mind at the time of the statement is admissible as an exception to the hearsay rule. Pursuant to this rule, a written statement expressing a declarant’s state of mind may be admitted to show his intent at the time of the writing. However, such a statement of intent is only admissible against
against the declarant, and not someone else.
Under Federal Rule of Evidence 801(d)(1)(C), where a witness has made a previous out-of-court identification of a person after perceiving that person, the prior identification statement is not hearsay (even though offered to prove the truth of the matter asserted–that is, the identification). In such case, the prior identification statement will be admissible as substantive evidence. However, what is required in order to allow a prior identification statement to be admissible?
The declarant must testify at the trial and be subject to cross-examination.
a treatise is not hearsay (meaning it can be used as substantive evidence) if it is shown to be
reliable and the expert witness relied on it or it was brought to his attention while on the stand.
Rule 803(18) of the Federal Rules of Evidence provides that statements contained in treatises may be admitted into evidence during direct or cross-examination of an expert witness if:
(1) the treatise is established as a reliable authority; and
(2) the treatise is called to the attention of the expert witness during cross-examination or is relied upon by the expert in direct testimony.
As an exception to the hearsay rule, statements in treatises admitted pursuant to Rule 803(18) may be used as substantive evidence, by reading them to the jury.
If one party lays a proper foundation for the presumption and the other party does not introduce any contrary evidence, the judge will?
If the other party produces even a scintilla of evidence that is credible which contradicts the presumption, the judge will?
instruct the jury on the presumption.
not instruct the jury on the presumption. This is known as the “bursting bubble” approach.
a hearsay exception, without regard to the unavailability of the declarant, for a statement of the declarant’s then-existing state of mind, emotion, or sensation (i.e., intent, plan, motive, design, mental feeling, etc.). Such statements are admissible
substantively to prove the declarant’s state of mind when that state of mind is at issue.
When a privilege is asserted which renders the witness incapable of giving testimony, then that witness is unavailable for trial. When a witness is unavailable, the former testimony exception allows hearsay evidence to be admitted if it:
(1) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(2) is now offered against a party who had–or, in a civil case, whose predecessor-in-interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Under Fed. R. Evid. 1002, an original of a document is generally required in order to prove its contents. Under Fed. R. Evid. 1004, the original recording would not be required, and other evidence could be given in its place, if:
(1) it has been lost or destroyed, and not by the proponent acting in bad faith;
(2) it could not be obtained by any available judicial process;
(3) the party against whom it would be offered had control of it and failed to produce it; or
(4) it was not closely related to a controlling issue.
The best evidence rule, which generally requires an original writing, recording, or photograph be used to prove its content, does not apply to physical objects unless:
(1) the item can easily be brought into court; and (2) the exact wording is necessary to the case
Reputation or opinion evidence concerning a witness’ character for truthfulness can be used to rehabilitate an impeached witness. But only if the evidence used to impeach the witness attacks that witness’ credibility for ___________. If the impeachment evidence attacks the witness’ credibility on other grounds, such as bias, then evidence regarding character for truthfulness is not admissible.
Truthfulness
