Evidence - Privileges, Hearsay

Question 1

The typical evidentiary privileges are

Answer 1

(1) attorney-client
(2) physician-patient
(3) spousal (immunity + confidential)
(4) therapist/social worker
(5) clergy-penitent

Question 2

If a privilege issue arises when the action is pending in federal court under federal question jurisdiction, state that

Answer 2

“privileges are governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience,” then apply the basic rules.

Question 3

If a privilege issue arises when the action is pending in federal court under diversity jurisdiction, state that

Answer 3

“the federal court applies the privilege law of the state who’s substance law is applicable,” then apply the basic rules.

Question 4

The elements of the attorney-client privilege are

Answer 4

(1) confidential communication
(2) between an attorney and client (or representative of either)
(3) made during a professional legal consultation
(4) unless the privilege has been waived
(5) unless an exception applies

Question 5

For a communication between attorney and client to be “confidential”, the client must have

Answer 5

a reasonable expectation of confidentiality.

Question 6

Under the joint client rule

Answer 6

blah

Question 7

An “attorney” for purposes of the attorney-client privilege is a ________ of the bar or person that the client __________ is a member of the bar.

Answer 7

member; reasonably believes.

Question 8

A representative of an attorney for attorney-client privilege purposes is any agent ___________ to facilitate provision of _________.

Answer 8

reasonably necessary; legal services.

Question 9

“client” for attorney-client purposes includes people ________ a client.

Answer 9

seeking to become.

Question 10

For for the attorney-client privilege to attach, the primary purpose of the communication must be

Answer 10

to obtain or render legal services.

Question 11

The three types of waiver are

Answer 11

(1) voluntary
(2) subject matter
(3) inadvertent

Question 12

A subject matter waiver of attorney-client privilege occurs when there is a voluntary waiver as to some communications that is

Answer 12

(1) intentional and
(2) the disclosed and undisclosed concern the same subject matter and
(3) fairness requires that both types of communications be considered together.

Question 13

An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege holder

Answer 13

(1) took reasonable precautions to prevent the disclosure and
(2) takes reasonable steps to remedy the error

Question 14

The three exceptions to the attorney-client privilege are

Answer 14

(1) crime-fraud exception
(2) the legal advice is in issue (e.g. client defends on the grounds of advice of attorney)
(3) an attorney-client dispute

Question 15

The physician-patient privilege applies for

Answer 15

(1) CONFIDENTIAL communications or information acquired by a
(2) physician from the patient
(3) for the purpose of diagnosing or treating a medical condition.

Question 16

The physician-patient privilege applies to doctors as well as ________ but only in ________ or in federal court under _________.

Answer 16

psychotherapists; state court; diversity jurisdiction.

Question 17

In a federal court action under federal question jurisdiction, the physician-patient privilege only applies to

Answer 17

psychotherapists.

Question 18

There is an exception for the physician-patient privilege if the patient puts her _____________ in issue, which commonly occurs in ____________.

Answer 18

physical or mental condition; personal injury cases for mental and emotional suffering or an insanity defense.

But lookout for instances of the doctor evaluating the client on behalf of the attorney for the purposes of the case. Here the doctor is more like the attorney’s agent.

Question 19

Spousal immunity applies only in _______ cases.

Answer 19

criminal

Question 20

Under spousal immunity, a spouse _________ be compelled to testify against the defendant spouse.

Answer 20

cannot.

Question 21

The ______ spouse holds the privilege under spousal immunity.

Answer 21

witness

Question 22

The ______ spouse may voluntarily _________.

Answer 22

witness; testify.

Question 23

The confidential communications between spouses privilege applies __________ case and applies to

Answer 23

in any type of case; confidential communications made by one spouse to the other DURING the marriage.

Question 24

The confidential communications between spouses ________ the termination of the marriage.

Answer 24

survives.

Question 25

The spousal immunity privilege ________ the termination of the marriage.

Answer 25

does not

Question 26

The three exceptions to both types of spousal privilege are

Answer 26

(1) crime-fraud
(2) communications or acts that are destructive of the family unit (spousal/child abuse)
(3) litigation between the spouses themselves

Question 27

Hearsay is an ___________ of a _________ that is being offered ___________.

Answer 27

out of court statement; person; to prove the truth of the matter asserted.

Question 28

Hearsay is ______ unless an ________ or _______ apples.

Answer 28

exception; exclusion.

Question 29

The three principal categories of non-hearsay statements are

Answer 29

(1) verbal acts
(2) statements offered to show effect on person who heard or read the statement (notice, fear, motive, probable cause)
(3) circumstantial evidence of the speaker’s state of mind

Question 30

A verbal acts consist of _________ where the law attaches ___________.

Answer 30

legally operative words; rights and obligations to words simply because they were spoken (e.g. I agree)

Question 31

Typical verbal acts are

Answer 31

I accept, terms of patents or copyrights, making a gift, bribe, perjury, fraud, defamation

Question 32

Generally, a witness’s own prior statement, if offered for the truth, is ________.

Answer 32

inadmissible.

Question 33

The three exceptions to prior witness statements apply if the witness is currently ___________ and the statement is any of the following:

Answer 33

subject to cross-examination;

(1) the witness’s prior statement was an IDENTIFICATION
(2) the witness’s prior inconsistent statement IF oral, under oath, and made during a formal trial, hearing, proceeding, or deposition
(3) the witness’s prior consistent statement to rebut a charge of recent fabrication, inconsistency, or sensory deficiency

Question 34

A prior inconsistent statements by a witness is NOT hearsay and may come in for the truth if

Answer 34

(1) the witness is currently subject to cross-examination and
(2) the statement was oral and
(3) under oath and
(4) made during a formal trial, hearing, proceeding, or deposition

Question 35

A prior consistent statement of a witness is NOT hearsay and may come in for the truth if

Answer 35

(1) the witness is currently subject to cross-examination and
(2) the witness’s prior consistent statement was made to rebut a charge of recent fabrication, inconsistency, or sensory deficiency

Question 36

A prior statement by a witness is NOT hearsay and may come in for the truth if

Answer 36

(1) the witness is currently subject to cross-examination and
(2) the witness’s prior statement was an IDENTIFICATION

Question 37

Even a witness’s own prior statement, absent an exclusion or exception, is

Answer 37

hearsay and is inadmissible.

**Note: if the statement is offered by the opposing party and the witness is a party to the case, the statement is not hearsay under the party admission exclusion.

Question 38

Under the party admission hearsay exclusion, any statement made by a ______ is admissible for its truth if it is offered by _______ and is technically __________.

Answer 38

party; against the party; not hearsay.

Question 39

A “statement by a party” for purposes of the party admission hearsay exclusion is any statement that was

Answer 39

Actual, Adopted, Authorized, Agent/Employee, Co=conspirator

(1) the actual party or representative capacity;
(2) the party expressly or impliedly adopted or believed the statement to be true
(3) a person whom the party AUTHORIZED to make a statement on the subject;
(4) the party’s AGENT or EMPLOYEE on a matter within the scope of that relationship during while it existed; or
(5) the party’s COCONSPIRATOR during and in furtherance of the conspiracy.

Question 40

In determining issues of agency, scope of employment, or the existence of a conspiracy for the party admission exception, the statement itself cannot serve as the ______ evidence of that determination but may be used as __________.

Answer 40

only; one factor.

**Cannot “bootstrap”. The court makes this determination under conditional relevance.

Question 41

A statement by an agent or employee is admissible as a party admission if the statement was ___________- and it was made __________.

Answer 41

on a matter within the scope of that relationship; during the course of the relationship.

Question 42

The statement of a coconspirator is admissible as a party admission if a _______ existed and the statement was made ________ and in _______ of the conspiracy.

Answer 42

conspiracy; during; furtherance.

Question 43

The hearsay exceptions are that depend on the declarant’s unavailability are

Answer 43

(1) forfeiture by wrongdoing
(2) former testimony
(3) statement against interest
(4) dying declaration
(5) statement of personal or family history

Question 44

The hearsay exceptions that apply independent of the declarant’s availability are

Answer 44

(1) excited utterance
(2) present sense impression
(3) present state of mind
(4) declaration of intent
(5) present physical condition
(6) statement for purpose of medical treatment or diagnosis
(7) business records
(8) public records
(9) past recollection recorded

Question 45

A declarant is unavailable if the witness

Answer 45

(1) invokes privilege
(2) is absent from the jurisdiction
(3) illness/death
(4) lack of memory
(5) stubborn refusal to testify

Question 46

The Sixth Amendment gives the defendant the right of confrontation during _______ cases.

Answer 46

criminal

Question 47

Confrontation is the opportunity for _________ by the defendant.

Answer 47

cross-examination

Question 48

Under the confrontation clause, the prosecution may not use a hearsay statement against the defendant if the statement is

Answer 48

(1) testimonial
(2) the declarant is unavailable
(3) the D has had no opportunity for cross-examination (could cross-examine before trial or at trial)

Question 49

A statement is “testimonial” for confrontation clause purposes if it is

Answer 49

(1) grand jury testimony; or
(2) statements made in response to police interrogation if the primary purpose of the questioning was to establish or prove past events that are potentially relevant to a later prosecution
(3) sworn affidavits
(4) forensic laboratory reports if its primary purpose is to accuse a targeted individual of criminal conduct

Question 50

A statement made in response to police interrogation is “non-testimonial” for confrontation purposes if it is

Answer 50

if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency.

Question 51

A statement made in response to police interrogation is “testimonial” for confrontation clause purpose if the

Answer 51

primary purpose of the questioning was to establish or prove past events that are potentially relevant to a later prosecution

Question 52

Examples of non-testimonial documents are

Answer 52

(1) business records
(2) DNA analysis when no particular person is suspected at the time of the analysis
(3) forensic reports only generally referred to by a testifying expert as a partial basis for her opinion

Question 53

Hearsay is admissible against a D whose wrongdoing made the witness unavailable if the court finds by a __________ that the D’s wrongdoing was ________.

Answer 53

preponderance of the evidence; designed to prevent the witness from testifying

Question 54

Former testimony of a now unavailable witness made in a former proceeding or deposition is admissible against a party who on the prior occasion had an _______ and _______ to ________ and the _____ in both proceedings is essentially the same.

Answer 54

opportunity;
motive;
cross-examine;
issue.

Question 55

Under the former testimony hearsay exception, a D might be able to use the favorable testimony of an unavailable grand jury witness because

Answer 55

the prosecution had an opportunity and usually a motive to develop the witness’s testimony.

Question 56

A witness is absent from the jurisdiction and unavailable if the witness

Answer 56

(1) cannot be found with due diligence; or

(2) is beyond the court’s subpoena power

Question 57

An unavailable declarant’s statement against interest is admissible if it is against three possible interests:

Answer 57

(1) pecuniary interest;
(2) property interest;
(3) penal interest.

Question 58

Statements against interest are different from party admissions in four ways:

Answer 58

(1) must be against interest when made
(2) any person (not merely a party) can make one
(3) personal knowledge is required
(4) declarant must be unavailable

Question 59

In criminal cases, a statement against _____ interest must be supported by ________.

Answer 59

penal; additional circumstances showing trustworthiness of the statement (corroboration).

Question 60

A dying declaration is admissible if it was made under a _____ of impending and certain ________ by a now-unavailable declarant concerning the ________ of the declarant’s death.

Answer 60

belief;
death;
cause.

Question 61

Dying declarations are _____ from the confrontation clause.

Answer 61

exempt.

Question 62

In criminal cases, dying declarations are only admissible if the case is a _______ case.

Answer 62

homicide

Question 63

An “excited utterance” is a statement made concerning a ______ event and mad while the declarant is still ____________.

Answer 63

startling; under the stress of the excitement.

Question 64

A “present sense impression” is a _________ of an event made while the event is ________ or ___________ thereafter.

Answer 64

description; occurring; immediately.

Question 65

A “present state of mind” statement is a contemporaneous statement concerning the declarant’s

Answer 65

then present state of mind, feelings or emotions.

Question 66

A “declaration of intent” statement is one concerning the declarant’s

Answer 66

intent to do something in the FUTURE, including the intent to engage in conduct with another person (e.g. meet another person).

**Statements of PAST intent are inadmissible.

Question 67

A statement of “present physical condition” is a statement made to anyone about the declarant’s

Answer 67

current physical condition.

Question 68

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

Answer 68

(1) nature of the event
(2) passage of time
(3) visual clues
(a) exclamatory phrase
(b) excited oriented verbs (shouted, screamed)
(c) an exclamation point

Question 69

A “statement made for the purpose of obtaining medical treatment or diagnosis” is a statement made to anyone for the above purpose if it concerns the declarant’s

Answer 69

(1) present symptoms
(2) past symptoms
(3) general cause of the condition

Question 70

The business records hearsay exception applies if the following five elements are met:

Answer 70

(1) the documents are records of a business of any type
(2) made in the ordinary course of business
(3) the business routinely keeps such records
(4) the record was made contemporaneously with the event recorded
(5) the contents consists of information observed by employees of the business (or statements that fall w/in an independent hearsay exception)

Question 71

The three types of public records that fall within the public records hearsay exception are

Answer 71

(1) the activities of the office or agency (e.g. payroll records);
(2) matters observed pursuant to a duty imposed by law (e.g. Weather Service records temps);
(3) findings of fact or opinion resulting from an investigation authorized by law (e.g. OSHA inspection report)

Question 72

A “statement made for the purpose of obtaining medical treatment or diagnosis” hearsay exception does not apply to statements about ____________, unless it is the ___________.

Answer 72

the details of liability or the identity of a tortfeasor; identity of the abuser in a domestic or child abuse case.

Question 73

The two ways to lay the foundation for the business records exception are

Answer 73

(1) call a witness to testify to the elements of the exception, the witness need not be the author, can be a custodian or other such knowledgable person; or
(2) a sworn affidavit attesting to the elements with advance notice to the other party

Question 74

An important exclusion to the business records exception is a police report prepared for

Answer 74

prosecutorial purposes against a defendant in a criminal case.

Question 75

A hearsay declarant may be impeached by

Answer 75

any impeachment method.

If the impeachment is by a prior inconsistent statement, the opportunity for the declarant to be given a chance to explain is waived.

Question 76

If a hearsay statement is included within another hearsay statement, the evidence is ____ unless _________.

Answer 76

inadmissible; each statement falls within a hearsay exception.