Tricky MBE Questions Flashcards
T/F: When a lawyer acts for two parties, the attorney client privilege cannot be claimed between the two parties and third persons.
False. When a lawyer acts for two parties, either one of the parties can assert attorney client privilege against a third party, BUT the privilege cannot be claimed in a dispute between the two parties themselves.
T/F: Because attorney client privilege belongs to the client, an attorney cannot assert the privilege on the client’s behalf.
False. Even though attorney client privilege belongs to the client, an attorney may assert privilege on behalf of his/her client.
T/F: Because the FRE provides that privileges are governed by state law, the physician-patient privilege exists under federal standards.
False. The FRE provides that privileges are governed by common law. In common law, there is no physician-patient privilege, only psychotherapist-patient privilege.
T/F: When a witness attempts to identify someone’s voice, the witness must be able to positively identify the speaker.
False. As long as the witness is familiar with the speaker’s voice, the witness can testify that a voice in a recording is similar/dissimilar to the speaker’s voice. The witness does not have to conclusively identify the speaker. It is up to the jury to decide how much weight to attach to the testimony.
T/F: When the terms of a writing are immaterial, a witness may simply refer to the collateral document without producing the document itself.
True. The best evidence rule does not apply where the writing is immaterial to the case or when knowledge of the facts arises independently of the writing.
T/F: Attorney client privilege does not apply when the communications are made to help the client plan or commit a crime. As long the attorney was aware of the illegal purpose, the privilege does not apply.
False. The attorney’s knowledge does not matter. The client’s objective knowledge is what matters. Privilege may not apply even if the attorney was aware of the illegal purpose behind the client’s solicitation of services.
At Lupin’s trial for burglary, his friend testified that he saw the defendant commit the burglary. While the friend is still subject to recall as a witness, Lupin calls the friend’s wife to testify that the friend said, “I broke into the warehouse alone because Lupin was too drunk to help.” Is the wife’s statement admissible as substantive evidence or for impeachment purposes?
The friend’s out of court statement contained in the wife’s testimony is a prior statement inconsistent with the friend’s own testimony. Prior inconsistent statements are admissible to impeach if the impeached witness has an opportunity at some point (before or after the introduction of extrinsic evidence such as impeaching testimony) to explain/deny the statement. So, the statement is admissible to impeach.
Prior inconsistent statements are admissible if made under oath at a trial, hearing, or deposition. Here, that is not the case. So, the statement is inadmissible as substantive evidence.
P sued D for killing P’s husband. At trial, P offers to testify that the day before the husband died, the husband told P that D said to the husband, “I’m going to end you.” T/F: P’s testimony is admissible as an opposing party’s statement.
False. P’s testimony is hearsay within hearsay, and each level of hearsay needs to fall under an exclusion or exception. D’s statement “I’m going to end you” is an opposing party statement. But, the husband’s statement does not fall into any exclusion or exception. So, the entire statement is inadmissible hearsay.
If D’s statement were offered on its own, then it would be admissible as an opposing party’s statement, which is nonhearsay.
