Evidence Mbe Review

Front 1

Doctor-Patient privilege

Back 1

A person cannot invoke the physician-patient privilege, which prohibits the doctor from divulging information acquired while attending a patient, where that person has put his physical condition in issue (e.g., by suing for personal injuries).

Front 2

Character to prove conduct v. reputation for truthfulness

Back 2

A party may not bolster or accredit the testimony of her witness until the witness has been impeached. (Situation where P called 2nd witness to testify about 1st witness’ honesty, where his credibility has not been questioned)

Although evidence of character to prove conduct of a person in a litigated event is generally inadmissible in civil cases, a witness’s reputation for truthfulness is generally admissible for impeachment purposes in both civil and criminal cases.

Front 3

H/S exception – Declarant’s state of mind

Back 3

This includes declarations of intent offered to show subsequent acts of the declarant. I.e., a statement of intent to do something in the future is admitted as circumstantial evidence that the intent was carried out.

Front 4

Cross exam, bias or interest

Back 4

Evidence that a witness is biased or has an interest in the outcome of the case tends to show that the witness has a motive to lie.

Can be proved by cross-exam, extrinsic evidence, and in some cases, both.

Front 5

Lay opinion testimony

Back 5

Generally inadmissible

EX: "He looked senile"

BUT Where an event is likely to be perceived as whole impression, rather than as more specific components, opinions by lay witnesses are generally admitted. E.g., as to general appearance and condition of person.

Front 6

Admission by party opponent

Back 6

Admission by party opponent = FRE exemption, not hearsay = admissible as substantive evidence.

Answer choice: “Admitted as substantive evidence of the weakness of the defendant’s case”.

Front 7

Judgments / Hearsay

Back 7

FRE provide that judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment. Felony conviction = crimes punishable by death or imprisonment in excess of one year.

Here, the crime for which D was convicted carries a max term of 90 days, making it inadmissible.

Front 8

Instances of prior consensual sexual relations

Back 8

Although FR 412 generally excludes evidence of an alleged victim’s sexual behavior, exception → evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent.

Front 9

Impeachment, bias

Back 9

Impeachment involves the casting of an adverse reflection on the veracity of a witness, and it may take several forms. → inferences of bias may be shown by evid of family or other relationship.

Here, prosecutor asked whether witness had a relationship or friendship with the D’s wife; attempting to show witness bias or motive to lie.

Front 10

Admission by conduct

Back 10

Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest awareness of liability or guilt. The D’s attempt to bribe the witness would be considered an admission by conduct. Alternatively, the D’s conduct would be classified as conduct not intended as an assertion. Such conduct is not hearsay under FRE.

Front 11

Subsequent remedial measures

Back 11

Trick: here, the incorrect answer choice was “remedial measures”, leaving out subsequent.

Front 12

Prior inconsistent statement (GJ)

Back 12

A prior inconsistent statement made under oath at a prior proceeding or deposition is admissible nonhearsay and thus may be used as substantive evidence + impeachment.

Front 13

Transcript of GJ Testimony
→ Former testimony exception, N/A

Back 13

Inadmissible hearsay, doesn’t fall under any exception.
GJ testimony does not fall within the former testimony exception. Under that exception, the testimony of a now unavailable witness given at another hearing or depo taken in accordance with law is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine was at the prior hearing was meaningful.

Front 14

H/S exception for felony convictions

Back 14

Are admissible in both criminal and civil actions to prove any fact essential to judgment; whether or not judgment arose after trial or plea of guilty (felony= any crime punishable by death or imprisonment in excess of one year)

Front 15

Extent/ Scope of Cross-examination

Back 15

Although a party is entitled as of right to some cross-examination, the extent or scope of cross is a matter of judicial discretion. Trial court has a right to cut off cross-examination → when it determines there has a been an adequate opportunity for meaningful cross-examination. (in order to avoiding waste of time, protect witnesses from undue harassment or embarrassment/ cross limited to matters on direct and inferences drawn and matters affecting credibility)

Front 16

Not hearsay

Back 16

Statement not offered for its truth, but to show effect on the plaintiff.
Here, witness offered statement to show that P said she understood, therefore assumed risk when she lit a fireplace she knew was dangerous (was to abstain for 24 hours)

Front 17

Admissible non-hearsay; employer/ agent

Back 17

Admission by party-opponent (non-hearsay under FRE) b/c it is a statement by an agent concerning a matter within the scope of his agency, made during the existence of the employment relationship.

Front 18

Physician-patient privilege

Back 18

This privilege requires a licensed physician be present for purposes of treatment.
Court would never permit invocation of this privilege if the patient knew the person she was consulted was not a licensed physician. (need to have reasonable belief person consulting was a licensed physician; prerequisite to this privilege)

Front 19

Judicial determination – qualifying expert

Back 19

Qualification of a witness as an expert is a preliminary fact to be determined b the judge. The existence of preliminary facts (e.g., competency of testimony or evidence privilege) other than those of conditional relevance must be determined by the court.
→ These questions are withheld from the jury for fear of damage rendering effective instruction to disregard

Front 20

Learned treatises; expert testimony; impeachment

Back 20

Learned treatises can be used either for impeachment or as substantive evidence.
One way the credibility of an expert witness can be attacked is by cross-examining him as to his general knowledge in the field in which he is claiming to be an expert. → this can be done by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority
Reliability of a publication can be established by (1) direct testimony or cross examination admission of an expert; (2) testimony of another expert, (3) judicial notice
The FRE recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority

Front 21

Attorney-client privilege

Back 21

Statements made in front of third persons whose presence are - reasonably necessary- to the consultation (e.g., client’s parents) are still considered confidential.

Front 22

Judges & questioning of witnesses

Back 22

The judge may call witnesses upon her own initiative and may interrogate any witnesses who testify. The judge has total discretion in this area as long as no partisanship for a particular side is shown.

Front 23

Truthfulness and credibility of witness

Back 23

Any matter that tends to prove or disprove the credibility of a witness is relevant and should be admitted. Specific “bad acts” that show the witness unworthy of belief (e.g., acts of deceit or lying) are probative of truthfulness.

Front 24

Effect on the hearer or reader

Back 24

A statement that would be inadmissible hearsay may be admissible to show the effect of the statement on the hearer or reader. E.g., in negligence case where knowledge of danger is an issue, a 3d person’s statement of warning is admissible to show notice or knowledge on the part of the listener.

Front 25

Attorney client privilege - extended to whom:

Back 25

Extended to the “representative of a lawyer”, one who is employed to assist in rendering legal services (e.g., physicians)

Front 26

Admission; Guilty pleas

Back 26

D’s guilty plea is an admission by a party-opponent, not hearsay.

Front 27

What elements does the prosecution have to prove? Does the D have to prove consent?

Back 27

In a criminal prosecution, the state is required to establish the guilt of the D beyond a reasonable doubt. The requirement means the state must establish every element of the offense beyond a reasonable doubt. The defendant is not required to establish the non-existence of any element of the crime.

E.g., Here, false imprisonment – elements are (1) the unlawful confinement of a person (2) without his valid consent.

Front 28

M to Strike; timing

Back 28

A Motion to Strike is effective only where was no basis or opportunity for an earlier objection.
An objection ordinarily must be made after the question is asked, but before the witness answers.
Here, the question was clearly objectionable and the prosecution had time to object.

Front 29

Improper impeachment, witness

Back 29

A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness.
E.g., an assault is not probative of truthfulness → not proper impeachment evidence.
- Though, had the witness been convicted of assault, would have been admissible if it were a felony.

Front 30

“Seeking diagnosis or treatment”

Back 30

RE: Doctor-patient privilege
An examination for insurance purposes is not considered to be for diagnoses or treatment. To be privileged, the info must be acquired by the physician in the course of treatment; insurance exam is not diagnostic either.

Front 31

Specific acts of misconduct; available only to impeach on cross

Back 31

A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination. NO Extrinsic evidence.
If the witness denies the act → the cross examiner CANNOT refute the answer by calling other witnesses or producing other evidence.

Front 32

Spousal Immunity

Back 32

Privilege belongs to the witness-spouse. Married person may not be compelled to testify against her spouse in any criminal proceeding. Lasts only during the marriage.
Spousal Immunity v. Confidential Communication made between husband and wife during marriage, both spouses hold privilege, communication made on reliance of intimacy of the marriage.

Front 33

Judicial Determination

Back 33

The judge determines whether the testimony falls within an exception to the hearsay rule, and is generally not limited by the rules of evidence in making that determination. (i.e., may consider non-privileged relevant evidence, not otherwise admissible)

Front 34

Prior testimony admissibility

Back 34

Prior testimony is admissible as an exception to the hearsay rule if the testimony was given under oath and the party against whom the evid is now offered - either offered the testimony or had a the testimony offered against him in a former trial , and had an opportunity and similar motive to develop the testimony either on direct or cross.
- The disposition at the previous trial has no bearing on the admissibility of prior testimony
- Here, same motive to cross at both trials (to discredit sister’s testimony)

Front 35

Best evidence rule

Back 35

Here, the prosecution sought to admit the testimony of an officer that a membership card to the athletic club bearing the name of AK was found on D’s person at the time of arrest.

The membership card would be --a writing within the meaning of the best evidence rule. As such, secondary evidence as to its existence could be introduced if the original is shown to have been lost of destroyed, unobtainable, or within the control of the opponent.

Front 36

Lay witness testimony

Back 36

Witness’s testimony should be admitted as evidence of the extent of the plaintiff’s injury b/c it relates to his firsthand observations and is otherwise admissible.

Front 37

Documentary evidence

Back 37

Videotape of defendant doing FSTs
Admissible as relevant evidence more probative than prejudicial.
Note – b/c video tape is documentary evidence, a proper foundation must be laid before it is admitted.

Front 38

Videotape, sting operation – showing D offering to sell a TV set to one of the undercover officers.

If not admitted, likely reason?

Back 38

A proper foundation not established.

Videotape evidence is treated the same as photographic and tape-recorded evidence. If properly authenticated, it is admissible, but needs a *proper foundation*

Further it is *not hearsay* because it is an “admission”.

Front 39

Not hearsay – Negligence case where knowledge of a danger is at issue

Back 39

Negligence case where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener.

Front 40

Present sense impression

Back 40

Admissible as a statement by the witness regarding the condition she observed, made while she was observing it.

Compare: A prior consistent statement can be used to rebut evidence that the trial testimony is a lie or an exaggeration b/c of some motive to falsify that has arisen since the event.