Admissibility of Evidence in Legal Proceedings, Exams of Law

Download Admissibility of Evidence in Legal Proceedings and more Exams Law in PDF only on Docsity! David Mungai [COMPANY NAME] [Company address] MBE Multistate Bar Examination Evidence 2025 Exam Review Questions and Answers | 100% Pass | Graded + MBE Multistate Bar Examination Evidence 2025 Exam Review Questions and Answers | 100% Pass | Graded + What is Evidence Law? - Answer>> The law of evidence is a system of rules and standards that regulate the admission of proof (evidence) in a court proceeding. In other words, the important facts of the case are determined by proof that is filtered through the applicable rules of evidence and determined to be either admissible or inadmissible. This proof includes testimony, writings, physical objects, and anything else presented to the senses of the jury. Such proof can be direct or circumstantial in nature. What Law Applies on the Bar Exam? - Answer>> The Federal Rules of Evidence govern on the Multistate Bar Examination ("MBE"). Minor caveat: There are a few situations where federal courts will apply state law (for example, with respect to privilege in a diversity case). Applicability of Federal Rules - Answer>> We know that the Federal Rules control on the bar exam, but you might encounter an exam question about whether they apply in a particular federal proceeding. The Federal Rules are generally appli- cable in all civil and criminal federal proceedings. However, there are certain types of proceedings (listed below) where the judge or jury is permitted to consider more information than would be admissible under the Federal Rules. Causation Habit and Business Routine Evidence Industry Custom as Evidence of Standard of Care Plaintiff's Accident History—Prior False Claims or Same Bodily Injury - Answer>> Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone. However, such evidence may be admissible if it tends to show something other than carelessness: - Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false. - Evidence of prior accidents may be admissible where the cause of the plaintiff's damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff's condition is attributable (in whole or in part) to the prior injury rather than the current accident. Similar Accidents or Injuries Caused by Same Event or Condition - Answer>> Generally, other accidents involving the defendant are inadmissible because they merely show the defendant's general character for carelessness. However, evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff's accident). Note: As discussed in a later module, "substantial similarity" is also the rule governing the admissibility of experiments and tests (for example, an accident recreation needs to be performed under substantially similar circumstances as the accident). Absence of Similar Accidents Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to show the defendant's lack of knowledge of the danger. Previous Similar Acts Admissible to Prove Intent - Answer>> Similar conduct previously committed by a party may be admissible to prove the party's present motive or intent in the current case. Sales of Similar Property - Answer>> Evidence of sales of similar personal or real property around the same time period is admissible to prove the property's value. However, prices quoted in mere offers to purchase generally aren't admissible. Rebutting Claim of Impossibility - Answer>> The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (for example, the defendant's claim that the car will not go above 50 miles per hour can be rebutted by showing occasions when the car went more than 50 miles per hour). Causation - Answer>> Complicated issues of causation may be established by evidence concerning other times, events, or persons (for example, damage to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home). Habit and Business Routine Evidence - Answer>> Evidence of a person's habit (or evidence of the routine practice of an organization) is admissible as circumstantial evidence that the person (or organization) acted in accordance with the habit on the occasion at issue in the case. Habit describes a person's regular response to a specific set of circumstances. Thus, there are 2 defining characteristics of habit: (1) frequency of conduct and (2) particularity of circumstances. Distinguish Character Evidence Character describes someone's general disposition or propensity with respect to general traits. As discussed in the Character Evidence module, this type of evidence is generally not admissible to prove how a person acted during the events of the case. Example: The fact that Carlos is a "careless" driver is inadmissible to suggest that he ran a red light and caused the accident involving the plaintiff. Note: Watch for key words such as "always," "invariably," "instinctively," and "automatically" in a question's fact pattern. These words may indicate habit. direct admissions of liability—are also inadmissible for these purposes. Note: Evidence of settlement is admissible to impeach a witness on the ground of bias. Disputed Claim Required The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount. Limited Exception to Rule—Civil Dispute with Government Authority Under the Federal Rules, conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case. For example, a defendant's admissions of fact during settlement negotiations with a securities enforcement agency would be admissible against the defendant in a related criminal trial. Plea Discussions - Answer>> The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions: - Offers to plead guilty; - Withdrawn guilty pleas; - Actual pleas of nolo contendere ("no contest"); or - Statements of fact made during any of the above plea discussions Note: An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party (see the Hearsay module). Payments of and Offers to Pay Medical Expenses - Answer>> Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible. Generally, the most important thing to remember about offers to pay medical expenses is that accompanying admissions of fact are admissible. Beware, however, of an offer to pay medical expenses that is also an offer to settle (for example, "I'll pay your medical expenses if you drop the case"). In that situation, the more restrictive rule for settlement negotiations applies; meaning, any accompanying statements or conduct would be excluded along with the offer. Types of Character Evidence - Answer>> Character evidence refers to a person's general propensity or disposition (such as for honesty, fairness, peacefulness, violence). Character evidence might be offered as substantive evidence (meaning, to prove a fact at issue in the case) for the following purposes: - To prove a person's character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense); or - To serve as circumstantial evidence of how a person probably acted during the events of the case. This is also known as "conduct in conformity with character" or "propensity" evidence. This purpose for offering character evidence is the focus of this module because it is permitted only in a few situations. Additionally, evidence of a witness's bad character for truthfulness might be offered for impeachment purposes (that is, to attack the witness's credibility rather than to prove some fact in the case). For coverage, see the Impeachment module. Method of Proving Character - Answer>> Depending on the purpose of the offer and the nature of the case, some or all of the following methods of proving character may be allowed: - Evidence of the person's specific acts; - Opinion testimony of a witness who knows the person; and - Testimony as to the person's general reputation in the community Defendant's Character in Criminal Case - Answer>> The prosecution cannot initiate evidence of the defendant's bad character to show conduct in conformity. In other words, they can't introduce such evidence during their case-in-chief to show that it is within the defendant's character to commit the charged crime. However, because the defendant's life or liberty is at stake, the defendant is permitted to introduce evidence of their own good character to show their innocence. If the defendant introduces evidence of their good character, then the prosecution can rebut with evidence of the defendant's bad character. How Defendant Proves Character - Answer>> Under the Federal Rules, a character witness for the defendant may testify as to the defendant's good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant. Remember that a defendant does not put their character in issue merely by testifying. Taking the stand places the defendant's credibility (as opposed to character) in issue; just character evidence) that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness. The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim's generally violent propensity. Rape Victim's Past Behavior Generally Inadmissible - Answer>> In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. Exceptions in Criminal Cases In a criminal case, specific instances of a victim's sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent. Exceptions in Civil Cases In a civil case, evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (notice that this is a special balancing test that is the reverse of Rule 403 and favors excluding the evidence). Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the victim. Character Evidence in Civil Cases - Generally Not Admissible - Answer>> In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence. Admissible When Character Directly in Issue When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is "directly in issue." This is rare, and for bar exam purposes is generally limited to: - Defamation cases where truth is a defense (plaintiff's character is at issue); - Negligent hiring or entrustment cases (hired/entrusted person's character is at issue); and - Child custody cases (parents' character is at issue) When character is directly in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible. Other Misconduct for Non-Character Purpose - Answer>> General Rule—Other Misconduct Inadmissible Evidence of a person's other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity. In other words, the evidence can't be offered just to suggest that because the defendant tends to do bad things, they are more likely to have committed the charged crime. Admissible If Independently Relevant (MIMIC Evidence) Evidence of a person's other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases). In other words, if a defendant's other misconduct shows something specific about the charged crime—something more than just bad character— evidence of that misconduct may be admissible as bearing on guilt. Such evidence is usually offered in criminal cases, but it can also be used in civil cases (such as in tort actions for fraud and assault). Non-character purposes for offering the evidence may include motive (for example, burning a building to hide embezzlement), intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, "signature" crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another). Even though "MIMIC evidence" is a helpful shorthand, keep in mind that this is not a comprehensive list of permitted purposes. The evidence can be admitted as long as it is relevant to any purpose other than the defendant's general character or propensity to commit the charged crime. Requirement for Admissibility - Answer>> The misconduct may be proved by any evidence, such as witness as authentic. Eyewitness Testimony A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn't have to be from a subscribing witness unless required by statute. Handwriting Verifications A writing can be authenticated by evidence that the maker's handwriting is genuine. This evidence may be in the form of: - The opinion of a lay witness (nonexpert) who has familiarity with the alleged writer's handwriting in the course of normal affairs (not acquired for purposes of the current litigation); - The opinion of an expert who has compared the writing to samples of the alleged writer's handwriting; or - The fact-finder's (jury's) comparison of the writing to samples of the alleged writer's handwriting Additional Methods of Authentication - Answer>> Ancient Documents A document can be authenticated by evidence that it: - Is at least 20 years old when offered into evidence; - Is in a condition that creates no suspicion as to authenticity; and - Was found in a place where such a writing would likely be kept Note that while documents may be authenticated if they are at least 20 years old, the related hearsay exception for ancient documents will only apply if the document was prepared before 1998. Reply Letter Doctrine A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author. Photographs and Videos Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with the scene, object, or person is sufficient. Unattended Camera—Proper Operation of Camera If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera. X-Ray Pictures, Electrocardiograms, Etc. Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with. Compare—Authentication of Oral Statements - Answer>> When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to the identity of the speaker is required. Voice Identification A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying. Telephone Conversations Statements made during a telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party's voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person's number and a voice answered as that person or that person's residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business. Self-Authenticating Documents - Answer>> Certain writings are said to "prove themselves." Extrinsic evidence of authenticity is not required for the following: - Domestic public documents bearing a seal, and similar official foreign public documents; - Official publications (such as a government pamphlet); - Certified copies of public records or private records on file in a public office; - Newspapers and periodicals; - Trade inscriptions and labels; - Acknowledged (notarized) documents; - Commercial paper (including signatures thereon) and related documents; and - Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection the contents of a writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.). One type of secondary evidence is not preferred over the other. Exceptions to Best Evidence Rule - Answer>> Summaries of Voluminous Records When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court. Certified Public Records The rule does not apply to copies of public records that are certified as correct or testified to as correct. Writing Is Collateral to Litigated Issue The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy. Testimony or Written Admission of Opponent Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing's contents, the proponent may use this evidence and need not give an excuse for non-production of the original. Functions of Court and Jury - Answer>> Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules reserve the following questions of preliminary fact for the jury: - Whether the original ever existed; - Whether a writing produced at trial is an original; and - Whether the evidence offered correctly reflects the contents of the original Real Evidence - Answer>> Real evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative). General Conditions of Admissibility Real evidence must be relevant and meet the following legal requirements. Authentication The object must be identified as what the proponent claims it to be, either by: - Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or - Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test) The same standard of proof you've seen before applies to real evidence—the proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the object is what the proponent claims it to be). Condition of Object If the condition of the object is significant, it must be shown to be in substantially the same condition at trial. Particular Types of Real Evidence - Answer>> While the evidence below is often admissible, remember that the court still has discretion to exclude it under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, etc. Reproductions and Explanatory Real Evidence Relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (meaning, they are not given to the jury during its deliberations). Maps, Charts, Models, Etc. Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted. Demonstrations The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly traumatize the injury. Exhibition of Injuries a jury trial was violated. Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror's vote to convict. Dead Man Acts - Answer>> Ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have what are known as "Dead Man Acts." These statutes provide that in a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is "interested" if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action. There is no Dead Man Act in the Federal Rules, but a state Act will apply in federal cases where state law, under the Erie doctrine, provides the rule of decision (most diversity cases). Thus, you should apply the Dead Man Act rules on the Multistate examination only if a question explicitly states that the particular jurisdiction in which the case arises has a Dead Man Act. Form of Questioning - Answer>> The Federal Rules state that the judge should exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment. The following rules apply, but keep in mind that the judge ultimately has discretion to control the questioning. Leading Questions - Answer>> Leading questions (questions that suggest the desired answer) are generally allowed only on cross-examination and are not permitted on direct examination. However, the court will ordinarily allow leading questions on direct examination in the following circumstances: - To elicit preliminary or introductory matter; - When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or - When the witness is hostile, an adverse party, or a witness affiliated with an adverse party Scope of Cross-Examination - Answer>> A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to: - The scope of direct examination, including all reasonable inferences that may be drawn from it, and - Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module) Improper Questions and Answers - Answer>> Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insuffi- cient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken. Using Documents to Aid Oral Testimony - Answer>> As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection. However, a memorandum or other record may be used in certain circumstances. Refreshing Recollection—Present Recollection Revived - Answer>> A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern). Safeguards Against Abuse—Adverse Party's Options Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: - Have the writing produced at trial; - Cross-examine the witness about the writing; and - Introduce portions of the writing relating to the witness's testimony into evidence If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it. Failure to Produce or Deliver Writing In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness's testimony —and, if justice requires, declare a mistrial. (When the defense or a party in a civil case fails to comply, the judge has more discretion and can issue "any appropriate order.") For expert testimony to be admissible, the proponent must demonstrate to the court that it is more likely than not that: (1) the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact; (2) the opinion is based on sufficient facts or data; (3) the opinion is the product of reliable principles and methods; and (4) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. Qualification as Expert The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education. Proper Factual Basis The expert's opinion must be supported by a proper factual basis. The opinion can be based on: - Facts based on the expert's own personal observation (i.e expert personally examined the injured plaintiff). - Facts made known to the expert at trial (i.e. expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question). - Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence. But if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert's opinion substantially outweighs their prejudicial effect (reverse-Rule 403 balancing test that favors nondisclosure). Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination. However, the expert may be required to disclose such information on cross-examination. Expert Reliability - Answer>> Reasonable Probability The expert must possess reasonable probability regarding their opinion. A mere guess or speculation is not sufficient. Reliability—Judge as Gatekeeper Federal courts determine the reliability of all expert testimony (scientific or otherwise). Although courts have discretion to consider a wide variety of factors in making this determination, there are 4 principal Daubert factors that courts use to determine the reliability of experts' principles and methodologies. The "TRAP" mnemonic may help you remember them: - Testing of principle or methodology - Rate of error - Acceptance by experts in the same discipline - Peer review and publication Use of Learned Treatises During Examination A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Under the Federal Rules, these "learned treatises" can be used not only to impeach experts, but also as substantive evidence (that is, to prove that what the treatise says is true) under the "learned treatise" exception to the hearsay rule, subject to the following limitations: - The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice; - The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and - The excerpt is read into evidence but cannot be received as an exhibit Expert Opinions on Ultimate Issues and Court-Appointed Experts - Answer>> Opinion on Ultimate Issues An expert is generally permitted to render an opinion as to the ultimate issue in the case (for example, "X was drunk" or "X was insane" or "That is X's signature on the document"). However, in a criminal case in which the defendant's mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue. Court-Appointed Experts A court has broad discretion to appoint expert witnesses (although this rule does not limit any party's right to call its own experts). On a party's motion or its own, the court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations. The court may then appoint any expert who consents to act, and the court must inform the expert of their duties. The expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert. The expert is entitled to reasonable compensation as set by the court. The court may authorize disclosure to the jury that the expert was appointed by the court. Exclusion and Sequestration of Witnesses - Answer>> Upon a party's request, the trial judge must order witnesses excluded from the courtroom. The judge may also do this on their own motion. The judge, however, must not exclude: (1) a party or a designated officer or employee of a party, (2) a person whose - Impeachment methods 5-7 (opinion or reputation evidence of untruthfulness; prior convictions; bad acts) involve impeaching a witness with their general bad character for truthfulness Prior Inconsistent Statments - Answer>> A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case. When Admissible as Substantive Evidence Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, a testifying witness's prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated (see the Hearsay module). The rationale is that the statement is reliable because of the oath, and because the witness is now subject to cross-examination about the statement. Foundation for Extrinsic Evidence Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point: - The witness is given an opportunity to explain or deny the statement; and - The adverse party is given an opportunity to examine the witness about the statement Exceptions to Foundation Requirement The foundation requirement above (giving the witness an opportunity to explain or deny; allowing the adverse party to examine them) does not apply in the following circumstances: - The foundation requirement does not apply if the prior inconsistent statement is an opposing party's statement - As discussed in 7.4, below, an inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation. - The court may dispense with the foundation requirement where justice requires (for example, when the witness has left the stand and is unavailable when their inconsistent statement is discovered). Bias or Interest - Answer>> Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie. Example: A witness is a friend, relative, or employee of a party; an expert witness is being paid by a party; a witness has a grudge against a party, etc. Foundation for Extrinsic Evidence Because impeachment with bias is not specifically addressed by the Federal Rules, much is left to the court's discretion. The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination. Note that the court has discretion to permit extrinsic evidence even if the witness admits the bias. Sensory Deficiencies - Answer>> A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified. There is no foundation requirement for proving the sensory deficiency with extrinsic evidence (meaning, the witness does not need to be confronted with the impeaching fact). Examples: Bad eyesight or hearing; poor memory; consumption of alcohol or drugs at the time of the event or while on the witness stand. Contradictory Facts - Answer>> Although not specifically addressed in the Federal Rules, impeachment by contradiction is a recognized method of impeachment. The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination. If the witness admits the mistake or lie, they have been impeached by contradiction. However, if the witness sticks to their story, the issue becomes whether extrinsic evidence may be used to prove the contradictory fact. The answer is yes, extrinsic evidence is permitted unless the contradictory fact is collateral (meaning, it has no significant relevance to the case or to the witness's credibility; see 7.3, below). Opinion or Reputation Evidence of Untruthfulness - Answer>> A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand. This is accomplished by calling a character witness to testify about the target witness's bad reputation or the character witness's low opinion of the target witness. than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused's guilt or innocence. Constitutionally Defective Conviction Cannot Be Used A conviction obtained in violation of the defendant's constitutional rights is invalid for all purposes, including impeachment. Bad Acts Involving Untruthfulness - Answer>> Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness (that is, an act of deceit or lying). The cross-examiner must have a good-faith basis to believe the witness committed the misconduct. Extrinsic Evidence Not Permitted Extrinsic evidence of the bad acts is not permitted. In other words, this method of impeachment can be accomplished only by cross- examination of the witness. Additionally, the cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act. The rationale is that the consequence (such as an arrest, termination, etc.) is, in essence, a third person's opinion that the witness committed the act, and thus a form of extrinsic evidence. Note: Remember that asking about bad acts does not include inquiring about arrests. An arrest itself is not a bad act. Thus, it is permissible to ask a witness whether they embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement. Impeachment on Collateral Matter - Answer>> Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement. Impeachment of Hearsay Declarant - Answer>> The credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. In other words, because a hearsay declarant functions as a sort of witness—the jury has heard their statement, even if they aren't present at trial—the hearsay declarant can be impeached by any of the impeachment methods that we have discussed. In particular, the hearsay declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement. For purposes of this rule, a "hearsay declarant" means a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party. Rehabilitation - Answer>> A witness who has been impeached may be rehabilitated by the following methods: Explanation on Redirect The witness on redirect may explain or clarify facts brought out on cross-examination. Good Character for Truthfulness When the witness's general bad character for truthfulness was attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), other witnesses may be called to give reputation or opinion testimony about the impeached witness's good character for truthfulness. Note that the character witness cannot testify about specific acts of truthful conduct by the impeached witness; only reputation and opinion are allowed. Prior Consistent Statement There are 2 situations in which a party can rehabilitate a witness by introducing the witness's prior consistent statement. - First, if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence. - Second, if the witness's testimony is impeached on some different ground (other than a general attack on the witness's character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness's credibility. A prior consistent statement that is admissible to rehabilitate a witness's credibility also is admissible as substantive evidence of the truth of its contents Hearsay - Answer>> Statement of the Rule Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. (This definition will be broken down in more depth below.) - Statements offered to show their effect on the listener or reader (i.e. to prove notice in a negligence case) - Statements offered as circumstantial evidence of declarant's state of mind (i.e. when a party is trying to prove someone's insanity or knowledge) Statements That Are Non-Hearsay Under the Federal Rules - Answer>> There are certain statements that meet the basic definition of hearsay (that is, out-of-court statement offered for the truth of the matter asserted), but have been specifically designated as "not hearsay" under the Federal Rules. These statements are often referred to as hearsay "exclusions" or "exemptions," because they have been excluded from the definition of hearsay. Because there is no hearsay concern, these statements are admissible as substantive evidence (unless excluded by some different evidence rule). Prior Statements of Testifying Witnesses - Answer>> As a general rule, a witness's own prior out-of-court statement is hearsay and is inadmissible unless an exception applies. However, under the Federal Rules, a prior statement by a testifying witness who is subject to cross-examination is not hearsay if: - The prior statement is one of identification of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification); - The prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding; or - The prior statement is consistent with the declarant's in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness's character for truthfulness), such as an inconsistency or charge of faulty memory. (See the rehabilitation discussion in the Impeachment module for further discussion.) Remember that these 3 hearsay exclusions apply to statements of testifying witnesses only. Statements by or Attributable to Opposing Party - Answer>> An opposing party's statement (that is, a statement made by or attributable to a party and offered against that party) is not hearsay under the Federal Rules. These statements are traditionally called "admissions of a party-opponent," but this is misleading because the declarant need not "admit" anything. To qualify as an opposing party's statement, the statement need not have been against the declarant's interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the statement may be predicated on hearsay. Types of Opposing Party Statements - Answer>> Judicial and Extrajudicial Statements A party's formal judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial. A party's informal judicial statements made during testimony and extrajudicial (out-of-court) statements are not conclusive and can be explained. A party's formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case. For example, if a defendant pleads guilty to a traffic charge relating to a car accident, that plea can be admitted against them as an opposing party's statement in a subsequent civil case arising out of the same accident. Adoptive Statements Where a party expressly or impliedly adopts or acquiesces in the statement of another, the party's acquiescence may be admissible against them. Silence If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met: - The party heard and understood the statement; - The party was physically and mentally capable of denying the statement; and - A reasonable person would have denied the accusation Note, however, that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime. Vicarious Statements - Answer>> Certain statements by another person are admissible against a party because of the relationship between them. Co-Parties—Insufficient Relationship Statements of a party are not receivable against their co-parties merely because they happen to be joined as parties. Authorized Spokesperson The statement of a person authorized by a party to speak on its behalf (such as a statement by company's press agent) can be admitted against the party. 5) Statements offered against party procuring declarant's unavailability Grounds for Unavailability - Answer>> A declarant is unavailable if they: - Are unable to testify due to death or physical or mental illness; - Are exempt from testifying because of privilege; - Refuse to testify concerning the statement despite a court order; - Testify that they do not remember the subject matter; or - Are absent (beyond the reach of the court's subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means. Note that a declarant who is able to give deposition testimony in lieu of attending trial is con- sidered to be an available witness—except with respect to (1) the former testimony exception and (2) the forfeiture by wrongdoing exception (both discussed below). Exception—Proponent Procured Declarant's Unavailability A declarant is not considered unavailable for purposes of the hearsay rule if the proponent of the declarant's statement procured or wrongfully caused the declarant's unavailability (for example, by intimidating or killing them) in order to prevent them from attending or testifying. Former Testimony - Answer>> The testimony of a now- unavailable witness is admissible if: - The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and - The party against whom the testimony is now being offered—or, in a civil case, the party's predecessor in interest—had an opportunity and similar motive to develop the declarant's testimony at the prior proceeding by direct, cross-, or redirect examination. "Predecessor in interest" refers to a person in a privity relationship with the party (examples would include grantor-grantee, testator- executor, or joint tenants). On a practical level, the "opportunity and similar motive" requirement means that the party against whom the testimony is offered (or, in a civil case, their predecessor in interest) must have been a party in the former action, and the former action must have involved the same subject matter (but the causes of action need not be identical). Because grand jury proceedings do not provide the accused with an opportunity for cross-examination, the grand jury testimony of an unavailable declarant is not admissible against a defendant under the former testimony exception to the hearsay rule. Be careful not to confuse this with a prior inconsistent statement given under oath by a now-testifying witness (one of the hearsay exclusions discussed in the prior section). Grand jury testimony is admissible in that case, both as impeachment and substantive evidence. Statements Against Interest - Answer>> A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary (money), proprietary (property), or penal (criminal) interest when made, such that a reasonable person in the declarant's position would have made it only if they believed it to be true. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against their interest when they made it. Limitation on Statements Against Penal Interest In criminal cases, statements against penal interest (meaning, statements that would subject the declarant to criminal liability) must be corroborated. "Statement" Means Single Remark If a person makes a declaration containing statements that are against their interest (for example, "I sold the drugs") and statements that are not (for example, "X runs the drug ring"), the exception covers only those remarks that inculpate the declarant, not the entire extended declaration. Dying Declarations—Statements Under Belief of Impending Death - Answer>> In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if: - The declarant believed their death was imminent (they need not actually die); and - The statement concerned the cause or circumstances of what the declarant believed to be their impending death. Note that the statement must be based on the declarant's perceptions and firsthand knowledge of what happened (meaning, an unsupported opinion or speculation will not qualify). Remember, although the dying declaration exception may be used in any civil case, its use in criminal cases is restricted to homicide prosecutions (such as for murder or manslaughter). There are no dying declarations in prosecutions for attempted homicide, or for other crimes like robbery or kidnapping. Statements of Personal or Family History - Answer>> This exception isn't as frequently tested as the exceptions above, of them—you don't need to pick just one. Present State of Mind - Answer>> A statement of the declarant's then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible. The rationale for this exception is that these are contemporaneous statements and the declarant has unique knowledge of their own condition. However, except as to certain facts concerning the declarant's will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed. Includes Statements of Intent As stated above, "state of mind" includes statements about the declarant's intent to do something in the future, including the intent to engage in conduct with another person. Includes Statement of Physical Condition As stated above, this exception covers a declarant's statement— to anyone—about their current physical condition. Statements Made for Purposes of Medical Diagnosis or Treatment - Answer>> A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for —and was reasonably pertinent to—medical diagnosis or treatment. Usually a declarant will be describing their own condition, but this is not required (for example, the declarant might be seeking medical assistance for a family member). Statements falling within this exception are usually made to medical personnel, but this is not an absolute requirement. The rationale for this exception is that people have a motive to be honest and accurate when undergoing a medical assessment. If a declarant tells an emergency room physician, "I was stabbed with a kitchen knife; my roommate did it," only the first portion of the statement is pertinent to diagnosis or treatment. The second portion is inadmissible. (Note, however, that many federal courts will admit a statement in which a child abuse victim identifies their abuser in the course of treatment.) As discussed above, there is a separate hearsay exception for statements of present physical condition, and this exception applies regardless of whether the declarant is seeking medical help. The difference here is that the "medical diagnosis or treatment" exception covers statements of past condition (as well as present condition). So when a declarant makes a statement of present physical condition for the purpose of medical diagnosis or treatment, it could technically be admitted under either exception. Under the Federal Rules, declarations of past physical condition made to a doctor employed to testify are admissible under this hearsay exception. Making a statement for the purpose of obtaining a "medical diagnosis" includes a diagnosis for the purpose of giving an expert opinion. Records of a Regularly Conducted Activity— Business Records - Answer>> Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met. The rationale is that businesses are motivated to keep accurate records. Elements "Business" "Business" includes every business, organization, occupation, or calling, including nonprofit organizations. Entry Made in Regular Course of Business To be admissible: (1) the record must have been made in the regular course of business and (2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry). Self-serving accident reports prepared primarily for litigation are usually inadmissible. Entry Made Near Time of Event The entry must be made at or near the time of the event. Personal Knowledge The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker). Business records often present a multiple hearsay problem. Although the report itself (the outer hearsay—the entrant's assertion that the bystanders made these statements) may qualify as a business record, the bystanders' statements within it (the inner hearsay) do not, and will need to fall within some independent hearsay exception or exclusion (for example, statement by opposing party). On the other hand, if the report merely contains the entrant's own observations, or statements of persons under a business duty to report the information, the entire report may be admissible under the business records exception. Records of vital statistics are admissible if reported to a public office in accordance with a legal duty. Statement of Absence of Public Record Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur. Note, however, that a criminal defendant has a right to confrontation and may demand the presence of the person who prepared the certification. Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice (unless the court sets a different timeline). Judgments - Answer>> A certified copy of a judgment is always admissible proof that such judgment has been entered. The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case. Prior Criminal Conviction—Felony Conviction Admissible A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. For example, if a defendant was convicted of a felony assault, the injured party could use the judgment of conviction in a later civil lawsuit against the same defendant to prove that the assault happened. In a criminal case, however, the government may use the judgment for this purpose only against the accused; against others, it may be used only for impeachment purposes. Prior Criminal Acquittal—Excluded This hearsay exception does not apply to records of prior acquittals. This is because the evidentiary standard is higher in a criminal case (proof beyond a reasonable doubt), so an acquittal is not conclusive as to whether the defendant would be found liable in a civil case. Judgment in Prior Civil Case—Generally Excluded A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof. A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land. Recorded Recollection - Answer>> As previously discussed, there is a hearsay exception for recorded recollections. Recall that under this exception, if a testifying witness's memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. See the Witnesses module for the required elements. Remember that under this exception, the record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party. Learned Treatises - Answer>> As discussed in the Witnesses module, statements contained in a learned treatise are admissible as substantive proof if (1) the treatise is established as reliable authority and (2) the excerpt is relied upon by an expert during direct examination or brought to an expert's attention on cross-examination. If admitted, such statements are read into evidence but are not received as an exhibit. This is a unique feature that recorded recollections (above) and learned treatises have in common. Remember that learned treatises are admissible only if introduced in the context of expert testimony. In other words, if a party finds a learned treatise that supports their case, they can't offer it into evidence under this exception unless there is an expert involved who either (1) relies on the treatise or (2) is impeached with the treatise. Ancient Documents - Answer>> Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible. Documents Affecting Property Interests - Answer>> A statement in a document affecting an interest in property (such as a deed, will, etc.) is admissible if the statement is relevant to the document's purpose. However, the exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document. Reputation - Answer>> Reputation evidence is hearsay because it summarizes various out-of-court statements by other people—but we know from the Character Evidence module that such testimony is routinely admitted. That is because there are several hearsay exceptions that admit reputation evidence to prove: (1) character; (2) personal or family of the threat to the victim and to the public; and (4) the type of weapon involved. To Provide Information for Later Prosecution—Testimonial When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial (for example, statements to police describing a crime after it has concluded). On the other hand, it has been held that statements by a young child abuse victim to a school teacher about the abuse are not testimonial because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator. Affidavits or Written Reports of Forensic Analysis - Answer>> Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (such as fingerprint test results) are testimonial and cannot be admitted unless the defendant previously had an opportunity to cross-examine the author of the report. The testimony of the analyst's supervisor who was not involved in the testing is not sufficient to admit the results. However, such reports may be used for a nonhearsay purpose. Specifically, no confrontation violation occurs if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a nontestifying analyst's report to demonstrate a partial basis for their opinion. Due Process Rights - Answer>> Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process. Testimonial Privileges - Answer>> Testimonial privileges permit a person to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings. On the bar exam, privileges are usually tested in a straightforward manner and you'll apply the general rules covered in this module. However, you may be asked to determine whether federal or state privilege law should be applied in a particular case in federal court. The answer to this question is as follows: - In a federal court case arising under federal substantive law (all civil cases arising under the Constitution or federal statutes, and all criminal cases), privileges are governed by federal common law. - In a federal court case based on diversity jurisdiction, where state substantive law applies to parties' claims and defenses (the Erie doctrine, covered in Federal Civil Procedure), the federal court must apply privilege law of the state. Federal Common Law Privileges - Answer>> The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. Federal courts currently recognize the following major privileges: - The attorney-client privilege; - Spousal immunity; - The privilege for confidential marital communications; - The psychotherapist/social worker-client privilege; - The clergy-penitent privilege; and - Governmental privileges Other privileges not listed above (such as physician-patient, accountant-client, professional journalist) are only recognized by certain states. General Privilege Considerations - Answer>> Persons Who May Assert Privilege A privilege is personal to the holder; meaning, it generally can be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder's behalf. Confidentiality To be privileged, a communication must be shown or presumed to have been made in confidence (meaning, not intended to be disclosed to third parties). Comment on Privilege Forbidden Neither counsel for the parties nor the judge may comment on someone's claim of privilege. Waiver Any privilege is waived by: (1) failure to claim the privilege; (2) voluntary disclosure of the privileged matter by the privilege holder; or (3) a contractual provision waiving in advance the right to claim a privilege. A privilege is not waived when someone wrongfully discloses information without the privilege holder's consent. Similarly, a waiver by one joint holder does not affect the right of the other holder to assert the privilege. Eavesdroppers A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the person claiming privilege, even the eavesdropper would be prohibited from testifying. Attorney-Client Privilege - Answer>> Communications between an attorney and client, made during professional consultation, are privileged from disclosure. the attorney's authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence. Privilege Applies Indefinitely - Answer>> The attorney-client privilege applies indefinitely. It continues after the attorney-client relationship ends and even after the client's death. The client's estate representative has the power to waive the privilege after the client's death. Exceptions to Attorney-Client Privilege - Answer>> There is no privilege: - If the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud Example: A client tells their attorney, "Help me disguise the bribes I made so that they look like legitimate business expenses." - Where the client has put the legal services at issue in the case Example: In tax fraud prosecution, the defendant defends on the ground that she relied on advice of her attorney in reporting income. - For a communication relevant to an issue of breach of duty in a dispute between the attorney and client Example: An attorney sues their client for an unpaid fee, or a client sues their attorney for legal malpractice. - Regarding a communication relevant to an issue between parties claiming through the same deceased client Attorney's Work Product - Answer>> Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity. Limitations on Waiver of Attorney-Client Privilege and Work Product Rule Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material. Undisclosed privileged material is subject to the waiver only if (1) the waiver was intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) the material should be considered together to avoid unfairness. There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error. Physician-Patient Privilege (State Privilege ONLY) - Answer>> Scope and Applicability Most states have adopted a physician-patient privilege (but recall that there is no such privilege under federal common law). Confidential information acquired by a physician is privileged if: - There was a professional relationship between the physician and patient for the purposes of medical treatment; - The information was acquired for the purpose of diagnosis or treatment; and - The information was necessary for diagnosis or treatment (non- medical information—for example, details of who was at fault in an accident—is not privileged) The privilege belongs to the patient, and the patient may decide to claim or waive it. If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf. Note: There is also a broader privilege for psychotherapists (including physicians or other professionals certified to diagnose or treat mental and emotional conditions), and this privilege will be discussed in the next section. Remember that the state law of privilege is applied in diversity actions. If an exam question states that the case is a diversity action, then the general physician-patient privilege will be available even though it is in federal court, and you should apply the majority rules discussed here. Criminal Proceedings In some states, the privilege applies in both civil and criminal cases. In a number of others, it cannot be invoked in criminal cases generally. In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases. Physician-Patient Privilege Main Exceptions - Answer>> The physician-patient privilege does not apply (or is impliedly waived) if: - The patient puts their physical condition in issue (for example, in a personal injury lawsuit); - The physician's assistance was sought to aid wrongdoing (for example, to help the patient commit a crime or tort); - The communication is relevant to an issue of breach of duty in a dispute between the physician and patient (such as a medical malpractice case); - The patient agreed by contract (in an insurance policy, for example) to waive the privilege; or - It is a federal case applying the federal law of privilege (because, again, federal courts do not recognize a general physician-patient privilege) Psychotherapist/Social Worker-Patient Privilege - Answer>> Federal courts recognize a privilege for confidential communications made to a member of the clergy, the elements of which are very similar to the attorney-client privilege. For example, the privilege will apply only if the penitent made the communication to the clergy member in the clergy member's capacity as a spiritual adviser. Privilege Against Self-Incrimination Under the 5th Amendment to the Constitution, a witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime. Governmental Privileges Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the informer's identity is voluntarily disclosed by a privilege holder (an appropriate government representative). Accountant-Client Privilege (State Only) Many states recognize a privilege for statements made to an accountant, and the elements of this privilege are very similar to the attorney-client privilege. However, there is no federal accountant-client privilege. Professional Journalist Privilege (State Only) There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privilege. Burdens of Proof - Answer>> The burden of proof encompasses (1) the burden of producing or going forward with the evidence and (2) the burden of persuasion. Burden of Production - Answer>> The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (that is, create a fact question of the issue for the trier of fact). This is known as the burden of production, or the burden of producing evidence, or the burden of going forward with evidence. Once the party has satisfied the burden of production, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence. Burden of Persuasion (Proof) - Answer>> After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt. Preliminary Questions - Answer>> In most cases, the existence of some preliminary or foundational fact is an essential condition of admissibility. For example, for a statement to be admitted under a hearsay exception, it must be determined whether the requirements of the exception are satisfied based on the surrounding facts (for example, did the declarant actually believe their death was imminent when they made their supposed dying declaration?). The Federal Rules distinguish preliminary facts to be decided by the jury from those to be decided by the judge. Preliminary Facts Decided by Jury - Answer>> The jury decides certain preliminary facts relating to whether evidence is relevant at all. For example, before a purported telephone conversation between the plaintiff and the defendant is admitted into evidence, the identity of one of the speakers on the call might need to be verified—otherwise, the conversation would be irrelevant. Some preliminary facts to be decided by the jury include whether evidence is authentic, whether a person was acting as a party's agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony. Screened by Judge Before such a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists. Preliminary Facts Decided by Judge - Answer>> Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge. For example, the judge decides: - Is a witness mentally competent to testify? - Does a privilege exist? - Does the evidence meet the requirements of a hearsay exception? Judge May Consider All Non-Privileged Evidence The Federal Rules permit the trial judge to consider any non- privileged relevant evidence when making a preliminary fact jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive. "Adjudicative" and "Legislative" Facts The Federal Rules, and thus their requirements, govern only judicial notice of "adjudicative" facts (meaning, those that relate to the particular case). "Legislative" facts (meaning, those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed. Judicial Notice of Law—Mandatory or Permissive - Answer>> Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed Presumptions - Answer>> A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof, because proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption. Common Presumptions - Answer>> Below are some common rebuttable presumptions: Mail Delivery A letter, properly addressed, stamped, and mailed, is presumed to have been delivered. Death from 7-Year Absence If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead. Against Suicide When cause of death is in dispute, there is a presumption in civil cases that it was not suicide. Legitimacy Every person is presumed to be legitimate (meaning, born to legally married parents). Sanity Every person is presumed sane in civil and criminal cases until the contrary is shown. Ownership of Car—Agent Driver Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent. Chastity Every person is presumed chaste and virtuous. Regularity It is presumed that persons acting in an official office are properly performing their duties. Continuance Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature. Solvency A person is presumed solvent, and every debt is presumed collectible. Bailee's Negligence Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent. Marriage Upon proof of a marriage ceremony, a marriage is presumed valid. Effect of Presumption - Shifts Burden of Production - Answer>> Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates. Remember that a presumption does not shift the burden of persuasion. The burden of persuasion remains on the same party throughout a trial. Rebutting Presumptions in Civil Cases - Answer>> A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no Limited Admissibility - Answer>> Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. This is called a "limiting instruction." Furthermore, the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose (in other words, the judge may exclude the evidence if it fails the Rule 403 balancing test). Preserving Claim of Error for Appeal - Answer>> A party may claim error in the court's ruling if it affects a substantial right of the party. If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence. If the court excluded evidence, the proponent of the evidence needs to inform the court of the evidence's substance by an offer of proof, unless its substance was apparent from the context. Once the court rules definitively on the record (either before or at trial), the party doesn't have to renew its objection or offer of proof to preserve the claim of error for appeal. Objections - Answer>> Timing of Objections Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence. Failure to object is deemed a waiver of any ground for objection. In other words, if no objection is made, otherwise inadmissible evidence will be admitted. Specificity of Objections An objection may be either specific (for example, "Objection, hearsay") or general ("I object"). The Federal Rules call for a specific objection unless the ground for the objection was apparent from the context. "Opening the Door" A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject. Motion to Strike—Unresponsive Answers If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer; opposing counsel cannot. Exceptions It is not necessary for a party to "except" from a trial ruling in order to preserve the issue for appeal. This was a common law rule that has been abolished. Offers of Proof - Answer>> An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer's description of what the evidence would have been, or tangible evidence marked and offered. The court can require the offer of proof to be made in question-and- answer form (meaning, the lawyer conducts their examination of the witness so that the judge hears exactly what the witness would have said in front of the jury). Taking Notice of Plain Error - Answer>> The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn't properly preserved. Judicial Power to Comment upon Evidence - Answer>> A judge may comment on the weight of the evidence in federal courts. Shielding Jury from Inadmissible Evidence - Answer>> To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.