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Describe when evidence is relevant.
Evidence is relevant if it has a tendency to make the existence of any fact of consequence more or less probable; FRE 401. All relevant evidence is admissible, unless (1) excluded by one or more applicable evidentiary rules, or (2) its probative value is substantially outweighed by the danger of (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, or (4) by considerations of (a) undue delay, or (b) needless presentation of cumulative evidence; FRE 403.   EXAMINATION TIP: In determining if evidence is relevant, the causes of action and/or defenses thereto must be considered. P commences a products liability action against D, contending that the latter manufactured a defective vehicle. As a consequence, P was injured when the brakes of a car purchased from D failed while P was driving on a rain soaked street. If in his defense, D contends that P was exceeding the speed limit when the accident occurred, P could probably successfully contend that this evidence is irrelevant (i.e., contributory negligence is ordinarily not a defense to a products liability action).
Describe when evidence of liability insurance is admissible.
Evidence that a person was, or was not, insured against liability is not admissible for the purpose of showing that she acted negligently or wrongfully. However, such evidence may be introduced for any other relevant purpose (i.e., to show ownership or control of an instrumentality, or the bias or prejudice of a witness); FRE 411. EXAMPLE D, Joe's son, injures P in a traffic accident. When P sues Joe and D, Joe claims that the vehicle belongs to D, and therefore he has no liability, However, if, under the applicable law, a vehicle owner is vicariously liable for its negligent operation by members of his household, Joe's purchase of liability insurance for the car is admissible to show that he owned or controlled the vehicle. EXAMINATION TIP: The rationale of this rule is that if evidence of insurance is made known, a jury might be tempted to resolve litigation against a party simply because the judgment would be paid by an affluent third party.
Describe the FRE rule pertaining to offers of compromise.
Statements made during formal settlement negotiations are not admissible for the purpose of proving liability, the invalidity of a claim or the value or amount of a claim; FRE 408.   Offers to compromise, or to accept a compromise, for valuable consideration are not admissible for the purpose of proving liability, the invalidity of a claim or the value or amount of a claim (even though made exclusive of settlement negotiations); FRE 408. EXAMPLE Immediately after his car collides with that of Y's, X says to Y, "I'll give you $10,000 to forget your claim," D's statement would be admissible as an admission because neither the validity nor the amount of the claim is yet in dispute. EXAMINATION TIP: If in the above Example, X had stated to Y, 'Don't worry, I'll pay all of your medical bills," X's statement (while not a settlement offer) is inadmissible. Promises to pay, and the payment of another's medical bills are ordinarily inadmissible; FRE 409.
Describe the FRE rule pertaining to subsequent remedial measures.
Where, after an event has occurred, measures are undertaken which, if previously performed, would have made the incident less likely to have occurred, evidence of such subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. Such evidence may be admitted when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment; FRE 407. EXAMPLES P's parked car was scraped by another vehicle. When P sues D, she denies operating the vehicle when the accident occurred. If P introduces proof that D painted her car the day after the incident (to have the jury infer that D sought to cover-up the scratches which D's car had incurred), the evidence would probably be admissible. D's actions would not have made the accident less likely to have occurred. Additionally, many jurisdictions permit proof of subsequent remedial measures to show that the defendant had attempted to conceal or destroy evidence. P was hurt when a brick fell from a building which was under construction. When P sues D (the owner of the land), D claims that the building was under X's control when the accident occurred. If P sought to introduce evidence that, one day after the accident, D ordered X to erect a screen on the portion of the roof overlooking the street, the evidence would be admissible.
Describe when evidence of a character trait of a person can be offered as direct evidence.
Evidence of a character trait (i.e., she is violent, untrustworthy, reckless, etc.) is admissible as direct evidence for any relevant purpose, other than to prove conduct in conformity therewith on a particular occasion; FRE 404(a).
EXAMPLES A sues B for breach of contract claiming B delivered him non-conforming goods of inferior quality. A seeks to introduce evidence that B has a reputation for being "unsavory" and "a chiseler." However, this evidence is not admissible. It is being offered only for the purpose of showing that B acted in conformity with these character traits on the occasion in question.
A sues P's parents under a negligent entrustment theory. A contends that the defendants permitted their son, P, to borrow their car, and P then collided with an auto driven by A. Evidence of P's "reckless" character is probably admissible. In this instance, the evidence is offered to show that P's parents knew, or should have known, of his reckless propensities. The defendants, however, can request a limiting instruction (i.e., that the jury be advised that evidence of P's character be considered only on the issue of whether entrustment of the car to him was negligent, not for the purpose of deciding whether the accident was actually P's fault).

Describe when evidence of prior, specific acts of a person is admissible for the purpose of proving that she acted in conformity with those acts on a particular occasion.
Evidence of specific acts is ordinarily not admissible for the purpose of proving that a party acted in conformity with those prior acts on a particular occasion. Such evidence is, however, admissible for any other relevant purpose (i.e., to prove identity, motive, opportunity, absence of mistake, etc.); FRE 404(B). EXAMPLES Joe is charged with attempted bank robbery. The fact that he has previously been convicted of armed robbery would ordinarily not be admissible on the prosecution's case-in-chief. D was arrested as he left a department store with a watch on his wrist. When charged with larceny, D contends that he was trying on the item and had simply forgotten about it. The prosecution can introduce evidence that, on a prior occasion, D was stopped outside of a different store for neglecting to purchase an item he was wearing. In this case, the prosecution is rebutting D's assertion that he had made an innocent mistake. However, D would be entitled to a limiting instruction (i.e., for the jury to be instructed that this evidence should be considered only on the issue of "lack of mistake," rather than for the purpose of showing or inferring that, by reason of the earlier incident, D stole the wristwatch in this case). EXAMINATION TIP: Habit (i.e., an almost reflexive response to a defined set of circumstances) is ordinarily admissible to prove conduct in conformity therewith on a particular occasion; FRE 406.  
When, on direct, evidence pertaining to a person's trait of character is admissible, describe the manner in which it may be proved.
Where a person's trait of character is admissible as direct evidence, proof may be made by:
  • (1) testimony as to such person's reputation in the community, 
  • (2) testimony by a witness as to her opinion about the character trait in question, or 
  • (3) where character is an essential element of a case, charge, claim or defense, evidence of specific instances of such person's conduct, FRE 405(b).
EXAMPLES Testimony by a witness that, "John has an excellent reputation for honesty in the community," or, "In my opinion, John is an honest individual," is admissible. A and B are involved in a will contest. A claims that the descendent ("D")'s will was invalid, since he was mentally incompetent when it was made. A would be permitted to present evidence of specific acts pertaining to D's sanity at that time (i.e., that D often put on a clown's outfit and sauntered down the street). D's character is an essential of the case.
Describe when, in a criminal case, a defendant may introduce evidence of a character trait which she possesses.
In a criminal case, a defendant may introduce evidence of a character trait which
  • (1) she possesses, and 
  • (2) tends to prove that she did not commit the crime charged. In such event, the prosecution may, in rebuttal, offer character evidence tending to prove that the defendant committed the crime charged; FRE 404(a)(1).
EXAMPLES D has been charged with the murder of B. In his defense, D introduces evidence that he has a reputation for "honesty" and "fair dealing." Such evidence is not admissible. It does not tend to rebut the crime with which D has been charged (i.e., murder). The evidence sought to be introduced by D would be admissible if D had been charged with, for example, forgery. D (who has been charged with forgery) introduces evidence of his character for honesty, to show that he did not commit the crime with which he is charged. The prosecution may now produce reputation or opinion evidence that D has poor character with respect to honesty or veracity. EXAMINATION TIP: Rule 404(a)(1) was amended in 2000 to provide that when the accused attacks the character of an alleged victim, the door is opened for an attack on the same character trait of the accused (e.g., when the accused offers proof of self-defense, this permits proof of the alleged victim's character trait for peacefulness, but it does not permit proof of the accused's character trait for violence).
Describe when, in a criminal case, a defendant may introduce evidence of a pertinent character trait of his alleged victim.
A defendant may introduce evidence of the victim's character which tends to prove that he (the defendant) did not commit the crime charged. In such event, the prosecution may, in rebuttal, offer character evidence pertaining to the victim which tends to prove that the defendant did commit the crime charged; FRE 404(a)(2). EXAMPLE P sues D for punching him in a bar. D attempts to prove that P has a reputation for being "aggressive" and a "bully" for the purpose of showing that P acted in conformity with these character traits during the occurrence in question. D will be precluded from introducing this evidence (the action is civil, rather than criminal, in nature). EXAMPLE P sues D for punching him in a bar. D attempts to prove that P has a reputation for being "aggressive" and a "bully" for the purpose of showing that P acted in conformity with these character traits during the occurrence in question. D will be precluded from introducing this evidence (the action is civil, rather than criminal, in nature). Compare: D is charged with committing the crime of aggravated battery against V. D could introduce character evidence tending to show that she was "peaceable" in nature. If she did so, however, the prosecution could then introduce character evidence tending to prove that D had a "violent" or "aggressive" character. EXAMINATION TIP: Under this rule, the defendant may offer reputation or opinion evidence. Specific acts may be inquired into on cross-examination.
Describe when, in a criminal case, the prosecution can offer evidence of the victim's character.
In a homicide case in which the defendant has asserted that the victim was the initial aggressor (i.e., the defendant is either asserting selfdefense, or, alternatively, that his crime is merely voluntary manslaughter), the prosecution may, in rebuttal, offer evidence that the victim's character was peaceful in nature; FRE 404(a)(2). EXAMPLES D is charged with murdering V in a barroom brawl. In response, D asserts that (1) he acted in self-defense (i.e., V had attempted to choke him), and (2) alternatively, V provoked the incident by slapping D in the face. In this instance, the prosecution can introduce character evidence of V's peaceable or nonviolent nature for the purpose of disproving D's assertions. D is charged with aggravated assault for stabbing V. In response, D asserts that he acted in self-defense. The prosecution cannot introduce evidence of V's peaceful character for the purpose of rebutting D's defense. In this instance, D has not been charged with homicide.
Describe when, in sex offense cases, evidence of the victim's past sexual behavior is admissible.
In any civil or criminal proceeding involving alleged sexual misconduct, the following is not admissible: (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior, 
(2) Evidence offered to prove any alleged victim's sexual predisposition. Exceptions: In a criminal case, evidence of specific instances of sexual behavior by the alleged victim
  • (1) offered to prove a person other than the accused was the source of semen, injury or other physical evidence, or 
  • (2) offered by the accused to prove consent, or 
  • (3) offered by the prosecution.
In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if its probative value substantially outweighs the danger of unfair prejudice to any party. Evidence of the alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. EXAMPLE D is accused of raping P. At trial, D attempts to introduce evidence that D had a reputation for sexual promiscuity. This evidence is not permissible. However, if D questioned P with respect to (1) particular acts of intercourse she had with other persons at the approximate time she became pregnant, or (2) previous consensual sexual encounters with him, the evidence is admissible.
Describe what evidence is admissible in sexual assault and child molestation cases.
In criminal cases, where the defendant is accused of an offense of sexual assault (FRE 413) or child molestation (FRE 414), evidence of defendant's commission of another such offense or offenses, is admissible, and may be considered for its bearing on any matter to which it is relevant. Where the prosecution intends to offer evidence under these rules, such evidence must be disclosed to the defendant, including statements of witnesses or a summary of the substance of any testimony expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause. These same rules for admitting evidence of offenses of sexual assault or child molestation also apply to civil cases seeking damages or other relief based on the alleged commission of conduct constituting an offense of sexual assault or child molestation (FRE 415). EXAMPLE D, a teacher, is charged with sodomy of an 11 year-old student. The prosecution offers testimony that on two prior occasions D paid underage boys to engage in oral sex with him. Such testimony of specific acts will be admitted under FRE 414 as evidence of D's character. EXAMINATION TIP: Rules 413 and 414 are rules of character evidence in a criminal case where specific acts are being offered generally by the prosecution. Rule 415 is the civil counterpart
Describe the statements or conduct which constitute hearsay under the FRE.
Unless excluded pursuant to FRE 801, the following statements constitute hearsay under the FRE:
  • (1) Any oral or written statement, other than one made by a testifying witness, which is offered into evidence to prove the truth of the matter asserted therein, or
  • (2) Conduct, other than that undertaken by the testifying witness, which (i) was intended to be an assertion, and (ii) is offered into evidence to prove the truth of the matter asserted thereby.
Hearsay statements are inadmissible, unless an exception to the hearsay rule exists; FRE 801. EXAMPLE X sues Y for breach of contract. Joe, a witness for X, attempts to testify that Bill, who has inspected the items for X before they were sent to Y, advised him (Joe) that, "The widgets are in perfect condition." Bill's out-of-court statement is hearsay, and therefore inadmissible unless some exception to the hearsay rule exists. EXAMINATION TIP: Under the FRE, conduct not intended as an assertion is not hearsay.
Describe some situations in which out-of-court statements do not constitute hearsay.
Operative facts (words or conduct which have a substantive, legal significance apart from the fact that they were spoken or, in the case of an act, performed) are not hearsay. Words or conduct offered as circumstantial evidence to show the declarant's state of mind are not hearsay. EXAMPLES Illustrations of the operative facts doctrine include the following:
  • (1) Testimony by W, that. as Joe handed a deed to Bill, Joe said "Blackacre is yours now." If an issue arose as to whether a conveyance of land had occurred, W's testimony about Bill's words and conduct is admissible to show that Bill intended the transfer to be "immediately operative."
  • (2) J testifies that B called P a "Crook." J's testimony is not hearsay, if P had asserted a cause of action for defamation against B.
Words which might be admissible as circumstantial evidence of the declarant's state of mind include the following:
  • (1) In a battery action by P against D, testimony by J that he overheard 0 telling P that D had kicked P's daughter O's out-of-court statement is being offered to show that P had a motive for attacking D.
  • (2) X testifies that he overheard Bill tell D (who is being prosecuted for bank robbery) that the ABC Bank always has "big bucks on Friday afternoons." Bill's statement is admissible to show that D believed the ABC Bank had money in its vault when he attempted the robbery.
Describe the partyopponent exclusion to the hearsay rule. (Admissions)
The following out-of-court statements are not hearsay under the FRE:
  • (I) Statements (including assertive conduct) made personally by a party-opponent.
  • (2) Statements in which a party-opponent has manifested his adoption or belief,
  • (3) Statements by another which were authorized by the party-opponent,
  • (4) Statements made by the party-opponent's agent or servant (i) concerning a matter within the scope of the declarant's agency or employment, and (ii) during the existence of that relationship, and
  • (5) Statements by a co-conspirator of an accused, if made during the course and in furtherance of the conspiracy; FRE 801(d)(2). 
EXAMPLE P sues D for breach of contract. W is called to testify on behalf of P that "P told me that the goods received from D arrived after the prescribed delivery date." W's testimony is not within the party-opponent exclusion from the hearsay rule. The declaration in question was not made by P's party-opponent (i.e., D). Rather, it is being offered by the litigant who purportedly made the statement.
Describe the prior consistent testimony exclusion from the hearsay rule.
Out-of-court statements made by a witness (who is subject to cross-examination) which are consistent with her present testimony and offered for the purpose of rebutting an assertion of recent fabrication, improper influence or improper motive, are not hearsay under the FRE. EXAMPLES P sues D for injuries sustained in a car collision with the latter. W testifies, on behalf of P, that D ran a red light. Counsel for D asks W, "Haven't you recently become an employee of P?" Assuming W admits that he had, P's attorney might then call Y to the stand for the purpose of having Y testify that, immediately after the accident, W had told her that D ran the red light. Although Y is testifying about an out-of-court statement by W, it is not hearsay; FRE 801(d)(1)(B). P sues D for injuries sustained in a car collision with the latter. W testifies, on behalf of P, that, after the accident, D said, "I ran a red light." Counsel for D then calls Y, who testifies that, after the accident, D said, "P ran the red light." P cannot call Z as a witness to corroborate W's testimony. Z's testimony would merely rehabilitate W by a prior consistent statement (which ordinarily is not permissible). It would not rebut a charge of recent fabrication or influence.
Describe the prior inconsistent testimony exclusion from the hearsay rule.
Prior out-of-court statements which were made (1) under oath, and (2) in an adversarial context (i.e., the declarant was subject to crossexamination), by a witness who is presently subject to cross-examination, and (3) which statements are inconsistent with her testimony in the current trial or hearing are not hearsay; FRE 801(d)(1)(A). EXAMPLE P sues D for injuries sustained in a traffic accident. W testifies at a deposition that he had seen the accident occur, and that D had not come to a complete halt at the red light. At trial, however, W testifies that D had a green light. W's prior testimony at the deposition is not hearsay. Therefore, W's testimony at the deposition can be utilized by the factfinder as substantive evidence in determining if P has carried his burden of proof. EXAMINATION TIP: W's prior statement would also be admissible for impeachment purposes. In the context of impeachment, the hearsay rule is inapplicable (i.e., the statement is not offered to prove the truth of the matter asserted therein, but rather to impugn the witness's credibility by showing that he has made statements which are inconsistent with his present testimony).
Describe the excited utterance exception to the hearsay rule.
Out-of-court statements pertaining to a startling event, made by a percipient declarant (i) while such event was occurring, or (ii) who was still under the stress of excitement caused by the event, are admissible as an exception to the hearsay rule; FRE 803(2). EXAMPLES In a civil case, P sues D for shooting him in the back at a bar. P testifies that immediately before the bullet struck him, he heard someone shout, "Watch out, D's got a gun." The elements of the "excited utterance" exception are satisfied, even though P cannot identify the out-ofcourt declarant. Bill is hurt when he trips over a garden hose in front of D's home. One hour after the incident, D's wife exclaims to Bill's spouse, "I told D to put the hose away last night." The excited utterance exception to the hearsay rule is not applicable because there is no indication that D's wife (1) witnessed the startling event (i.e., Bill trip over the hose), or (2) was under the stress of excitement. EXAMINATION TIP: An excited utterance does not require spontaneity as long as the statement was made under the stress of excitement. On the other hand, a present sense impression does require spontaneity inasmuch as the statement must be made while the declarant was perceiving the event or immediately thereafter.
Describe the "present sense impression" exception to the hearsay rule.
Out-of-court statements made about an event or condition, while the declarant was observing or perceiving that event or condition, or immediately thereafter, are admissible as an exception to the hearsay rule; FRE 803(1). EXAMPLE Six months ago, Bill, while gazing out of his window, remarked to his roommate (Jeff), "There goes D, crossing the street." Bill has died and D has been charged with a crime. To establish an alibi, D seeks to have Jeff testify as to Bill's statement. Jeffs testimony (as to what Bill had said) would probably be admissible under the presence sense impression exception to the hearsay rule. EXAMINATION TIP: The "present sense impression" exception differs from the "excited utterance" rule in that, under the former doctrine,
  • (1) it is not necessary that the event witnessed have been exciting or startling, and 
  • (2) the out-of-court statement must have been made while the event was occurring or immediately thereafter.

Describe the medical diagnosis or treatment exception to the hearsay rule.
Out-of-court statements made by a declarant for the purpose of receiving medical diagnosis or treatment, in so far as reasonably pertinent to such diagnosis or treatment, are admissible as an exception to the hearsay rule; FRE 803(4). EXAMPLES After being involved in a traffic accident, P told one of the paramedics (W) who responded to the incident, "I was hit by a car which ran a red light." If, at trial, W is called as a witness for P, and is asked to repeat P's words, the court would probably permit the initial portion of W's testimony (i.e., P said he was hit by a car). This statement was reasonably pertinent for P to obtain effective medical treatment. However, the second part of P's statement (i.e., the car had run a red light), would probably not be admissible. It is not "reasonably pertinent" to the treatment of P's injuries. While P was being treated for injuries sustained in an accident, he advised the doctor that, "I'd like to strangle the driver who hit me." Since P's statement does not pertain to medical diagnosis or treatment, the hearsay rule could not be overcome upon this ground. However, P's statement might be admissible under "then existing mental condition" exception to the hearsay rule; FRE 803(3).
Describe the "presently existing mental, emotional or physical condition" exception to the hearsay rule.
Out-of-court statements made by a declarant pertaining to his then existing state of mind, emotions, sensations, intention or physical condition, constitute an exception to the hearsay rule; FRE 803(3). EXAMPLES X comments to Y, "I'm going to Los Angeles tomorrow." At a criminal trial in which X is the accused, he seeks to have Y testify as to his (X's) remark to assist in establishing an alibi defense. Y's testimony is admissible (i.e., it pertains to X's intention). X is on trial for allegedly murdering Y. The prosecution seeks to introduce the testimony of Z, that X had remarked to her, "I hate Y." The testimony as to X's then existing emotions is admissible. P sues D, claiming that the latter negligently hit her while driving his car. To prove that he incurred severe back injuries, P seeks to have W testify that, one week after the accident, P had remarked to him (W), "There was a sharp pain in my back right after the accident occurred." W's testimony is not admissible. W is seeking to testify about a past physical sensation.
Describe the business records exception to the hearsay rule.
Out-of-court statements made at, or near, the time of the matter or event by (1) a declarant with personal knowledge, or (2) transmitted by a declarant with personal knowledge, are admissible as an exception to the hearsay rule if (i) the declarations were made in the course of a regularly conducted business (whose regular practice was to record such statements) and (ii) the circumstances do not indicate a lack of trustworthiness; FRE 803(6). EXAMPLE After an accident in which P was hurt, Bill, an employee of the ABC Supermarket prepared a report for the manager of the store. The report stated that (1) P slipped as a consequence of her own clumsiness, and (2) the area where she fell was completely dry. If ABC attempts to introduce Bill's report in a lawsuit against it by P, the court might rule that the business records exception to the hearsay is not applicable since (1) the ABC Supermarket does not customarily prepare accident reports (there must, in fact, be a business policy for such a writing to be produced), and (2) it is untrustworthy (i.e., Bill would naturally be reluctant to include matters which might adversely reflect upon his upkeep of the establishment). EXAMINATION TIP: The business record must be authenticated to be admissible.
Describe the "recorded recollection" exception to the hearsay rule.
Where a witness has no present recollection with respect to prior out-of-court statements contained in a writing made or adopted by him when the matter was fresh in his mind, those statements constitute an exception to the hearsay rule, and may be read into evidence if (i) the writing is authenticated, and (ii) the witness verifies that it reflects his knowledge at the time the statements were written; FRE 803(5). EXAMPLE After an accident, Joe (a police officer) wrote down in his report that skid marks at the scene of the incident indicated that D had been speeding. If, at trial, Joe can no longer remember what he had written in his report, he could be asked by P (the plaintiff) to read his observations into the record. Before this could be done, however, (1) the report must be authenticated, and (2) Joe must testify that it coincides with his recollection of the matter. EXAMINATION TIP: Police reports are generally inadmissible as public records, based on untrustworthiness, in criminal cases. In civil cases, the judge has broader discretion to admit them. EXAMINATION TIP: Statements contained in a police report are inadmissible hearsay when offered for their truth. However, in the example above the police report is being used to refresh the witness' recollection not for its truth.
Describe the "public records and reports" exception to the hearsay rule.
Out-of-court statements issued by a public agency which set forth (1) the activities of that office, (2) matters observed by agency personnel which the agency was under a duty to report (except that in criminal cases, matters observed by law enforcement personnel are not within this exception), or (3) factual findings resulting from an investigation pursuant to authority granted by law (except that in criminal cases, such findings may be used only against a governmental entity), are admissible as exceptions to the hearsay rule, unless the circumstances indicate a lack of trustworthiness; FRE 803(8). EXAMPLE The State X Department of Health issues a bulletin stating that physicians on their staff had concluded that exposure to epoxy resins causes cancer. In a lawsuit by P against D (P's employer) for negligently exposing him to these substances, P could introduce the bulletin if (1) the Department of Health was under a duty to make such reports, and (2) the bulletin was properly authenticated. EXAMINATION TIP: This exception to the hearsay rule does not require that the document involved be available to the general public.
Describe the "ancient documents" exception to the hearsay rule.
Statements contained in documents which are at least 20 years old, and whose authenticity has been established, are admissible as an exception to the hearsay rule; FRE 803(16). EXAMPLE After X died, a will contest arose. A key issue was whether X had (1) intended to exclude his son, Joe, from the will, or (2) inadvertently forgotten to include Joe. If the party desiring that Joe be excluded introduces a letter written by X more than 20 years ago (in which X stated that he had omitted Joe because the latter had joined the "disco" crowd), it is admissible under this exception to the hearsay rule. EXAMINATION TIP: In the foregoing Example, the letter's authenticity (i.e., that it had, in fact been written by X) would have to be established for it to be admissible. EXAMINATION TIP: This exception to the hearsay rule occasionally overlaps with the one pertaining to `statements in documents affecting an interest in property"; FRE 803(15). In the latter instance, however, the writing need not have been in existence for at least 20 years.
Describe the past memory or belief exception to the hearsay rule.
Out-of-court statements made by a declarant pertaining to her memory or belief with respect to the execution, revocation, identification or terms of her will, for the purpose of proving the fact remembered or believed, constitute an exception to the hearsay rule; FRE 803(3). EXAMPLE X recently died. Under X's will, his sports car was left to "Joan, whom I love dearly." X has a sister and prior girlfriend, each named Joan. In a will contest to determine who was the intended devisee of the sportscar, X's sister attempts to have Joe testify that, about the time the will was created, X said to him, "I'm upset with Joan. She's been dating other guys on the side." The statement to the effect that X was upset with Joan is admissible under the "then existing state of mind" exception to the hearsay rule. However, the statement reflecting X's belief that Joan had been dating other individuals does not relate to the declarant's then existing state of mind. However, X's belief about Joan's past conduct is nevertheless admissible against a hearsay objection, since it relates to the terms of the declarant's will.
Describe the "learned treatises" exception to the hearsay rule.
Out-of-court statements contained in writings pertaining to history, medicine, science or art, established as reliable authorities and (1) called to the attention of an expert upon crossexamination, or (2) relied upon by her on direct examination, constitute an exception to the hearsay rule. Such out-of-court statements may be read into the record; FRE 803(18). EXAMPLE P sues D, the owner of a toxic waste disposal plant. P claims that fumes from the plant caused him to suffer lung damage. Doctor X was called as a witness for D. He testified that, in his opinion, P's respiratory condition was inherited. On cross-examination, Doctor X was shown a treatise written by Doctor Y. Doctor X acknowledged that Doctor Y was an expert with respect on lung diseases. Counsel for P read into the record a portion of the book which indicated that respiratory conditions (such as that claimed by P) often result from living near toxic waste plants. The statements contained in Z's book are admissible as an exception to the hearsay rule. As a result, they may be considered by the factfinder as substantive evidence in determining if P has carried his burden of proof (rather than merely for the purpose of discrediting Doctor X's testimony).
Describe when an out-of court declarant is "unavailable" for purposes of Section 804 of the FRE.
An out-of-court declarant is "unavailable" for purposes of the FRE whenever she:
  • (1) Is exempt from testifying upon the ground of privilege,
  • (2) Refuses to testify, despite a court order to do so,
  • (3) Testifies to a complete lack of memory as to the subject matter of her statement,
  • (4) Has died, or has a then existing mental or physical disability which prevents her from testifying, or
  • (5) Is absent from the hearing or trial, despite efforts by the proponent of the hearsay evidence to procure her attendance by process or other reasonable means; FRE 804(a).
In each of the foregoing instances, the proponent of the evidence must not be responsible, in any manner, for the declarant's unavailability. EXAMPLE X is the accused in a criminal trial. He seeks to have Y testify that he (Y) committed the crime in question. Y, however, asserts the Fifth Amendment privilege against self-incrimination. Y is "unavailable" for purpose of FRE 804.
Describe the "prior criminal convictions" exception to the hearsay rule.
When offered for the purpose of proving facts essential to the judgment, statements contained in a final judgment (other than one entered upon a plea of nolo contendere), determining a person to be guilty of a crime punishable by death or imprisonment in excess of one year, are admissible as an exception to the hearsay rule. However, in a criminal case where the prosecution offers the judgment (1) against someone other than the accused, and (2) for purposes other than impeachment, this exception does not apply; FRE 803(22). EXAMPLES Y sues X for negligently colliding into him on a highway. If Y's attorney introduces a guilty plea for drunken driving entered against X with respect to the incident in question as proof of the latter's unreasonable behavior, a hearsay objection to the conviction is overcome by this exception. (It is assumed, of course, that drunken driving is punishable by imprisonment in excess of one year). X is prosecuted for conspiracy to commit bank robbery. As part of its case-in-chief, the prosecution offers evidence of its successful prosecution of Bill for conspiring with X to rob the bank in question. Since the judgment against Bill is being offered for purposes other than impeachment, the "prior criminal convictions" exception to the hearsay rule does not apply.
Describe the "impending death" exception to the hearsay rule.
Out-of-court statements concerning the circumstances or cause of his death, made by a declarant who (1) is unavailable, and (2) sincerely believed that his demise was imminent, are admissible as an exception to the hearsay rule; FRE 804(b)(2). EXAMPLE X was stabbed by Z during an altercation at a bar. Sincerely (and, in this instance, correctly) believing that death was imminent, X acknowledged a $5,000 debt due to Y. X then expired. Y had previously sued X to recover the $5,000. However, in his pleadings X had contended that the money was given to him as a gift (rather than a loan). Z's testimony as to X's final words is not within the "impending death" exception to the hearsay rule. X's out-of-court statement did not pertain to the circumstances of his death. (However, X's comment is admissible as a party-opponent admission or a statement against interest.) EXAMINATION TIP: Under the FRE, dying declarations are permitted in all civil cases and criminal homicide cases.
Describe the information upon which an expert opinion may be based.
An expert may base her opinion upon facts or data made known to, or perceived by, her (1) before, or (2) at, the hearing. If the data or facts are the type which are reasonably relied upon by experts in that field, such facts or data need not be admissible into evidence; FRE 703. EXAMPLE Doctor W, having been advised by her lab technician as to the results of X-rays pertaining to P, testifies that P's back injuries are permanent in nature. Even though the (1) lab technician's comments to Doctor W might constitute hearsay, and (2) X-rays were not authenticated (i.e., no proof was offered in court that the X-rays which the lab technician viewed were those of P), P's testimony is admissible. Doctors frequently rely upon statements made to them by their staff or paraprofessionals. EXAMINATION TIP: An expert may render an opinion without disclosing the underlying basis upon which it is made; FRE 705. This data can be elicited upon cross-examination. EXAMINATION TIP: An expert's testimony may ordinarily be developed by hypothetical (i.e., leading) questions.
Describe when opinion testimony may be given.
Lay (i.e., non-expert) witnesses may render opinions, as long as such opinions are (a) rationally based on the witness's perception or experience, and (b) helpful to a clear understanding of her testimony or a determination of a factual issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of expert testimony; FRE 701. Expert testimony may be in the form of opinion; FRE 702. EXAMPLES On behalf of P, W (a lay witness) testifies that "D was speeding" at the time of the accident. Assuming W was not holding a radar gun upon D's car, her testimony that "D was speeding" is opinion. Nevertheless, it satisfies the requisites of layperson opinion testimony, and is therefore admissible. W, an expert, testifies for the defendant in a products liability case, that the product was "not defective". W's testimony is proper. EXAMINATION TIP: A number of cases express the principle that lay opinion on the ultimate issue is improper. It appears, however, that this should be true only in certain circumstances. A witness's opinion should be rejected if it contains conclusions or expressions of opinion that are superfluous and unhelpful (e.g., testimony that a party was negligent).
Describe the "prior testimony" exception to the hearsay rule.
Out-of-court statements made under oath and in an adversarial context by an unavailable declarant are admissible as an exception to the hearsay rule, if the party (or, in a civil case, her predecessor in interest) against whom the evidence is being offered had an opportunity and similar motive to develop the testimony of the declarant by direct, cross, or redirect examination; FRE 804(b)(1). EXAMPLE X sues Y, the owner of a toxic waste disposal plant. X claims that fumes from the plant caused him to suffer lung damage. Y attempts to introduce the testimony of Z, a recognized expert, which was given in a previous lawsuit against Y by Joe (X's neighbor). Z, who has since died, testified that the fumes from X's plant did not cause Joe's respiratory problems. Z's statement is not admissible under the "prior testimony" exception to the hearsay rule. X presumably had no opportunity to cross-examine Z in Joe's lawsuit against Y, nor was Joe a predecessor in interest of X.
Describe the "statement against interest" exception to the hearsay rule.
Out-of-court statements made by an unavailable declarant with personal knowledge which (1) are against his pecuniary or proprietary interest, or (2) tend to subject him to civil or criminal liability, are admissible as an exception to the hearsay rule; except that out-ofcourt statements which (1) expose the declarant to criminal culpability, and (2) are offered to exculpate a criminal defendant are not admissible, unless there are "corroborating circumstances" indicating their trustworthiness; FRE 804(b)(3). EXAMPLES J was driving his roommate's (D) car when he collided with P. Later, J told his friend, Bill, that he had imbibed 5 beers immediately prior to operating D's vehicle. P sues D (but not J) under a statute which makes the owner of a car liable for the negligent driving of persons using it with his permission. J has since left the jurisdiction. J's statement to Bill is probably admissible under the "statement against interest" exception to the hearsay rule. J's remark could expose him to both civil liability (for negligent driving) and criminal culpability (driving under the influence of alcohol). In a criminal case, D is accused of killing J. D seeks to have W testify that X had told him (W) that he (X) had murdered. Although X's statement exposes himself to criminal culpability, W's testimony about X's out-of-court statement is not admissible, unless D can produce evidence corroborating the assertion that X was the murderer.
Describe the "present recollection refreshed" doctrine.
Where a witness testifies that she has no present recollection with respect to a matter about which she once had personal knowledge, her recollection may be "refreshed" by any means (writings, songs, leading questions, etc.); FRE 612. EXAMINATION TIP: Where a witness's memory is refreshed through a writing (1) while testifying, or (2) before testifying (if necessary to the interests of justice), the adverse party is entitled to inspect it, crossexamine the witness about it, and to introduce into evidence those portions of the writing which relate to the witness's testimony. If the writing is not produced in a civil case, the court may "make any order justice requires". In a criminal case, the court must strike the witness's testimony altogether or declare a mistrial if the prosecution fails to produce such a writing. EXAMINATION TIP: Anything utilized to refresh a witness's recollection is not substantive evidence. Therefore, it need not (1) satisfy the Best Evidence or hearsay rules, or (2) be authenticated.  
Describe the doctrine of completeness.
Where a writing or recorded statement (i.e., a deposition), or any part thereof, is admitted into evidence, the adverse party, at that time, may require the proponent of the writing or recorded statement to also introduce any other (1) part of it, or (2) writing or recorded statement, which in fairness ought to be considered contemporaneously with the offered evidence; FRE 106. EXAMPLE P's attorney introduces the initial two pages of a letter. In it, D indicates that she is giving Blackacre to P. D's attorney can demand to see the entire letter and, if advantageous, introduce the third page (where, for example, it is indicated that the gift was conditioned upon P graduating from law school). EXAMINATION TIP: In addition to the completeness doctrine, a party has a right to view a writing which was utilized to examine a witness with respect to a prior statement by the latter; FRE 613(a). X testifies that he had advised Y that the latter's insurance was about to lapse. Y testifies that notification was never received by him. If X's attorney seeks to question Y about the contents of the letter supposedly sent to Y, Y's counsel could request to see that writing.
Describe when a party may impeach her own witness.
A witness may be impeached by any party (including the one who called her to the stand to testify); FRE 607. EXAMPLE P sues D for injuries sustained in a collision with the latter. P calls W to the witness stand. If W testifies that "P ran a red light", P could then call Joe to testify that W had earlier told him (Joe) that "D failed to observe the red light." J's testimony about W's earlier statement is a proper means of impeaching W (even though W had been called as a witness by P). EXAMINATION TIP: The Example represents impeachment by a prior inconsistent statement. To impeach in this manner, the witness (other than a party-opponent) must be available for re-direct by the party who originally called him; FRE 613(b). Thus, if, in the Example, W had left the courtroom prior to the time that P called Joe to impeach W (thereby making it impossible for D to recall W), Joe's testimony would not be admissible; FRE 613(b).
Describe when a witness may be impeached by character evidence pertaining to lack of truthfulness or veracity.
A witness may always be impeached by character evidence in the form of reputation or opinion pertaining to lack of truthfulness or veracity; FRE 608. EXAMPLE W testifies on behalf of the plaintiff (P) that the defendant (D) ignored a red light and collided with P. After W concluded her testimony, D introduces Bill, who testifies that W has a reputation for being "violent". Bill's testimony should not be admitted. It does not impair W's truthfulness or veracity. However, if Bill testified that, in his opinion, W was untrustworthy, the testimony would be permitted (assuming Bill had sufficient familiarity with W to validly offer an opinion as to the latter). In the second instance, Bill's testimony pertains to W's lack of truthfulness or veracity. EXAMINATION TIP: Evidence supporting the truthfulness or veracity of a witness may be introduced only after her character for those traits has been attacked. X is on trial for perjury. W testifies that X has an excellent reputation for truthfulness. X then seeks to have Bill testify that, in his opinion, W is an honest person. Bill's testimony is not admissible (i.e., W's character for truthfulness or veracity has not yet been attacked).
Describe the manner in which lay and expert witnesses may be impeached by contradiction.
A lay witness may be impeached by any evidence which contradicts his testimony. An expert, however, may be impeached through contradiction only by (1) another expert witness, or (2) a learned treatise (i.e., a publication established as a reliable authority). EXAMPLE P sues D for injuries sustained in a collision with the latter. On behalf of P, W testifies that "D ran a red light and hit P." On cross-examination, W is asked "Why were you standing on Fifth and Main Street" (the viewpoint from which the accident was observed)? W responds that he had "gotten a haircut and was walking home." D's attorney could then (presuming he does so in good faith) ask W, "Weren't you actually returning home from a card game?" This fact, if true, would contradict W's earlier statement that he had previously been at a barber shop. D's attorney could not, however, call Bill (a player at the poker game) to contradict W's testimony that he was at a barber shop before the accident. Since W's location before the accident is a collateral matter, W cannot be impeached as to this aspect by extrinsic evidence. D's attorney could, however, call Bill to testify that W was playing cards at the time W supposedly observed the incident. This is a significant aspect of the case (i.e., whether W had, in fact, witnessed the accident).
Describe how a witness may be impeached by bias.
A witness may ordinarily be impeached by evidence tending to show that she has a bias for, or against, a party. Exstrinsic evidence may be used to show bias.  EXAMPLE P is suing D (a lawyer) in a breach of contract case. In behalf of P, W testifies that D offered to sell his car to P for $500. On cross-examination, D's attorney asked W, "Isn't it true that you hate attorneys?" Alternatively, D's counsel calls Mel to the stand. Mel testifies that he has often heard W state, "I hate attorneys." Either means of impeaching W for bias against attorneys would be proper. EXAMINATION TIP: No foundation is required to be laid when impeaching in this manner. EXAMINATION TIP: The question through which the witness is impeached must be asked in good faith (i.e., in the Example, D's attorney must have had a good faith basis for believing that W disliked attorneys). If he did not, the judge can (1) strike the question and answer; or (2) declare a mistrial.
Describe how a witness can be impeached based upon defects in his capacity, memory or perception.
A witness may be impeached by evidence with respect to his capacity to have (1) perceived, (2) recollect, or (3) to presently give an accurate rendition of, the matter about which he has testified. EXAMPLES P sues D for injuries sustained in a car collision with the latter. On behalf of P, W testifies that the accident was caused by, "D running a red light." Counsel for D could properly ask W, "Were you wearing your glasses when you purportedly observed the incident?" Assuming W said, "No", (1) W might then be asked if she had the capability of observing a traffic light which was approximately 50 feet away (the viewpoint from which W supposedly saw the accident), or (2) counsel for D could call an eye doctor to testify that it would be impossible for an individual with W's vision to have seen the traffic light without her glasses. Asking a witness "Are you presently under the influence of marijuana" would be proper (assuming, of course, there was a good faith reason to believe that she had recently ingested this substance). Being under the influence of an intoxicant would arguably impair a witness's ability to recollect and effectively communicate the matter about which she is testifying.
Describe how a witness may be impeached by prior acts of misconduct (which have not resulted in a conviction).
A court may, in its discretion, permit crossexamination into specific instances of misconduct (which have not resulted in a criminal conviction) by a witness, if such misconduct is pertinent to truthfulness or veracity. EXAMPLES W testified on behalf of plaintiff (P) at trial. During cross-examination, W is asked, "Weren't you caught cheating at cards last Saturday evening?" If W responds in the negative, the cross-examining attorney would have to accept W's answer (even if the 5 persons who were playing cards with W are prepared to testify that W dealt herself aces from the bottom of the deck). Impeachment with respect to prior bad acts not resulting in a conviction cannot be impeached by extrinsic evidence (i.e., evidence of any type, other than through the witness's own mouth). After W testified in behalf of P and against D, D's attorney asks W, "Isn't it a fact that you punched Joe in the stomach two weeks ago?" The question probably is not proper. The specific act in question does not pertain to W's propensity for truthfulness or veracity.
Describe when a witness may be impeached by prior criminal convictions.
A witness who is the accused may be impeached (intrinsically or extrinsically) by a criminal conviction which (1) was punishable by death or imprisonment in excess of one year (if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused), or (2) involves honesty or false statements (regardless of the punishment which the witness received); FRE 609(a)(1)(2). if the witness is not a criminal defendant (e.g., a prosecution witness, a witness for a criminal defendant, or any witness in a civil case), the witness gets no special protection against impeachment as a criminal defendant witness does. Instead, the general balancing test of FRE 403 applies, allowing the prior conviction to be excluded only if the person opposing its introduction shows that the conviction’s probative value is “substantially outweighed by the danger of unfair prejudice.” EXAMPLES W, who testified in favor of D, is asked by P's attorney on cross-examination, "Weren't you convicted of aggravated battery seven years ago?" If the court, in its discretion, determines that the probative value of this fact is outweighed by its potential prejudicial effect, it could sustain an objection to this question. W, who testified in favor of D, is asked on crossexamination, "Weren't you convicted of perjury five years ago?" Since the crime of perjury involves false statements, the court must permit P's attorney to ask this question. EXAMINATION TIP: Evidence of a prior conviction is not admissible where (1) more than ten years has elapsed since the later of the (a) date of conviction, or (b) witness's release from confinement, unless (1) the court determines that the probative value of this evidence substantially outweighs its prejudicial effect, and (2) the proponent of the conviction gives the adverse party sufficient advance notice.
Describe when a witness may be cross-examined as to specific acts, relating to truthfulness or untruthfulness, of another witness.
Where a witness testifies with respect to the character for truthfulness or untruthfulness of another witness, the former may be crossexamined with respect to specific instances of conduct by the latter which pertain to truthfulness or untruthfulness; but may not be proven by exstrinsic evidence FRE 608(b). EXAMPLES P sues D for injuries sustained in a car collision with the latter. P, for the purpose of impeaching W (one of D's witnesses), calls Y to the stand. Y testifies that W (1) has a poor reputation for truthfulness in the community, or (2) in his opinion, W is untrustworthy; FRE 608(a). Counsel for D could then ask Y, "Did you know that W recently returned a lost wallet which had $100 in it?" On behalf of P, W testifies that he saw D punch P. D then introduces Y, who testifies that W has a poor reputation for truthfulness in the community. Counsel for P then calls Z to the stand. Z testifies that W has a good reputation for truthfulness in the community. Counsel for D could then ask Z "Did you know that W was recently terminated from his job for embezzling money?"
Describe Rehabilitating impeached witness
W’s credibility may be supported to rehabilitate it, i.e., to repair the damage done by the other side’s attack on that credibility. Meet attack: The rehabilitating evidence must “meet the attack.That is, it must support W’s credibility in the same respect as that in which the credibility has been attacked by the other side. Examination Tip: No bolstering: A lawyer may not offer evidence supporting his witness’s credibility, unless that credibility has first been attacked by the other side. This is known as the rule against “bolstering one’s witness.” Example: P attacks W as being biased because he is D’s son. D may rehabilitate W’s credibility by showing evidence of non-bias. But D may not rehabilitate W by showing W’s good reputation for truthfulness, or W’s prior out-of-court statements that are consistent with his trial testimony — these attempts by D at rehabilitation do not respond directly to the charge of bias. Exam Tip- Good character: If W’s credibility is attacked by evidence tending to show that he is generally untruthful, the proponent may show that W has a good character for truthfulness. Thus evidence of W’s good character for truthfulness may be used to rebut evidence that: (1) W has a bad reputation for truthfulness; (2) that W2 has a bad opinion of W’s truthfulness; (3) that W has been convicted of a crime bearing on his truthfulness; or (4) that W has committed a prior bad act bearing on his truthfulness.
Describe rehabilating through a prior consistant statement
The fact that W has made a prior consistent statement (i.e., an outof- court statement that matches his trial testimony) may be used only to rebut an express or implied charge that W’s trial testimony is a recent fabrication or the product of improper influence or motive. This is the common-law rule, and is also carried out by FRE 801(d)(1)(B). Thus 801(d)(1)(B) says that the witness’s prior consistent statement is admissible (and is non-hearsay) if offered to rebut an express or implied charge against the [witness] of recent fabrication or improper influence or motive.” Rebutting proof of improper motive: On the MBE, the most common way you will see the admissibility of prior consistent statements by a witness (W) is where W gives particular testimony on direct, the cross examiner shows that W had a motive to lie in that direct testimony, and the direct examiner now tries to show that even if W had such a motive, W made a prior statement consistent with W’s trial testimony, and this prior statement was made before W even had the supposed motive to lie. In this scenario, the direct examiner is indeed “rebut[ting] an express or implied charge ... of recent fabrication or improper ... motive,” so the prior consistent statement will be admissible. Example: Same facts as the Example on p. 39, in which Wanda says on direct that D admitted to her that he had knowingly sold phony stock to P. As in the original example, assume that D’s lawyer, on cross, brought out the fact that W had told Fred that P promised to buy her a necklace if she helped P at trial. Now, however, assume that P’s lawyer tries to rehabilitate Wanda by putting on testimony by Gwen that the night before the trial, Wanda told Gwen, “D admitted to me that he sold P phony stock.” Gwen’s testimony will not be admissible. Why? Well, Wanda’s out-of-court statement was not made until very recently (i.e., long after P is alleged to have tried to improperly influence Wanda), so we know that the out-of-court statement by Wanda was not made before Wanda’s alleged motivation to lie arose, which is what 801(d)(1)(B) requires in order for the prior consistent statement to be admissible as rehabilitation. Examination Tip- Before motive arose: The proponent who wants to use a prior consistent statement must show that the prior statement was made before the alleged motive to fabricate or improper influence arose. This rule applies both at common-law and under FRE 801(d)(1)(B). [Tome v. U.S.]  
Describe the Best Evidence rule.
Under the Best Evidence rule, the original document, recording or photograph must ordinarily be offered into evidence to prove the contents of that writing, recording or photograph; FRE 1002. A duplicate is ordinarily also admissible, unless there is a question as to the original's authenticity; FRE 1003. EXAMPLES P sues D for breach of contract. P testifies that (1) he personally delivered 100 widgets to D, and (2) despite accepting the items, D refuses to pay for them. The fact that, at the time of delivery of the widgets D signed an invoice acknowledging receipt of the items, would not preclude P's testimony under the Best Evidence rule. P's testimony does not describe the contents of a writing. Instead, he is testifying from his personal knowledge about a matter which also happens to be reflected in a writing. On behalf of P, W testifies that he saw a letter, written by D, which stated that the widgets in question were "working excellently." Counsel for D could probably make a Best Evidence rule objection. In this instance, W is testifying about the contents of a writing. EXAMINATION TIP: In the second Example, D could also object to W's testimony upon the grounds (1) lack of authentication, and (2) hearsay. The latter objection could be overcome by the party-opponent exclusion to the hearsay rule.
Describe the circumstances under which the Best Evidence rule is not applicable.
The Best Evidence rule is not applicable under the following circumstances: 
  • (1) The original has been lost or destroyed (unless the proponent of such evidence has lost or destroyed it in bad faith) FRE 1004(1), 
  • (2) The original was under the control of the party against whom it is being offered and, despite being put on notice that the contents would be a subject of proof at the hearing, she does not produce the original at such hearing, FRE 1004(3), or
  • (3) The writing, recording or photograph is not closely related (i.e., it's collateral) to the ultimate issues; FRE 1004(4).
  • (4) An official record or document, if properly filed or recorded, is excluded from the Best Evidence rule if it has been (1) validly certified, or (2) testified to as correct by a witness who has compared it with the original; FRE 1005.
Describe when, for purposes of the various privileges, a communication is confidential.
A communication is intended to be confidential when it is disclosed only to (1) a person who has been consulted in her professional capacity (including the latter's essential personnel), or (2) a spouse. EXAMPLE X (and others) have been sued by P for tortious interference with a contractual relationship. X is dining at a restaurant with Y (a friend). When Z, X's attorney happens to walk by the table, X asks him, "Do you think P will find the letter implicating me?" Y could be called to testify as to X's remark. X's statement was not confidential. It was made in front of Y. Communications made in public are never confidential. EXAMINATION TIP: Evidence is not immunized from discovery simply because it is delivered to an attorney (e.g., pre-existing bank records). Thus, if X gives her attorney documentation which is otherwise discoverable, the other side can obtain it from X's counsel. EXAMINATION TIP: There is a division of authority as to whether otherwise confidential communications which are overheard by an eavesdropper are admissible. The majority view is that such communications are admissible.
Describe the attorneyclient privilege.
One who consults an attorney for the purpose of obtaining professional legal assistance is privileged to refuse to disclose, and to prevent the non-holder party (as well as her essential personnel) from disclosing, confidential communications made for the purpose of facilitating the rendition of those legal services (whether or not the attorney is actually retained). EXAMPLE X and Y (X's employee) consult A (an attorney) after they are sued as joint defendants by Z. During the conference, Joe, A's investigator, is called into the meeting to overhear the conversation. At trial, Y is called by Z to testify. Y (who no longer works for X) was asked about statements made by X during the meeting with A. Y, X or A could successfully assert the attorney-client privilege to preclude this testimony. Where two parties jointly consult an attorney, either can prevent the other from revealing his statements to a third party. Since Joe would qualify as "essential personnel," his presence at the meeting does not preclude assertion of the privilege. EXAMINATION TIP: This privilege does not extend to communications made to facilitate the prospective perpetration of a fraud or crime. However, communications about an illegal wrongful act after it has occurred are privileged.
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