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Flashcards in Evidence - Privileges, Hearsay Deck (76)
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1
Q

The typical evidentiary privileges are

A

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

2
Q

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

A

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

3
Q

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

A

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

4
Q

The elements of the attorney-client privilege are

A

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

5
Q

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

A

a reasonable expectation of confidentiality.

6
Q

Under the joint client rule

A

blah

7
Q

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

A

member; reasonably believes.

8
Q

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

A

reasonably necessary; legal services.

9
Q

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

A

seeking to become.

10
Q

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

A

to obtain or render legal services.

11
Q

The three types of waiver are

A

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

12
Q

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

A

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

13
Q

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

A

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

14
Q

The three exceptions to the attorney-client privilege are

A

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

15
Q

The physician-patient privilege applies for

A

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

16
Q

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

A

psychotherapists; state court; diversity jurisdiction.

17
Q

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

A

psychotherapists.

18
Q

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

A

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

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

19
Q

Spousal immunity applies only in _______ cases.

A

criminal

20
Q

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

A

cannot.

21
Q

The ______ spouse holds the privilege under spousal immunity.

A

witness

22
Q

The ______ spouse may voluntarily _________.

A

witness; testify.

23
Q

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

A

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

24
Q

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

A

survives.

25
Q

The spousal immunity privilege ________ the termination of the marriage.

A

does not

26
Q

The three exceptions to both types of spousal privilege are

A

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

27
Q

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

A

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

28
Q

Hearsay is ______ unless an ________ or _______ apples.

A

exception; exclusion.

29
Q

The three principal categories of non-hearsay statements are

A

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

30
Q

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

A

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

31
Q

Typical verbal acts are

A

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

32
Q

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

A

inadmissible.

33
Q

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

A

subject to cross-examination;

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

34
Q

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

A

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

35
Q

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

A

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

36
Q

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

A

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

37
Q

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

A

hearsay and is inadmissible.

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

38
Q

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

A

party; against the party; not hearsay.

39
Q

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

A

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

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

40
Q

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

A

only; one factor.

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

41
Q

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

A

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

42
Q

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

A

conspiracy; during; furtherance.

43
Q

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

A

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

44
Q

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

A

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

45
Q

A declarant is unavailable if the witness

A

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

46
Q

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

A

criminal

47
Q

Confrontation is the opportunity for _________ by the defendant.

A

cross-examination

48
Q

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

A

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

49
Q

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

A

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

50
Q

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

A

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

51
Q

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

A

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

52
Q

Examples of non-testimonial documents are

A

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

53
Q

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

A

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

54
Q

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

A

opportunity;
motive;
cross-examine;
issue.

55
Q

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

A

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

56
Q

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

A

(1) cannot be found with due diligence; or

(2) is beyond the court’s subpoena power

57
Q

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

A

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

58
Q

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

A

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

59
Q

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

A

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

60
Q

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

A

belief;
death;
cause.

61
Q

Dying declarations are _____ from the confrontation clause.

A

exempt.

62
Q

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

A

homicide

63
Q

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

A

startling; under the stress of the excitement.

64
Q

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

A

description; occurring; immediately.

65
Q

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

A

then present state of mind, feelings or emotions.

66
Q

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

A

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

**Statements of PAST intent are inadmissible.

67
Q

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

A

current physical condition.

68
Q

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

A

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

69
Q

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

A

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

70
Q

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

A

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

71
Q

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

A

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

72
Q

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

A

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

73
Q

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

A

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

74
Q

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

A

prosecutorial purposes against a defendant in a criminal case.

75
Q

A hearsay declarant may be impeached by

A

any impeachment method.

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

76
Q

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

A

inadmissible; each statement falls within a hearsay exception.