Understanding Evidence Rules and Privileges in Legal Proceedings, Exams of Humanities

Download Understanding Evidence Rules and Privileges in Legal Proceedings and more Exams Humanities in PDF only on Docsity! Federal Rules of Evidence Exam Questions with Answers Latest Update. Assured Success Policy Reasons for Excluding Evidence -- Rule 407: Subsequent Remedial Measures - Correct Answers When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. BUT the court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or the feasibility of precautionary measures. Policy Reasons for Excluding Evidence -- Rule 408(a): Compromise Offers and Negotiations - Correct Answers (a) Prohibited Uses. Evidence of the following is not admissible - on behalf of any party - either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering - or accepting, promising to accept, or offering to accept - a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim - except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority Policy Reasons for Excluding Evidence -- Rule 408(b): Compromise Offers and Negotiations - Correct Answers (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. *If there is not actually a legal dispute at issue, then the offer of settlement is not an offer of settlement at all -It is not offering to resolve a legal issue -There cannot be a settlement offer if there is nothing to settle because there is no lawsuit -Must be a legal issue/litigation or it must be on the horizon *If negotiations are made to an officer of a government agency, it could be admitted in a criminal trial Policy Reasons for Excluding Evidence -- Rule 409: Offers to Pay Medical and Similar Expenses - Correct Answers -Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury *Courts want to encourage benevolence/charity Policy Reasons for Excluding Evidence -- Rule 410(a): Pleas, Plea Discussions, and Related Statements - Correct Answers (a)Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those please under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later- withdrawn guilty plea Policy Reasons for Excluding Evidence -- Rule 410(b): Pleas, Plea Discussions, and Related Statements - Correct Answers (b) Exceptions. The court may admit a statement described in Rule 410(a)(3)-(4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement; if the defendant made the statement under oath, on the record, and with counsel present *Negotiations in Criminal Cases -Even if it doesn't result in a plea, the discussion of the plea with the prosecution that never comes to fruition is inadmissible -Includes proceedings with government agencies... i.e., You are charged with tax fraud and engage in plea negotiations; the negotiations cannot be used against you in the IRS civil proceedings Policy Reasons for Excluding Evidence -- Rule 411: Liability Insurance - Correct Answers Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control. Hearsay -- Hearsay Within Hearsay -- Rule 805 - Correct Answers -Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule *i.e. A hospital record might contain an entry of the patient's age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurances Impeachment and Rehabilitations -- Inconsistent Statement -- Rule 613: Witness' Prior Statement - Correct Answers (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2) Impeachment and Rehabilitations -- Inconsistent Statement -- Extrinsic Evidence - Correct Answers -If a witness is allowed to leave town before the prior inconsistent statement is being offered, the extrinsic evidence of the statement (i.e., a transcript/physical documents) must be able to be explained by the witness -Therefore, if the witness is gone, the statement cannot be brought in (Wammock) -If a prior inconsistent statement is made under oath or under the party admission doctrine, then you do not need to give the witness a chance to explain it, it can simply be brought in (substantive evidence) Impeachment and Rehabilitations -- Inconsistent Statement -- Can bring inconsistent statements in for: - Correct Answers -Impeachment; or -If prior inconsistent statements are needed to build the elements of a case, they cannot be used to prove guilt if they are only coming in as impeachment. -There must be affirmative substantive evidence to prove the case. -But inconsistent statements are always admissible to tear down the statement they are now making on the stand. -Anything that goes to show why a witness might give a different version of the story other than the one that is true is admissible for impeachment. -Substantive evidence Impeachment and Rehabilitations -- Impeachment by Evidence of a Criminal Conviction -- Rule 609(a): Impeachment by Evidence of a Criminal Conviction - Correct Answers (a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and *Must be admitted unless the probative value is substantially outweighed by the prejudicial effect (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement *No balancing test if it is a dishonest act or false statement Impeachment and Rehabilitations -- Impeachment by Evidence of a Criminal Conviction -- Rule 609(b): Impeachment by Evidence of a Criminal Conviction - Correct Answers (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use Impeachment and Rehabilitations -- Impeachment by Evidence of a Criminal Conviction -- Rule 609(c): Impeachment by Evidence of a Criminal Conviction - Correct Answers (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence Impeachment and Rehabilitations -- Impeachment by Evidence of a Criminal Conviction -- Rule 609(d): Impeachment by Evidence of a Criminal Conviction - Correct Answers (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was a witness other than the defendant; (3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence Impeachment and Rehabilitations -- Impeachment by Evidence of a Criminal Conviction -- Rule 609(e): Impeachment by Evidence of a Criminal Conviction - Correct Answers (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. Impeachment and Rehabilitations -- Writing Used to Refresh -- Rule 612(a): Writing Used to Refresh a Witness' Memory - Correct Answers (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options Impeachment and Rehabilitations -- Writing Used to Refresh -- Rule 612(b): Writing Used to Refresh a Witness' Memory - Correct Answers (b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. §3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. Impeachment and Rehabilitations -- Writing Used to Refresh -- Rule 612(c): Writing Used to Refresh a Witness' Memory - Correct Answers (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or - if justice so requires - declare a mistrial Opinion Evidence -- Lay Opinions -- Rule 701: Opinion Testimony by Lay Witness - Correct Answers -If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on specific, technical, or other specialized knowledge within the scope of Rule 702 -*"That car flew by me...maybe going 70-80 miles per hour" -Lay witness can talk about comparative speeds in certain circumstances -*That boat is large, the weather is warm, that woman is short, etc. -*Must be a description based on what the witness actually saw and must be helpful to the jury Opinion Evidence -- Expert Opinions -- Rule 702: Opinion Testimony by Expert Witness - Correct Answers -A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case Authenticating Evidence -- Authenticating and Identification -- Rule 901(a): Authenticating or Identifying Evidence - Correct Answers (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Best Evidence and Summaries -- Rule 1006: Summaries to Prove Content - Correct Answers The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court. Best Evidence and Summaries -- Rule 1007: Testimony or Statements of a Party to Prove Content - Correct Answers The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original. *May testify when the evidence should be in private records and it's not, or when it should be in the computer records and it's not Dead Man's Statute - Correct Answers -Dead Man's Statute states that in a civil action, a party with an interest in the litigation may not testify against a dead party about communications with the dead party -If you have a civil dispute with someone who is now deceased, and you are wanting to testify to something that the decedent said, because the person is no longer available, you are not able to tell your side of the story -It must be supported by documentary elements or through other witnesses who do not have the same bias that you have -The deceased must be an adverse party to the litigation *Hendrickson Case -Daughter cannot testify that her mother gave her a ring, and that she actually owned it, because the deceased dad is not there to refute the claim -She can offer documents or objective witnesses Privileges -- Rule 501: Privilege in General - Correct Answers -The Common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise: -The United States Constitution; -A federal statute; or -Rules prescribed by the Supreme Court -But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision Privileges -- Rule 502(a): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers -The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together Privileges -- Rule 502(b): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B) Privileges -- Rule 502(c): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred Privileges -- Rule 502(d): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding. Privileges -- Rule 502(e): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. Privileges -- Rule 502(f): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. Privileges -- Rule 502(g): Attorney-Client Privilege and Work Product; Limitations on Waiver - Correct Answers (g) Definitions. In this rule: (1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and (2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. Privileges -- Common Interest Waiver Exception (Bennett Case) - Correct Answers -If you are sharing a legal communication about a case in which you and several others are all mutual defendants, and you all have the same concern about the same issue, then sharing the issue with them does not waive the privilege -It is assumed this is part of the joint defense -If a third party receives a privileged communication between other parties, no one has the ability to assert privilege; once it has been released to a third party, it constitutes a waiver Privileges -- Marital Privilege (Trammel Case) - Correct Answers -Spouses are not required to testify against one another, but if one wants to, they are allowed -BUT, if both parties hold the privilege, the defendant can prevent the other person from testifying -Mrs. Trammel wanted to testify against her husband in court because she received a plea deal Privileges -- Keyes Case - Correct Answers -If you sue your lawyer, the nature of the lawsuit has made an issue out of the things that are contained within the privileged communications, and the privilege is waived