Evidence Quiz 1

When a party has a confidential communication with his attorney for purposes of legal advice the communication should be subject to the attorney-client privilege. The court cannot compel the lawyer to testify over the client's objection.

But if the communication is made in the presence of others, especially strangers, then the communication will probably not be shielded because it was not a confidential communciation. If Dimes spoke in front of others, a court is likely to conclude that the communication was not privileged.

The other choices involve communications not in the presence of others where Dimes was apparently seeking and Larry was providing legal advice.

A present sense impression is an exception to the hearsay rule. FRE 803(1) provides that even if the declarant is available, a court can admit a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Wanda's notes reflect her contemporaneous description of the delivery.

A resent sense impression is hearsay, so choice (2) is wrong.

Choices (3) and (4) are way off. The parol evidence rule generally prohibits parties from using other agreements to explain, contradict, or supplement the terms of a fully integrated agreement. There is no connection between the parol evidence rule and the admissibility of Wanda's notes.

Federal Rule of Evidence 1004 provides that under certain circumstances a court should admit secondary evidence of a document if the original is unavailable. One such circumstance is where the original is unavailable through no fault of the proponent. That seems to be the situation here. The contract is unavailable because a dog ate it and not because Penelope acted in bad faith.

The Federal Rules distinguish between statements that are non-hearsay, hearsay, and exceptions to the hearsay rule.

In addition, the Federal Rules of Evidence distinguish between exceptions to the hearsay rule that require the declarant to be unavailable and those exceptions where it does not matter whether or not the person that made the original statement is available or not.

According to FRE 804, prior testimony is admissible as an exception to the hearsay rule if it is in a prior proceeding involving the same events and parties and there was an opportunity for the party against whom the testimony is being presented to further develop the testimony by direct or cross examination. The original declarant must be unavailable to testify.

FRE 804 prior testimony exception should apply here because the deposition concerned the same parties and events and provided the mechanic with an opportunity for cross examination.

Choice (1) is wrong because the Dead Man's Statute does not exist in the Federal Rules. Some states prohibit an interested party from testifying about verbal statements of a deceased or mentally incapacitated person.

Choice (2) is wrong because a present sense impression a present sense impression is a statement made at the time (or just after) a person perceives an event in which the person describes the event.

Choice (4) is a strange answer that is meant to appear very lawyerly.

Rule 703 provides that an expert can base his opinion on facts or data that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, the underlying facts or data do not need to be admitted into evidence.
Under FRE 703 it does not matter that the doctor did not personally perform the blood test. But because this is expert testimony, a court will only allow the doctor's testimony if other doctors would rely on this type of data to determine whether a competitor is fit to fight.

Pursuant to FRE 803(4) the statement would be admissible as an exception to the hearsay rule if it was reasonably pertinent for medical diagnosis or treatment. The statement that the driver was a maniac would probably not be relevant to treatment of Pauline's injuries and, therefore, the statement is probably inadmissible hearsay.

Choice (1) is accurate in that the person testifying does not have to be the person providing medical care but Pauline's statement was not pertinent to a request for medical treatment.

Choice (2) is wrong because it does not matter whether the person testifying was a senior staff member of the hospital.

Choice (4) is wrong because if the statement had been pertinent to medical care or diagnosis it would not matter whether the nurse or another person who heard the conversation testified as to what Pauline said.

Choice (1) is wrong because the testimony is obviously intended to prove the truth of the assertion that Dudley was the murderer.

Choice (2) is wrong because it would not be a dying declaration (FRE 804(b)(2)) unless Victoria believed she was in danger of imminent death and Victoria were unavailable for trial. Yes, she is unavailable but it appears that she did not have imminent apprehension of death.

Choice (3) is wrong because the declarant is Victoria and the statement is being used as evidence against Dudley.

The best answer is that the statement was an excited utterance, a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused (FRE 803). Note that this testimony might also be admissible as an exception to the hearsay rule even if Victoria survived and was available to testify. Rule 803 does not require the declarant to be unavailable.

The case against Delta is based on negligent hiring. You may also see questions on law school exams concerning negligent entrustment. The idea is that if Delta were more careful it would not have hired a dangerous person to act as a security guard and would not have equipped him with weapons.

While it is true that in civil and criminal cases character evidence is generally inadmissible there are exceptions if character is an element of a claim or defense. Here, character evidence is an element of the claim against Delta because Patrick is alleging that if Delta had met its duty of care it would not have hired someone with a dangerous reputation. Federal Rule of Evidence 405 tells us that when character is at issue it can be proven through evidence based on reputation, opinion, or specific instances of conduct. Therefore, the reputation testimony should be admissible as evidence of Charlie's character.

Choice (2) is wrong for a number of reasons. Among other things, the Federal Rules do not allow testimony as to someone's bad character in anticipation that someone will testify as to his own good character.

Choice (3) is not the best choice. A court can decline to admit evidence if its prejudicial nature will outweigh its probative value but the question does not suggest that there will be unfair prejudice against Delta as a result of this testimony.

Pursuant to Federal Rule of Evidence 611(b) the scope of a witnesses's cross-examination should be limited to ". . . the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination." Although the Court might, in its discretion, allow this cross-examination, the attorney's question was beyond the scope of the two questions that were asked on direct. Daniel's attorney could try to introduce this evidence later in the trial.

Choice (1) is not a good choice because Daniel's testimony would not be speculative. As contemplated by Rule 602, Daniel is testifying as to something within his personal knowledge - - that he recalls instructing his drivers to not drive down Main Street.

The proposed testimony is unrelated to character evidence so choices (2) and (4) are wrong.

The Federal Rules of Evidence distinguish between statements that are hearsay, exceptions to the hearsay rule, and non-hearsay.
FRE 801 provides a list of non-hearsay statements, including adoptive admissions (Rule 801(d)(2)(B)). In an adoptive admission a defendant hears an accusation against him but does not respond under circumstances where we would expect a reasonable person to deny the accusation.
David was accused of fraud but did not deny it; he just smiled and winked so a court will likely treat this as a non-hearsay adoptive admission.

Adoptive admissions are not hearsay, therefore, choice (3) is wrong by referring to an adoptive admission as an exception to the hearsay rule.

Choice (1) is not correct because David's failure to deny the accusation was an admission, not a statement against interest.