Evidence Flashcards

A client emails his attorney seeking legal advice about a merger, copying his accountant on the email. In later litigation, the opponent seeks the email. Is it protected by attorney-client privilege?

Answer: Likely not, because voluntarily including a third party outside the privileged relationship generally destroys confidentiality

Attorney-client privilege requires confidentiality, and knowingly including a third party who is not necessary to facilitate the legal advice generally waives it.

In a personal injury trial, the defense offers testimony that the plaintiff told her doctor, "My back has hurt since I fell off a ladder at home last month." The plaintiff claims the injury came from the car accident at issue. Is the statement admissible over a hearsay objection?

Answer: Yes, both as a statement for medical diagnosis and as an opposing party's statement

The statement qualifies under FRE 803(4) as pertinent to diagnosis including cause, and independently as a party-opponent statement under FRE 801(d)(2) when offered by the defense.

A trial judge, concerned that neither party's expert is credible, wants to appoint her own expert witness. May she do so?

Answer: Yes, the court may appoint an expert on its own motion under the rules

FRE 706 authorizes the court to appoint expert witnesses on its own motion or a party's motion, with the expert subject to deposition and cross-examination by all parties.

A defendant is charged with sexual assault. He seeks to introduce evidence of the victim's past sexual relationship with a third party to suggest general promiscuity. Is the evidence admissible?

Answer: No, because the rape shield rule bars evidence of a victim's other sexual behavior offered for that purpose

FRE 412 generally excludes evidence of a victim's other sexual behavior or predisposition, subject to narrow exceptions such as proving another source of physical evidence or prior conduct with the defendant to show consent.

An expert toxicologist bases her opinion partly on lab reports that are inadmissible hearsay but are the kind of data toxicologists reasonably rely on. May she state her opinion?

Answer: Yes, because experts may rely on inadmissible facts if experts in the field reasonably rely on such data

Under FRE 703, an expert may base an opinion on inadmissible facts or data if experts in the field would reasonably rely on them, though the underlying data is disclosed to the jury only if its probative value substantially outweighs prejudice.

In a criminal trial, a co-conspirator's statement made to an undercover officer during and in furtherance of the conspiracy is offered against the defendant. The defense objects on Confrontation Clause grounds. What result?

Answer: Admissible, because statements in furtherance of a conspiracy are non-testimonial and non-hearsay

Co-conspirator statements under FRE 801(d)(2)(E) made during and in furtherance of the conspiracy are non-hearsay, and casual statements unknowingly made to an undercover officer are non-testimonial under Crawford.

A party asks the court to take judicial notice that Interstate 95 runs through Maryland. The opponent objects that no evidence was presented. How should the court rule?

Answer: Take judicial notice, because the fact is generally known and not subject to reasonable dispute

Under FRE 201, a court may judicially notice facts not subject to reasonable dispute because they are generally known within the jurisdiction or readily verifiable from unquestionable sources.