PAR 202 In Class 4
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Pima Community College *
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202
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Law
Date
Jan 9, 2024
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docx
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PAR 202 In Class 4
1. T F Evidentiary issues are questions of law.
2. T F
If evidence is irrelevant, the evidence may still be admissible under special rules of relevancy.
3. T F
All relevant evidence is admissible at trial.
4. T
F Hearsay evidence is subject to exclusion at trial unless an exception to the
hearsay rule applies.
5. T F
A statement made by the declarant while testifying at trial is considered hearsay.
6. T
F The hearsay rule does not apply to the actual oral testimony of the witness
in court.
7. T F
An admission of a party opponent is any statement made by any party to a lawsuit.
8. T
F Under the Federal Rules of Evidence, prior statements by witnesses that were made under oath at a previous hearing or deposition are not hearsay.
9. T F
Even if a witness is available, former testimony of a witness may be admissible evidence.
10. T
F A statement made during or immediately after an event that describes or explains the event is admissible.
11. T
F Under the public records exception to the hearsay rule, a witness must be called to lay a foundation for the record before the record will be admitted into evidence.
12. T F
Under the Federal Rules of Evidence, a child is presumed incompetent to testify.
13. T F
A person who can only communicate by gestures is presumed incompetent to testify.
14. T
F A witness must have personal knowledge in order to be considered competent to testify.
15. T F
The best evidence rule requires that the best evidence on every issue be presented.
16. T
F Facts generally known within the particular geographic area may be judicially noticed.
17. T
F Communications between a client and a paralegal are subject to the attorney-client privilege.
18. T
F The attorney-client privilege does not apply if the services of a lawyer are sought to enable or aid one to commit or plan a crime or fraud.
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19. T F
In some instances, a lawyer’s opinions, mental impressions, and legal theories may be required to be disclosed to the opposing parties.
20. T F
The work product privilege does not apply to materials prepared by a legal assistant.
21. T F
The physician-patient privilege only applies to parties to a lawsuit.
22. T
F Confidential communications made by one spouse to the other during a marriage are protected from disclosure.
APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text. 1. What does it mean to say that evidentiary issues are questions of law? How do questions of law differ from questions of fact?
When someone says that evidentiary issues are questions of law they mean that certain evidentiary issues are not questions having to do with the facts of the case, they are questions that raise legal questions to be ruled upon by a judge. 2. Why is it necessary for a paralegal to know the rules of evidence?
It is necessary for paralegals to know the rules of evidence because if they are asked to assist with discovery or with any motions in limine they will need to be know what is admissible and what is not.
3. In determining whether to admit evidence under the general relevance test stated in the main text, the court will examine whether the evidence is “of consequence” to the issues in the action. What does it mean for the evidence to be “of consequence”? The court will
also examine the “probative value” of the evidence. What does “probative value” mean?
“Of consequence” means that the result of the evidence directly or indirectly affects substantive legal rights or obligations. Probative value means the ability to prove or disprove a fact.
4. Why are certain types of evidence excluded for extrinsic policy reasons? What are the types of evidence which are excluded for policy reasons?
Although they may be relevant, they’re excluded on specific bases which are outlined in the Federal Rules of Evidence for proving fault or negligence. For example: evidence of subsequent remedial repairs, payment or offer of payment of medical expenses, and liability insurance.
5. Character evidence is only admissible in civil cases if character is an essential element of a claim or defense. Why is such evidence, if relevant under the general relevance tests, excluded when character is not an essential element of a claim or defense? Would the evidence of a defendant’s character be relevant to prove circumstantially how the defendant might have acted on a particular occasion? For example, suppose a witness is available to testify that the defendant has a reputation for daydreaming and the defendant therefore often does not watch where the defendant is going. Would this evidence be relevant to show that the defendant went through a red light and hit the plaintiff’s car? Would the evidence be admissible as character evidence?
Character evidence, if relevant under the general relevance tests, can still be excluded when character is not an essential element of a claim or defense because Fed. R. Evid. 404 states it as so. Would the evidence of a defendant’s character be relevant to prove circumstantially how the defendant might have acted on a particular occasion? No. For example, suppose a witness is available to testify that the defendant has a reputation for daydreaming and the defendant therefore often does not watch where the defendant is going. Would this evidence be relevant to show that the defendant went through a red light and hit the plaintiff’s car? No. Would the evidence be admissible as character evidence? No.
Assume that you are a paralegal in the law firm representing Stella King in hypothetical number 5. The following documents are in your firm’s files. For each document, identify whether there is any claim of privilege that may be made and, if so, which privilege.
a. Medical records from Stella King’s personal physician concerning a broken leg Stella King had suffered five years prior to the accident.
No Claim
b. The hospital admittance report for Ms. King at Warren Community Hospital for the day of the accident.
No Claim
c. Ms. King’s personnel records from her employer.
No Claim
d. A memorandum from you to the attorney responsible for the matter in your firm.
Claim of Privilege
e. A letter from the client to the attorney responsible for the matter in your firm.
Claim of Privilege
f. A letter from the attorney for Mr. Woods to your firm.
No Claim
g. A memorandum from Ms. King to the attorney in your firm giving a detailed narration of the facts.
Claim of Privilege
h. A copy of a letter signed by you to Ms. King.
Claim of Privilege
i. A note from the attorney to the attorney’s secretary regarding the scheduling of depositions.
Claim of Privilege
6. Evidence of conduct routine enough to be considered a habit will be admissible. What is
the difference between “character” and “habit” evidence?
Character evidence is refers to evidence that is used to point out aspects of an individuals personality such as a witness stating that when they went to lunch with the defendant, they
noticed they did not tip which made the the witness believe they are a stingy person. Habit
evidence refers to the evidence of the action of an individual that is so consistent and routine that it would be odd if they did not do so in this particular way. An example of this would be the that the defendant goes everyday, to Sal’s diner and orders a Ruben at 12:00pm, so it can be assumed that at 12:05pm on the day in question Sal was eating a Ruben at Sal’s.
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7. Evidence of subsequent repairs is not admissible to prove negligence or fault, but may be
admissible to prove feasibility of precautionary measures. If you were sitting as a juror and were instructed by the judge to not consider the evidence as proof of negligence but only as to feasibility of the precautionary measures, do you think you could make this distinction? Should there be any concern by the defendant that the jury may use the evidence to place fault with the defendant for not taking the precautionary measures sooner?
It would be hard to distinguish between proof of negligence and feasibility of the precautionary measures, but if I set my mind to make that distinction with specific jury instructions, I would be able to do so. Should there be any concern by the defendant that the jury may use the evidence to place fault with the defendant for not taking the precautionary measures sooner? Yes, I believe this is a valid concern by the defendant because you can’t take personal impressions away from the jury when making their decision.
8. What is "hearsay"? Why is hearsay evidence excluded from trial?
Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is excluded from trial to ensure only the most reliable evidence is admitted.
9. With respect to the hearsay rule, identify the three types of statements under the Federal Rules of Evidence. Give an example of each.
Oral Assertions-“John told me he saw the defendant run the red light” Written Assertions-“John gave me a note that said ‘I saw the defendant run the red light’”
Assertive Conduct-“I met with John and asked him ‘did you see the defendant run the red light?’ He nodded his head yes.”
10. Why are prior statements by witnesses admissible evidence? What can the prior statements be used to prove? Does your state consider prior statements hearsay? If so, does your state provide for an exception to the hearsay rule for prior statements?
Why are prior statements by witnesses admissible evidence? They were made under oath. What can the prior statements be used to prove? To allow prior inconsistent statements to be used to impeach a witness. Does your state consider prior statements hearsay? Yes. If so, does your state provide for an exception to the hearsay rule for prior statements? Yes: it
follows the Federal Rules of Evidence exactly.
11. Compare and contrast the admission of a party opponent exception to the hearsay rule with the statements against interest exception.
Admissions by a Party Opponent
a. only by a party opponent
b. need not be unavailable
c. need not be against interest when made
d. need not be within personal knowledge of party
Statements Against Interest
a. by any witness
b. witness must be unavailable
c. must be against interest of witness when made
d. must be within personal knowledge of declarant
12. Under the federal rules, certain hearsay exceptions require that the witness be unavailable before the hearsay statement made by the witness will be admissible. When is
a witness considered “unavailable”? Are the requirements the same under your state court rules?
Under the Federal Rules:
Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the
declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the
court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)
(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully
caused the declarant’s unavailability as a witness in order to prevent the declarant from attending
or testifying
Arizona Rules of Evidence follow the Federal Rules exactly.
13. Compare and contrast the present sense impression exception to the hearsay rule with the
excited utterances exception.
Present sense impression exception: a statement “describing or explaining an event or condition, made while or immediately after the declarant perceived it” is admissible. Fed. R. Evid. 801(1). Excited utterance exception: A statement “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is admissible. Fed. R. Evid. 803(2). The present sense impression is used because it was made in front of witnesses. The excited utterances is used because the witness had no time
to fabricate facts.
14. What is the rationale for admitting hearsay evidence of a statement by a patient about the
patient’s present or past medical condition? Why is such evidence considered reliable?
15. Identify the three types of records exceptions to the hearsay rule. How do these exceptions differ?
16. What is the difference between a “lay” witness and an “expert” witness? Are there matters that an expert witness can testify to that a lay witness cannot? Why is it necessary to use expert witnesses in some cases?
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17. What are the general requirements needed before a witness is considered competent to testify? 18. Identify at least three ways that a witness can be impeached. Give an example of each.
19. Under what circumstances can a witness’ prior bad acts be admissible to impeach that witness?
20. What does it mean to “authenticate” an exhibit? Why do exhibits need to be authenticated? If you wanted to authenticate a photograph of an accident scene, how could the photograph be authenticated?
21. What is the difference between real evidence and demonstrative evidence?
Give an example of each.
22. Some business records require that a witness testify and authenticate the record. However, public records are considered self-authenticating. Why are public records treated differently?
23. What are the three types of facts which may be judicially noticed?
24. What is the “best evidence rule”?
25. If a client seeks the services of a lawyer, but does not ultimately retain the lawyer, can the
client still assert the attorney-client privilege and prevent the lawyer from disclosing the confidential communication? Or is the lawyer free to disclose the communication since the lawyer was never actually retained?
26. Under the attorney-client privilege, the client is the holder of the privilege. That is, the client holds the right to prevent the attorney from disclosing the confidential communication and the client also has the right to waive the privilege and disclose the communication. Why is the privilege held only by the client, and not also by the lawyer?
27. What are the differences between the attorney-client privilege and the work product privilege? What is the purpose of having a work product privilege? The work product privilege is qualified. What does this mean?
28. Why are communications between spouses protected from disclosure? Can you think of situations where there should be exceptions to this privilege?
29. One of the requirements under the hearsay rule is that there be a statement. Does the term
“statement” apply only to statements made by people? What about readings from meters or scientific instruments? Are these considered statements?
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