Final Exam

Evidence § 4 - Fall 2005

Professor Fox

Instructions: This is an open book exam. You may use any written source (except another student’s exam paper) you choose in answering the questions below. Assume that the Federal Rules of Evidence (FRE) apply throughout the exam. Cite specific provisions of the FRE and applicable case law whenever appropriate. There are 55 potential points on the both the mid-term and the final exams for a total of 110 potential points. Final grades for the course will be based on a 100-point scale. You will have one and one-half hours to complete each exam. Keep your answers short or you will not finish.

Laptop Users Only: You may use a laptop computer to type the exam. If you use a laptop, during the exam you may not (1) use a network or wireless card; (2) use e-mail, instant messaging, or in any other way consult with any other person; or (3) use any online or legal research services. To preserve anonymity, either (a) e-mail your answers to Renate Behrendt, Administrative Coordinator – Academic Affairs, who will forward the answers to me, at rbehrendt@wmitchell.edu; or (b) download your answers to a floppy disk or flash drive. (I will return the disk or drive to you.) In either case, be sure to include your exam number with your answers. You must return this exam as well as your answers.

Part I - Fact Pattern Analysis

(25 points – 40 minutes)

1. P sued D for damages arising out of a slip-and-fall accident. In support of her claim for damages, P called Dr. Wilson, a specialist in radiology. Dr. Wilson testified that P’s treating physician referred P to him for consultation; that he (Dr. Wilson) had taken X-rays of P’s spine and wrote a report after studying the X-rays; that he sent the X-rays and the original copy of the report to the treating physician; and that he retained a copy of the report for his records.

(a) On direct examination, Dr. Wilson testified that the X-rays showed a flattening of P’s lumbar lordosis and a scoliosis of her mid-lumbar spine with convexity towards the left. D’s counsel objected to Dr. Wilson’s testimony concerning what the X-rays showed. How should the trial court rule and why? (5 points)

(b) Assume the trial court sustains the objection in (a) above. Later during the direct examination, P’s counsel asked Dr. Wilson whether he had an opinion as to the nature and extent of P’s injuries. D’s counsel objected on the ground that Dr. Wilson’s testimony in this regard was based on evidence the court had already determined was inadmissible. How should the trial court rule and why? (5 points)

(c) Assume the objection in (b) above is overruled. Dr. Wilson then testified that in his opinion P was suffering from a lumbar-sacral sprain. On cross-examination, D’s counsel asked Dr. Wilson whether he had reviewed any documents prior to testifying. Dr. Wilson responded that he had reviewed the copy of the report he prepared after reading P’s X-rays because he did not recall the specifics of P’s case. D’s counsel then requested that the judge order Dr. Wilson to produce the report for his (D’s counsel’s) review. P’s counsel objects that there is no basis for requiring Dr. Wilson to produce the report since he did not testify concerning it and that in any event the report is privileged from disclosure by the physician-patient privilege. How should the trial court rule and why? (5 points)

(d) Assume the objection in (c) above is overruled and that Dr. Wilson produces the report. After reviewing the report, D’s counsel said that he did not have any questions for Dr. Wilson. P then rested her case. D’s first witness was Ms. W, who testified that she had been at a cocktail party a week earlier and that Dr. Wilson told her, “I just found out that I have to go to court next week and testify for P. I make more money that way than I do treating patients. I just have to say what the lawyer wants to hear.” P’s counsel objects on the grounds that it was improper procedure and fundamentally unfair to elicit this testimony without asking Dr. Wilson about this alleged conversation while he was still on the stand. How should the trial court rule and why? (5 points)

(e) D rests after calling Ms. W. On rebuttal, P’s counsel asked the trial court to admit into evidence the report referred to by Dr. Wilson in (c) and (d) above. In response to the court’s question concerning the relevance of the report, P’s counsel referred the court to a sentence that said, “After reviewing P’s X-rays, it is my opinion that she suffers from a lumbar-sacral sprain.” D’s counsel objects that the report has not been properly authenticated and that in any event the sentence in question is hearsay. How should the trial court rule and why? (5 points)

Part II - Hearsay Quiz

(20 points - 35 minutes)

In one or two sentences, explain whether the evidence in the questions that follow is inadmissible hearsay under FRE 802. The questions are limited to issues concerning whether the evidence is excluded from the definition of hearsay by FRE 801(d)(1)(A)-(C) or FRE 801(d)(2)(C)-(E), or is an exception to the hearsay rule under either FRE 803, 804 or 807. Each question is worth two points.

1. P, a pedestrian, sues D, the driver of an automobile, alleging that D struck her while she was crossing the street. In support of her claim of negligence, P testifies that shortly after the accident, while a police officer was interviewing D, D’s passenger, a friend of D’s, whispered to her, “I’m really sorry. We should have called a cab after all those cocktails we had.”

2. Would your answer in 1 above be the same or different if the passenger was D’s employee and D and the passenger were returning to the office after a lunch meeting with a client?

All of the remaining questions arise out of a separate pedestrian and automobile accident in which P sues Pizza Shack alleging that its delivery driver struck P while delivering a pizza. P decides not to sue the driver because he has no assets. Questions 3 through 8 involve evidence offered during P’s case in chief. Questions 9 and 10 involve evidence offered during D’s defense.

3. Pizza Shack contends that the driver had already completed his shift and was on his way home at the time of the accident. P seeks to have a bystander testify that the driver said to him, “It looks like Pizza Shack is going to have to pay out on their ‘20 minutes or it’s free’ guarantee.”

4. The bystander testifies that he ran over to P and found her writhing in pain; and that she said to him, “That guy ran a red light. I’m really hurt -- please call an ambulance.”

5. The bystander further testifies that he used his cell phone to call an ambulance. When the ambulance arrived, the bystander told the emergency medical technician, “She was hit by that pizza delivery driver over there when he ran a red light.” The technician then drove P to the emergency room.

6. The emergency room admitting nurse who admitted P moved out of state and could not be located for trial. Another nurse testified that it is routine practice for the emergency room admitting nurse to enter information into the hospital’s computer system concerning the services required by each new patient; and that, although she was not personally familiar with P’s case, she located what appeared to be the record of P’s admission to the emergency room. According to the computer-generated form associated with that admission, P told the nurse who was on duty, “I am in so much pain. I was hit by a pizza delivery driver who ran a red light.”

7. Pizza Shack fired the driver immediately after learning about the accident. The next day, the driver sent P a “Get Well” card in which he wrote, in part, “I could have sworn the light was green. I guess I was wrong.”

8. The Pizza Shack store manager filed a report with its insurance company. The report states, in part, “From what I’ve been told, it looks like our driver ran a red light. We’ll be filing a claim on this one.”

P rests her case. D’s defense begins.

9. Pizza Shack is a nationwide company. It routinely conducts an in-house investigation following every accident involving delivery of its pizzas because of its concern with minimizing future accidents and liability. Pizza Shack did so with respect to the accident involving P. The investigator examined the scene of the accident and interviewed the driver and the bystander. On the advice of her lawyer, P refused to participate in Pizza Shack’s investigation. In his report, the investigator concluded, “On the basis of my investigation, and based particularly on what a neutral witness, a bystander to the accident, told me, it is my opinion that P stepped off the curb before the light turned green and was then struck by one of our drivers. The driver was off duty and on his way home at the time.”

10. Would your answer to question 9 be the same or different if instead the report was prepared by an accident prevention specialist employed in the city’s Traffic Division?

Part III – Multiple Choice

(10 points - 15 minutes)

Each question is worth two points. Circle the correct answer on this exam sheet or include your answers to this question with your other answers.

1. Which one of the following is false?

(a) A lay witness can provide the foundation for admission of a substance such as cocaine by testimony establishing that the witness is familiar with the substance based on personal experience.

(b) An expert witness can provide the foundation for admission of a substance such as cocaine by testimony establishing that the witness is familiar with the substance based on personal experience.

(c) The “helpful” requirement for the admissibility of lay opinion testimony under FRE 701 is different from the “assist” requirement for the admissibility of expert opinion testimony under FRE 702.

(d) An expert witness can provide opinion testimony in response to a hypothetical question.

2. Which one of the following is false?

(a) Expert opinion testimony is generally not permitted concerning whether a person suffers from a syndrome such as battered woman syndrome.

(b) Expert opinion testimony is generally not permitted concerning the ultimate issue in the case.

(d) Expert opinion testimony is generally not permitted with respect to the legal principles involved in the case.

3. Which one of the following is false?

(a) In deciding whether expert opinion testimony is admissible under Daubert, the trial court has to determine the likelihood that the testimony is correct.

(b) In deciding whether expert opinion testimony is admissible under Daubert, the factors that the trial court must take into account vary depending upon the subject matter of the expertise.

(c) In deciding whether expert opinion testimony is admissible under Daubert, the trial court has to determine whether the evidence is relevant and reliable.

(d) The Latin phrase “post hoc, ergo propter hoc” refers to the logical fallacy of inferring that because one event follows another event in time the second event must have been caused by the first event.

4. P sues D for breach of contract. In support, P offers a copy of a letter that, according to P’s testimony, she mailed to D containing her offer; and an original letter that she claims to have received from D referring to her offer and indicating his acceptance. P further testifies that during discovery she obtained copies of other documents containing D’s signature and that in her opinion the signature on the letter in questions is D’s. Which one of the following is false?

(a) P’s testimony that this is a copy of the letter that she sent D is sufficient for the trial court to admit the copy in evidence.

(b) P’s testimony that this is the original letter that she received in the mail is sufficient for the trial court to admit the original in evidence.

(c) P’s testimony that in her opinion the signature on the letter she received in the mail is D’s is sufficient to admit the original in evidence.

(d) The copy of P’s letter is admissible in lieu of the original.

5. Which one of the following is not a recent headline on CNN.com?

(a) “Mayor: Cut Thumbs Off Graffiti Punks” (analogizing to beheadings of people who committed heinous crimes in the old days in France, the mayor of Las Vegas suggested that the way to deal with people who deface freeways with graffiti is to “put them on TV and cut off a thumb”).

(b) “Utah Judge with Three Wives Fights for Job” (state’s Judicial Conduct Commission seeks to remove judge who married three biological sisters – how creepy is that? -- because the plural marriages create a conflict between the judge’s oath to uphold the law and his conduct in violating it; judge’s attorney characterizes the marriages as “private conduct” and the state’s removal action as “creating an equal protection problem”).

(c) “Iran Leader: Move Israel to Europe” (claiming that the scale of the Holocaust has been exaggerated to justify the creation of Israel and continued western support for it, Iran’s president advocated that European countries give some of their land “to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it”).

(d) “Man Faces 50 Years for Sex with Bride, 14” (a 22-year-old man faces prison time after pleading guilty to sexual assault charges that he impregnated and legally married -- her mother gave permission -- a 14-year-old girl; the happy couple began their relationship when she was 12).

(e) All of the foregoing are recent headlines on CNN.com. L

Final Exam -- Outline of Answers

Evidence Sec. 4

Fall 2005 – Prof. Fox

Part I –Fact Pattern Analysis

1. The problem is based loosely on Sirico v. Cotto, 324 N.Y.S.2d 483 (1971). The author of the opinion, Irving Younger, later became widely known as a law professor and lecturer on trial practice and evidence. (You may have heard of the “Younger Tapes.”) He was a professor at the University of Minnesota law school at the time of his death in 1988.

(a) Judge Younger concluded that under New York law the “best evidence” rule precluded introduction of testimony concerning the contents of the x-rays. The same result would obtain under the FRE. The federal rule extends to writings, recordings and photographs, FRE 1002; and an x-ray is a photograph within the meaning of the rule, FRE 1001(2). Since Dr. Wilson is testifying as to the content of the x-ray and there is no apparent basis for permitting secondary evidence of content under FRE 1004, the original x-ray needs to be produced.

(b) Judge Younger also sustained this objection (and in the process skewered the plaintiff’s attorney for incompetence). A different result would likely obtain under the FRE. Under FRE 703, the facts or data that underlie the expert’s opinion need not be admitted (or even be admissible) in order to form the basis for the expert’s opinion provided that the evidence is of a type that is reasonably relied upon by experts in the particular field in forming opinions or inferences. In re Melton, casebook p. 621, quotes the ACN to FRE 703, which specifically discusses physicians and the disparate information, including x-rays, they rely on in forming opinions.

(c) The objection should be overruled. The trial court has the discretion under FRE 612(2) to require production of documents used to refresh recollection in anticipation of testimony where it is necessary in the interest of justice to require doing so. Dr. Wilson testified that he reviewed a copy of the report because he did not recall the specifics of P’s case and did so in order to testify. As discussed in class, it is hard to imagine when it would not be in the interest of justice to require production. In addition, disclosure of the facts underlying the opinion may be required on cross-examination pursuant to FRE 705.

Federal courts do not recognize the physician-patient privilege. See Jaffee v. Redmond, casebook p. 732, which discusses why it is appropriate for federal courts to recognize a psychotherapist-patient privilege discusses and why the psychotherapist-patient relationship is different from the physician-patient relationship. On the other hand, if state law supplies the rule of decision in this case (which is likely), the existence of the privilege would also be determined under state law. FRE 501.

(d) The objection should be overruled on the basis of FRE 613(b), as interpreted in United States v. Barrett, casebook p. 389. An argument could be made that Dr. Wilson’s cocktail party statement is not “inconsistent” with his testimony at trial. The contrary argument is that the cocktail party statement suggests that his testimony at trial is tailored to promote P’s interests rather than to promote the truth. Under Barrett, “To be received as a prior inconsistent statement, the contradiction need not be ‘in plain terms.’ It is enough if the proffered testimony, taken as a whole, either by what it says or omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. . . . The important point is the clear incompatibility between [the witness’] direct testimony and the alleged statement.”

The “procedural” and “unfairness” objection should also be rejected. As discussed in class and consistent with the Court’s conclusion in Barrett, FRE 613(b) simply requires that the witness be given an opportunity to explain or deny the prior inconsistency and does not specify the timing – if the witness can be recalled, he has that opportunity.

(e) The authentication objection should be overruled on the ground that there is sufficient evidence from Dr. Wilson’s direct examination, including his production of the report, to support a finding that the document is what it purports to be, viz., the report he prepared based on his review of P’s x-rays.

The hearsay objection should also be overruled and the report admitted as a prior consistent statement offered to rebut a claim of recent fabrication or improper influence or motive. FRE 801(d)(1)(B). The report was prepared based on a referral from another physician and not for purposes of litigation. There is no indication that Dr. Wilson had a “bad” motive at the time he prepared the report and the report rebuts the suggestion that his testimony was “bought” by P or her counsel. The report would also likely qualify as a business record under FRE 803(6).

Part II – Hearsay Quiz

1. Hearsay and inadmissible. The passenger’s statement is not attributable to the driver on an agency theory and therefore is not an admission of a party opponent.

2. An argument could be made either way depending on the nature of the employment duties of the driver and the passenger but agency is again the essential issue. If “wining and dining” clients is part of their duties, then a statement about the number of cocktails they had at lunch would concern a matter within the scope of those duties. If, on the other hand, the two simply had lunch with someone who happened to also be a client, then the statement would fall outside the scope of their duties.

3. Pizza Shack contends that the driver was off-duty at the time of the accident (and therefore that he was not acting as their agent). The driver’s statement suggests that he was working and performing his normal duties at the time. FRE 801(d)(2) provides that the contents of a statement may be considered, but are not alone sufficient to establish, the agency relationship. The driver’s statement should be admitted for that purpose.

4. Hearsay but admissible. Qualifies as excited utterance under FRE 803(2) – the fact that P was writhing in pain at the time she made the statement is significant in indicating that she was still under the stress of the startling event. P’s statement indicating D was at fault would be admissible because it relates to the startling event. P’s statement that she is in pain would be admissible under FRE 803(3) or (4).

5. Hearsay but admissible. Bystander is serving as a conduit for P in securing medical assistance in much the same way that a parent would be a child or an adult child would for an elderly parent. The cause of the injury is relevant to diagnosis and treatment and admissible under FRE 803(4) but the ascription of fault is not. Iron Shell, casebook p.471.

6. Hearsay within hearsay and admissible. The computer-generated form is a business record under FRE 803(6). The testifying nurse is a qualified foundation witness even if she does not have personal knowledge of P’s case since she is familiar with the record-keeping system. P’s statement that she is in pain is relevant to diagnosis and treatment and admissible under FRE 803(4) but again the ascription of fault is not. The passage of time from the event to the statement militates against relying on FRE 803(2).

7. Hearsay and inadmissible. The driver is not a defendant and thus this is not an admission under FRE 801(d)(2)(A). Pizza Shack fired the driver the day before he wrote the Get Well card and the potential agency relationship that arose out of D’s employment ended at that time.

8. Admission of party opponent under FRE 801(d)(2)(C) or (D). The former would apply if the store manager was authorized to speak on Pizza Shack’s behalf concerning the accident. The latter would apply if filing an insurance report is a matter within the scope of employment of the store manager. The fact that he lacks personal knowledge of what he purports to admit goes to weight and not admissibility. Mahlandt, casebook p.369.

9. Hearsay and inadmissible. Even assuming that Pizza Shack routinely investigates accidents involving its drivers, the report would not be admissible as a business record under FRE 803(6) because the circumstances of preparation indicate a lack of trustworthiness. See the discussion of the Court of Appeals’ decision in Palmer v. Hoffman, casebook p.484 and the ACN to FRE 803(6). The report is also inadmissible because it relies on information provided by the bystander and the bystander has no business duty to report. See the discussion of Johnson v. Lutz in Vigneau, casebook p. 492 and in the ACN to FRE 803(6).

10. The result would likely be different under FRE 803(8) and the Supreme Court’s decision in Beech Aircraft Corp. v. Rainey, casebook p. 496.

Part III – Multiple Choice

1. c

2. b

3. a

4. c

5. e