InterAlia1961 wrote:barexaminerssuck27 wrote:armenianBEAUTY wrote:Lawless! wrote:Rocky64 wrote:
Impeachment is a big deal. Of course they wont mention impeachment when they are testing it. The attorney directly asked Donna during cross if she offered to pay for medical expenses in the fact pattern. Probably 5 points worth
A close read of the fact pattern revealed that Donna never said she did not offer to pay medical bills. Donna testified that her company was not responsible for the accident. I didn't see any impeachment issues. Several rebuttal issues, but rebuttal and impeachment are two different concepts. I thought they were testing relevance heavily. I also didn't see any double hearsay. I have been reading some of the answers that say there was, but I'm not sure they understand what double hearsay is. It is not what the nurse heard and then what she wrote. Double hearsay occurs when a declarant seeks to testify about something someone else told another person. If the nurse would have been called to testify that a witness told her that the witness heard the victim claim he wasn't injured, that would be double hearsay. I didn't see anything like that anywhere in the fact pattern. If I'm mistaken, please feel free to correct me. It will come in handy if I'm unsuccessful.
Here's a question from Adapitbar that talks about double hearsay. This is why doing MBES are so important. I also missed this issue too.
In a civil action for personal injury, the plaintiff alleges that he was beaten up by the defendant during an altercation in a crowded bar. The defendant's defense is that he was not the person who hit the plaintiff. To corroborate his testimony about the cause of his injuries, the plaintiff seeks to introduce, through the hospital records custodian, a notation in a regular medical record made by an emergency room doctor at the hospital where the plaintiff was treated for his injuries. The notation is: "Patient says he was attacked by [the defendant]."
The notation is
A. inadmissible, because the doctor who made the record is not available for cross-examination.
B. inadmissible as hearsay, not within any exception.
C. admissible as hearsay, within the exception for records of regularly conducted activity.
D. admissible as a statement made for the purpose of medical diagnosis or treatment.
EXPLANATION:
The correct answer is B. The plaintiff's statement to the emergency room doctor that the defendant attacked him is an out-of-court statement that is being offered for the truth of the matter asserted -- that the defendant did attack the plaintiff. As such, it is hearsay and not admissible under any exception to the hearsay rule.
Answer A is incorrect because the doctor who made the notation does not need to be present at trial and available for cross-examination before the report itself is admissible under the business record exception to the hearsay rule. The custodian of the hospital records can properly authenticate the document and allow for its admission. In addition, although the medical records may be admissible themselves, the plaintiff's statement to the doctor constituted another level of hearsay, which would make the statement inadmissible.
Answer C is incorrect because, although the notation from the doctor into the medical record meets the exception for records of regularly conducted activities, the plaintiff's statement to the doctor about who the attacker was is another level of hearsay that is inadmissible.
Answer D is incorrect because the plaintiff's statement to the doctor identifying the defendant as the attacker was not a statement made for the purpose of medical diagnosis or treatment. Not everything a patient states to a doctor is admissible under this exception to the hearsay rule, and a statement identifying the assailant to the doctor serves no reasonable purpose for diagnosis or treatment and is consequently inadmissible under that exception.
So for our essay,
Pete's statement to nurse (inner level)
Nurse statement to medical records (outer level) Remember hearsay is also records, doesn't need to be a statement
Here's another MBE regarding impeachment and substantive evidence. The examiners are not going to mention impeachment when they are trying to test it. However, during cross Donna's statement was mentioned, points out that the examiners wants you to mention impeachment. As in, would or how the relevant fact be introduce into evidence. An analysis regarding prior inconsistent statement and saying it it won't be enter as substantive because she did not say that statement under oath, hearing, or depo. Here, Donna testified that her company was not responsible but during the visit (last paragraph) Donna did mention about the medical expenses being paid. This also ties in with party admission, etc.
A plaintiff sued a defendant for illegal discrimination, claiming that the defendant fired him because of his race. At trial, the plaintiff called a witness, expecting him to testify that the defendant had admitted the racial motivation. Instead, the witness testified that the defendant said that he had fired the plaintiff because of his frequent absenteeism. While the witness is still on the stand, the plaintiff offers a properly authenticated secret tape recording he had made at a meeting with the witness in which the witness related the defendant's admissions of racial motivation.
The tape recording is
A. admissible as evidence of the defendant's racial motivation and to impeach the witness's testimony.
B. admissible only to impeach the witness's testimony.
C. inadmissible, because it is hearsay not within any exception.
D. inadmissible, because a secret recording is an invasion of the witness's right of privacy under the U.S. Constitution.
EXPLANATION:
The correct answer is B. The tape recording is admissible to impeach the witness's testimony that the defendant fired the plaintiff for frequent absenteeism. However, the tape recording contains out-of-court statements that are being offered for the truth of the matter asserted - that the defendant fired the plaintiff because of his race. As such, it is hearsay. Since it does not meet the requirements of any exception to the hearsay rule, the tape is inadmissible as substantive evidence.
Answer A is incorrect because prior inconsistent statements are inadmissible as substantive evidence unless they were given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Answer C is incorrect because, although the statements on the tape recording are hearsay, they can still be used to impeach the witness's testimony that the plaintiff was fired for absenteeism. Answer D is incorrect because the statements on the tape were not privileged communications, and whatever invasion of privacy that may have occurred would not affect the admissibility of the evidence because the taping was not done by the state.
I had a tutor for this bar exam and she used to be a bar grader. She told me that every sentence in a fact pattern goes into an argument or issue. So If the bar examiner went out of their way to put a sentence regarding cross examination, it is worth more points. Good luck to everyone!
