Excellent Essay Example (July 2020 Evidence)
This lesson presents a real, excellent response to the July 2020 MEE Evidence question. First, read the essay, then listen to the analysis below.
Excellent Essay
1. The in-court testimony from a trucking company representative, that less than one hour after the accident, the trucking company began an internal investigation into the accident, which resulted in the truck driver's being fired the next day.
The trucking company should object that such testimony is inadmissible under public policy rules because it is a subsequent remedial measure. Under the Federal Rules of Evidence, a party may not admit evidence of a subsequent remedial measure to show fault. Here, the woman is trying to show that because the company subsequently investigated the accident and fired the driver, it shows that the driver was at fault. Such evidence is inadmissible.
The woman can try to argue that the evidence is admissible for other purposes, such as to show ownership or control, but those issues do not appear to be in dispute. The company is not denying that the driver was its employee. Accordingly, the court should sustain the trucking company's objection.
2. The picture of the truck driver's letter.
The trucking company can make three objections to this piece of evidence. They should argue there are issues with authentication and the best evidence rule. With regard to authentication, the trucking company should argue that there needs to be additional evidence authenticating that the letter was actually written by the driver. In terms of the best evidence rule, or the requirement of the original, the trucking company should argue that the picture is inadmissible copy of the original letter. Finally, the trucking company should object that the letter contains inadmissible hearsay.
The woman should respond that the driver's handwriting provides sufficient evidence of reliability such that the court may determine that the letter was written by the driver. Under the handwriting rule, handwriting may be authenticated by an expert or an individual who is familiar with the handwriting, as long as that person did not become familiar with the handwriting for the litigation. Here, an expert or someone who is familiar with the driver’s handwriting could authenticate the letter and the signature under this rule, as long as the authenticating person did not become familiar with the handwriting to prepare for the trial.
The best evidence rule requires the production of the original document, photograph, recording, or video when the contents of the item are called into question. Typically, duplicates are admissible so long as their authenticity is clear. If a party has lost a document, in the exercise of good faith, the duplicate will be admissible. Here, a neutral computer expert has analyzed the woman's phone and determined that the photograph of the letter is clearly legible and has not been altered in any manner. Because the duplicate's reliability has been verified, the picture of the letter will not be a violation of the best evidence rule.
Assuming the court finds that authentication and best evidence are satisfied, the trucking company should still object that the letter contains inadmissible hearsay. Hearsay is an out of court statement that is offered for the truth of the matter asserted.
Hearsay is inadmissible unless it falls within one of the enumerated exceptions or exclusions. There are several exceptions available depending on whether the declarant, or the one who made the out of court statement, is available or unavailable. Among the exceptions for when a declarant is unavailable are statements against interest. A statement is against the declarant's interest and will be admissible if, at the time it was made, it was against the declarant's pecuniary, proprietary, civil, or criminal interest. A declarant is unavailable if they are absent and their presence cannot be obtained by judicial process, the declarant now lacks any memory, the declarant is dead, or the opposing party wrongfully caused the declarant's unavailability.
Here, the truck driver, as the declarant, is unavailable because neither party has been able to procure his attendance and his whereabouts are unknown. This satisfies the basis for unavailability. Next, the truck driver's statement is an out of court statement because it was written in a letter that was dated a week after the accident. The statement is being offered for its truth to show that the truck driver was negligent and that he was at fault at the time of the accident.
The woman will be successful in arguing that the truck driver's statement is a statement against interest. She can argue that it is a statement against interest because it was against the driver's criminal and civil interest for him to make the statement. Specifically, he is subjecting himself to potential criminal and civil liability by indicating he was at fault, taking pain pills, and should not have been driving. Therefore, the woman can successfully argue the letter is a statement against interest and the court should admit it on those grounds.
3. Testimony by the truck driver's doctor about medical history and treatment.
There is no federally recognized doctor-patient privilege. But the Federal Rules of Evidence devolve privileges to the states when there is an action in diversity. Here, State A's law on privilege would determine whether the doctor can assert this privilege.
Assuming State A has a doctor-patient privilege, the typical privilege bars the entry of communications made to a doctor for the purposes of seeking medical treatment. The privilege is owned by the patient, but generally doctors will assert the privilege on behalf of their patient unless told by the patient to waive the privilege or there has otherwise been a waiver of the information. Here, the statements likely qualify as privileged. The doctor is being asked to testify regarding a man's medical condition and the treatment that she prescribed.
The woman may argue that the privilege has been waived by the truck driver by his letter. A privilege may be waived when its confidential nature is destroyed by intentional disclosure to a third party. When the man sent the letter to the woman disclosing his medical condition and his taking of the pain pills, he may have vitiated the privilege.
The court should not admit this testimony because of doctor-patient privilege, unless it finds it has been waived by the man's actions.
Analysis of the Sample Essay
Transcript
So, what I want to do now is take a look at two real answers to question 1 from the July 2020 MEE. We'll look at one from a Minnesota test taker [go Gophers] and one from a test taker from South Dakota [go Coyotes, I think].
We'll look at Minnesota first. This was a nearly perfect answer. I teach evidence for a living and I would have been proud to write this answer under the time conditions that the test taker had.
What's so great about it? The first thing is that it spots all of the issues. We previously talked through five issues. This has them all. Second, and this is the even better part, it is just so good at really quickly telling you the rule, applying it, and then stating a conclusion, followed in a couple key places by possible counterarguments.
So what I would encourage you to do is to take this answer and diagram out where the rules are, where the applications are, where the conclusions are. We'll do an example of that in a second.
One side note on that. So we suggest using the CRAC method: conclusion, rule, application conclusion. A closely related method is IRAC, where you start by saying the issue rather than the conclusion. IRAC is issue, rule, application, conclusion. Pretty similar. Either method is good. This essay uses IRAC instead of CRAC, and I mention that just so you're not thrown when you try to diagram the answer.
So we won't go through every section, but let's just take a look at the first issue. The first thing this person does is tell you the issue. That's what the first sentence after the heading is doing. It says, "The trucking company should object that such testimony is inadmissible under public policy rules because it is a subsequent remedial measure."
Great. It's clear, it's concise, it tells you what's at stake. The next sentence tells you the rule. It's only one sentence, but it is also clear and concise and accurate. It says, "Under the federal rules of evidence, a party may not admit evidence of the subsequent remedial measure to show fault." That just shows you how quick you can be in accurately stating a rule.
Then we get application. It, too, is just one sentence. It says, "Here, the woman is trying to show that because the company subsequently investigated the accident and fired the driver, it shows that the driver was at fault." That's great.
Now, the prompt here, as you know, was a little unusual because it directly told you to consider counterarguments. And it's always good to consider counterarguments, but here it was obligatory. And so the test taker made that its own paragraph, and I think that was a fine approach.
In that paragraph, the test taker presents the women's possible response to the objection based on the subsequent remedial measure rule, and also told the grader why it doesn't work. So it's three sentences, but again, it's clear, concise, to the point, and it's accurate.
So it says, "The woman can try to argue that the evidence is inadmissible for other purposes, such as to show ownership or control, but those issues do not appear to be in dispute. The company is not denying that the driver was its employee. Accordingly, the court should sustain the trucking company's objection." This, I think, racked up a bunch of points.
So, look, I'm a law professor. I can't help but quibble on a couple things. Here are two things that could have been better.
One is that the person didn't organize the sections around the objections. And that makes a difference when it comes to the handwritten letter, because there were multiple objections. There, I think that running those into one big section was a little bit confusing. That's a minor point, though.
Then one substantive quibble. When the test taker was talking about the best evidence rule, they wrote that the rule requires the original when the contents of an item are "called into question," and that's not quite right. The best evidence rule applies when a party is trying to "prove the contents" of a writing, recording, or photograph, and "prove the contents" is a term of art.
You can look back at our lesson on the best evidence rule for a refresher of what that means. The best evidence rule doesn't apply just because the contents of a writing are disputed. But again, those are minor points. This was really just an excellent answer.
And one other thing I'll say about it is that the person clearly allocated their time really well. This wasn't a situation where they ran out of time and had to be brief for the last couple issues. I suspect they had thought about what they were going to say and how much time they had to say it, which is great.
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