Criminal Evidence Norman Garland 8e - Test Bank

Criminal Evidence Norman Garland 8e – Test Bank

 

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Criminal Evidence, 8e (Garland)

Chapter 4   Witnesses-Competency and Privileged Communications

 

1) Because the Confrontation Clause requires a witness to appear personally to face the defendant, a witness’s written statement in a criminal case is never admissible.

 

Answer:  FALSE

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2) An individual must possess certain moral qualifications to testify as a witness.

 

Answer:  FALSE

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3) In addition to being able to demonstrate personal knowledge of facts pertinent to the case on trial and understand the obligation to tell the truth, an individual must demonstrate a level of mental fitness in order to be a witness.

 

Answer:  FALSE

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4) The common law rule that requires a witness to be competent—a standard assessed on several grounds, including tender age, old age, infirmity of mind, lack of religious belief, and other grounds—is still the standard today.

 

Answer:  FALSE

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5) A lack of mental capacity by a witness may affect the weight of the testimony in the eyes of the jury but will not prevent the person from becoming a witness.

 

Answer:  TRUE

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6) If the question presented regarding the qualification of a witness to testify is whether the witness has personal knowledge of the facts related to the case, the jury, and not the judge, will usually listen to the testimony and decide for themselves whether they believe the witness has personal knowledge.

 

Answer:  TRUE

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7) A jury will determine whether a very young child has the ability to understand the obligation to tell the truth.

 

Answer:  FALSE

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8) In a case where a child is a victim and a witness, the Supreme Court of the United States has held that the defendant’s right to confrontation is satisfied as long as the defendant can observe the witness while testifying.

 

Answer:  TRUE

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9) An individual who is mentally challenged, senile, or has been otherwise declared mentally unbalanced may become a witness because he or she may still have lucid moments.

 

Answer:  TRUE

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10) Because of the policy that maintaining privileged communications, such as secrets between two friends, outweighs the benefit that society would derive from their disclosure, the court favors privileged relationships and is willing to expand their use.

 

Answer:  FALSE

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11) The recognition of a parent-child privilege is a recent development in the law of the United States. Support for it has grown largely from the realities of life.

 

Answer:  TRUE

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12) A privilege can only apply at most to two people in a privileged relationship.

 

Answer:  FALSE

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13) If two or more persons hold a privilege, waiver by one holder automatically waives the privilege for all persons holding the privilege.

 

Answer:  FALSE

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14) If a marriage is dissolved by divorce, annulment, or death, then the marital communications privilege no longer applies.

 

Answer:  FALSE

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15) If communications between spouses, which were intended to be confidential, do not involve a crime upon one spouse by the other, the marital communications privilege does not apply if the communications are in the presence of a third person and the married couple can anticipate that the third party can hear the communications.

 

Answer:  TRUE

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16) If a marriage was a sham, then the husband-wife privilege will not apply.

 

Answer:  TRUE

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17) If a spouse obtains information other than by means of an exchange of confidential communications, the spouse can be compelled to testify against the other spouse once the marriage is dissolved.

 

Answer:  TRUE

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18) In many jurisdictions, when one spouse in a marriage threatens to commit or commits a crime, or fraud, upon the other, the victim spouse can be compelled to testify irrespective of his or her wishes.

 

Answer:  TRUE

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19) The marital communications privilege does not apply if a third party overhears the conversation of a husband and wife speaking in confidence and in public loud enough to be heard by others.

 

Answer:  TRUE

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20) If a client approaches a friend who has not yet completed law school for legal advice, any information relating to a crime is protected under the attorney-client privilege because the friend is treated as if he is an attorney.

 

Answer:  FALSE

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21) The moment a client consults with an attorney on legal matters, the attorney-client relationship and privilege is established, even if the client does not hire the attorney.

 

Answer:  TRUE

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22) If a client confesses to a crime, an attorney may refuse to take the case if he or she cannot defend a guilty client with a clear conscience.

 

Answer:  TRUE

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23) If an attorney is currently representing a client regarding a drug charge, the attorney-client privilege still applies when the client consults the attorney regarding the commission of any future drug crimes.

 

Answer:  FALSE

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24) In some jurisdictions, if the clergy-communicant privilege is waived by a communicant, the clergy still has the right to refuse to disclose the communicant’s communications.

 

Answer:  TRUE

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25) An accountant-client privilege does not exist in federal law.

 

Answer:  TRUE

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26) An officer must reveal the identity of an informer if a trial judge determines that such disclosure is necessary to preserve the defendant’s right to a fair trial.

 

Answer:  TRUE

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27) Most federal courts hold that a qualified news reporter’s privilege exists under federal law.

 

Answer:  TRUE

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28) In cases where a newsman personally observes the commission of criminal activities by persons at a particular location, the newsman is the source of the news or information and the news reporter-source privilege does not apply.

 

Answer:  TRUE

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29) The laws governing the privileges of witnesses in federal trials continue to develop.

 

Answer:  TRUE

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30) Privileges are recognized in all proceedings, even those in which the rules of evidence do not apply.

 

Answer:  TRUE

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31) There is no parent-child privilege in federal law.

 

Answer:  FALSE

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32) Federal law recognizes the accountant-client privilege.

 

Answer:  FALSE

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33) Which amendment of the United States Constitution requires a witness to appear personally to face the defendant?

1. A) Fourth Amendment
2. B) Fifth Amendment
3. C) Fifth and Fourteenth Amendments
4. D) Sixth Amendment

 

Answer:  D

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34) Under FRE 601, which of the following is generally not a requirement for an individual to be able to testify as a witness?

1. A) The individual should have personal knowledge of facts pertinent to the case.
2. B) The individual should have the ability to understand the obligation to tell the truth.
3. C) The individual should willingly take an oath (or affirm) that he or she will tell the truth.
4. D) The individual should possess mental qualifications in order to testify as a witness.

 

Answer:  D

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35) Under the FRE, who is declared incompetent to testify?

1. A) Judges and jurors sitting in the case at trial
2. B) Anyone having an interest in the outcome of the case
3. C) Anyone lacking religious belief
4. D) Anyone having been convicted of a crime

 

Answer:  A

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36) Which of the following is a characteristic that makes up a witness’s capacity?

1. A) The witness possesses the ability to perceive.
2. B) The witness has a desirable personal background.
3. C) The witness has no criminal background.
4. D) The witness has no interest in the outcome of the case.

 

Answer:  A

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37) The burden of proving whether a child is qualified to testify rests upon:

1. A) the side contesting the child as a witness.
2. B) the side producing the child as a witness.
3. C) the judge.
4. D) the child.

 

Answer:  B

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38) A judge may testify as a witness if:

1. A) he or she is not presiding at the trial.
2. B) he or she is presiding at the trial.
3. C) he or she is not presiding over any other trial.
4. D) a judge is never competent to testify as a witness.

 

Answer:  A

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39) After the jury reaches a verdict, a juror may testify:

1. A) whether a verdict was reached fairly.
2. B) whether another juror properly assessed the evidence presented at trial.
3. C) whether there was outside influence having some bearing upon the juror’s decision.
4. D) whether the juror’s emotions clouded his or her judgment.

 

Answer:  C

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40) Which of the following is generally not a confidential relationship that could give rise to a privilege?

1. A) Husband and wife
2. B) Parent and child
3. C) Accountant and client
4. D) Confidential informant and law enforcement officer

 

Answer:  B

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41) The holder of a privilege may waive the privilege by all of the following except:

1. A) disclosing a significant part of the communication.
2. B) consenting to disclosure of the communication by someone else.
3. C) losing the privilege involuntarily when two or more persons hold a privilege and one of the persons waives the privilege.
4. D) failing to claim the privilege when the holder is able to do so.

 

Answer:  C

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42) Which of the following is false regarding privileged relationships?

1. A) The existence of a privileged relationship automatically bars a person from being a witness.
2. B) The existence of a privileged relationship does not necessarily bar a person from being a witness.
3. C) The existence of a privileged relationship merely restricts what testimony, if any, may be given by a witness.
4. D) A witness may testify to the privileged communication if the privilege holder waives the privilege.

 

Answer:  A

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43) In a jurisdiction that recognizes the husband-wife privilege, the prohibition relates to information obtained during all of the following except:

1. A) prior to the marriage.
2. B) during the marriage.
3. C) during courtship.
4. D) after divorce.

 

Answer:  D

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44) Which of the following will destroy a marital privilege where communication is made in confidence?

1. A) Where a husband and wife speak privately in their bedroom and there is an unsuspecting third party outside the window
2. B) Where a husband and wife speak privately in their bedroom and a third party gains access to their conversation by electronic means
3. C) Where a husband and wife speak loudly but privately in their bedroom and a guest in the next room overhears the conversation
4. D) Where communication is intercepted as a result of the betrayal or connivance of one spouse

 

Answer:  C

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45) The attorney-client privilege can most likely be invoked in which of the following situations?

1. A) When a person takes on the role of an attorney although he has an inactive license
2. B) When a person takes on the role of an attorney although he has not paid his dues
3. C) When a person takes on the role of an attorney but has not passed the bar examination
4. D) When a person is licensed to take on the role of an attorney in the state in which the consultation between the attorney and the client takes place

 

Answer:  D

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46) Which of the following persons is not included under the attorney-client privilege when the client communicates with him or her?

1. A) An attorney’s secretary
2. B) A law clerk at an attorney’s office
3. C) A paralegal
4. D) Another person accompanying the client

 

Answer:  D

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47) Which of the following may not be protected under the attorney-client privilege?

1. A) When a client orally confesses to a crime
2. B) When a client consults an attorney about the commission of a future crime
3. C) When a client displays scars or marks that connect him or her to a crime
4. D) When a client displays to an attorney a gun used in a crime

 

Answer:  B

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48) Which of the following statements is true of the psychotherapist-patient privilege?

1. A) The reach of the psychotherapist privilege is much greater than that of the physician privilege.
2. B) The psychotherapist-patient privilege is older than the physician-patient privilege.
3. C) The reach of the psychotherapist-patient privilege does not extend to licensed social workers in any jurisdiction.
4. D) The psychotherapist-patient privilege is not recognized in all federal courts.

 

Answer:  A

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49) Which of the following is not a situation in which the psychotherapist-patient privilege is excused?

1. A) When an accused raises a defense of insanity or mental distress, thus putting the accused’s mental state at issue
2. B) When the accused’s disclosure entails a confession
3. C) When the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional state as to be dangerous to himself or herself
4. D) When the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional state as to be dangerous to another person or to the property of another person

 

Answer:  B

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50) A ________ is a person who seeks out the clergy in a religious capacity for the purpose of securing spiritual advice.

1. A) physician
2. B) communicant
3. C) patient
4. D) client

 

Answer:  B

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51) Which of the following is false with regards to the clergy-communicant privilege?

1. A) A privilege protecting confidential communications between the clergy and communicants has been adopted in all 50 states.
2. B) The clergy-communicant privilege is recognized as part of the federal common law.
3. C) The member of the clergy and the communicant should belong to the same faith for the clergy-communicant privilege to apply.
4. D) For the privilege to apply, the communicant must seek out the clergy in a religious capacity for the purpose of securing spiritual advice.

 

Answer:  C

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52) Which of the following is false regarding the news reporter privilege?

1. A) A reporter’s claim of privilege will be weighed by the trial judge to determine whether the information sought is vital to the prosecution or defense of the criminal case.
2. B) The First Amendment guarantee of freedom of the press automatically grants a news reporter-source privilege.
3. C) A news reporter protection extends to a reporter, publisher, and editor.
4. D) The privilege covers information discovered by the reporter, including the sources and background data.

 

Answer:  B

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53) Which of the following privileges is not recognized under federal common law?

1. A) The attorney-client privilege
2. B) The physician-patient privilege
3. C) The husband-wife privilege
4. D) The psychotherapist-patient privilege

 

Answer:  B

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54) What is the difference between an oath and an affirmation?

 

Answer:  An oath is a solemn, formal declaration or promise to testify truthfully, calling on God as witness. An affirmation is a solemn declaration given in place of an oath by a person who conscientiously objects to taking an oath.

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55) What are the three basic characteristics that make up witness capacity?

 

Answer:  The three basic characteristics that make up witness capacity are the ability to perceive, remember, and narrate in an understandable manner.

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56) What is a voir dire of a witness?

 

Answer:  A witness voir dire is the process or hearing, usually conducted out of the presence of the jury, by which a judge decides the qualification of a witness to testify.

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57) What is considered sufficient to prove that a child knows the necessity for telling the truth?

 

Answer:  If a child has learned that telling a falsehood brings punishment, this is sufficient to prove that the child knows the necessity for telling the truth.

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58) What is a privileged communication, and what is the rationale for the existence of confidential relationships?

 

Answer:  Privileged communications are exchanges of confidential information between persons who are in a privileged relationship. Confidential relationships remove fear that the confidences might be revealed in court, thus protecting the relationship by maintaining the secrecy of confidences exchanged during the relationship.

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59) What are the four fundamental conditions that must be established before a person is exempted from testifying in a judicial proceeding based on a claim of privilege?

 

Answer:  The following are the four fundamental conditions that must be established before a person is exempted from testifying in a judicial proceeding based on a claim of privilege:

 

(1) The parties to a communication must believe that their communication is confidential and will not be disclosed to others.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.

(3) The relationship must be one which, in the opinion of the community, ought to be promoted and protected.

(4) The injury that would be caused to the relationship by the disclosure of the communications must be greater than the value of the conversation to the proper resolution of the court case.

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60) If there are questions as to whether a privilege should be recognized, how will the court proceed?

 

Answer:  If privilege is claimed, the trial judge determines if the privilege exists and to whom it belongs. This issue will be argued by attorneys for each side in a hearing in camera, which the judge conducts in his or her chamber only in the presence of the privilege holder and the attorney.

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61) Explain what the spousal incapacity privilege is and the rationale behind the rule.

 

Answer:  Spousal incapacity is the marital privilege that gives a spouse called to testify against his or her spouse the privilege to refuse to testify. The court reasoned that when a spouse is willing to testify against his or her spouse, the relationship is already certainly in despair and, thus, the justification for the privilege—marital harmony—no longer exists. The law, however, recognizes that a successful marriage requires a free exchange of communication.

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62) What is the marital communications privilege, and what is required for the privilege to apply?

 

Answer:  The marital communications privilege is a rule that holds that communications between spouses during the marriage is privileged. The communication is privileged and cannot be the subject of testimony by a spouse if the communication was intended to be a confidential one, was communicated between spouses, did not involve a crime upon one spouse by the other, and was not overheard by a third person.

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63) What are two possible justifications for the attorney-client privilege?

 

Answer:  Answer can include any two of the following:

 

(1) Maintaining a confidential exchange between an attorney and his or her client makes for a more orderly court procedure.

(2) Free communication with an attorney reduces undue delay and excessive litigation by allowing the attorney to more accurately assess the merits of taking the matter to trial or whether to accept the client’s employment.

(3) The constitutional guarantee of the “right to counsel” is given full force and effect.

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64) Explain why the psychotherapist-patient privilege is supported by stronger policy justifications than the doctor-patient privilege.

 

Answer:  The psychotherapist is more likely to be the recipient of damaging, embarrassing, and personal information than the ordinary doctor. Moreover, patients might be less likely to go to a psychotherapist if there were a threat that information exchanged would be publicly revealed.

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65) Discuss the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), and explain how it relates to the physician-patient privilege.

 

Answer:  HIPAA authorized the U.S. Department of Health and Human Services (HHS) to adopt regulations governing standards for the security and privacy of health information. These standards provide a right of patient privacy for medical records. However, this is not a privilege, in that, if the requestor is in compliance with HIPAA regulations, the medical information will be disclosed.

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66) Briefly describe the proposed ABA Model Parent-Child Privilege Statute.

 

Answer:  Under the scheme proposed by the ABA, there are two privileges:

 

1) An adverse testimonial privilege that protects either from testifying when one or the other is a defendant in any type of criminal proceeding. The privilege is inapplicable when a) the offense is against the person or property of the witness or family member that is purported to have been committed by the witness’s parent or child and b) when there is joint criminal activity.

2) A jointly held confidential communications privilege may be asserted by a parent or child when either is a party to any proceeding.

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67) Discuss the crimes exception to the attorney-client privilege.

 

Answer:  The attorney-client privilege does not apply when a person consults an attorney concerning the commission of a future crime or for the purpose of concealing the defendant after a crime has been committed. The policy of the privilege is to promote the administration of justice. It would then be a perversion of the privilege to allow a client to seek advice from an attorney to aid in carrying out an illegal scheme or assist in the furtherance of a crime or fraud. If an attorney should become involved in a crime or conspire to commit a crime, the attorney and the client become associated in the crime and the privilege does not exist.

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