Evidence Practice Question 2

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Evidence: Relevancy and Excluding Relevant Evidence

A doctor, who is on trial for medical malpractice, called one of his nurses to the stand. The nurse testified that she has worked for the doctor every day for the last twelve years as his only nurse. The nurse explained that during that time, the doctor admitted every patient who presented with chest pains and inconclusive test results.

If the plaintiff objects, how should the judge rule?

A: Sustained, because this is inadmissible character evidence.

B: Sustained, because this is not relevant.

C: Overruled, because this is admissible habit evidence.

D: Overruled, because this is relevant and not privileged information.

Answer and Explanation

C is correct. Under Federal Rule of Evidence 406, habit evidence may be admitted to prove that the person acted in accordance with that habit or routine practice on a particular occasion. The key elements in determining whether conduct constitutes habit are (1) specificity, (2) repetition, (3) duration, and (4) the semiautomatic nature of the conduct. In this instance, the behavior of the doctor was a specific protocol, repeated with many patients, over a substantial period of time.

A is incorrect. The information is admissible as habit evidence.

B is incorrect. The information is admissible and relevant.

D is incorrect. Choice C is a more specific answer. Even if the information is relevant and not covered under doctor-patient privilege, that does not automatically make it admissible. In this case, it must also meet the elements of habit evidence.

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