All Topics Flashcards
Anticipatory Repudiation
A clear and unequivocal statement of intent not to perform. Can be treated as a total breach, and can sue for damages.
Present Recollection Refreshed
When a witness does not remember, her memory can be refreshed by anything. She reads briefly the refreshing document and then testifies from memory. The document is not offered into evidence, but can be inspected or offered into evidence by opposing counsel.
Hearsay
An out of court statement offered for the truth of the matter asserted. Generally inadmissible, unless an exclusion or exception applies. Must be a statement by a human, not an animal or machine.
Larceny
The trespassory taking of someone’s personal property and carrying away with intent to permanently deprive. The carrying away is the slightest movement. The intent at the TIME of the taking is what matters BUT doctrine of continued trespass applies when someone borrows with the intent to return and then decides to keep makes them guilty. Larceny does NOT apply to property that you believe is owed to you or lawfully yours.
Lay Opinions
Generally inadmissible. Only admissible if the perception alone does not give enough information to the jury, and the opinion relates to the perception and is helpful to the trier of fact.. Cannot be for a legal conclusion. Usually speed of a car, intoxication, handwriting, voice identification. Cannot be based on technical, scientific, or otherwise specialized knowledge.
When can you use leading questions?
On cross-examination, or with a hostile witness.
Dying Declaration
Hearsay Exception. Requires unavailability. A statement made when the declarant believed that death was imminent, and was related to the circumstances of death. ONLY homicide or civil cases.
What crimes is insanity a defense to?
All crimes, regardless of the intent requirement.
Durham Test
But for a mental disease or defect, the defendant would not have committed the crime.
Irresistible Impulse Test
Due to a mental disease or defect, the defendant is unable to control his actions or conform his behavior to the law.
M’Naghten Test
Due to a mental disease or defect, defendant is unable to understand the wrongfulness of his actions, nor appreciate the nature and quality of his behavior. PA
MPC Test (Insanity)
Due to a mental disease or defect, defendant is unable to understand the wrongfulness of his conduct, or control his behavior and conform it to the law.
When can the court keep out relevant evidence?
The court may determine that it is inadmissible if its probative value is substantially outweighed by a risk of unfair prejudice. Such as undue delay, confusion of the issues, misleading the jury, waste of time.
Court’s discretion to exclude evidence…
Is not absolute. It is not within the court’s discretion to include crimes of falsity or dishonesty for impeachment purposes.
MPC legal mens rea standards
Purposely: conscious objective to cause result
Knowingly: result substantially certain to occur
Recklessly: conscious disregard for an unjustifiably high risk of result
Negligently: failure to make oneself aware of risk of result
False Imprisonment (criminal)
Unlawful confinement of another without their consent
General intent
Kidnapping
Unlawful confinement of another when it involves the movement of that person or the concealment in a hidden, secret space
General Intent
What is relevant evidence?
Evidence that tends to make a material fact more or less probable. Admissible unless excluded for another reason.
Can you withdraw from conspiracy?
Common Law: NO. But you can withdraw from subsequent crimes if you notify co-conspirators of intent to withdraw, with enough time for co-conspirators to abandon the crime.
MPC: Yes, but you have to thwart the conspiracy (stop the conspiracy or notify police).
Attempt
An act intended to commit a crime but falls short of committing that crime. You must have the intent to commit the target crime. The act must be beyond mere preparation.
Defenses to Attempt
Factual Impossibility: Not a defense Legal Impossibility (the crime attempted is not actually a crime): Defense Abandonment: Not a defense. Once the overt act is committed, you are guilty of attempt.
What are the public policy grounds for excluding relevant evidence?
Subsequent remedial measures: cannot show negligence or defect, but CAN show ownership, control, or possibility of precautions
Guilty plea (unless withdrawn): No related statements.
Settlement offer: Threat of litigation must be asserted. No related statements.
Offer to pay medical expenses: Related statements admissible.
Liability Insurance: Not fault or ability to pay, but ownership/control
Testimonial Privileges
Attorney-client Psychotherapist/social worker-patient Clergyman-penitent Doctor-patient Marital Communications Spousal Privilege
NOT federal rules of evidence, adopted by state!
Also: 5th Amendment Right Against Self-Incrimination
Defendant’s Character in Criminal Cases
Defendant opens the door. Defendant can introduce evidence of good character pertinent to the crime charged (reputation, opinion). Prosecution can rebut with reputation, opinion, or specific instances of bad character trait. P can call own witness for reputation or opinion ONLY, or cross-examine D’s witness and ask about specific instances (“did you know”/“have you heard”). There is a good faith requirement to form the basis that the act occurred.
Bilateral vs. Unilateral Approach to Conspiracy
Common law: bilateral — at least 2 guilty minds (2 people with actual criminal intent) needed for a conspiracy. Cannot be guilty of conspiracy if enter into a conspiracy with an undercover police officer.
MPC: unilateral—only 1 guilty mind
Does conspiracy merge with target crime?
No, conspiracy is a separate act. It does NOT merge.
Conspiracy
Conspiracy is an agreement with at least 1 other person to commit a crime. There must be (1) an intent to agree, (2) an agreement to commit a crime, (3) intent to commit the crime, and (4-MPC) an overt act in furtherance of the conspiracy.
What is a conspirator liable for?
The conspiracy itself, and all foreseeable crimes in furtherance of the conspiracy (even if not present for those crimes).
Voluntary Manslaughter
Voluntary manslaughter occurs when (1) the killing is committed after adequate provocation that causes the defendant to lose control. Adequate provocation is provocation that would cause an ordinary person to lose self-control from sudden intense passion, with no cooling off period. Voluntary manslaughter also occurs when (2) the killing is committed out of imperfect self-defense, which means the defendant was either the initial aggressor, or was unreasonable in his use of deadly force.
Actus Reus
The physical component of the crime. Must be a voluntary bodily movement. A failure to act can result in liability when (1) there was a legal duty to act, (2) the defendant knew of the facts giving rise to the duty to act, and (3) it was reasonably possible for the defendant to act.
Habit
Evidence of someone’s habit is admissible to show that the person acted in conformity with that habit. A habit is a regular response to a specific set of circumstances. It must be so frequent that it is almost instinctual. Look for “always” “instinctively” “invariably” “automatically”
Similar occurrences
Similar occurrences are inadmissible for propensity but admissible if relevant for non-propensity purposes: causation, rebut an impossibility, custom, prior accidents, notice/knowledge, defect, intent
Murder
The unlawful killing of another human being with malice aforethought.
Malice aforethought:
Intent to kill
Intent to commit serious bodily harm
Felony murder
Depraved heart (a reckless indifference to an unjustifiably high risk to human life)
What is the intent for felony murder?
Intent to commit the underlying felony
Entrapment
Entrapment can be a defense to liability when a defendant is induced by law enforcement to commit the crime. Criminal design cannot originate with the defendant, meaning that the crime cannot be the defendant’s idea, and the defendant cannot be pre-disposed to commit the crime. It is not entrapment if the police merely provide an opportunity for the defendant to commit a crime.
Judicial Notice
A court can accept a fact as true (the proponent’s burden of proof has been met) if the fact is generally known within the jurisdiction, or can be verified by a source whose accuracy cannot be questioned.
Criminal: MAY take fact as conclusive
Civil: MUST take fact as conclusive
Jury Trial Right and Requirements
It is a 6th Amendment right that for a serious offense (imprisonment over 6 months), criminal defendant is entitled to a jury trial of at least six jurors, up to 12. A six-person jury must be unanimous. The jury pool must be representative of a cross-section of the community, but the jury need not be.
Peremptory Challenges
Cannot be based on race, gender (religion, national origin)
Challenges for Cause (Jury)
Defendant has unlimited challenges for cause and can challenge based on prejudices relevant to case.
Competency of a witness
Witnesses are generally presumed competent. To be competent, a witness must (1) base his testimony off of his actual perception, (2) be able to remember the event perceived, (3) be able to communicate the perception, (4) understand the oath and significance of telling the truth.
Recollection Recorded
A hearsay exception (when present recollection refreshed does not work). If witness does not remember, can read from a document that witness created/adopted when his memory was fresh. The document can be introduced into evidence by other party as an exhibit, but just read to jury into evidence by reader.
Character Evidence (Civil)
Generally inadmissible to prove that defendant acted in conformity with character trait. Unless it is directly at issue in the case. Arises with child abuse, defamation, negligent entrustment.
Involuntary Manslaughter
A killing committed with criminal negligence, or during an act/crime that does not rise to the level of felony murder (not BARRK).
Causation Element (criminal)
The actus reus must be the cause-in-fact and proximate cause of the harm. Cause-in-fact: but for the crime, the harm would not have occurred. Proximate cause: the harm was a natural and foreseeable result of the crime. Proximate cause can be cut off by superseding acts; these are unforeseeable events that cut off the chain of causation. However, third-party medical negligence or refusal of medical treatment is never a superseding act.
If the victim is going to die anyway, is defendant still guilty for murder if only hasten the death?
YES.
Concurrence of Mens Rea and Actus Reus
Mens rea and actus reus must occur simultaneously. This means that you cannot be guilty of murder if you intend to shoot the victim, but accidentally run over him with your car on the way there.
Prior Bad Acts
Generally inadmissible to prove defendant had a propensity to commit a crime, but may be admissible for MIMIC: Motive Intent Mistake (lack thereof) Identity Common plan/scheme
Past Crimes
Crimen Falsi: crimes involving element of false statement or dishonesty—ALWAYS admissible. (Perjury, fraud, embezzlement, and in PA robbery). Not up to discretion of court.
Other felonies: may be admissible. For criminal defendant: reverse 403 balancing. For non-defendant witness: 403 balancing.
Other misdemeanors: Inadmissible.
ALL crimes have a ten-year limit. They cannot be introduced if over ten years have passed since conviction or release from incarceration, whichever date is later.
Is robbery a crimen falsi?
In PA it is
Impeachment Overview
All parties can impeach all witnesses. To impeach means to cast doubt as to the veracity of the witness. Cannot bolster before impeach (unless it is a prior consistent statement to dispute that it was made before motive to lie arose).
Merger
Cannot be convicted of both crimes if they merge.
(1) Inchoate crimes (attempt, solicitation) merge into target crime. Conspiracy does not merge.
(2) Lesser crimes merge into greater crimes if the lesser crime has the same elements of the greater crime, but not all of them.
Is factual impossibility a defense to solicitation?
No.
Can you still be guilty of solicitation if other party was not convicted?
Yes. Once you encourage/ask the other person to commit the crime, you are on the hook for solicitation.
Solicitation
You are guilty of solicitation if you ask or encourage another person to commit the crime with the intent that they actually commit the crime. If the person says yes, solicitation merges into conspiracy. If they say no, you are still guilty.
Limited Purpose of Evidence
The doctrine of limited admissibility allows the court to admit evidence to be used for one purpose but not another. If the court admits evidence for limited purpose, the court must issue a limiting instruction.
HYPO: P eats soup at D restaurant and gets sick. Can P offer into evidence that other patrons from same restaurant who ate same soup on same day also got sick?
Evidence: Similar Occurrences. Admissible to prove causation.
HYPO: P drives into side of D house and sues for injuries. Can D show that P has on four other times driven into stationary objects and filed suit?
Evidence. Similar Occurrences. Inadmissible to show negligence or accident prone, admissible to prove causation or common plan/scheme.
HYPO: P drives into side of D house. Can P offer into evidence that seven other drivers have driven into the same side of the house under similar conditions?
Evidence. Similar occurrences. Generally inadmissible to prove negligence by other accidents. However, admissible to prove notice to defendant, or that instrumentality is defective/inherently dangerous.
HYPO: P sues D for gender discrimination in hiring. D denies intent to discriminate and claims absence of women employees because no well-qualified women applied. P offers to show other well-qualified women who were denied employment.
Evidence. Similar occurrence. Admissible to infer intent.
HYPO: P seeks to call W to testify that in the six months leading up to the accident in issue, W had seen D run red lights, run stop signs, and speed. Is this admissible habit evidence?
No, this is not particular enough. Running a red light sometimes is not a regular response to a specific set of circumstances. Running the same red light eight times in two weeks is both frequent enough and particular enough to rise to a level of habit.
HYPO: Which of the following is an example of admissible habit evidence? (A) Marvin invariably wears his seat belt when he drives. (B) I know Marvin, and he is a habitually careful person. (C) Marvin has caused several car accidents. (D) Marvin has a reputation for careless driving.
(A). The other answers describe character evidence, which is generally inadmissible to prove propensity. Habit is a regular response to a specific set of circumstances that must be particular and frequent enough to rise to a level of a habitual, instinctual response.
Subsequent Remedial Measures (Pub Pol, Evidence Exclusion)
When someone does something AFTER an accident to make things safer (repair, chances in policy, firing employee, design changes, installing safety equipment). The purpose of the Pub Pol exclusion is to encourage safety precautions without fear of liability. It is inadmissible to prove negligence, defect, or fault. It IS admissible to prove ownership/control (if disputed), feasibility of safety measures (if disputed), destruction of evidence, to impeach (lies on stand about how something could not be safer).
Subsequent Remedial Measures: FDIC
Feasibility of safety measures (if disputed)
Destruction of evidence
Impeach (claims product is as good/safe as it can be)
Control/ownership (if disputed)
HYPO: P slips and falls down the stairs at D’s house. P suffers injuries and sues D. The day after the fall, D puts in stair rails to make the stairs safer. Can P offer in D’s repair of the stairs?
Evidence. Subsequent remedial measures. Generally inadmissible to show negligence.
HYPO: P falls down D’s stairs. D installs stair rails to make safer. Then D denies ownership of house where P injured. Can P offer D’s repair work into evidence?
Evidence. Subsequent remedial measures generally inadmissible to prove negligence or defect, but admissible to prove ownership/control, if disputed.
HYPO: P at theme park is ejected from rollercoaster. Next day, theme park puts in safety bars to prevent ejection. At trial, theme park calls engineer to testify that the ride couldn’t have been any safer at the time of the accident. Can P offer into evidence installation of safety bars after accident?
Evidence. Subsequent remedial measures. Generally inadmissible to show negligence/defect/fault, but admissible to impeach if witness testifies as safe as could be.
Settlements in Civil Cases: Evidence, Pub Pol
If there is a disputed claim, then evidence of OFFERS to settle, ACTUAL settlements, or ADMISSIONS OF FAULT during settlement negotiations are inadmissible to prove fault/amount of damages/impeach with prior inconsistent statement.
What arises to a claim in settlement negotiations (pub pol/evidence)?
A claim does not have to be a commenced lawsuit. It can be an assertion of threat of litigation, or letter.
What is a disputed claim in terms of settlement offer? (Evidence/pub pol)
A disputed claim is a dispute as to either fault or damages. If the claim is NOT disputed, the statement is admissible as an opposing party statement.
Hypo: D’s car hits P. D runs up to P and asks if she is ok. P tells D she is suing and wants $100,000. D says, I admit it was my fault, and I pay you. If i pay you, do you promise not to sue? They do not settle and the case goes to trial. Can P offer these statements into evidence?
Evidence Rule: If there is a disputed claim settlement offers, or statements made during settlement negotiations, are generally inadmissible to prove fault/amount of damages, or impeach with PIS. Here, there is a claim because there has been an asserted threat of litigation. However, the claim is not disputed because D has conceded to both the fault and amount of damages. These statements are admissible.
HYPO: D crashes into P and S at the same time. P writes to Donald and says, the accident was all your fault and you owe me 10 grand. Pay or I’ll take action. D calls P and says, you’re right about accident, it was my fault, but you’re only entitled to 5 grand. The case goes to trial. Can P introduce D’s statement into evidence?
Evidence Rule. If there is a disputed claim, evidence of offers to settle, actual settlements, or statements made during settlement negotiations are generally inadmissible to prove fault, amount of damages, or impeach with PIS. Here, there is a claim (asserted threat of litigation) and dispute (as to money). As a result, D’s statement of an actual settlement is inadmissible for public policy reasons.
HYPO: D crashes into P and S at the same time. P writes to Donald and says, the accident was all your fault and you owe me 10 grand. Pay or I’ll take action. D calls P and says, you’re right about accident, it was my fault, but you’re only entitled to 5 grand. The case goes to trial. At trial of P’s case, D calls S to testify that D was driving carefully. On cross of S, should P be allowed to prove settlement.
Evidence. Settlement exclusion for public policy reasons. P can prove settlement, but not fault.
Can settlements be used to show the bias of a witness?
Yes, settlement offers/actual settlements/statements made during negotiations are admissible for BIAS.
Exclusion of pleas for public policy reasons. What is excluded?
Guilty plea later withdrawn
No contest plea
Statements made during plea negotiations
Purpose: encourage plea bargaining
If D pleads nolo contendere (no contest), the plea is inadmissible/admissible in a subsequent civil case to prove element of the civil case?
Inadmissible.
If D pleads guilty in a criminal case, the plea may be inadmissible/admissible as an admission in a subsequent civil case?
Admissible. Not withdrawn! Actual guilty plea.
Evidence of offer to pay medical expenses
Inadmissible, but admission of fault DURING offer is admissible.
HYPO: D drives into P and says, “It’s all my fault, I wasn’t paying attention. I’ll pay all your medical bills.” The case goes to trial, and D objects to admission of the statement. Which statements are let in?
“It’s all my fault, I wasn’t paying attention.” Admissible.
“I’ll pay all your medical bills.” Inadmissible.
Liability Insurance
Evidence that a person had insurance against liability is not admissible to prove negligence or fault. If party makes a statement of fault in a statement mentioning insurance, the statement of fault is admissible, but statement of insurance is redacted. Liability insurance is admissible to prove ownership/control, or bias.
D crashes into P’s car and tells P: Sorry, I was at fault. My insurance will cover it. Which statements are let in?
Sorry, I was at fault: admissible.
My insurance will cover it: inadmissible.
HYPO: P slips on the stairs in D’s apartment building and sues for injuries. D defense and alleges no negligence, and claims he doesn’t own the building. P offers evidence that D insured the building. What result?
Evidence of liability insurance is not admissible to show negligence, but is admissible for the limited purpose of showing ownership.
HYPO: P slips on stairs in D’s apartment building and sues. D calls insurance investigator to testify that the stairs were perfectly safe. P seeks to cross-examine investigator on the fact that he works for D’s insurance company? Result?
Liability insurance inadmissible to prove negligence, but admissible for the limited purpose to prove bias of a witness.
HYPO: Which of the following statements is generally admissible to show a party’s liability in a civil case? A) The party’s offer to pay medical expenses. B) The party’s admission of fact accompanying an offer to pay medical expenses. C) The party’s settlement offer. D) The party’s admission of fact made during settlement negotiations.
B. Related statements in offer to pay medical expenses are admissible. Related statements in settlement negotiations are not.
Definition of character evidence
Character evidence is evidence of a person’s general propensity or disposition. Examples: honesty, dishonesty, peacefulness, violence.
Three ways of proving character evidence:
Reputation: Bad reputation in community for honesty
Opinion: In her opinion, D is dishonest.
Specific Instances: Specific acts of violence.
HYPO: D is on trial for murder. The prosecution wants to introduce evidence that D has been convicted five times for battery and is known to have a bad reputation for violence in community? Admissible?
No, Prosecution cannot introduce. Only defendant can open the door with character trait pertinent to crime charged and prosecution can rebut.
D is on trial for murder. P wants to introduce evidence that D has been convicted 5 times for battery and has a bad reputation for violence. If prosecution claims D’s character for violence is element of crime of murder, is this admissible?
NO. Character of violence is never an element of a criminal charge.
D is on trial for murder. In his defense D calls Charles to testify. May Charles tell the jury:
(1) I’m familiar with D’s reputation for peacefulness and it is excellent.
(2) I personally know D, and in my opinion he is peaceful.
(3) I’ve seen D turn the other cheek when a bar patron hit him in the face.
(4) D reputation for bravery and honesty is top-rate.
(1) Yes. Reputation.
(2) Yes. Opinion.
(3) No. Specific Act.
(4) No. Trait not pertinent to crime charged.
HYPO: In D’s murder trial, D calls W to testify to D’s good character for peacefulness. W testifies to both D’s reputation for peacefulness and W’s opinion that D is a peaceful person. Could P ask W on cross, have you heard that D was arrested last year for battery? Could P ask W on cross, did you know that D was arrested last year for hitting Robert with a stick?
Yes, can ask both of these things. P can cross-examine D’s character witnesses by questioning the knowledge of specific acts that D has engaged in that are relevant to the character trait in issue. This is to test the knowledge and the judgement of the witness, not to prove D’s bad character.
HYPO: In D’s murder trial, D calls W to testify to D’s good character for peacefulness. W testifies to both D’s reputation for peacefulness and W’s opinion that D is a peaceful person. Could P ask W on cross, have you heard that D was arrested last year for battery? Could P ask W on cross, did you know that D was arrested last year for hitting Robert with a stick? If W denies having heard/knowing bad acts mentioned by P, may P prove the acts occurred?
No. Because the purpose of P’s questioning is not to prove D’s bad character, but to impeach the knowledge/judgment of W. Cannot introduce extrinsic evidence!
HYPO: In D’s murder trial, D calls W to testify to D’s good character for peacefulness. W testifies to both D’s reputation for peacefulness and W’s opinion that D is a peaceful person. Could P ask W on cross, have you heard that D cheated on his taxes last year?
No, it is not pertinent to the crime charged.
HYPO: In D murder trial, D introduced W’s testimony that D has a good reputation for peacefulness. After D rests, may prosecution: (1) Call W2 to testify that he has known D for last 15 years, is familiar with D’s reputation for peacefulness in community, and that such reputation is bad? (2) Can W2 testify about seeing D stab someone three years ago?
(1) Yes. If D opens door with evidence of good character trait, P can rebut with calling own witness for reputation/opinion of bad character trait.
(2) No, specific acts are only permitted on cross of D’s witness.
HYPO: In the D murder trial, assume that the only W who testifies during the defense case was D himself, and all he testifies to is that he not commit the murder. After the defense rests, may the prosecution call W2 to testify about D’s reputation for violence?
No, D did not open door with evidence of good character trait.
Victim’s character trait in self-defense
Defendant may offer reputation of opinion evidence of victim’s violent character to prove that victim was aggressor. P can rebut with evidence of Victim’s good trait, or evidence of D’s same bad trait.
HYPO: D is on trial for battery after hitting V in head. D claims V started the fight. To prove that V was first aggressor, may D call H to testify that V has a reputation for being a violent bully? In response, may P call G to testify that she has worked with D for last ten years and he is known to be aggressive and a bully?
Yes, D may offer evidence of V’s violent character to prove V was first aggressor in form of reputation. Yes, P can rebut with evidence of D’s same trait.
HYPO: In murder trial, D is alleged to have shot V. D claims self-defense, argues that V came at him first with knife. May P call character witness to testify as to V’s character for peacefulness?
Yes, if D offers evidence that V is first aggressor, P can rebut with evidence of V’s character for non-violence through reputation or opinion.
Special Rule: D’s knowledge of V’s character for violence
The D can offer opinion of V’s character for violence to show D’s state of mind (reputation, opinion, or specific act). This is because it is relevant for D’s belief, not for V’s propensity. Because not propensity, all three types of evidence are allowed.
In murder case, could D offer evidence he knew V had stabbed another man the week before? (1) To prove V was first aggressor? (2) For some other purpose?
(1) No. D cannot offer specific acts to show V first aggressor.
(2) Yes. D can offer specific acts to prove that he believed he was in danger.
HYPO: P sues D for negligence arising out of a car crash. During case, P seeks to offer evidence of D’s reputation for careless driving. Admissible? During D’s case, D calls W to testify that D is a prudent and careful driver?
NEITHER admissible. Character evidence is generally inadmissible to prove propensity in civil cases.
Exception to excluding character evidence in civil cases
Character is an essential element of claim or defense. Directly at issue in claim. Examples: defamation, child custody, negligent entrustment or negligent hiring. Can use reputation, opinion, OR specific acts.
HYPO: S’s estate sues D for wrongful death damages, alleging that D intentionally killed S. D defends and claims he acted in self-defense. During defense, may D introduce evidence of peaceful character? May D introduce evidence of S’s violent character?
No. This is a CIVIL case. Character evidence to show propensity is inadmissible.
HYPO: P was hit by a truck driven by C, who was acting within the scope of her employment with F shipping company. P sues F, alleging F negligent in hiring C and allowing her to drive. (1) P offers testimony of W, who knows C’s reputation for being a terrible driver. Admissible? (2) P offers evidence that C was involved in three driving accidents before working. Admissible?
Both admissible. In a civil case, when character directly at issue because element of claim or defense, like negligent hiring, can introduce character evidence in form of specific acts, reputation, or opinion. Because not showing propensity.
HYPO: P sues N for libel based on a story in which P was accused of being a dishonest sport agent. N offers in his defense (a) testimony that P has a reputation for being dishonest, (b) testimony by P’s business associates that, in their opinion, P is dishonest, and (c) evidence that P swindled previous clients. Admissible?
A, B, and C all admissible. In a civil case, character evidence admissible if character directly at issue because element of claim like here, in libel suit. Because not propensity, specific acts, reputation, and opinion are allowed in.
Prior Bad Acts
Inadmissible to prove propensity, but if offered for some other purpose than propensity, will not be barred by rule against character evidence. MIMIC Motive Intent Mistake (lack thereof) Identity Common plan/scheme
HYPO: D charged with murder of Judge. P seeks to introduce evidence that J sentenced D to 10 years for robbery and D just got out of prison. Is this inadmissible character evidence?
No, because prior bad acts (robbery) is not being used to show propensity, but motive. Admissible.
HYPO: D is charged with possession of LSD with intent to sell. D defends that D is merely a possessor but denies intent to sell. P seeks to offer evidence that on three prior occasions, D has been arrested for selling LSD. D objects. Admissible?
Yes, admissible, because evidence of prior bad acts (selling LSD) not being used to show propensity but rather intent.
HYPO: O is charged with murdering wife. Claims he shot her by accident. P seeks to introduce evidence that O threw a plugged-in toasted into wife’s bath while she was in it a week before he shot her. Is this (1) admissible to show O has a propensity for violence? (2) On the issue of whether the shooting was accidental?
(1) No. Prior bad acts are inadmissible to prove propensity.
(2) Yes. Prior bad acts are admissible to show absence of mistake.
HYPO: B is on trial for stealing a car in Indiana. P seeks to offer evidence that 20 minutes before car reported stolen, B had broken out of federal penitentiary 3 blocks from where car was stolen. Admissible?
Yes, prior bad acts admissible to prove not propensity, but opportunity.
HYPO: D is on trial for armed robbery, and alleges he has alibi. W testifies robber wore floppy knit hat, had harmonica in shirt pocket, and hummed ode to joy while brandishing a crossbow. P wants to offer evidence that D has been arrested five other times for robbing stores with same exact specifications. Admissible?
Yes, prior bad acts admissible to show identity, or modus operandi. Evidence of modus operandi must be unique and associated with defendant. Signature type evidence.
How to prove prior bad acts
Conviction (but does not require conviction or even arrest) or evidence that tends to show the act occurred. Evidence must be sufficient for a reasonable jury to conclude that D committed prior act by a preponderance of the evidence.
HYPO: In a fraud trial, P alleges that D invited the victims to become local investors for cosmetics manufacturer. D claims she was brought into the scheme by the head of sales and was just following instructions with no notice of fraud. P wants to call a W to testify that D convinced him to invest in a similar scheme involving household products five years ago. Admissible? (A) No, because evidence of other acts or wrongs is not admissible to prove conformity. (B) No, because it is irrelevant. (C) Yes, because it is evidence of defendant’s character for dishonesty. (D) Yes, because evidence of character’s state of mind.
D. Yes, because it is evidence of D’s knowledge.
Authentication
Foundation laid to support finding that documentary evidence is what proponent says it is. Proponent must produce sufficient evidence for a reasonable jury to find this document genuine.
Methods of authentication:
Admission, eyewitness testimony, handwriting proof, voice ID
Handwriting Authentication
Lay witness: must already be familiar with handwriting. Cannot BECOME familiar with handwriting for purpose of testifying. Expert witness. Jury comparison.
Voice Identification
Lay witness CAN become familiar with voice for purposes of testifying.
HYPO: A dispute arises between a LL and a tenant about a security deposit. Tenant claims he gets deposit a week after the termination of the lease. LL offers into evidence the original of the lease, signed by tenant Admissible?
Documentary evidence must be authenticated first. LL must offer sufficient evidence that a reasonable jury would find that the original lease is in fact the original lease.
Certified copies of business records
Are self-authenticating IF:
(1) Record is certified by a custodian
(2) Offering party gives adverse party reasonable written notice and makes record and certification available so other party can challenge authentication
Other self-authenticating documents
Certified copies of public records, official publications (DMV pamphlet with markings) newspapers, labels, notarized documents, signature on certain commercial documents
Authentication of Photographs
To authenticate a photograph, the witness must testify on the basis of personal knowledge that the photo fairly and accurately represents the persons or objects portrayed. It does not have to be the photographer.
HYPO: W testifies that he saw car crash at intersection of streets. P’s counsel seeks to introduce photo of intersection. W says photo fairly and accurately depicts intersection, but he has no idea who took picture. Proper foundation?
Yes, proper foundation for authentication because the witness has testified that the photo fairly and accurately represents the intersection it portrays. Admitted.
Best Evidence Rule
When offering the contents of a writing, MUST produce the original or account for absence of original. If the explanation for the absence of the original is reasonable, can introduce a copy of the writing or oral evidence.
What “writings” does Best Evidence Rule apply to?
Writings (including legally operative documents—wills, deeds, leases, contracts, divorce decrees), films, photos, X-rays, and recordings
When does the Best Evidence Rule apply?
When the witness’s SOLE knowledge comes from a document
HYPO: D is charged with murdering wife. When Office arrested D he found an anonymous letter in D’s pocket. The letter said: Dear D, your wife V is sleeping with her personal trainer. P wants to prove the contents of the letter to show D’s motive. Officer takes stand and says he found letter in D’s pocket. Instead of producing the letter, he seeks to testify about what he read in it. D objects hearsay. What is the result?
Hearsay objection is overruled. This is not hearsay, because it is not offered for the truth of the matter asserted. It is not offered to prove that V was having affair, but that D had motive. Better objection is Best Evidence Rule: witness testifying as to contents of document when sole knowledge comes from the document itself, must produce the original document.
When does the Best Evidence Rule not apply?
When witness has personal knowledge of events or items described in the writing, independent of the writing.
Collateral documents: documents of minor importance
HYPO: In a suit for recovery of payment on a loan, P claims A did not pay. A calls a witness to testify that the Witness saw A pay back the loan and receive a receipt from P. Does A need to produce the receipt?
No, because she is an eyewitness to the event so she has knowledge of the events described in the writing independent of the writing.
Best Evidence Rule modifications
Public records: certified copies are okay
Voluminous documents: can use summaries or charts as long as the originals would be admissible if offered, and the originals are made available to the opposing party
Duplicates that satisfy the Best Evidence Rule
A duplicate is a copy produced by any technique that avoids casual errors and accurately reproduces the original. Carbon copies, photographic copies, Xeroxes, and faxes are all duplicates. A duplicate is admissible to the same extent to the original (with no need to explain absence of original) if: there is no genuine question raised about the authenticity of the original OR it would be unfair to admit the duplicate in place of the original.
Excuses for Non-Production of the Original (Best Evidence Rule)
Lost and cannot be found with due diligence
Destroyed without bad faith
Cannot be obtained with the legal process
Court must find by preponderance of the evidence that excuse is established. Then secondary evidence is admissible.
HYPO: An actor has denied his purported signature on a letter that has become critical in a breach of contract suit between him and a movie producer. At trial, the movie producer’s counsel calls a former assistance of the actor who testifies that she worked for the actor for 15 years, knows his signature, and proposes to testify that the signature to the letter is that of the actor. The actor’s counsel objects. Is the assistant’s testimony admissible?
Yes. Physical evidence must be authenticated, meaning that the proponent must provide sufficient evidence for a reasonable jury to find that it is what he claims it to be. Handwriting can be authenticated by a layperson who is familiar with the writing, and has not made herself familiar solely for the purpose of testimony. The secretary is familiar with the handwriting prior to the litigation and thus can authenticate the signature.
What is the scope of cross?
Cannot exceed scope of direct. Limited to issues raised on direct, and credibility.
Expert Witness
- Must be qualified by education, training, or experience.
2. The opinion must be scientific, technical, or specialized knowledge that will assist the trier of fact.
What can an expert’s opinion be based on?
Personal knowledge
Evidence made known to the expert AT or before the hearing
Inadmissible evidence if reasonably relied upon by experts in the field (but cannot testify as to the contents of that evidence)
Reliability of Expert Requirement
Daubert Factors:
Theory or technique that has been tested
Subject to peer review and publication
Known or potential error rate
Generally accepted in scientific community
Can an expert witness testify as to the ultimate issue?
Yes, but NOT to the mental state of a defendant in a criminal case
Learned Treatise
May be relied upon by expert during direct examination or may be used to impeach expert during cross. If the learned treatise is established as reliable authority, it can be used as substantive evidence for the truth of the matter asserted. Not as an exhibit, only read into the record.
Foundation for Learned Treatise
Judicial Notice
Opponent’s expert on stand says it is a learned treatise
Your own expert says so
Stipulation
HYPO: Personal injury lawsuit, P calls Dr. Wilson to hearing about a fractured kneecap. Gray’s Anatomy says on page 519 that a fracture of the kneecap can cause tendons in the thigh to tear permanently. Can Dr. Wilson read the relevant portion to the jury to show likelihood of future damage to tendons in the thigh?
Yes, under the hearsay exception to learned treatises.
HYPO: While driving east on a two-lane road, a truck collided with a westbound minivan. The accident was observed by an ambulance driver. Because the ambulance driver had a patient on board, she did not stay at the scene of the accident but made some notes shortly thereafter. She made her statement to the police the next day, in which she stated that just before the accident, the truck swerved into the westbound lane, hitting the minivan. At the trial of the minivan driver’s personal injury action against the truck driver, the ambulance driver was having difficulty remembering some of the facts. The minivan driver’s attorney sought to let her review the notes she had made. Should the court permit the ambulance driver to review her notes?
Yes, because the notes may be used to refresh recollection. Witness cannot remember. Anything can be used to refresh recollection.
Impeachment
The process of showing the witness is not reliable
Rehabilitation
The process of trying to repair a witness’s credibility after the witness has been impeached
Can a party impeach it’s own witness?
Yes
Impeachment Methods
Prior inconsistent statement Bias, motive Sensory defects Reputation or opinion for untruthfulness Criminal convictions Prior bad acts Contradiction
What are the two questions for impeachment?
Is extrinsic evidence allowed? Is there a foundation requirement?
Extrinsic evidence
Documentary evidence, another exhibit, or testimony from other witnesses
Prior Inconsistent Statement
Any witness can be impeached with contradictory statement made at ANY TIME prior. Cannot be used for the truth of the matter asserted (unless falls under HS exception). No foundation requirement, but witness needs opportunity to explain or deny (unless party opponent, or if it is a hearsay declarant being impeached)
Foundation Requirement
Confronted with impeaching fact before introducing extrinsic evidence
HYPO: W testifies in personal injury lawsuit arising out of a car accident that he saw the defendant’s hummer driver through a red light and slam into bus driven by P. (1) On cross, can D counsel ask W about a statement he made to investigator three days after the accident where he said the Hummer had the green light and the bus ran into the hummer? (2) If W concedes the statement, can D offer the statement for the truth of the matter asserted?
(1) Yes. Any statement can be used to impeach if PIS.
(2) No. Statement does not fall under HS exception for PIS.
HYPO: P testifies that she had her car lights on right before the accident. D does not cross P. During defense, D calls W who testifies that P told him, ten days after accident, that she did not have her lights on before the accident. (1) P moves to strike the testimony because she was not given an immediate opportunity to explain or deny the statement. Result? (2) Does the statement by P come in to impeach P AND as substantive evidence that she did not have her lights on?
(1) Overruled. P is party-opponent. No requirement to explain/deny.
(2) Yes. Because she is a party-opponent.
Impeachment by bias or motive to lie
When witness is a party, friend, relative, employee, expert hired by opposing party, someone who dislikes a party, etc.—the testimony is slanted in party’s favor. Can be shown with extrinsic evidence. =
Impeachment by Sensory Defects
Anything that could affect witness’s perception or memory. Poor eyesight, mental defects, alcohol or drug use at the time of the event or while on the witness stand. Extrinsic evidence allowed. No foundation requirement.
Bad Reputation or Opinion about Witness’s Character for Truthfulness Impeachment
Any witness may be impeached by this method. Extrinsic evidence is allowed (this is how it’s done—you call another witness to testify)
W testifies for the prosecution that D robbed the bank. D calls R to stand to testify that W has bad rep for truthfulness, and in R’s opinion, is not a truthful person. (1) Admissible to show W not truthful? (2) May R follow up by testifying that she based opinion on seeing W steal money from envelope?
(1) Yes. Impeachment by rep/opinion for untruthfulness. EE allowed.
(2) No. Cannot impeach with specific acts for untruthful character.
Method of proof for impeachment by criminal convictions
EE allowed (certified copy of conviction). No foundation requirement.
HYPO: D on trial for robbery, and testifies was in another state when robbery occurred. On cross, may P ask D about: 1. Convicted of misdemeanor fraud 8 years ago? 2. Released from jail 7 years ago for marijuana possession misdemeanor? 3. Convicted for misdemeanor shoplifting 2 years ago? 4. Convicted three years ago for felony arson?
- Yes. Crimen falsi, not too remote.
- No. Misdemeanor (non CF) inadmissible.
- Same.
- Up to discretion of judge. Reverse 403 balancing.
Impeachment by prior bad acts: EE allowed?
NO. Can only confront on cross. Must have good faith basis and within court’s discretion to permit. Cannot ask about consequences of act.
HYPO: D on trial. W testifies favorably for D. Says out of town on date in question. P on cross acts W if she filed a false application for food stamps three years ago. Is this allowed?
Yes, prior bad act can be used to impeach. No conviction. Asking on cross with no EE.
HYPO: D on trial. W testifies favorably for D. Says out of town on date in question. P on cross acts W if she filed a false application for food stamps three years ago. Is this allowed? Yes. W denies filing false application for food stamps. P has application and witness ready to testify otherwise. Can P call witness or introduce application?
No. No EE allowed for impeachment by prior bad acts.
Can you impeach (prior bad acts) by asking if suspended for lying on application?
No, this is asking about the consequences. Not the act itself.
Impeachment by Contradiction/Collateral Matters
Witness gets a fact wrong. If a collateral matter, you are bound by the answer. No EE is allowed for collateral matters.
Collateral matter
Something not essential to the case
HYPO: W testifies for the P and describes the scene of the accident. There is no issue as to whether W was at the scene and saw the accident. W testifies that he was on his way to visit a sick relative, but really just left AA meeting. D asks about AA meeting and W denies. Can D call witness or use an exhibit to prove?
No, no EE on collateral matter. Bound by W’s answer.
Can you impeach a hearsay declarant?
Yes, by any method as if took stand.
HYPO: In a personal injury lawsuit from train accident, P calls S to testify to an excited utterance by W, “Oh my god! The motorman is drunk and asleep!” W is now dead. D wants to introduce a certified copy of perjury conviction for W, showing he was convicted two years ago for lying under oath. Can introduce?
Yes, can introduce because falls under requirements for impeachment by criminal conviction and can impeach HS declarant as if took the stand.
When can you rehabilitate witness?
After impeached. Cannot bolster (introduce evidence supporting credibility before credibility is attacked) Exception: Prior Statement of ID. Rehabilitation must meet attack.
W in a burglary trial testifies that she saw D break into home. Also testifies that she picked D out of a lineup at the police station two weeks after burglary. Allowed even though bolstering?
Yes, PSID exception to bolstering
Prior Consistent Statement (Rehabilitation) when used?
- Rebut a charge of recent fabrication (statement must have been made before motive to lie arose)
- Rehabilitates a witness who has been impeached on other grounds
* Nonhearsay, so can be asserted for TOMA
Hearsay definition
Out of court statement offered for the truth of the matter asserted. Must be made by human, not animal or machine. Inadmissible unless exemption or exception.
Hearsay Purpose
No chance to cross-examine declarant’s perception, memory, and sincerity at time statement was made.
Can hearsay be written?
Yes, example: old letter
Can hearsay be conduct?
Yes, if intended to assert something or offered to prove that point. Conduct in response to a question is assertive. (Answering the question by using conduct is a statement).
Is a radar gun reading hearsay?
No. Machine, not human.
On stand, W testifies that robber fled through back door. Testified that asked gagged teller where robber went, and teller pointed to back door. Hearsay?
Yes, out of court (bank) statement (assertive conduct offered to prove a point) offered for the truth of the matter asserted (robber ran out back door).
What does out of court mean?
Not on the stand testifying at this current proceeding.
Can hearsay declarant be the same person who is on the stand?
Yes.
Formula for figuring out if hearsay
Out of court statement = Truth of matter asserted
Ex.
Out of court statement (to police): I didn’t kill V.
Offered to prove: D didn’t kill V.
I didn’t kill V = D didn’t kill V. Hearsay
W testifies that received a phone call from sister in Alaska and in the call his sister said, “The bear came in my window.” Offered to prove the bear came in her window. Hearsay?
Yes. Out of court statement (bear came in my window) offered to prove the truth of the matter asserted (bear came in window).
HYPO: W testifies received a phone call from sister and sister said, “The bear came in my window.” Offered to prove sister alive at time she made call. Hearsay?
No. Although out of court statement (the bear came in my window) not offered to prove the truth of the matter asserted (sister alive).
HYPO: On the issue of which spouse survived plane crash, the estate of husband seeks to introduce statement of husband to rescuer, “I’m alive.” Offered to prove husband was alive. Hearsay?
No. Although out of court statement (I’m alive) offered to prove the truth of the matter asserted (plaintiff was alive), it was not the words themselves that prove H was alive, but the words themselves (conduct). Think, anything he said would support the conclusion that he was alive.
Are words of contract hearsay? Ex. I will buy your horse for $500,000.
No, words that have independent legal significance (create, alter, modify, or terminate legal rights) are not hearsay. Generally tortious or transactional language. Examples: words of defamation, words showing transfer of property, alleged perjury, words by adverse possessor showing adverse possession, words of contract.
HYPO: Statement: D tells P you can borrow my car but my brakes are shot. Offered to show notice to P. Would this be hearsay?
Not offered for truth of matter asserted, so not hearsay.
HYPO: On issue of competence to draft a will, statement “I am Napoleon Bonaparte, and I am here to reclaim France.” Hearsay?
No. Not offered for the truth of the matter asserted, offered to show crazy.
Exclusions from Hearsay: C3PO
Co-conspirator PIS PCS PSID Opposing party admission Remember: Anything C3PO said was not hearsay!
For nonhearsay, must declarant testify and be subject to cross?
For the 3Ps (PIS, PCS, PSID)
Co-Conspirator Nonhearsay Exemption
Statements by a co-conspirator are admissible against a party-opponent for the truth of the matter. They are not hearsay.
Co-Conspirator exemption in civil or criminal cases?
BOTH civil and criminal
Elements to meeting co-conspirator exemption
(1) Conspiracy existed (need independent proof, does not have to be charged)
(2) Declarant was a member of the conspiracy
(3) Offered against other member (party-opponent)
(4) Statement made during the course of the conspiracy, or in furtherance of the conspiracy
Opposing Party Statement Exemption to Hearsay
Any statement made by a party may be offered by that party’s opponent for the truth of the matter asserted. ANYTHING OTHER PARTY SAID GOES. Does not matter if opposing party does not testify.
Adoptive Party Admission
A party adopts another person’s statement as true by words or conduct, including by remaining silent. If party Heard, Understood, and a Reasonable Person would have Taken exception, the party is HURT by silence.
Can silence after Miranda warnings be used against you?
NO.
HYPO: D is at bar with girlfriend and several friends. His friend compliments D on his tasteful pinky ring, and his girlfriend chimes in, “This is nothing. You should see all the cash we robbed from the bank this afternoon.” D listens and says nothing. The prosecution offers the girlfriend’s statement to show D robbed the bank. Admissible?
Yes, as adoptive party admission under nonhearsay. Heard, Understood, and a Reasonable person would have Taken exception.
HYPO: D is on trial for possession of cocaine with the intent to distribute. Police officer S on the stand wants to testify that after the Miranda warnings, he said to D, as he sat in the back of the police car, You must have made a lot of money selling cocaine, and D remained silent. Is this admissible as an adoptive statement/admission?
No, silence after Miranda warnings cannot be used against you.
What if the party-opponent statement is made by a spokesperson for that party?
Statements by a person authorized to speak on behalf of party counts as statement by party-opponent. Examples: president of company, attorney for client.
What if the party-opponent statement is made by a agent/employee for that party?
Statements by employees are admissible against employer as admission if:
(1) Made within the scope of employment (job-related)
(2) While employed (statement itself is evidence of employment, but need additional evidence to prove employment if disputed)
What is the same for PIS/PCS/PSID?
Declarant must (1) testify and (2) be subject to cross about prior statement.
Prior Inconsistent Statement (Hearsay Exemption)
A prior inconsistent statement by a testifying witness given UNDER OATH at a PRIOR PROCEEDING is not hearsay and is admissible for the truth of the matter asserted, and to impeach.
What counts as a prior proceeding for PIS?
Before a grand jury
At a prior trial
At a deposition
Prior Consistent Statement (Hearsay Exemption)
Prior consistent statements cannot be used for any purpose EXCEPT to rebut a charge of fabrication based on improper motive, or when witness impeached on other non-character ground and prior consistent statement can be used to rehabilitate.
When can a PCS be used to rebut a charge of fabrication?
(1) When the cross-examination raises express or implied charge against the declarations of recent fabrication or improper influence or motive.
(2) PCS must have been made BEFORE the alleged undue influence.
Does PCS need to be sworn or made under oath?
No
PSID (hearsay exemption)
PSID is not hearsay as long as declarant (1) testifies and (2) is subject to cross-examination about the statement. If declarant does not testify or refuses to answer questions on cross, 3rd party witness can testify about PSID. If declarant DOES testify and cannot recall, makes wrong ID or recants prior statement, 3rd party witness CAN testify about PSID.
Examples of prior statements of identification
Lineups Show-ups (drive up with D in back of police car) Photo array Sketch by police artist In-court ID at prior proceeding
HYPO: Trial of D for armed robbery home invasion. Victim made ID of D at a lineup week after robbery. At trial, V asked to look around courtroom and identify the person who robber her-she points at member of jury. Can prosecution call W to testify about V’s PSID?
Yes, (1) testified, and (2) subject to cross. Even if made wrong ID, can still introduce PSID.
Does declarant have to be impeached before offering PSID?
No, exception to bolstering.
Hearsay rule for essay:
If the declarant made an out of court statement offered for the truth of the matter asserted, it is admissible only if it (1) meets a hearsay exception, or (2) is excluded from the definition of hearsay.
When are declarants unavailable?
PRISM, Remember: I can’t testify, I am caught in a PRISM Privilege Refusal to testify Illness Subpoena won’t work Memory (lack thereof)
What are the exceptions where unavailability is required?
Former testimony, Dying declaration, Statement Against Interest
Former Testimony Exception
Statement made under oath at a prior proceeding. The statement is now being offered against a party to the prior proceeding, and the party against whom the statement offered had a prior opportunity to examine the declarant at prior proceeding. The prior proceeding must have been conducted for essentially the same reason as the examination at the present trial, so the reason or motive for both examinations is similar.
HYPO: J and W are riders on a bus owned by ABC bus company, driver hits building, J and W injured in crash. J sues. J calls driver to stand, and driver admits he was drunk at the time of the accident. J wins, his case over. Now sues, subpoenas driver, and driver takes 5th amendment. Can W offer testimony from J’s trial as former testimony?
Yes, under former testimony exception to hearsay rule. Declarant unavailable (5th = Privilege). The statement was under oath at a prior proceeding, and offered against party who had opportunity to examine the declarant at prior proceeding with similar motive.
Dying Declaration Exception to Hearsay Rule
CUBA Cause of Death (statement must relate to cause of apparently impending death) Unavailable Belief death imminent All civil or homicide Remember: I died in CUBA.
HYPO: Prosecution for murder in which D allegedly also shot but did not kill a second victim. Prosecutor offers evidence that the surviving victim, who is not in a coma, said at the scene, I’m not going to make it. Derek killed my buddy and me. Admissible?
I died in CUBA.
Cause of death: statement relates to cause of death, Derek killed my buddy and me
Unavailable: Coma = Illness (prIsm)
Belief that death is imminent: I’m not going to make it
All civil or homicide: homicide
Statement against Interest Exception to Hearsay
Statement of non-party declarant is admissible hearsay if:
(1) statement was against declarant’s interest when made (financial, criminal, or pecuniary)
(2) Reasonable person would not have made the statement unless she believed it true when she made it, and
(3) Declarant unavailable
HYPO: Prosecution for tax evasion. D filed tax return stating he had no income. P offers into evidence a loan application D submitted to bank where stated, I earn $1,000,000 a year. Was this a statement against interest?
No. Not against declarant’s financial interest when made. However, it is a opposing party statement.
What if statement against interest incriminates declarant?
If statement against interest incriminates declarant, the rule requires corroborating circumstances to indicate trustworthiness.
Present Sense Impression Exception
Statement that describes event while declarant is perceiving the event (or immediately after)
Excited Utterance!
A startling event causes the declarant to be excited or shocked, and defendant made statement related to startling event while under stress of startling event.
Then-Existing Mental, Physical, or Emotional Condition
Statement of declarant’s then-existing state of mind, emotion or sensation, physical condition. Admissible to prove intent, plan, motive, mental feeling, pain.
HYPO: S, a billionaire adventurer, disappears in ocean on balloon trip. Wife sues to recover on life insurance policy. Insurance company calls W to testify he heard S say, just before balloon trip, I want to disappear in jungles of Borneo and on this trip I will do it. Hearsay?
No, statement of then-existing mental condition offered to prove intent to prove future acts.
HYPO: S, a billionaire adventurer, disappears in ocean on balloon trip. Wife sues to recover on life insurance policy. Insurance company calls W to testify he heard S say, just before balloon trip, Last month I thought about never coming back. Hearsay?
Yes, because although state of mind it was not then-existing. Cannot be statements of memory or belief. No looking back. Exception: wills.
Statement for purpose of medical diagnosis or treatment exception to hearsay
Statement made by ANYONE talking to doctor for purpose of diagnosis or treatment that describes medical history, symptoms, pain, or cause (BUT NOT FAULT) of injury if reasonably pertinent to diagnosis or treatment.
HYPO: Personal injury action. P testifies that he told doctor my back is killing me. I was hit by a car driven by someone with a suspended license. Admissible?
Partially as hearsay exception of statement made for medical diagnosis or treatment. Statement made to doctor for purposes of medical treatment. Statements of pain and cause admissible as pertinent to treatment, but not fault.
HYPO: Personal injury action. P testifies that he told another patient in waiting room, I was feeling fine before this happened. Can other patient testify as to what plaintiff said?
No, not to medical personnel for treatment, and not statement of then-existing physical condition because memory.
