Bar--Evidence Flashcards
Spousal Immunity
A spouse cannot be compelled to testify about anything the defendant spouse.
- ends when divorced.
CRIMINAL CASES ONLY
Witness spouse holds the privilege and may waive it
Confidential Communications Between Spouses
Civil and Criminal Cases–a spouse is not required—any may not absent permission of other spouse–disclose a confidential communication (statements or acts) made by one to the other during the marriage. Both spouses hold the privilege.
- survives the marriage
- does not apply if revealed part to friend—> no longer confidential
Business Records Exception
- made in regular course of business
- the regular practice of business to make the record at the time of the event
- made by person who had duty to make it and who had personal knowledge
Clergy-Penitent Privilege
A person has a privilege to refuse to disclose, and prevent others from disclosing a confidential communication by that person to a member of the clergy in the clergy member’s capacity as a spiritual advisor
NO privilege if statement to clergy in a normal convo
When can the testimony of a now unavailable be admitted at a subsequent trial?
Testimony of a now unavailable W given under oath at another hearing is admissible in a subsequent trial as long as there is sufficiently similarity of parties and issues so that the opportunity to X examine at prior hearing was meaningful.
Is testimony of a W during a trial admissible pursuant to public records!
No! Only fact of conviction
Statement Against Interest
Statements of a now unavailable W against pecuniary, propriertary or penal intetest are admissible.
Evidence of INsurance
Evidence of liability not admissible to show negligence, but evidence casualty insurance is
Patient Doctor Privilege in Federal Court
DOES NOT APPLY
Prior Inconsistent Statement–Grand Jury
Prior inconsistent statement made under penalty or perjury at a prior trial or proceeding, including Grand Jury, is admissible non-hearsay and can be used for substantive OR impeachment.
Is GJ transcript of W not testifying at current trial admissible
No–hearsay not within any exception
Are records of convictions admissible? If so when?
Yes–they are hearsay but fall under rule for exception for records of felony conviction.
Judgments of felony convictions are admissible in both civil and criminal trials to prove an y fact essential to judgement., whether judgement arose after trial or guilty plea.
Limitations on Right to Cross Examine
Scope of cross is a matter of judicial discretion.
Judge may limit x to avoid waste of time, protect W from harassment, or undue embarrassment
Judge may stop cross when “it determines there has been an adequate opportunity for meaningful cross examination”
Past Recollection Recorded
Exception to hearsay–W unavailability NOT required
Must show
i–W at one time had PK of facts, ii. the writing was made by or under the direction of the W or has been adopted by her. iii. writing was timely made when it was fresh in mind iv. writing is accurate v, W had insufficient recollection to testify fully and accurately
Patient Doctor Privilege
Doctor must be a licenced physician- (or P must reasonable believe she is) -present for purpose of treatment, info be obtained while attending patient, info was neccessary for treatment
Parol Evidence Rule
Where an agreement is fully integrated–all prior or conemp negotations or agreements are merged into written agreeement–cant show extrinisc evidence to change or altar.
But–PE is allowed to show that contract was in fact void-to show fraud, duress, unde influent inducing concent.
Expert W Qualification
Qualification of an expert witness is determined by the judge–Judge may consider any relevant evidence in making this determination–
Learned Treatise
statements from a learned treatise are admissible to impeach and as substantive evidence.
Reliability of the treatise can be established by 1. direct testimony or cross/admission by W 2. testimony of another W, 3. Judicial notice.
Can you impeach testimony with other testimony that does not directly contradict it but merely casts doubt?
Yes.
Chain of Custody
Where evidence is of a type likely to be confused or tampered with, propronent of the evidence must present evidence of chain of custody.
Must show that object has been held in substantially unbroken chain of custody –need not negate all possibilities of substittuion or tampering–just adherence to some system of ID and custody.
Relevance
any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
all relevant evidence admissions unless exclusionary rule or court makes determination that probative value outweighted by
unfair prejudice confusion of issues misleading jury undue delay waste of time unduly cumulative
admissibility of similar accidents caused by same instrumentality or condition
not admissible to show general character for carelessness
yes admissible to show
1. existence of dangerous condition
2. causation f accident
or 3. prior notice to D
Habit
Habit is a repetitive response to a particular set of circumstances. Defined by frequency of conduct, particularity of conduct.
always, never, invariable, automatically, instinctively
When is evidence of insurance admissible?
To show a) proof of ownership/control of instrumentality or location–WHERE DISPUTED
or for impeaching a W
When are subsequent remedial measures admissible?
ownership/control/feasibility of safer conditions if IN DISPUTE
When are offers to settle/offers to pay medical expenses/facts in those discussions admissible?
Settlement offers/facts stated during settlement discussion:
–>n/a for showing liability of impeaching
- ->offer of settlement admissible to impeach for bias
- ->Facts admissible in civil litigation with a government regulatory agency in a later criminal case.
Offer to pay medical expenses inadmissible. but statements made in connection can be admitted.
Admissibility of Guitly PLeas?
offers, withdraws, nolo condere, statements= n/a
GUILTY plea is admissible as party admission
Character Evidence in Criminal Cases
- P may not use character evidence (CE) during chief
- D may introduce evidence of relevant character trait by reputation or opinion evidence to prove his conduct—but this OPENS door to rebuttal by P. N.B honest is not relevant to most crimes except perjury etc.
- Where D presents evidence of a good trait, P may rebut by cross examination Qs about specific bad acts, or by calling reputation/opinion witnesses.
- D may introduce evidence of victims violent character as evidence that she was first aggressor, to prove self defense….
a. …..but in response P may show victim’s character for peacefulness, and may prove D’s character for violence.
b. …..any D may show his knowledge of V’s reputation for violence to help prove he was justified in thinking she was agressor. - Rape shield law—-(criminal and civil) d cant introduce opinion or reputation evidence about V’s sexual propensity, or evidence of specific sexual behavior —except (criminal)
a. specific sex behavior to someone else was source of semen
b. with D, to show she consented
c. exclusion is violation of DP—love triange - Evidence of prior bad acts are never admissible to show that he acted unlawfully again, may be admissible to prove MIMIC, unless judge determines prejudice/probative.
a. Motive, intent, mistake (lack of), identity, common scheme (without conviction!)
b. May be deemed inadmissible by 403.
c. Method of proof–by conviction—>or conditional relevancy—enough evidence from which reasonable juror could conclude that D committed the other crime. - If D testifies, he automatically places character trait of truthfulness at issue and P can present evidence that he is not a truthful person
Evidence of Victim’s Character==Sex–Criminal and Civil
- Rape shield law—-(crimina and civil) d cant introduce opinion or reputation evidence about V’s sexual propensity, or evidence of specific sexual behavior —except (criminal)
a. specific sex behavior to someone else was source of semen
b. with D, to show she consented
c. exclusion is violation of DP—love triangle
civil: court may admit sexual propensity of victim if 403.
Character Evidence–Civil
- Generally—character evidence admissible to prove person’s conduct on particular occasion
- Evidence is admissible where character is essential element of a claim or defense—negligent hiring/entrustment, defamation, child custody
- If a party testifies, they automatically put character of truthfulness in dispute in this case.
When is Character Evidence OK–MIMIC
Evidence of prior bad acts are never admissible to show that he acted unlawfully again, may be admissible to prove MIMIC, unless judge determines prejudice/probative.
a. Motive, intent, mistake (lack of), identity, common scheme (without conviction!)
b. May be deemed inadmissible by 403.
c. Method of proof–by conviction—>or conditional relevancy—enough evidence from which reasonable juror could conclude that D committed the other crime.
d. upon D’s request P must give pre trial notice of intent to introduce MIMIC evidence
Evidence of D’s Sexual Misconduct
In case involving sexual assualt, may admit D’s prior specific acts of sexual assault as part of case in cheif (crimina) or the plaintiff (civil) to show propensity for sexual assault.
Same for child molestation.
PRIOR ACTS ONLY–NOT REPUTATION OR OPINION
ancient document rule
authenticity inferred if doc more than 20 years old, facially free of suspicion, found in place of natural custody
Conditional Relevancy Standard
admissible if court determines that there is sufficient evidence from which a reasonable juror could conclude:
1. document is genuine (in case of the authentication)
- D did the act–in case this is for sake of MIMIC crime
Best Evidence Rule
A party who seeks to prove the contents of a writing must either produce the original writing or provide acceptable excuse. (writing includes sounds, x-ray, film etc)
Application:
applies when writing is legally operative document (patent, deed, divorce, contract) or when W is trying to testify to facts she learned solely from reading about them in a writing.
does not apply when W has personal knowledge of facts that exists independently of a writing
Original Writing:
intended to have same effect as original, duplicates unless they would be unfair or raise genuine question of authenticity.
Excuse for not having original: lost/cant be found with due dil, destroyed, cannot be obtained thru legal process.
escapes—voluminous records, public records, collateral documents.
Dead Man’s Statute
W is not ordinarily incompetent just because she has a stake in the outcome.
States with Dead Man’s Act provided that :
In a civil action an interested witness is incompetent to testify against the estate of a decedent concerning a transaction or communication between the 2 of them.
NO DEAD MAN”S STATUTE UNDER FRE!
Where are leading Q’s allowed?
Direct
Prelim Matters
Youthful or Forgetful Witnesses
Hostile W
W is opposing party or someone under their control.
Refreshing Recollection
W cannot read from prepared materials but you can show him ANYTHING to jog his memory. still cant read that
and—OP has right to inspect, to use it on cross, and introduce it into evidence
Past Recollection Recorded: exception to hearsay
- show writing to W and it fails to jog their memory
- W had personal knowledge earlier
- writing was made by or adopted by W
- making or adoption occurred while event was fresh in memory
- W can vouch for accuracy of writing when it was adopted
**can be read into evidence but not introduced.
Scope of Expert Testimony
Can testify about specialized knowledge that would be helpful to jury in deciding a fact—(not helpful if obvious)
Basis of Expert Testimony
Opinion based on reasonable degree of probability or reasonable certainty—-based on:
personal K
other evidence in the trial record made known to expert by hypo
facts outside the record if of the type reasonably relied upon by experts in the field
How does court determine if expert opinion is sufficiently reliable?
TRAP
testing of method
rate of error
acceptance by other experts
peer review/publiation
Use of Learned Treatise by Expert
exerpts may be read into evidence by EXPERTS as substantive evidence if established as reasonable authority.
cant be introduced as evidence.
Bolstering your own W
Not until credibility has been attacked
Methods of Impeachment
- prior inconsistent statement
- bias
- sensory deficiencies
- bad reputation for truthfulness
- criminal convictions
- bad acts
- contradictions
(may be proven with extrinsic evidence except for 6 and 7)
When and for what purpose are prior inconsistent statements admissible?
always for impeachment—
impeach and substantive where W is currently subject to cross and prior inconsistent statement was made orally under oath, as part of a formal hearing, proceeding, trial or deposition, grand jury (hearsay exception)
*W must have time to explain at some point in trial. unless statement is a party admission.
Bias
to suggest testimony is false, slanted, mistaken.
WITNESS MUST BE Confronted with alleged bias WHILE ON THE STAND
After confrontation, bias may be proven by extrinsic evidence.
Criminal Convictions as Method for Impeachment
- conviction of any crime as to which P was required to prove a false statement as element of the crime (perjury, fraud)
- or a FELONY and court may exclude at discretion if 403, considering: seriousness of crime, relation to deception and stealth, similarity to case, inflammatory nature of prior crime.
in general—conviction or release from prison must be within 10 years or you cant use it to impeach unless super helpful
HOW? Ask W to admit or introduce record of conviction.
Contradiction
show that W lied/mistake of fact during direct.
Extrinsic Evidence not allowed to show contradiction if fact is collateral–no significant relevance to the case
Prior Consistent Statments
Cant be used, except prior ID by W of Def.
can be used to rebut charge of recent fabrication—where statement was made before motive to fabricate arose
to rebut contention of inconsistency
to rebut contention of sensory deficiency
Privileges–when to use?
- in fed court action under federal Q jurisdiction: priv. are governed by common law—-
- diversity j—use priv. law of state whose substantive law is applicable
Attorney-Client Privilege
elements—privilege applies to:
- confidential communication
- btwn attn/client or rep of either
- made during a professional legal consultation
- unless exception applies
Subject Matter Waiver
A voluntary waiver of the privilege as to some communications will also waive the priv. of the others if
a. parties disclosure is intentional, disclosed and undisclosed concern same Subject matter, and fairness requires that the disclosed and undisclosed communication be considered together.
Privileges
Attorney-Client
Physician-Patient Prvilege
Spousal
Physician-Patient Privilege
communications for purpose of diagnosis or treatment
state law—physicians and physchoterapists
fedearl law–only psychotherapists
Confidential Communication
Where client has reasonable expectation of confidentiality–if they know a third party is listening or consents to disclosure it is not confidential
Hearsay–defined
out of court statement introduced to prove the truth of the matter asserted
Not hearsay
Not offered to prove truth of matter,
- -verbal act/legally operative words
- effect on speaker
- -proof of sepaker’s state of mind or insanity
A Witness testifying at this trial’s previous statemnt made out of court IS hearsay
unless
prior statement of ID
prior inconsistent statement, oral under oath at previous preoceeding
prior consistent statment used to rubut charge of fabrication, contention, or sensory deficiency
Co-Conspirator’s statment
admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of conspiracy
Hearsay Exceptions–
- Forfeiture (Declarant not available because of D’s wrongdoing”
- Former Testimony–U
- Statements against itnerest–U
- Dying Declaration–U
- Excite Utterance
- Present Sense Impression
- Present State of Mind
- Declaration of Intent
- Present physical conditon
- statement for purpose ofmedical treatment and diagnosis
- business records
12 public records
Confrotnation Clause and Heasray
P cannot use hearsay even where it is within exception where:
statement is testimonial, declarant is unavailable and D had opportunity for cross examination.
Testimonial means: GJ, in response to interrogation whose primary purpose was to prove a past event potentially relevant to later criminal prosecution
e.g. sworn affidavit, forensic lab report (Except DNA where you find it and test it w/o a suspect in mind)
Forensic Lab Reports and Testimonial Evidence
report is testimonial where primary purpose is to accuse a targeting individual—drugs seized, blood of DWI suspect–DNA of DNA Suspect
not if you are testing the DNA but no one in mind
no confrontation violation if P calls testifying expert who performed independent analysis and refers to report as partial basis for her opinion without reading it into evidence
Grounds of Unavailability
Privilege Absence from Jurisdcition Illness or death lack of memory stubborn
Statements against interest v. party admissions (4 differences)
1, must be against interest when made, any person can make the statement, PK required, declarant unavailable
Dying declaration
ONLY IN CRIMINAL HOMOCIDE CASES and Civil Cases
Excited Utterance
think--nature of event/trauma passage of time visual clues !!!! shouting
Present Sense Impression
Description made while event is occuring or immediately after—no time to fabricate
Present state of mind
mind, feelings, emotions -contemporanous
Declaration of Intent
what they are gonna do, with who?
Present Physical Condition
made to anyone about how declarant is currently doing
Business Record
Records of a business of any type, made in the regular course of business, wher ethe B routinely keeps such records, made contemp to the event recorded, consisting of infor observed by employee, or statments falling within another hearsay exception
Public Record
pubic office–setting forrth
activities of office, matters observed persuant to a duty imposed by law, findings of fact or opinion resulting from investigation authorized by law
NOT police reports prepared for prosecutionroal purposes
