Ch 13-23 Flashcards
A-C privilege exception
- work product
- future crime or fraud
- if waived
work product may be obtained from opposing party if;
- there’s a substantial need, and cannot obtain otherwise
Exceptions to psychotherapist-patient privilege
result of exam ordered by the court
taken as part of a commitment proceeding
fifth amendment against self-incrimination
exception
doesn’t apply to coporations
doesn’t apply if no risk of criminal trouble
only applies to current statements
Preventing to testify, not past voluntary statements
2 types of spousal privilege
confidential marital communication: privilege of any conversation during marriage
spousal immunity: do not have to testify against other spouse in criminal case (only during marriage)
Exception
- when one spouse sues the other
- when one spouse is criminally charged against the other spouse of their children
Liability Insurance
- evidence that someone was or was not insured cannot be used to prove negligence or wrongdoing
exception: used for another purpose other than proving negligence or wrongfdoing
Subsequent Remedial Measures
evidence that someone made repairs *after the accident occurred cannot be used as evidence of negligent conduct, culpuble conduct, wrongdoing, detective product or design, or inadequate warning
exception: for another purpose (i.e. ownership, control, feasibility)
settlement offers or negotiations
offer or negotiations for settlement cannot be used as evidence to prove disputed claim
can’t be waived by either party
offer to pay medical exepsnes
cannot be used as evidence to prove liability for injuries
Except: conduct or statement made may be admissible
plea negotiations
any efforts made within the plead negotiation is inadmissibl
victim’s past sexual misconduct
- in CR
- in CV
In CR, not admissible except:
- to show that the D was or wasn’t the source of physical evidence such as semen or bruises; or
- to show the victim’s past sexual behavior or conduct with the D to show consent (-.-)
- if exclusion would to too unfair to the D
In CV, not admissible unless:
the probative value substantially outweighs the risk (reverse 403)
- evidence of reputation is only admissible if the V opens the door and brings it up
Defendant’s sexual conduct
admissible to prove any relevant matter, even propensity argument
Definition of Hearsay
an out-of-court statement offered to prove the truth of the matter asserted
(essentially treating the declarant as a witness)
Hearsay Exclusion: Prior Inconsistent Statement
element?
Past: the witness made a statement under oath in depo, trial, etc.
Now: testifying in court that is inconsistent with the past
= can introduce prior statement
Hearsay Exclusion: Prior Consistent Statement
can be used.
just like it can be used to rehabilitate a witness who’s been impeacehd
Hearsay Exclusion: Prior Statements of ID
If:
past -> ID a person (like on photo array / line up)
present-> testifying in court
then prior ID can be used
Hearsay Exclusion: Opposing party’s own statement
an opposing party cannot object to statements that they themselves made in the past, when we’re trying to introduce it
Hearsay Exception: Dying Declaration
Unavailable +
- witness thinks they are about to die right now
- made a statement related to the cause/circumstance of the death
- if homicide (or CV case)
Hearsay Exception: Former Testimony
unavailable +
- testified in the past under oath
- now trying to testify again against party to had similar opportunity and motive
5 ways which renders a witness “unavailable”
- dead/very ill
- loss of memory
- privilege
- absent
- refusal
Hearsay Exception: Statement against interest
Unavailable +
statement was against the declarant’s own interest, that any reasonable person would not have said it unless it’s true
Hearsay Exception: Forfeiture of misconduct
Unavailable+
if you rendered the witness unavailable, all of their prior statement is admissible
Hearsay Exception: Present Sense Impression
statement made while the declarant was perceiving the event, (or immediately therefore)
I.e. on the phone narrating to the witness what they’re seeing
Hearsay Exception: Excited Utterance
statement about a startling event while the declarant is still under the stress of excitement due to the startling event
(I.e. after surviving a bank robbery)
Hearsay Exception: State of Mind
Declarant’s statement describing what’s in their mind in real time, to prove what was in their mind at that time.
“I’m hungry, sleepy, etc.”
Includes intent, motive, plan to prove intent, motive, plan at that time they made the statement
Hearsay Exception: statement made for medial diagnosis or treatment
describes declarant’s medical history, past/present symptoms, EVEN cause of injury if pertinent to treatment
does NOT have to be directly to doctor
Hearsay Exception: Past Recollection Recorded
if can’t remember something in the past, may read in front of jury if:
- witness had knowledge at one point
- the record was created by the witness when the memory was still fresh
- there record is an accurate reflection of the witness’s knowledge
- the witness has already stated that even after seeing the writing at hand, he doesn’t have sufficient memory to testify fully
Hearsay Exception: Business Records
- any Exceptions?
admissible if
record made in the course of regularly conducted business activity, AND the record was made:
- at/near the time the event occured
- by someone who had knowledge of the event & had a duty to record it
- making the record is part of the regular practice of the business
Exception
- if not trustworthy
- made in preparation of a trial
Hearsay Exception: Public Records
ALL admissible. including activities, observation, factual findings.
Except: if police report against defendant, only activities is admissible.
Hearsay Exception: Learned Treatises
admissible if established as reliable, expert relied on it or used to X-examine an expert
Hearsay Exception: Judgment of previous conviction
evidence that you were convicted of a crime in the past is admissible to prove that you were convicted of that crime
when is the D’s prior bad acts admissible?
when it’s not being used as propensity evidence, but for some other purpose.
“MIMIC”
- motive, intent, absence of mistake, identity, common plan
V’s prior sexual disposition may be brought in CV case if:
the probative value substantially outweighs the risk
