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Evidence > CMR > Flashcards

CMR Flashcards

1
Q

Relevant Evidence

A

Evi that has any tendency to make the existence of any fact of consequence more or less probable than it would be w/o the evi

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2
Q

Broad steps for determining admissibility

A

Step 1: is it relevant
Step 2: is there a proper foundation (competent W, authenticity)
Step 3: is it in proper form (questions properly phrased, experts proper
Step 4: Does excluionary rule apply?

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3
Q

General relevance rule

A

Must relate to time, event, or person in controversy

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4
Q

Relevance exception-Similar Occurrences relevant

Causation

A

SO can be used to show causation

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5
Q

Relevance exception-Similar Occurrences relevant

Prior false claims/bodily injury

A

SO can be used to show that person previously filed false claims to prove current claim is false or claims involving the same bodily injury to show that injury is not attributable to the present injury

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6
Q

Relevance exception-Similar Occurrences relevant

Similar accidents or injuries caused by same event or condition

A

Admissible to show

  1. existence of dangerous condition
  2. D’s knowledge of condition
  3. dangerous condition was the cause of present injury
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7
Q

Relevance exception-Similar Occurrences relevant

To prove intent

A

May be introduced where motive or intent is relevant (school discrimination

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8
Q

Relevance exception-Similar Occurrences relevant

Rebutting claim of impossibility

A

SO admitted to rebut claim of impossibility i.e. it’s been done before

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9
Q

Relevance exception-Similar Occurrences relevant

Sale of similar property

A

To establish value

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10
Q

Relevance exception-Similar Occurrences relevant

Habit

A

Habit is a person’s regular response to a specific set of circumstances. May be admitted to prove that on a particular occassion the person acted in accordance with the habit.

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11
Q

Relevant evi excluded for PP reasons-

Liability Insurance

A

Evidence of liability insurance IA to negligence or ability to pay.
Evidence of liability insurance is admissible to prove 1) ownership/control, 2) to impeach, 3) as admission of liability

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12
Q

Relevant evi excluded for PP reasons-

Subsequent Remedial Measures

A

Preparation to and actual taking of SMR inadmissible to show negligence, design defect or culpable conduct.
Admissible to show 1) ownership/control; 2) to rebut a claim of feasibility and 3) proving destruction of evidence

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13
Q

Relevant evi excluded for PP reasons-

Settlement offers

A

evidence of compromise or offers to compromise NA to prove validity or amount of disputed claim or to impeach witness.
there must be some indication that a party is going to make a claim.
Claim must dispute amount or liability

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14
Q

Relevant evi excluded for PP reasons-

Offers to pay medical expenses

A

payment of or offers to pay medical expenses are NA. Admissions of fact accompanying the offer ARE admissible.

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15
Q

Relevant evi excluded for PP reasons-

with drawn guilty pleas

A

Withdrawn guilty pleas, offers to plead guilty and negotiating statements are NA.
Plea of nolo to criminal charge admissible in civil proceeding to support a defense against a claim asserted by the person who entered the plea

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16
Q

Character evidence offered as substantive evi in two instances

A

1) to prove character when it is the ultimate issue in the case
2) serve a circumstantial evi of how a person probably acted

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17
Q

Character evidence in civil cases

A

Generally inadmissible in civil cases unless character is directly in issue (defamation) SEND ROSA.

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18
Q

Defendant’s character evidence in criminal case

A

Only D can initiate with evidence of good character to prove his innocence through Reputation or Opinion testimony for the trait in question.

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19
Q

Prosecution’s rebuttal of D’s good character evidence in a criminal case

A

If D opens the door, P can do two things:

1) cross examine the character W re: basis of testimony, including whether W is aware of SA of misconduct by D.
2) calling it’s own character W to speak to D’s bad Reputation or Opinion

Cannot: introduce extrinsic evidence of misconduct.

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20
Q

Victim’s character evidence in a criminal case

A

In a HOMICIDE case, in which D claims self-defense, D may introduce evidence of Victim’s aggressive character only. Reputation or Opinion only.

P can introduce evi to rebut aggressiveness or introduce peacefulness

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21
Q

Rape victim’s Past Behavior

A

past evidence of sexual conduct with D and specific sexual activity instances to show source of semen, pregnancy, disease allowed only if:

1) evidence is material to fact at issue
2) the PE does not outweigh the PV

D must provide notice of intent to introduce the evidence. If D does not, court must consider the purpose of the rape-shield statue and the circumstances of the case to determine admissibility.

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22
Q

Evidence of specific acts of misconduct (including crimes)

A

Evidence of Specific Acts of Misconduct may be offered to show MIMIC (independently relevant)
Motive, Intent, Mistake, Identity, conspiracy.

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23
Q

Requirements for admission of specific acts of misconduct

A

Must be

1) relevant
2) offered to show something other than propensity
3) PV must outweigh PE
4) judge must be able to offer limiting instruction

P must give notice of acts and rationale for admitting

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24
Q

Prior acts of sexual assault or DV

A

Allowed in criminal case where D is accused of the same crime. Allowed for any relevant purpose including to show propensity. Still subject to 403 but will not be excluded just because it shows propensity. Notice from P required.

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25
Q

Timing limitations for prior acts of SA and DV

A

Sex offenses against a minor = no time limit
Prior SA = acts that are 10+ years old inadmissible unless
1) reported to LEO within 5 years
2) an SA evidence kit was collected
3) evidence testing connected to the SA resulted in a DNA ID
4) it is in the interest of justice

Prior DV = acts that are 10+ years old NA unless in the interest of justice.

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26
Q

Prior SA or DV evidence 403 factors

A

DIRTIN

1) dissimilarity between the crime and prior acts
2) infrequency of acts
3) Reliability lacking
4) temporal proximity
5) intevening events
6) need for evidence lacking

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27
Q

Judicial notice of Facts

A

Entirely discretionary.

Conclusive in civil case, not conclusive in criminal case

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28
Q

Judicial notice of Law

A

Discretionary:

  • common law, statutes, and C of any JD in the US
  • private acts and resolutions of congress or MI leg and ordinances of other local govs
  • law of foreign countries.

Conditionally Mandatory:

  • of all of the above where party:
    1) requests it
    2) supplies sufficient info to allow court to comply with request
    3) gives notice to all adverse parties
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29
Q

Admissibility of real evidence

A

1) relevant
2) Authenticated through testimony of W that recognizes the item or chain of custody
3) condition of object in substantially the same condition
4) Balancing test under 403.

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30
Q

Documentary evidence admissibility

A

Must be relevant and authenticated. Proof of authenticity must be sufficient to support a jury finding of genuineness

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31
Q

Authentication by Admission

A

A writing may be authenticated by admission by party it is offered against that it is authentic

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32
Q

Authentication by eyewitness testimony

A

A writing can be authenticated by testimony of one who see it executed or hear it acknowledged

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33
Q

Authentication by handwriting verification

A

A writing may be authenticated by evidence of genuiness of handwriting of the maker. Evidence may be the opinion of non-expert with personal knowledge or expert who has compared the writing. Cannot become familiar with writing for purposes of litigation unless expert.

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34
Q

Authentication by Ancient document

A

Self-authenticating if

  • at least 20 years old
  • condition is free from suspicision
  • found in place where writing would likely be kept
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35
Q

Authentication by Reply letter doctrine

A

Writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author

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36
Q

Authentication of photographs

A

Admissible only if identitified by a W as a portrayal of certain facts relevant to the issue and verified as a correct representation of those facts.

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37
Q

Authentication of images produced by unattended camera

A

May be admitted upon showing that the camera was properly operating at the time and photograph product of film produced from camera

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38
Q

Authentication of X-rays, electrocardiograms etc

A

Authenticated upon showing that

  • process used is accurate
  • machine was in working order
  • operator qualified to operate it
  • custodial chain
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39
Q

Authentication of oral statements

A

When statement is admissible only if said by a particular person (statement by opposing party), authentication of identity of speaker is required.

  • by opinion of anyone who has heard the voice at any time
  • by fact that its a telephone conversation and maker of call testifies as to
    1) voice
    2) knowledge of certain facts
    3) how they answered the phone
    4) called business to talk about that business’ matters
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40
Q

Self-Authenticating documents

A
  • Domestic docs with seal
  • foreign official docs
  • certified copies of public records
  • newspapers etc
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41
Q

Best Evidence Rule

A

To prove the terms of a writing the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing admissible only if the original is unavailable.

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42
Q

Applicability of BER

A

1) writing is legally operative or dispositive instrument

2) the knowledge of a witness concerning a fact result from having read the document

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43
Q

Nonapplicability of BER

A

1) facts to be proved independently
2) writing is collateral to legal issue
3) summaries of voluminous records
4) Public records

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44
Q

Definition of writing original and duplicate for BER

A 
Writing = includes photgraphs and recordings
original = writing itself or any copy intended to have same effect as original
duplicate = an exact copy made by mechancial means
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45
Q

Admissibility of Secondary evidence BER

A

if proponent cannot produce original writing in court he may offer secondary evidence of its contents if a satisfactory explanation is given for non production.

Satisfactory foundation =

1) loss or destruction of original
2) original is in possession of 3rd part outside the JD and is unobtainable
3) original is in possession of adversary who fails to produce

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46
Q

Jury questions for BER

A

1) whether OG ever existed
2) where a writing produced is an OG
3) whether evidence offered reflects content of the OG

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47
Q

Competency of Witnesses

A

A witness must first be questioned by the court to determine if she has sufficient physical or mental capactiy or sense of obligation to testify truthfully to be a competent witness

No prohibition on jurors serving as witness in post-verdict proceedings.

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48
Q

Form of Q: When are leading questions allowed?

A

improper on direct. Permitted.

  • on cross
  • to elicit prelim material
  • when W needs aid to respond
  • when W is hostile
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49
Q

Use of Memo by W: Present Recollection Revived (Memroy refreshed)

A

A W may use any writing or thing to refresh present recollection. May not read from the writing because it is not authenticated and not in evi.

Consequence: on cross, adverse party entitled to have witing produced, cross X on it, and introduce portions that bear on credibility unless otherwise admissible.

50
Q

Use of Memo by W: Past Recollection Recorded

A

Where W states they have insuff. recollection to testify, the record may be read into evidence if a proper foundation is laid.

Foundation:

  • W at one time had Personal knowledge of the facts in the record
  • Record made by W
  • timely record
  • Accrurately reflects W’s knoweldge
  • W has insufficent recollection to testify

Consequence: record cannot be admitted into evidence as an exhibit unless offered by an adverse party.

51
Q

Opinion testimony by lay witness

A

Generally not allowed. Allowed where testimony is:

1) rationally based on W’s perception
2) helpful to clear understanding of testimony or determining a fact
3) not based in scientific, technical or specialized knowledge

52
Q

Requirements for admissibility of Expert Witness opinion testimony

A

1) relevance and reliability
2) Qualified as expert
3) Expert possesses reasonable probability regarding opinion
4) proper factual basis —> must be facts admitted into evidence.

53
Q

Whats makes an expert witness’s testimony relevant and reliable?

A

1) Subject matter one where specialized knowledge would assess trier of fact
2) opinion based on sufficient facts or data
3) opinion the product of reliable principles or methods
4) expert reasonably applied the principles and methods to the facts

Court is the gate keeper –> Daubert factors

54
Q

What qualifies an expert in med-mal cases

A

Court looks to 4 factors:

  1. education and professional training of E
  2. Area of specialization of E
  3. Length of time the E has been engaged in active clinical practice or instruction of the health profession
  4. relevancy of testimony
55
Q

2 MI specific rules regarding experts in MI

A

1) E testimony can embrace the ultimate issue including the mental state of the criminal D
2) Texts and treatises can be used to impeach by reading into evidence but can’t receive the text as an exhibit.

56
Q

Scope of CrossX

A

Can crossX on matters not touched on in Direct exam. . Left to discretion of the judge.

57
Q

Use of bolstering in Impeachment

A

Cannot bolster your witness’s testimony until attacked. But in some cases can show that a timely complaint or prior statement of ID was made.

58
Q

Impeachment Methods

A

A witness may impeached by either cross-examination or by extrinsic evidence.

59
Q

Impeachment Method: Prior Inconsistent Statements

A

Means of Proof:

  • CrossX
  • Extrinsic evi (if not a collateral matter)

Foundation for extrinsic evidence:

  • W must be given opportunity to explain or deny inconsistent statement —>Exception for Hearsay Decl and party-opponents
  • Adverse party at some point given opportunity to examine the witness about the statement.

Effect:

  • usually used only for impeachment purpose
  • but if made under oath at prior proceeding, it is admissible non-hearsay and substantively admitted.
60
Q

Impeachment Method: Bias or Interest

A

Means of Proof:

  • CrossX
  • Extrinsic evidence

Foundation for Extrinsic Evidence:
- Must first be asked about the facts that show bias or interest on CrossX

61
Q

MI Rule re: Impeachment through prior inconsistent statement

A

In criminal cases P cannot use a W’s prior inconsistent statement that directly tends to incriminate the D under the guise of impeaching W when there is no other testimony from the W (other than the inconsistent statement) for which credibility is relevant to the case

62
Q

Impeachment Method: Conviction of a crime

A

Means of Proof:

  • CrossX
  • Judgment of record

Crimes of dishonesty or false statement = admitted
Other crimes allowed:
-Crimes with element of theft
-punishable by more than 1 year’s imprisonment
-Which has significant PV on credibility
**If W is D in criminal trial, its PV outweighs PE.

No exceptions to the rule against remote convictions. if a period of more than 10 years has elapsed since date of conviction or date of release (whichever is later), it is not allowed in to impeach.

63
Q

Impeachment Method: Specific Instances of Misconduct

A

Means of Proof:
-CROSS X ONLY

Limitation:

  • Can be cross examined on specific instances of misconduct that are PROBABTIVE OF TRUTHFULNESS only.
  • Cross examiner cannot mention any consequences of the W suffered

Extrinsic evidence not allowed.

64
Q

Impeachment Method: Opinion or Reputation Evidence of Untruthgfulness

A

Methods of Proof:

-Calling other witnesses

65
Q

Impeachment Method: Sensory deficiencies

A

Means of proof:

  • CrossX
  • Extrinsic evidence
66
Q

Impeachment Method: Contradictory Facts

A

Means of Proof:

  • CrossX
  • Extrinsic evidence (where not collateral)

Permitted where:
- W testimony on a particular fact is a material issue
-testimony on particular fact is significant on the issue of credibility
OR
-W offers testimony on subject which opposing party would otherwise be precluded from offering evidnece.

67
Q

Impeachment of a Hearsay Declarant

A

Credibility of a hearsay declarant may be attacked

68
Q

Methods of Rehabilitation of Witness who has been impeached

A

1) explanation on redirect
2) Where W’s character for truth has been attacked, other Ws called to testify to good reputation for truthfulness or opinion as to truthfulness
3) Prior consistent statements in some instances

69
Q

When are prior consistent statements allowed to rehab an impeached witness?

A
  • if testimony attacked by express or implied charge that W is lying because of motive —> previous consistent statement from before the motive allowed
  • Where statement has special ability to rehab W. (attacked on sensory deficiencies or strength of ID)
70
Q

Waiver of a privilege generally

A

A privilege is waived by:
1. failure to claim privilege
2.voluntary disclosure of the privileged matter by the privilege holder
3. Contractual provision waiving the privilege
Waiver by one joint holder does not affect the right of the other holder to assert it.

71
Q

Attorney Client Privilege

A

Communications between an A and C made during professional consultation are privileged from disclosure.

Elements:

  • Attorney client relationship: client must be seeking professional services of the attorney at the time of the communication. Includes comms before A accepts case.
  • Confidential comm: Not intended to be disclosed to 3rd parties. Reps of A or C may be present
  • Client holds privilege
  • Privilege applies indefinitely
72
Q

When does A-C Privilege not apply

A
  • where A’s services sought to aid in planning or commission of something Client should have known was crime
  • Regarding a communication relevnat to an issue between parties claiming through the same deceased client
  • disputes between A and C
  • where client has put legal services at issue
  • Where A acts for both parties
  • Work product: notes prepared for A’s own use not covered but not subject discovery
73
Q

Limitations on Waiver of AC privilege

A

Voluntary disclosure of privileged material operates as a waiver of the AC privilege only with respect to the disclosed materials.

Inadvertant disclosure will not waive the privilege unless opposing party uses the amterials and claimer fails to object over a prolonged period of time.

74
Q

Physician-Patient Privilege

A

Privilege belongs to patient. Communications between patient and physician are privileged provided that:

1) professional relationship exists
2) information acquired while attending the patient in course of treatment
3) information necessary for treatment

75
Q

When does the Physician-Patient Privilege not apply?

A

Where:

1) patient puts physical condition in issue (PI case)
2) Physician’s assistance sought to aid wrongdoing
3) communication is relevant to breach of duty in dispute b/w P and P
4) P agreed by contract to waive the privilege (insurance)
5) federal case applying the federal law of privilege

76
Q

Psychologist-Patient Privilege

A

A psychologist cannot be compelled to disclose confidential information acquired from individual consulting the Psych in her professional capacity. Protects inofrmation that is necssary to render services.

may be disclosed

1) with consent
2) OR where encessary to fulfill ethicla or professional duty

77
Q

Marriage-Family Counselor Privilege

A

Info regarding a client to whom a licensed therapist provided marriage or family teherapy is privilged regardless of whether info obtained directly from client, before or after therapy or person is a former client.

Waived only if:

  1. required by law to protect healtha nd safety
  2. Therapist is defendant in action
  3. or written waiver obtained by all adults in therapy.
78
Q

Spousal Immunity

A

in civil cases:
One spouse cannot testify for or against another withou the other’s consent. (belongs to party-spouse)

in criminal cases:
- belongs to witness spouse. May not be compelled to testify against D spouse.

Lasts only during the marriage

79
Q

Privilege for confidential marital communications

A

in civil cases:
- generally may not be examined re comms made during marriage

in criminal cases:
- held by witness-spouse. criminal D cannot stop from testifying.

80
Q

When neither Marital privilege applies

A
  • Prosecution of crime against a minor.
  • cases involving the couple’s children
  • communications made in furtherance of a crime
  • legal action between spouses
81
Q

Privilege against self-incrimination

A

allows W to refuse to answer any question whose answer might incriminate. But must answer questions whose answer may lead to civil liability

82
Q

Accountant-Client Privilege

A

Belongs to client. Acct shall not divulge information derived as a result of an audit.

Does not apply if Accnt is being sued/professional competence challenged.

Disclosure not prohibited to LEO if reasonable basis that client is violating the law.

83
Q

Professional Journalist Privilege

A

in an inquiry authorized by MI criminal procedure, a reporter or other person involved in gathering and reporting news cannot be required to disclose:

  1. informants ID
  2. Unpublished info obtained from informant
  3. unpublished matter or documentation relating to comm with informant.

Does NOT apply to inquiry for a crime punishable by life imprisonment where it is the only available information

84
Q

Misc MI privileges

A
  1. info between victim and sexual assault or DV counselor.
  2. comms from students/juveniles to school professionals
  3. student disciplinary records
  4. info acquired by PI
85
Q

Sequestration of witnesses

A

In the judge’s discretion

86
Q

Hearsay definition

A

Statement other than one made by the declarant while testifying at the current trial offered in evidence to prove the truth of the matter asserted. If statement is H and no exception applies, it must be excluded.

87
Q

“statement” for purposes of Hearsay

A

person’s oral or written assertion or nonverbal conduct tintended as an assertion

88
Q

Classic examples of out of court statements that are not hearsay

A
  1. Verbal acts or legally operative facts (words or contract, defamatory words)
  2. statements that show effect on listener (notice)
  3. Statements offered as circumstantial evidence of decl’s state of mind (insanity)
89
Q

Nonhuman Declarations

A

No such thing as animal or machine hearsay. Look out for clocks and radar guns.

90
Q

Prior statements by Witness considered non-hearsay

A

Pre-req: must be made by a testifying witness who is subject to crossX

  1. prior statement inconsistent with Declarant’s in-court testimony and was given under penalty of perjury in prior proceeding
  2. prior statement consistent with declarant’s in court testimony and 1) offered to rebut charge or lying due to motive and statement made before motive or 2) offered to rehab witness whose credibility was attacked on grounds other than general character for truthfulness (i.e sensory depreivation)
  3. prior statement is one of ID of a person as someone the W perceived earlier even if W cannot remember the ID
91
Q

What are the two kinds of nonhearsay under the rules?

A

Prior statements by Witness who is testifying and statement made or adopted by a party

92
Q

Statements by or attributable to opposing party

A

An opposing party statement (made by and offered against that party) is not hearsay.
Formal judicial statements in pleadings and stipulations are conclusive. All other are not conclusive.

93
Q

Ways an opposing party statement can be attributable to a party

A
  1. Adoptive statements: party expressly or impliedly adopts of acquiesces.
  2. Adoption by silence.
  3. Authorized spokesperson
  4. Agents and employees
  5. partners
  6. Co-Conspirators
94
Q

Vicarious statements for opposing party statement: Agents and employees

A

Admissible against the principal when

  1. concerned matter within scope of agency or employment
  2. was made during the existence of the agency or employee relationship
95
Q

Vicarious statements for opposing party statement:

Co-conspirators

A

statement by one conspirator to a third party in furtherance of a conspiracy to commit a crime or civil wrong. Judge must look to statement itself and other circumstances to see if admissible.

96
Q

Adoptive statements by silence

A

if a party remains silent in face of accusatory statement silence may be implied statemtn admissible against them if

  1. party heard and understood the statement
  2. party was capable of denying the statement
  3. a reasonable person would ahve denied the accusation.
97
Q

MI rule re statement by opposing party

A

Excludes statements made in connection with guilty plea to a misdemeanor vehicle violation and admissions of responsibility for civil motor vehicle infractions

98
Q

MI rule re vicarious liability of opposing party statement

A

bars the admission of a statement of any member of a corp not named as party unless statement made concerning a transaction for which the decl was the authorized agent of the corp

99
Q

5 Hearsay Exceptions for when Decl is unavailable

A 
FADFO
Former Testimony
Against Interest
Dying Declaration
Family History
Offered against party procuring unavailability
100
Q

“unavailable” for purposes of FADFO exceptions

A

A declarant is unavailable if :

  1. Exempt due to privilege
  2. Refuses to testify
  3. Doesn’t remember
  4. Death or physical or mental illness
  5. absent beyond reach of court subpoena and unable to secure them by reasonable means
101
Q

“Unavailable” for purposes of FADFO exceptions where admitting deposition testimony

A

Broader than the general unavailable rule. Includes:

  1. W is more than 100 miles from trial or out of the US unless procured by party
  2. will also admit in exceptional circumstances where justice requires
102
Q

Hearsay Exception where Decl is unavailable:

Former Testimony

A

Testimony of now unavailable declarant is admissible if:

  • given under oath at a trial, hearing, or deposition
  • Party against whom it is offered had an opportunity and similar motive to develop testimony through crossx or direct x
103
Q

Hearsay Exception where Decl is unavailable:

Statement Against Interest

A

A statement of a person now unavailable may be admissible if it was against that person’s pecuniary, proprietary, or penal interest at the time the statement was made such that a reasonable person would not make it unless true.
- in criminal cases: require corroborating evidence

104
Q

Hearsay Exception where Decl is unavailable:

Dying Declaration

A

in a homicide prosecution or any civil action, a statement by now unavailable decl is admissible if:

  • believed death to be imminent
  • Statement concerned cause or circumstances of death
105
Q

Hearsay Exception where Decl is unavailable:

Statements of personal or family history

A

statements of now unavailable declarant concerning births, marriage, divorces are admissible provided that:

  • decl is member of family or intimately associated with it
  • statemetns based on personal knowledge
106
Q

Hearsay Exception where Decl is unavailable:

Offered against party who procured unavailability

A

allowed where party has engaged in or acquiesced in wrongdoing that intentionally procured the unabailability

107
Q

Hearsay Exception: Excited Utterances

A

out of court statement relating to a startling event made while under the stress of the excitement is admissible. Passage of time not dispositive. Where there is a continuing level of stress that precludes possibility of fabriaction and plausible explanation for delay, it will be admitted

108
Q

Hearsay Exception: Present Sense Impression

A

A statement that describes or explains an event or condition and is made while or immediately after the declarant perceive the event or condition.

109
Q

Hearsay Exception: Present state of mind

A

A statement of declratns’ then state of mind (motive, intent, plan) or emotional, sensory or physical condition . Don’t fall for statements of memory or belief.

110
Q

Hearsay Exception: Declarations present bodily condition

A

spontanrous declarations of a declarant’s own present bodily condition. Regardless of purpose

111
Q

Hearsay Exception: Statements made for medical diagnosis or treatment

A

present sympotms and inception or general cause admissible if made for or reasonably pertinent to medical diaganosis or treatmtn.
Past conditions allowed if made in connection with treatment and reasonably necessary to treatment or diagnosis.

112
Q

Hearsay Exception: Records of a Regularly Conducted Business Activity

A

Any writing or record made as a memorandum of any act or transaction is admissible as proof of that act or transaction.
Elements:
- Business (any org)
-Entry made in the regular course of business (must be customary to make this type of entry) Can’t be made in anticipation of litigation
-Personal knowledge of the entrant or within the knowledge of someone with duty to transmit info to entrant
-Entry made near time of event
-Authentication by testimony that record is business record or certification in writing

113
Q

Hearsay Exception: Public records and reports

A

-records setting forth activites of office or agency
-recordings of matters observed pursuant to duty imposed by law (except police observations in criminal case)
must be made by and in scope of duty near time or event. Can be excluded if lacking in trustworthiness. Statement of absence of public record also admitted.

114
Q

Hearsay Exception: Judgements

A

Certified copy of judgment admissible as proof that judgement was entered.
Felony convictions: admissible to prove any fact essnetial to judgment. in crimnial case: used for this purpose only against accused. can be used for impeachment against others.

115
Q

Hearsay Exception: Ancient Docs

A

20 years old

116
Q

Hearsay Exception: Deposition testimonyof expert

A

testimony given in deposition in same proceeding is not excluded by hearsay rule if deponent is an expert and not party to the case.

117
Q

MI Rule regarding Child’s statement about sexual act

A

in criminal or delinquency proceeding a statement describing an incident involving a sexual act performed on declarant by the defendent or an accomplice will be admissible to the extent it corroborates testimony given by the declarant during the same proceeding providede:
-decla is under 10 when statement made
-state was spontaenous and without manufacture
-either made directl after or with excusable delay due to fear
-statement introduced by someone other than decl.
If decl made more than one statement, the earliest statement is admitted. Must give notice to other party

118
Q

Residual catch-all exception

A

Imposes 3 conditions:

  1. possess sufficient guarantees of trustworthiness. Court must consider TOC and any corroborating evience
  2. Satement must be necessary
  3. Must give reasonable notice to adversary about intent to offer
119
Q

Confrontation Clause

A

A hearsay statement will not be admitted when

1) statement offered against the accused in a criminal case
2) decl unavailable
3) statement testimonial in nature
4) accused had no prior opportunity to crossX
- forfeited if unavailable through accused intentional actions

120
Q

Testimonial statement

A

Statements made in the course of police investigation are testimonial if primary purpose is to establish facts for later prosecution. Aid in ongoing emergency = non testimonial.

Forensic reports: testimonial but may be admitted as to opinion

Evidence (2 decks)

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