Distinctions

Question 1

Judicial Notice

Answer 1

FRE: In civil cases jury must accept judicially noticed facts as conclusive; in criminal may accept

PaRE: In both criminal and civil court must instruct the jury that they may, but are not required to, accept judicially noticed fact

Question 2

Exclusion of Witnesses

Answer 2

FRE: exclusion of witnesses discretionary with either party

PaRE: sequestration of witnesses discretionary with the trial judge

Question 3

Compare FRE 403 with PA 403

Answer 3

FRE 403: exclude evidence if probative value is substantially outweighed by danger of unfair prejudice

PaRE 403: exclude evidence if probative value is merely outweighed by the danger of unfair prejudice

*subtantially outweighed versus just outweighed

Question 4

Exception to Prohibition Agianst Character Evidence

Answer 4

In PA, in civil actions for assault and battery evidence of a character trait of violence of the plaintiff mya be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.

*Under FRE 404 while there are exceptions that allow pertinent trait character evidence in criminal cases, there are no exceptions that allow in civil cases. In civil cases character evidence is only admissible if it is an element of the claim or defense.

Question 5

Methods of Proving Character

Answer 5

When character evidence is permissible it may be proven by reputation testimony, and in certain situations by specific instances of conduct (under PaRE 405).

Character evidence cannot be proven using opinion testimony in PA

Question 6

Limitations on Competency of Witnesses

Answer 6

In PA, a person is incompetent to testify if the court finds that because of a mental condition or immaturity, the person:

(1) Is, or was, at any relevant time, incapable of percieving accurately;
(2) Is unable to express themself so as to be understoof either directly or through an interpreter;
(3) Has an impaired memory; or
(4) Does not sufficiently understand the duty to tell the truth

*Under FRE most limitations were abolished

Question 7

Dead Man’s Statute

Answer 7

PA has a Dead Man’s Statute that provides that in a civil case a surviving person whose interest is adverse to the interest of the deceased party is not a competent witness to testify about matters that took place before the death of the deceased.

Adverse: to be adverse the interest must be one from which the witness will gain or lose as a result of the direct application of the effect of the judgment

Testify: only applies to testimonial evidence, not to documentary evidence

Before: only bar testimony about pre-death events, not about post-death events

Question 8

Impeachment by Prior Convictions

Answer 8

FRE 609: A witness may be impeached with evidence that he has been convicted of a felony or of any crime involving dishonesty or false statement within 10 years of the conviction

PaRE 609: Only allows impachement by proof of conviction involving dishonesty or false statements, not proof of other crimes.

*If a conviction is over 10 years old it may be admitted if the court determines that the probative value substantailly outweighs its prejudicial effect

Question 9

Proving Prior Conviction

Answer 9

PA prohibits cross-examination of a criminal defendant about a conviction, even if it is otherwise admissible, unless the defendant:

(1) Personally or by counsel asked questions of a witness for the prosecution with plan to establish the defendant’s good reputation/ character;
(2) Gave evidence tending to prove defendants good character/ reputation; or
(3) Testified in a joint trial against a co-defendant, charged with the same offense

Question 10

Expert Testimony Standard

Answer 10

FRE: Daubert standard - judicial evaluation of scientific reliability

PaRE: Frye standard - requires scientific evidence to have general acceptance in the scientific community

Question 11

Expert Testimony About Mental State

Answer 11

FRE: prohibits expert from testifying whether criminal defendant had mental state constituting element of the crime

PaRE: expert may testify to the defendant’s sanity

Question 12

Authentication of Ancient Documents

Answer 12

FRE: self-authenticating if it is 20 years old

PA: 30

Question 13

Spousal Immunity

Answer 13

General rule: married person cannot be compelled to testify against spouse in criminal proceeding

PA, criminal proceedings: Testifying spouse holds privilege, may choose whether or not to testify

PA, civil: spouse is generally not competent to testify against spouse, except in divorce, support, custody, spousal abuse proceeding

Question 14

Confidential Marital Communications

Answer 14

Exists in PA for both criminal and civil cases; both spouses hold privilege. May be waived, but only if both spouses waive

*Confidential marital communications are communications made during a marriage, in reliance on the sanctity of marriage

Question 15

Attorney- Client Privilege

Answer 15

Criminal and civil proceedings

Attorney is not competent to testify to confidential communications made to attorney by the client, and teh client cannot be compelled to disclose such communications

Question 16

Physician-Patient Privilege

Answer 16

PA has physicial-patient privilege, but only in civil matters

Question 17

Psychotherapist-Patient Privilege

Answer 17

In criminal and civil cases, except not applicable in child abuse proceedings

*PA also has privilege between student and guidance counselor, school nurse, school pschologist

Question 18

Clergy-Penitent Privilege

Answer 18

Civil and criminal proccedings; is applicable in child abuse proceedings

Protects confidential communications made to a member of the clergy of any regularly established church or religious organization in the context of a clergy-penitent relationship

Question 19

Accountant-Client Privilege

Answer 19

Protects information derived from or as a result of professional services by a licensed public accountant for a client

Question 20

Reporter’s Privilege

Answer 20

News gatherers in PA are not required to disclose a confidential source of information in any legal proceeding or government investigation

Question 21

Rape Shield

Answer 21

In PA it is governed by a statute, not a rule of evidence

Applies only in criminal cases

Reputation evidence, opinion evidence, and specific instances of past sexual conduct by the alleged victim are generally not admissible in a criminal proceeding

Question 22

Evidence of a Defendant’s Prior Commision of Sexual Assault

Answer 22

FRE: Evidence of a defendant’s prior commission of sexual assault or child molestation is admissible in a criminal or civil case in which the defendant is accused of committing sexual assault or child molestation; may be used to prove any relevant matter

PA: Does not have a rule like this; such evidence would be goverened by general character rules–PaRE 404(b), which deals with evidence of other crimes, wrongs, acts

Question 23

Party Opponent Admission

Answer 23

Under the FRE party opponent statements are non-hearsay;

Under PA they are hearsay, but fall under an exception

Question 24

Dying Declaration

Answer 24

FRE: admissible in homicide cases and all civil cases

PA: admissible in all criminal and all civil cases

Question 25

Statements Made for Medical Diagnosis or Treatment

Answer 25

If statement was made for medical diagnosis, PA only permits admission if the statement was made in contemplation of treatment. If it was made for someone that will not be treating declarant, but is only seen for some other purpose not related to treatment like an expert consultant, it will not be admissible under this hearsay exception

Question 26

Business Records

Answer 26

PA does not include opinion and diagnoses in medical records in the hearsay exception for records of regularly conducted activity

Question 27

Learned Treatises

Answer 27

PA has not adopted federal exception to hearsay for learned treatises; learned treatises may not be used as substantive evidence in PA

Question 28

Catch-all Hearsay Exception

Answer 28

PA has not adopted this

Question 29

Child Witnesses

Answer 29

In PA, in any criminal prosecution involving a child victim or child material witness, PA gives court discretion or order the child’s testimony be recorded for presentation in court or presented by a “contemporaneaous alternative method” (one-way closed circuit television)