Distinctions Flashcards
Judicial Notice
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
Exclusion of Witnesses
FRE: exclusion of witnesses discretionary with either party
PaRE: sequestration of witnesses discretionary with the trial judge
Compare FRE 403 with PA 403
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
Exception to Prohibition Agianst Character Evidence
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.
Methods of Proving Character
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
Limitations on Competency of Witnesses
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
Dead Man’s Statute
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
Impeachment by Prior Convictions
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
Proving Prior Conviction
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
Expert Testimony Standard
FRE: Daubert standard - judicial evaluation of scientific reliability
PaRE: Frye standard - requires scientific evidence to have general acceptance in the scientific community
Expert Testimony About Mental State
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
Authentication of Ancient Documents
FRE: self-authenticating if it is 20 years old
PA: 30
Spousal Immunity
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
Confidential Marital Communications
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
Attorney- Client Privilege
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
Physician-Patient Privilege
PA has physicial-patient privilege, but only in civil matters
Psychotherapist-Patient Privilege
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
Clergy-Penitent Privilege
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
Accountant-Client Privilege
Protects information derived from or as a result of professional services by a licensed public accountant for a client
Reporter’s Privilege
News gatherers in PA are not required to disclose a confidential source of information in any legal proceeding or government investigation
Rape Shield
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
Evidence of a Defendant’s Prior Commision of Sexual Assault
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
Party Opponent Admission
Under the FRE party opponent statements are non-hearsay;
Under PA they are hearsay, but fall under an exception
Dying Declaration
FRE: admissible in homicide cases and all civil cases
PA: admissible in all criminal and all civil cases
Statements Made for Medical Diagnosis or Treatment
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
Business Records
PA does not include opinion and diagnoses in medical records in the hearsay exception for records of regularly conducted activity
Learned Treatises
PA has not adopted federal exception to hearsay for learned treatises; learned treatises may not be used as substantive evidence in PA
Catch-all Hearsay Exception
PA has not adopted this
Child Witnesses
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)
