Evidence

Question 1

General Provisions –> Federal Rules of Evidence

Answer 1

Before 1975 (when FRE adopted) CL rules governed; FRE generally more liberal than CL rules and have presumption of admissibility.

Question 2

General Provisions –> FRE Scope

Answer 2

FRE DOES APPLY –> all civil and criminal trials and proceedings in federal cts, including bankruptcy and admiralty cases.

FRE DOES NOT APPLY:

• grand jury proceedings
• preliminary hearings
• applying for and obtaining a warrant
• bail proceedings
• preliminary questions of fact regarding admissibility
• sentencing
• probation violation hearings
• forfeiture proceedings; and
• summary contempt

Question 3

General Provisions –> Rulings on Evidence: Rule

Answer 3

Rule 103 - A party may claim error in a ruling to admit/exclude evidence only if the error affects a substantial right of the party, and if the ruling ADMITS evidence, a party, on the record: (1) timely objects or moves to strike; and
(2) states the specific ground (specific objection) unless it was apparent from context.

Continuing Objection Unnecessary
—-> Once the ct rules definitively on the record (either before or at trial) a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Waiver of Objection

• —> To the extent practicable, the ct must conduct a jury trial so that inadmissible evidence is not admitted or even suggested to the jury by any means
• —> However, if no objection is made even to objectionable evidence, the objection is generally waived and evidence admitted

Question 4

General Provisions –> Rulings on Evidence: Harmless Error Standard

Answer 4

An error is harmless if the jury would have reached the same verdict even if the error had not occurred.

• —> No substantial rights are affected.
• —> If the appellae ct finds error, that it was harmless, but that it was harmless, no relief granted

Question 5

General Provisions –> Rulings on Evidence: Prejudicial Error

Answer 5

When a substantial right is affected (ie outcome of trial) then prejudicial error has occurred.

Question 6

General Provisions –> Rulings on Evidence: Proffer

Answer 6

If the ruling excludes evidence, a party informs the ct of the substance of the evidence by an offer of proof, unless the substance was apparent from the context.

• —> In an offer of proof, the party may state what the excluded evidence would be orally or in writing
• —> The ct may direct that an offer of proof be made in question-and-answer form outside the presence of the jury.

Question 7

General Provisions –> Preliminary Questions (Rule 104)

Answer 7

The ct MUST decide any preliminary question about whether:

(1) a witness is qualified;
(2) a privilege exists; or
(3) evidence is admissible

In so deciding, the ct is not bound by evidence rules, except those on privilege.
—-> Admissibility of evidence always a question of law for judge, not jury.

The ct MUST conduct any hearing on a prelim question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;
(2) a D in a criminal case is a witness and so requests; or
(3) justice so reqs

Question 8

General Provisions –> Limited Admissibility (Rule 105) - Rule

Answer 8

The ct may admit evidence against a party or for a specific purpose - but not against another party or for another purpose.

Limiting Jury Instruction
—-> The ct, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 9

General Provisions –> Remainder of or Related Writings or Recorded Statements (Rule 106) - Rule

Answer 9

Rule of Completeness

• —> Where a party introduces party of a writing or recording, the adverse party may IMMEDIATELY introduce any other writing or part of the writing which, IN FAIRNESS, ought to be considered in conjunction w/ it.
• —> The purpose is to avoid misleading the jury and prevent statements from being taken out of context as the repair work, left to a later time, would be prejudicial on the jury’s understanding of the issue.

CAVEAT
—-> Rule 106 not applicable to conversations (only to writings/recordings)

Question 10

Judicial Notice –> In General - Definition/Rule

Answer 10

Judicial notice is a substitute for proof where: the ct accepts certain adjudicative facts as true w/o reqing formal presentation of evidence.
—-> Judicial notice is MANDATORY if req’d by a party and if necessary information is supplied.

Adjudicative facts

• —> Those which concern the parties to some dispute and are helpful in determining the proper outcome of the case
• —> Can cover a broad area including science, history, govt, and ct records, geography, and calendars.
• —> Generally, once fact is judicially noticed, no contradictory evidence is permitted on that issue.

Question 11

Judicial Notice –> In General - Two Kinds of Judicial Notice

Answer 11

Two Kinds of Judicial Notice

(1) Facts Commonly Known in the Territory
- —> Facts commonly known w/in the territory of the ct (ie everyone knows that!)

(2) Easily Verifiable Facts
- —> facts which are capable of accurate and ready determination by resorting to sources which are not subject to reasonable dispute (no one knows them but they can be easily looked up)
- —> Ex: historical records, interest/mortgage rates, rainfall accumulations, etc)

Question 12

Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Definition (+ how it works) (+legal/factual) (+rebuttable/irrebuttable)

Answer 12

A conclusion made as to the existence/nonexistence of a fact that may or must be drawn from other evidence that is admitted and proven to be true (shortcut in evidence).

How it Works
—-> A presumption arises where one set of facts (basic facts) once est’d by the proponent, permits/req’s belief of another set of facts (presumed facts) absent a contrary showing.

Legal & Factual

• —> Legal ex: presumption of innocence; minors incompetent to K
• —> Factual ex: absentia for 7 years = absent person is dead; child born during marriage = child of father; fire gun at vital part of body = intent to kill; proof letter mailed = proof received

Rebuttable & Irrebuttable

• —> Rebuttable: presumption can be rebutted/disproved w/ other evidence; most presumptions REBUTTABLE.
• —> Irrebuttable: presumption can NOT be rebutted/disproved w/ other evidence; NOT permitted in criminal cases

Question 13

Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Bursting Bubble Theory of Presumptions

Answer 13

Once the OPPONENT presents suff evidence that the presumed fact is not true, the presumption disappears (bubble bursts) and the trier of fact cannot find the existence of the presumed fact absent other direct proof.

Question 14

Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Conclusive Presumptions

Answer 14

Conclusive presumptions are those that are conclusively est’d once a set of basic facts is proven.
—–> The presumption is then treated as a rule of substantive law rather than a presumption.

Question 15

Relevancy and Its Limits –> Admissibility: Test for Relevant Evidence (Rule 401)

Answer 15

Relevant evidence is evidence tending to make the existence of ANY fact of consequence to the action more or less probable than it would be w/o the evidence.
—-> Called “logical relevance”

*Note: witness credibility always relevant

Question 16

Relevancy and Its Limits –> Admissibility: General Admissibility of Relevant Evidence (Rule 402)

Answer 16

Relevant evidence is generally admissible; irrelevant evidence is generally inadmissible.
—-> All relevant evidence is admissible, unless excluded by the USC, by Act of Congress, by the FRE, or by other rules prescribed by SCOTUS pursuant to statutory authority.

Question 17

Relevancy and Its Limits –> Admissibility: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (Rule 403)

Answer 17

403 balancing test favors admissibility.

• —> Although relevant, evidence may be excluded if any of 6 considerations exists.
• —> Often called “practical relevance.”

If the probative value is SUBSTANTIALLY outweighed by:

• the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground
• confusion of the issues
• misleading the jury
• considerations of undue delay
• waste of time; or
• needless presentation of cumulative evidence

NOTE Unfair surprise not a proper objection under the FRE, but is in many states.

Question 18

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Crimes or Other Acts

Answer 18

The general rule is that evidence of a person’s character or character trait is inadmissible to prove that on a particular occasion he acted in accordance w/ that character/trait.

Criminal Cases

• —-> While the prosecution may not initially show that the D’s bad character traits to make an inference he is more likely to committed the crime charged, the accused may introduce evidence of character traits inconsistent with the crime charged (honesty/peacefulness).
• —-> Once the door is opened by the D, the pros may rebut evidence admitted.

Question 19

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Evidence of Victim’s Character

Answer 19

A criminal D may offer evidence of the victim’s pertinent character as circumstantial evidence.

• —-> Commonly, the victim’s violent character to support a claim that the victim was the initial aggressor.
• —-> This BAD character of victim is used to show that the D acted in self-defense.

Permissible method
—–> Reputation or opinion only; NOT specific acts

Prosecutor’s Response
—–> The prosecution may rebut with good character of the victim on the same trait AND can offer the D’s bad character on that same trait, each through reputation or opinion, NOT specific acts.

Question 20

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Reputation, Opinion, or Specific Acts (ROSA)

Answer 20

Q: Is it character evidence at all? A: CE comes in 3 forms (ROSA)

Reputation

• —> Witness testifies to another’s reputation as to character (everyone thinks V is violent)
• —> Merely the collective opinion of others
• —> Rep evidence is hearsay (the character is offering what ppl told him/her of their view of the other’s character), but a hearsay exception applies (FRE 803 [21])

Opinion
—-> Witness testifies to their opinion of another’s character (I think V is violent)

Specific Acts

• —> Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (I saw V beat up X last week, offered to show V is violent).
• —> To identify when SA being offered as CE, they involve different people, places, times, or events than that which is the subject of the trial.

Question 21

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Admissible Purposes (MIMIC Rule)

Answer 21

Whether or not the D in a criminal case introduces evidence of good character, the pros may introduce circumstantial evidence of other crimes, wrongs, or acts for the narrow purpose of proving (MIMIC):

• Motive
• Intent
• Absence of Mistake
• Identity
• Common plan or scheme

Question 22

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Methods of Proving Character (Rule 405)

Answer 22

Controls form that CE takes at trial, not admissibility.

• —-> If CE is admissible for any reason, it may be proven in the form of reputation testimony or opinion testimony.
• —-> If character is not at issue in the case, then specific instances of conduct may only be addressed during cross to test the validity of the reputation or opinion testimony.
• —-> Relevant specific acts may also be admitted to show character if character is an essential element of a charge, claim, or defense.

Question 23

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Habit and Routine Practice - Definitions

Answer 23

Habit Evidence
—–> Refers to a narrow range of highly probative traits, namely, automatic, invariable patterns of behavior that could be characterized by the words “always” and “invariably”

Habit

• —-> A regular response to a given situation that is done w/o a high degree of forethought.
• —-> Actions performed “frequently” or “often” do not constitute habits.
• —-> Does not need to be corroborated.

Question 24

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Habit and Routine Practice - Rule

Answer 24

Evidence of a person’s habit or routine practice of an organization is relevant to prove conduct in conformity w/ the habit or routine practice.
—–> May be shown by testimony in the form of an opinion or SAs of conduct suff to show that the habit existed or the practice was routine.

Question 25

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Subsequent Remedial Measures (Rule 407) (+ exceptions)

Answer 25

Evidence of SRM is INADMISSIBLE to prove neg, culpable conduct, design defect, or the need for a warning.
—–> Public policy is to encourage persons to fix dangerous conditions and make products safe.

Exceptions

(1) To show ownership or control if denied
(2) To show feasibility of precautionary measures if denied
(3) To impeach

Question 26

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Compromise Offers and Negotiations (Rule 408)

Answer 26

Evidence of an offer to settle a civil claim (which is DISPUTED either as to validity or amount) AND statements made in connection therewith are INADMISSIBLE to prove liability or amount.

• —-> Public policy is to encourage OOC settlement of civil cases and offers may be made merely to avoid the expense and hassle of litigation.
• —-> When applicable, rule excludes BOTH the offer (Ill pay 10k to settle this) AND statements made in connection therewith (admissions of fact - I shouldn’t have been drinking and driving)

Key Points

• —-> Either or both may be admissible if offered to prove something other than claim validity or amount.
• —-> There must be a DISPUTE as to the amount of the damages or fault (liability); either presented as words on the scene or the filing of a suit subsequently.
• —-> Evidence excluded by this rule may NOT be used as a prior inconsistent statement for impeachment purposes

Exceptions

(1) Admissible to show bias/prejudice
(2) Admissible to negate a contention of undue delay (laches)

Question 27

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Offers to Pay Medical and Similar Expenses (Rule 409)

Answer 27

Evidence of offering to pay medical (hospital or similar) bills and paying them are INADMISSIBLE to prove liability for an injury BUT any admissions of fact made in connection w/ this offer ARE admissible.
—–> Note: no need for a dispute w/ offers to pay medical expenses like w/ offers to settle.

Question 28

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Pleas, Plea Discussions, and Related Statements (Rule 410)

Answer 28

A plea and any statements made during plea negotiations by a D to a prosecutor in a criminal proceeding will be inadmissible against the D in a later proceeding if the plea is:

(1) not accepted by the ct;
(2) later withdrawn by the D;
(3) the D pleads nolo contendere (no contest)

Exceptions

• —-> Does NOT exclude this evidence if the plea is finally entered; there’s no need to exclude the statements once the plea is completed.
• —-> Does NOT apply to statements made to the police, only to the pros

Question 29

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Liability Insurance (Rule 411)

Answer 29

Evidence that a person was or was not insured is INADMISSIBLE to prove neg or fault.

Exceptions

• —-> Evidence of insurance against liability may be admitted for another purpose, such as:
  (1) proof of agency;
  (2) ownership or control; or
  (3) bias or prejudice of a witness

Question 30

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Sexual Offense Cases - The Victim’s Sexual Behavior or Predisposition

Answer 30

In any civil or criminal proceeding involving alleged sexual misconduct, reputation and opinion evidence is generally inadmissible to prove:

(1) that a victim engaged in other sexual behavior; or
(2) a victim’s sexual predisposition

Exception (criminal and civil)
In a criminal case, the following evidence is admissible (absent other reasons for inadmissibility):
(1) Evidence of spec instances of a victim’s sexual behavior, if offered to prove that someone other than the D was the source of semen, injury, or other physical evidence.
(2) Evidence of spec instances of a victim’s sexual behavior w/ respect to the person accused of the sexual misconduct, if offered by the D to prove consent or if offered by the pros; and
(3) Evidence whose exclusion would violate the D’s constitutional rights

In a civil case, the ct may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition (absent other reasons for inadmissibility) if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
—–> This standard sets a high bar for admission of the evidence; evidence of a victim’s reputation is admissible only if the victim has placed it in controversy.

Question 31

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Sexual Offense Cases - Motion

Answer 31

If a party intends to offer evidence under Rule 412 [b], the party must:

(1) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(2) do so at least 14 days before the trial unless the ct (for good cause) sets a different time;
(3) serve the motion on all parties; and
(4) notify the victim or (when approp) the victim’s guardian or representative

Question 32

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Sexual Offense Cases - Hearing

Answer 32

Before admitting evidence under this rule, the ct must conduct an in camera hearing and give the victim and parties a right to attend/be heard.

Question 33

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Sexual Offense Cases - Similar Crimes-Notice to Judge and Discretion

Answer 33

Under Rules 413, 414, and 415, specific acts are admissible; however, notice to the judge is req’d and he ct has discretion to exclude.

(1) Sexual assault - ct may admit evidence that D committed any other sexual assault
(2) Child molestation - ct may admit evidence that D committed any other child molestation
(3) Civil cases involving sexual assault/child molestation - ct may admit evidence that D committed any other sexual assault or child molestation

Question 34

Privileges –> Privileges under Common Law: Rule

Answer 34

Except as otherwise provided by the USC, fed statute, or the FRE, no person has privilege to:

(1) refuse to be a witness
(2) refuse to disclose any matter; or
(3) refuse to produce any object or writing

4 privileges rec’d in fed cts and all 50 states:

(1) Attorney-client (legal)
(2) Physchotherapist-patient (mental)
(3) Clergy-penitent (religious); and
(4) spousal testimony and spousal communication (marital)

Question 35

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Rule

Answer 35

The client is the holder of the privilege.

• —> Client may refuse to disclose (and prevent others from disclosing): (1) confidential communications made (2) for purposes of seeking prof legal advice or services.
• —> Privilege survives client’s death and may be asserted by an executor or attny.

Communications are protected; observations and tangible things generally are NOT (includes oral and written statements and conduct intended to be communicative).
—-> Pre-existing documents are NOT privileged (bank records, deeds)

Caveats
(1) Fee arrangements are not privileged; neither are billing records.

Question 36

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Confidential Definition

Answer 36

A communication is confidential if it is not intended to be disclosed to 3rd parties.
—-> Privilege limited to communications which client either expressly made confidential or which he could reasonably assume under the circs would be understood by the attny as so intended.

Question 37

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Exception (No Privilege)

Answer 37

Situations where there is NO AC privilege:

(1) future crime or fraud
(2) suits between attny and client
(3) Joint client exception
- —> Two clients hire the same attny and are then involved in litigation between each other; Result: their earlier communications are NOT privileged (absent agreement otherwise).
- —> A waiver by one joint holder does not affect the right of another joint holder to claim the privilege

Question 38

Privileges –> Privileges under Common Law: Physician and Psychotherapist-Patient Privilege - Rule

Answer 38

The medical dr-patient privilege (while applicable in all states) was not applicable at CL and does not exist under FRE.
—> However, there is a PPP that can be asserted through CL which governs fed cts.

Very Broad:

• –> Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors.
• –> Does NOT extend to educational and vocational counselors
• –> Applies to protect confidential communications between psychotherapist and patient seeking diagnosis/treatment for med condition (mental or emotional).

Question 39

Privileges –> Privileges under Common Law: Physician and Psychotherapist-Patient Privilege - Determining Confidentiality

Answer 39

A communication is confidential if it is not intended to be disclosed to 3rd parties, except:

(1) persons present to further the interest of the patient in the consultation, examination, or interview;
(2) persons reasonably nec for the transmission of he communication; or
(3) persons participating in the diagnosis and treatment under the direction of the pysician or physiotherapist including members of the patient’s family

Question 40

Privileges –> Privileges under Common Law: Physician and Psychotherapist-Patient Privilege - No Privilege Situations

Answer 40

Exceptions where the privilege does not exist:

(1) statements made re: commitment proceedings;
(2) statements dealing w/ ct-ordered examinations;
(3) when the medical condition is part of the claim; and
(4) future crime or fraud (same as AC)

Question 41

Privileges –> Privileges under Common Law: Spousal Privilege - Rule

Answer 41

The spousal privilege has 2 separate and distinct parts:

(1) Spousal testimonial privilege (spousal immunity)
- –> In crim cases, encompasses right of a witness-spouse not to be forced to testify against their current spouse
(2) Spousal communication privilege (confidential communication privilege)
- –> protects confidential communications made during a legally valid marriage

Question 42

Privileges –> Privileges under Common Law: Spousal Privilege - Spousal Testimonial Privilege (Spousal Immunity)

Answer 42

Protects all communications, observations, and impressions, regardless of confidentiality, both during AND after marriage.
—> Spouse cannot be compelled to testify about virtually anything (promote marital harmony).

Holder

• –> Under CL, the party-spouse.
• –> In fed cts, the witness-spouse, so although the witness-spouse cannot be compelled, the witness-spouse could choose to testify over the party-spouse’s objection

Key Characteristics

• –> A testifying spouse may refuse to testify against their current spouse in a crim case.
• –> Applies to anything that happened before or during the marriage, but the entire privilege lost on divorce (valid marriage req’d)

Exceptions

(1) Situations where one spouse is charged w/ a crime against the other, though in many jdxs, spousal immunity applies even in domestic assault cases between the spouses.
(2) Criminal cases involving a child of either spouse (eg the D is on trial for sexual abuse of stepchild; the D’s spouse may be compelled to testify).

Question 43

Privileges –> Privileges under Common Law: Spousal Privilege - Spousal Communication Privilege

Answer 43

Privilege can be asserted by either spouse (both hold the privilege).
—> Applies to civil AND criminal cases.

Only protects confid comms (ie those intended by the parties to be confidential) between the spouses made DURING the marriage.

• –> Majority: only communications are protected, not observations
• –> Divorce has no effect (communications remain protected and surviv the death of a spouse)

Exceptions

(1) Victim spouses or children
- –> No privilege exists in crim cases or IT cases where other spouse or children are Vs
(2) Suits between spouses
- –> Divorce proceedings (really, any suits between spouses)
(3) Joint spousal participation in a crime

Question 44

Privileges –> Privileges under Common Law: Clergy-Penitent Privilege - Rule and Definition

Answer 44

Protects confidential communications made from penitent to clergyman in their prof capacity as a spiritual advisor.

• –> Either the clergyman or the penitent may assert privilege
• –> Statement needs to have been made under conditions of confidentiality
• –> No generally rec’d exceptions

Question 45

Privileges –> Privileges under Common Law: Political Vote

Answer 45

Every person has a privilege to refuse to disclose their vote, unless compelled by state election laws.

Question 46

Privileges –> Privileges under Common Law: Trade Secrets

Answer 46

A person has a privilege (which may be claimed by himself, his agent, or his employee) to refuse to disclose, and to prevent other persons from disclosing, a trade secret he owns IF the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.
—-> If disclosure is directly, the ct shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

Question 47

Privileges –> Privileges under Common Law: Secrets of State and Other Official Information

Answer 47

If the law of the US creates a governmental privilege that the cts of a state must recognize under the USC, the privilege may be claimed as provided by the law of the US.
—> No other gov privilege is recognized except as created by the USC or statutes of a state.

Question 48

Privileges –> Privileges under Common Law: Identity of Informer - Rule

Answer 48

Both the US and the individual states have a privilege to refuse to disclose the identity of a person funneling info vital and relevant to LE.
—> Only the govt can assert this privilege, not the informant

Question 49

Privileges –> Privileges under Common Law: Identity of Informer - Newsman’s Privilege

Answer 49

SCOTUS has declined to allow the 1A privilege for newsmen to refuse to reveal their sources.
—-> However, several state cts have enacted shield laws allowing a qualified privilege in this area (newsman’s privilege).

Question 50

Privileges –> Privileges under Common Law: Identity of Informer - Executive Privilege

Answer 50

A ct-created privilege.
—> Cts decide whether the privilege applies, although the Pres has an absolute privilege to refuse to disclose matters of national security.

Question 51

Privileges –> Privileges under Common Law: Identity of Informer - No Privilege

Answer 51

(1) if the identity of the informer has been disclosed by the govt or by the informer, or if the informer appears as a witness for the govt; or
(2) if it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case, or to a fair determination of a material issue on the merits of a civil case to which a public entity is a party, and the informed public entity invoked the privilege

Question 52

Privileges –> Privileges under Common Law: 5A Privilege Against Self-Incrimination - Rule

Answer 52

Constitutional privilege applies only to evidence that is “testimonial.”

If the person’s statement cannot incriminate him, the privilege does NOT apply.
—> A statement cannot be incriminating if DJ bars prosecution.

Question 53

Privileges –> Privileges under Common Law: 5A Privilege Against Self-Incrimination - Exception

Answer 53

Presentation of real and demonstrative evidence are NOT protected.
—> Exs: blood, hair, handwriting, etc.

The person has been granted suff immunity (3 types):

(1) Transactional immunity
(2) Derivative use immuniy
(3) Use immunity

Question 54

Privileges –> Privileges under Common Law: 5A Privilege Against Self-Incrimination - Transactional Immunity

Answer 54

A witness w/ transactional immunity cannot be prosecuted for the offense to which the statement refers.

• –> Very broad
• –> If granted, bars assertion of the privilege

Question 55

Privileges –> Privileges under Common Law: Effect of Privilege

Answer 55

A person who holds a privilege against disclosure waives the privilege if he voluntarily discloses, or consents to the disclosure of, any sig part of the privileged matter.
—> Does not apply if the disclosure itself is privileged.

Claim of privilege not defeated by a disclosure which was:

(1) compelled erroneously; or
(2) made w/o opportunity to claim the privilege

Question 56

Witnesses –> In General: Competence to Testify - Rule

Answer 56

General rule of competency (Rule 601)
—-> Every person is competent to be a witness.

Dead Man’s Statutes

• —> Abolished under the FRE, but can still be tested if a fact pattern indicates that a state has one.
• —> A DMS disables/disqualifies any witness (survivor) from testifying about any transaction involving the decedent (ie their lips are sealed).

Question 57

Witnesses –> In General: Need for Personal Knowledge

Answer 57

Lack of personal knowledge (Rule 602)

• —> Scope of Testimony and Reqs:
  (1) A lay witness MUST have personal knowledge
  (2) An expert witness does NOT need to have personal knowledge

Question 58

Witnesses –> In General: Judge’s Competency as Witness

Answer 58

The presiding judge may not testify as a witness at trial; a party need not object to preserve the issue.

Question 59

Witnesses –> In General: Juror’s Competency as Witness

Answer 59

Rule 606 [a] - A juror may NOT testify as a witness before the jury of which they are a member.

Inquiry into the Validity of a Verdict/Indictment (Rule 606 [b])
—> A juror may NOT testify as to the manner in which the jury reached its decision; this is called impeaching the verdict and such testimony is inadmissible.

Rule excludes juror testimony of:

(1) any statements made during deliberations
- –> EXCEPTION: use of racial animus as rationale for jury’s decision
(2) thought processes by which juror reached their decisions; or
(3) votes taken to reach the verdict

Question 60

Witnesses –> Impeachment: Who May Impeach a Witness

Answer 60

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 61

Witnesses –> Impeachment: A Witness’s Character for Truthfulness or Untruthfulness (Rule 608) - Rule

Answer 61

When CE is offered to impeach/rehabilitate a witness to show that the witness is or is not worthy of belief.

Two forms:

(1) Impeachment by reputation and opinion for untruthfulness (Rule 608 [a])
- —-> A witness can be impeached w/ their character for untruthfulness shown by reputation or opinion evidence.
- —-> To accomplish this, either party may call a witness (extrinsic evidence) in both civil and criminal cases.
- —-> Method: on direct examination, reputation and/or opinion only; not specific acts on direct examination
- —-> Limited admissibility: on req, judge would give an instruction to limit the scope of this testimony to matters of credibility for this witness, and that it is not to be used substantively against the P’s action.

(2) Impeachment by prior bad acts (Rule 608 [b])
- —-> SAs of any testifying witness that are probative for truthfulness are admissible for attacking/supporting witness’s credibility.
- —-> Conviction not req’d, provided proponent can prove act occurred by POTE.
- —-> Permitted Method: a question; on cross-examination (inquiring into the witness’s own prior bad acts bearing on truthfulness or dishonesty)

Question 62

Witnesses –> Impeachment: A Witness’s Character for Truthfulness or Untruthfulness - Collateral Matter Doctrine

Answer 62

Collateral matter is evidence solely affecting the credibility of a witness; it’s otherwise irrelevant to the cause of action or defense.

In witness impeachment for prior bad acts, if the witness lies about the specific instance, the collateral matter rule applies.
—–> Extrinsic evidence is INADMISSIBLE to prove bad act (often, but not always); examiner bound by witness’s answer.

Admissible ex of bad acts:

• filing a false tax return
• putting incorrect info on employment app
• using a false name
• falsifying a resume or academic record; and
• lying about age, marital status, employment

Inadmissible ex of bad acts (nothing to do w/ truthfulness):

• Use of drugs or alcohol
• Failure to pay debts; and
• Gambling and prostitution

Question 63

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - CL Rule

Answer 63

Under the CL, the conviction of a person of treason or any felony, a misdemeanor involving dishonesty, or the obstruction of justice rendered the convicted person altogether incompetent as a witness (infamous crimes).

Question 64

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - FRE Rule and Analysis

Answer 64

Under FRE, such a witness may testify, but the opposing party may bring up the witness’s past crimes to undermine credibility.

Rule 1: For a crime that (in the convicting jdx) was punishable by death or imprisonment for more than 1 year, the evidence:

• –> must be admitted (subject to Rule 403 balancing) in a civil case or crim case in which the witness is not the D
• –> must be admitted in a crim case in which the witness is a D, if the probative value of the evidence outweighs its prejudicial effect to the D

Rule 2: For any crime regardless of punishment, the evidence must be admitted if the ct can readily determine that est’ing the elements of the crime req’d proving (or the witness admitting) a dishonest act/false statement

Question 65

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - The 10 Year Rule

Answer 65

If more than 10 years have passed since the witness’s conviction or release from confinement for it (whichever is later), evidence of the conviction admissible only if:

(1) its probative value, supported by specific facts and circs, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use

10 Years measures from the (whichever is later/more recent):

(1) Date of the conviction (if the D received no jail time); or
(2) Date of release from confinement

Question 66

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - Juvenile Adjudications

Answer 66

Evidence of juv adjudication is admissible against D (for other witnesses, use discretionary) under this rule ONLY if:

(1) it is offered in a crim case
(2) the adjudication was of a witness other than the D
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence

Question 67

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - Nolo Contendere

Answer 67

This type of plea (which does not admit culpability) may be used to impeach in a subsequent civil or crim proceeding.

Question 68

Witnesses –> Examination of Witnesses: Mode and Order of Examining Witnesses and Presenting Evidence

Answer 68

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
—> The ct may allow inquiry into additional matters as if on direct examination

Question 69

Witnesses –> Examination of Witnesses: Writing Used to Refresh a Witness’s Memory

Answer 69

On direct examination, the examiner may jog a forgetful witness’s memory.

• –> If a writing is sued to refresh recollection, neither the hearsay rule nor the best evidence rule apply because writing is not offered/admitted.
• –> Where privileged material is used to refresh, the ct will rule that a waiver has occurred and allow the adverse party to inspect the material

Key Points:

(1) any writing, photo, further questioning, or other form of evidence may be used to refresh
(2) authentification of the writing used to refresh not req’d
(3) the proponent may NOT introduce the writing into evidence

Rights of opponent

• they may inspect the evidence
• they may cross examine w/ the evidence
• they may show the writing to the jury for comparison (w/ witness’s testimony); and
• they may introduce relevant portions into evidence (to put the testimony in context; the doctrine of completeness)

Question 70

Witnesses –> Examination of Witnesses: Witness’s Prior Statement - Prior Inconsistent Statement, Admissibility

Answer 70

Rule 613 - When a PINS is offered solely for impeachment, the PINS is NOT admissible substantively (meaning to be believed) and cannot be used for any purpose other than the impact on the witness’s credibility.

• —> Example of limited admissibility
• —> On request, proponent must show a written or recorded PINS to the opponent

“Inconsistent” Meaning

• —> Prior statement must be inconsistent w/ the in-ct testimony; may be found by:
  (1) express contradiction
  (2) omission; or
  (3) feigned lack of memory

Question 71

Witnesses –> Examination of Witnesses: Witness’s Prior Statement - Prior Inconsistent Statement, Extrinsic Evidence

Answer 71

Rule 613 [b] - Extrinsic evidence of PINS may be a witness to the PINS or a written PINS.

Admissible only if:

(1) Witness is given a chance to explain or deny the PINS at some point (no specific sequencing req’d)
(2) An adverse party is given an opportunity to examine the witness about the PINS; or
(3) If justice so req’s

Ct may exclude extrinsic evidence of the PINS if:

(1) Witness admits making the PINS (bc the witness admitted making the PINS, there’s no need for extrinsic evidence); or
(2) It involved a collateral matter (meaning a matter that would not be relevant to the trial, except to impeach the witness)

Question 72

Witnesses –> Examination of Witnesses: Excluding Witnesses - Rule

Answer 72

At a party’s request or on its own, the ct must order witnesses excluded so that they cannot hear other witnesses’ testimony.

This rule does not authorize the following:

(1) a party who is a natural person
(2) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attny
(3) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(4) a person authorized by statute to be present

Question 73

Witnesses –> Examination of Witnesses: Excluding Witnesses - Bias or Interest

Answer 73

Extrinsic evidence is admissible; includes:

(1) Personal or family hostility or relationship
(2) Business relationship
(3) Confidential informant
(4) Fee arrangement (eg fee paid to expert/informant)

Question 74

Witnesses –> Examination of Witnesses: Excluding Witnesses - Incapacity / Sensory Defect

Answer 74

Inability to observe, communicate, or remember.

—> Extrinsic evidence is admissible

Question 75

Opinions and Expert Testimony –> Acceptable Testimony: Opinion Testimony by Lay Witnesses

Answer 75

Rule 701 - A non-expert may offer opinion testimony if it is:

(1) Rationally based on the perception of the witness (meaning on the witness’s personal knowledge); and
(2) Helpful to a clear understanding or determination of a fact in issue.

Proper Scope of non-expert opinion (VEMPS)
V = Value of one’s own property
E = Emotional state of others (happy/sad)
M = Measurements (speed of vehicle, height, weight, distance)
P = Physical states (tall/short; healthy/sick)
S = Sensory descriptions (smell, sound, tase, color)

Note: Legal conclusions must be avoided and are inadmissible.

Question 76

Opinions and Expert Testimony –> Acceptable Testimony: Testimony by Expert Witnesses

Answer 76

Rule 702 - To analyze an opinion offered by an expert (SPOT):
S = Proper Subject matter
—> Subject matter of opinion must req scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine an issue.
P = Proper Person (Qualified)
—> Expert must be qualified (have specialized knowledge, skill, experience, training, or education specific to the subject matter)
O = Proper Opinion (Basis of the opinion)
—> Opinion must be based in suff facts or data
T = Proper Testimony (Offered in proper form)
—> The testimony about the opinion must be expressed to a reasonable degree of certainty

Question 77

Opinions and Expert Testimony –> Basis of Expert’s Opinion Testimony

Answer 77

Rule 703 - 3 bases for opinion testimony

(1) Personal knowledge (eg expert conducted exams or tests personally)
(2) Facts presented to the expert at trial
- –> Expert sat in ct and listened to witness testimony or is asked hypo questions
(3) Facts presented to the expert outside of ct (reports, conversations)
- –> Reasonable reliance rule: OOC facts must be of the type reasonably relied upon by other experts in the particular field

Rule 703 Balancing Test for Admission of Underlying Data

• –> Underlying data that is otherwise inadmissible (typically hearsay) at trial CANNOT be revealed UNLESS the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect.
• –> Favors EXCLUSION of the underlying facts UNLIKE Rule 403, which favors inclusion

Question 78

Opinions and Expert Testimony –> Opinion on an Ultimate Issue

Answer 78

Rule 704 - Generally, an expert may give an opinion/inference which embraces an ultimate issue, but cannot state the opinion as a legal conclusion.

Limitation in Criminal Cases (Rule 704 [b])

• –> An expert may not give an opinion as to whether the D did or did not possess the mental state or condition which constitutes an element (or defense) of the crime charged.
• –> Such ultimate issues of law are determined by the jury

Exception
—> An expert may, in a crim case, offer an opinion on whether the D who has pled not guilty by reason of insanity was insane.

Question 79

Opinions and Expert Testimony –> Disclosing the Facts or Data Underlying an Expert’s Opinion

Answer 79

Unless the ct orders otherwise, an expert may state an opinion (and give the reasons for it) w/o first testifying to the underlying facts or data, but the expert may be req’d to disclose those facts and data on cross.

Experts may be properly cross-examined as to:

(1) qualifications
(2) subject matter and basis of an opinion; and
(3) compensation

Question 80

Opinions and Expert Testimony –> Court-Appointed Expert Witnesses

Answer 80

Rule 706 - The ct may, on its own or at the request of either party, appoint expert witnesses.

• –> An appointed expert witness MUST advise the parties of their findings and must submit to a deposition request from either party.
• –> An appointed expert witness MAY be called to testify and be cross-examined by any party.

Question 81

Hearsay –> Definitions: Statement

Answer 81

A statement is a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 82

Hearsay –> Definitions: Declarant

Answer 82

A declarant is the person who made a statement.

Question 83

Hearsay –> Definitions: Hearsay

Answer 83

Hearsay is a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted

Question 84

Hearsay –> Analysis of Hearsay Issues: General

Answer 84

Hearsay is not always inadmissible; the finding that a statement is hearsay merely req’s further analysis of its admissibility.

When analyzing the admissibility of potential hearsay evidence:

(1) Determine the assertion or conduct serving as the OOC statement
(2) Determine who is the declarant
(3) Determine the purpose for which the evidence is offered; and
(4) Apply possible hearsay exceptions.

Nonverbal conduct intended as an assertion qualifies as a statement and is considered hearsay.

Question 85

Hearsay –> Analysis of Hearsay Issues: Non-Hearsay - Verbal Acts

Answer 85

Where words themselves have legal significance apart from their truth (ie at issue is whether or not the words were actually spoken), the fact of independent probative value makes them non-hearsay.
—> Explanatory words that accompany ambiguous physical actions are also termed verbal acts (AKA offered to clarify ambiguous conduct)

2 Main Categories:

(1) tortious words, including the actual words of slander or libel in defamation actions; and
(2) transactional words, including the actual words of offer and acceptance in a K or the words of intent in a donative transfer, sale, will, or deed.

Question 86

Hearsay –> Analysis of Hearsay Issues: Non-Hearsay - State of Mind

Answer 86

Statements offered to prove a relevant attitude, belief, or intent of either the declarant or the listener are admissible circumstantially as non-hearsay.

Question 87

Hearsay –> Analysis of Hearsay Issues: Non-Hearsay - Impeachment

Answer 87

Statements of the witness offered merely to challenge credibility or show perjury (irrespective of their truth) are non-hearsay.

Question 88

Hearsay –> Hearsay Exemptions: Rule **

Answer 88

These are OOC statements offered for their truth that are deemed not hearsay; are exempt from exclusionary effect of hearsay rule.
—> Admitted as substantive evidence.

Question 89

Hearsay –> Hearsay Exemptions: Declarant-Witness’s Prior Statements - Rule

Answer 89

A statement is not hearsay when the declarant testifies and is subject to cross about a prior statement, and the statement is either:

(1) a prior sworn inconsistent statement;
(2) a prior consistent statement; or
(3) a prior identification

Question 90

Hearsay –> Non-Hearsay Categories: Opposing Party’s Statement

Answer 90

Five Types:

(1) Statement by a named party
(2) Adoptive admission (either by words, conduct, or silence)
(3) Authorized admission
(4) Employee admission; and
(5) Co-conspirator’s admission

Question 91

Hearsay –> Non-Hearsay Categories: Adoptive Statement (+ Statement by Silence)

Answer 91

There must be evidence suff to show the party heard and understood the statement and adopted it as their own (either by words, conduct, or silence).

Admission by silence may be found where the named party:

(1) Heard and understood what was said;
(2) Had an opportunity to deny/correct the statement; and
(3) A reasonable person would have felt compelled to deny/correct the statement

Question 92

Hearsay –> Non-Hearsay Categories: Authorized Statement

Answer 92

A statement by a party’s agent or representative.

—> A principal authorizes agents to make statements or representations to third parties.

Question 93

Hearsay –> Non-Hearsay Categories: Vicarious Statement of an Agent or Employee

Answer 93

A statement of a party’s employee offered against the employer/party by their opponent is admissible under this rule if:

(1) the statement was made DURING the existence of the employment relationship; and
(2) concern a matter w/in the scope of employment to which the employee has suff knowledge as it relates to their job

Question 94

Hearsay –> Non-Hearsay Categories: Co-Conspirator’s Statement

Answer 94

Statements of co-conspirators (whether or not a conspiracy is charged) can be used against all other co-conspirators if the statement was made:

(1) by a member of the conspiracy
(2) in furtherance of the conspiracy (ie moved the criminal conspiracy forward); and
(3) during the existence of the conspiracy

Note: Existence of a conspiracy is a preliminary fact that must be proven to the ct by a POTE before a co-conspirator’s statement is admitted under this rule.

Question 95

Hearsay –> Non-Hearsay Categories: Prior Statements of Witnesses - Prior Sworn Inconsistent Statements

Answer 95

A prior inconsistent statement is permitted to be offered for its truth if it is sworn (subject to penalty of perjury - under oath) at a trial, deposition, or other proceeding.

• —> Grand jury, preliminary hearing testimony counts
• —> Does not apply to affidavits

Question 96

Hearsay –> Non-Hearsay Categories: Prior Statements of Witnesses - Prior Consistent Statements

Answer 96

Once a witness has been impeached, a PCS is a hearsay exemption and admissible as substantive evidence.
—-> No req that PCS be made under oath

Question 97

Hearsay –> Non-Hearsay Categories: Prior Statements of Witnesses - Prior Identifications

Answer 97

An OOC statement of id by a declarant made after perceiving the identified person is admissible as substantive evidence.

• —> The basis for admissibility is the generally unsatisfactory and inconclusive nature of courtroom ids as compared w/ those made at an earlier time under less suggestive conditions
• —> Remember, the witness who made the statement of id (declarant) MUST testify and be subject to cross about the statement.

Question 98

Hearsay –> Hearsay Exceptions: The Rule Against Hearsay

Answer 98

Rule 802 - Hearsay is not admissible except as provided by the FRE or by other rules by SCOTUS pursuant to statutory authority or by Act of Congress.
—-> All exceptions exist for one or both of two reasons: reliability and necessity.

Reliability
—-> the circumstances under which the OOC statement was made makes it more reliably truthful

Necessity
—-> the evidence is important and may not be available in any other way

Question 99

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Present Sense Impression

Answer 99

Rule 803 [1] - A statement made by the declarant describing/explaining an event/condition made while or immediately after perceiving it.
—-> Present tense = present sense (saying what seeing in the moment)

Characteristics and Reqs

(1) Timing
- —> Statement needs to be spontaneous and contemporaneously made
(2) Declarant need not be known or available, but MUST have had firsthand knowledge of the event.
(3) Can be oral or in writing

Question 100

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Excited Utterance

Answer 100

Rule 803 [2] - A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event or condition.

Characteristics and Reqs

(1) Startling event (exclamation point often)
(2) Statement relates to/describes the startling event
(3) Personal knowledge; and
(4) Made while still stressed by event (unlike PSI, statement need not be immediate)

Question 101

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Then-Existing Mental, Emotional, or Physical Condition

Answer 101

Rule 803 [3] - A statement of the declarant’s TEMEPC is admissible if relevant to show declarant’s state of mind at the moment to prove what the declarant was thinking or feeling at that moment (or to explain future behavior)

• —> Sometimes referred to as forward looking statements (Hillmon Doctrine - eg to show declarant’s intent, plan, motive, design, etc.)
• —> Need not be made to a medical person
• —> Statements of past sensation, memory, or belief (backward-looking statements) NOT admissible under this exception.

Exception
—-> Statements of memory relating to the execution, revocation, identification, or terms of declarant’s will are admissible.

Question 102

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Statement Made for Medical Diagnosis or Treatment

Answer 102

Rule 803 [4] - Statements made for purposes of MDOT describing medical history or past/present symptoms, pain, or sensation or the cause are admissible.

• —> Statement can be made to medical personnel, or even family member where treatment for a medical problem is sought.
• —> Statement must be one which is useful for diagnosis or treatment (pathologically germane)
• —> Exception applies even if patient speaks to med prof merely so that person can testify as an expert for the person in a later trial because the purpose of the statements is to obtain a diagnosis.

Caveat
—-> Statements admitting or assessing fault are NOT included; if in writing such as hospital report (business record) such words would be redacted from the report.

Question 103

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Public Record

Answer 103

Rule 803 [8] - A record or statement of a public office is admissible if it sets out a matter personally observed which the person is under a legal duty to investigate and report.

Caveat
—-> The report of LE is NOT admissible under this exception in a crim case against the accused (CClause problems)

Authentication
—-> Self-authenticating if certified or under seal or by custodian of records

Question 104

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Absence of Public Record

Answer 104

Rule 803 [10] - Evidence that a matter is NOT included in records or data compilations kept in accordance w/ the public records rules (including vital statistics) may be admitted to prove the nonoccurence of the event or the non-existence of the matter.

Question 105

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Recorded Recollection

Answer 105

Rule 803 [5] - If a witness has diminished memory and documented something (or signed or adopted the document) w/in their personal knowledge while the matter was fresh in the witness’s mind, the contents of the doc are admissible.
—-> Prerequisite: FRE 612 regarding refreshing the witness’s memory must have been attempted and failed (witness must lack current memory of event)

Key Point
—-> The writing/record is read into evidence; the writing itself is NOT received as an exhibit (to be w/ jury during deliberations) unless offered by adverse party.

Rights of the opponent

• —> Inspect the writing
• —> Cross examine with it
• —> Show it to the jury for comparison; and
• —> Introduce relevant portions into evidence

Question 106

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Records of a Regularly Conducted Activity (Business Records Exception)

Answer 106

Rule 803 [6] - Requirements:

(1) A memorandum, record, or report;
(2) of business-related acts or events;
(3) made at or near the time of the event (contemporaneous);
(4) by a person w/ knowledge;
(5) if kept in the course of a regularly conducted business activity (record serves some business purpose - eg taxes, inventory, etc.); and
(6) if it was the regular practice of that business to make such a record or report (mandatory business policy)

PROVIDED the information does not lack trustworthiness.

• —> A prelim question of law for the judge (FRE 104)
• —> Caveat: records in question may not be made solely in anticipation of litigation

Authentication
—-> By self-authentication (certificate confirming the above) or testimony of the custodian of records for the business.

Question 107

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Absence of a Record of Regularly Conducted Activity

Answer 107

Rule 803 [7] - Evidence that a matter is NOT included in records or data compilations kept in accordance w/ the business or public records rules may be admitted to prove the nonoccurence of the event or the non-existence of the matter.

Foundation
—-> The witness must testify to being familiar w/ the records, that the witness performed a diligent search, and that no record of the event was found.

Question 108

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Public Records of Vital Statistics

Answer 108

Rule 803 [9] - Records or data compilations of births, deaths, or marriages are admissible if the report was made to a public office pursuant to req’s of law.

Question 109

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Family and Personal Records

Answer 109

Rule 803 [11-13] - Records of (or certificates authorized by) a religious organization (or by law) concerning personal or family history (such as births, deaths, marriage, baptism, etc.)
—> Also, family records contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, urns, etc.

Question 110

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Records of Documents That Affect an Interest in Property

Answer 110

Rule 803 [14-15] - Documents (eg deeds, mortgages) kept by law in govt recording offices, or statements in other docs (letters, Ks) that affect an interest in (typically) real property.

Question 111

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Statements in Ancient Documents

Answer 111

Rule 803 [16] - Admissible in a doc in existence prior to Jan 1, 1988 if found in a place where these items are typically found.
—-> Think archives, library, even a shoebox under a bed.

Question 112

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Market Reports and Similar Commercial Publications

Answer 112

Rule 803 [17] - Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Question 113

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Statements in Learned Treatises, Periodicals, or Pamphlets (Expert Exception)

Answer 113

Rule 803 [18] - Statements in treatises, textbooks, journals (medical/scientific), periodicals, or hornbooks if the treatise is est’d as authoritative.
—-> Often offered to contradict an expert witness on cross, so they can be used to impeach and as substantive evidence.

Caveat
—-> The treatise can be read to the jury, but (like with past recollection recorded) the doc does not become an exhibit which is physically given to the jury.

Reqs
Authoritativeness can be est’d by:
(1) judicial notice
(2) expert testimony (your expert or your opponent’s expert); or
(3) by stipulation between the parties
(4) subject area (MASH): medicine, art, science, history

Question 114

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Reputation Concerning Personal or Family History

Answer 114

Rule 803 [19] - Reputation evidence among family, associates, and community is admissible to prove the witness’s personal or family history (eg adoptions, relations, etc.)

Question 115

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Reputation Concerning Boundaries or General History

Answer 115

Rule 803 [20] - Reputation evidence in the community concerning property boundaries, local customs relating to land, and general historical events across the country.

Question 116

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Reputation Concerning Character

Answer 116

Rule 803 [21] - This exception deals only w/ the hearsay aspect of this kind of character evidence.
—-> Limitations upon admissibility based on other grounds in Rule 404 (relevancy of character evidence generally) and 608 (character of witness)

Question 117

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Judgment of a Previous Conviction

Answer 117

Rule 803 [22] - Final judgments of previous convictions for felonies are admissible to prove an essential element of the action.

• —> Authentication: typically, by self-authentication of the public record
• —> Judgment cannot be used except as against the accused

Question 118

Hearsay –> Key Hearsay Exceptions (Availability of Declarant Immaterial): Judgments Involving Personal, Family, or General History, or a Boundary

Answer 118

Rule 803 [23] - A judgment admitted to prove a matter of personal, family, or general history, or boundaries, if the matter it was essential to the judgment and could be proved by evidence of reputation.

Question 119

Hearsay –> When the Declarant is Unavailable as a Witness (Availability of Declarant Material): Criteria for Being Unavailable

Answer 119

Triggering Events (Rule 804 [a])

(1) Privilege
- —> Assertion of a privilege (based on the judge’s ruling whether the privilege applies) (Rule 104)
- —> A declarant has to actually assert a privilege and the ct has to find that the privilege applies before a witness will be considered unavailable
(2) Refusal
- —> Refusal to testify despite ct order
(3) Incapacity (incapability)
- —> Due to death or then-existing physical or mental illness
(4) Subpoena
- —> Absence of a witness despite a good-faith attempt to procure the witness’s attendance (ie subpoena)
(5) Memory
- —> Witness testifies as to a lack of memory
(6) Burden
- —> The proponent of the testimony bears the burden to prove declarant is unavailable (must do some work, actually look, more than just send subpoena)

Question 120

Hearsay –> Key Hearsay Exceptions (Declarant’s Unavailability Required): Former Testimony

Answer 120

Rule 804 [b][1] - Testimony of an unavailable declarant made under oath (typically, in the form of a transcript) while testifying in a proceeding or deposition that involves the same (or a different but related) subject matter, where the party against whom the evidence is being offered had an opportunity and similar motive to examine the witness and develop the testimony on direct, cross, or redirect.

Note: GJ testimony suff to be admitted substantively as prior inconsistent statement, but GJ testimony NOT admissible as former testimony (bc not subject to cross).

Question 121

Hearsay –> Key Hearsay Exceptions (Declarant’s Unavailability Required): Statement under the Belief of Imminent Death

Answer 121

Rule 804 [b][2] -

(1) In a prosecution for homicide or in a civil case, a statement that the declarant made,
(2) while believing the declarant’s death to be imminent,
(3) about its cause or circumstances of what they thought was the cause of their impending death.

Rule 104 [a] req’s that the judge determines whether the declarant subjectively believed death was imminent.
—-> Death need not actually result, but the declarant must be unavailable.

Question 122

Hearsay –> Key Hearsay Exceptions (Declarant’s Unavailability Required): Statement Against Interest

Answer 122

Rule 804 [b][3] - A statement of an unavailable witness (generally, not a party - someone other than P and D) that was against the declarant’s pecuniary ($), proprietary (property), or penal (jail) interest when made admissible.

• —> In a crim case, if a statement against the declarant’s penal interest is offered to EXCULPATE the D, corroboration is req’d to insure trustworthiness.
• —> In a crim case, if a statement against the declarant’s penal interest is offered to inculpate the D (by the pros) there is a CClause / Crawford problem.

Question 123

Hearsay –> Key Hearsay Exceptions (Declarant’s Unavailability Required): Statement of Personal or Family History (Pedigree Exception)

Answer 123

Rule 804 [b][4] - Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
—-> Result: admissible under the statement of pedigree hearsay exception

Question 124

Hearsay –> Key Hearsay Exceptions (Declarant’s Unavailability Required): Statement Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability

Answer 124

Rule 804 [b][6] - A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule).
—-> Note: this is a prelim question of fact for the judge to determine by a POTE.

Question 125

Hearsay –> Confrontation Clause: Rule

Answer 125

Under the 6A CClause, in a crim case where the declarant is unavailable, “testimonial” hearsay statements will be inadmissible unless the D is given an opp to cross-examine the declarant.

3 aspects of this issue:

(1) “testimonial” hearsay;
(2) declarant must be unavailable; and
(3) D must have had a prior opp to cross the declarant about the statement

Question 126

Hearsay –> Confrontation Clause: Testimonial Evidence

Answer 126

Testimonial hearsay is a hearsay statement about past events that the declarant reasonably expected would be used in a subs pros.
—-> Typically, made to POs or govt employee, or made in a formal setting (like in a ctroom)

Examples:

• Many statements made to POs or during PO interrogation statements made in ct or ct-like settings;
• Affidavits;
• Depositions

Non-Testimonial Hearsay Examples:
- Many, if not most, hearsay exceptions are non-testimonial (specifically business records, co-conspirator’s statements, etc.)

Exceptions
When testimonial hearsay will be admitted even if the declarant is not unavailable or the D did not have a chance to cross:
(1) Dying decs
(2) Child witness testifying via closed circuit
(3) Ongoing emergency
—-> Statements made where the primary purpose of the statement is to aid police during an ongoing emergency.
(4) Chemical analysis report w/ “notice and demand” statute
—-> A report of a chem analysis is testimonial, but will be admitted over CClause objection if the jdx has a notice and demand statute.
—-> Notice and demand statute req’s govt to give prior notice of its intent to offer the analysis results in hearsay form and gives the D the chance to demand that the govt present the chemist who did the testing.
(5) Waiver: forfeiture by wrongdoing
—-> A criminal D forfeits CClause rights if they cause the unavailability of the declarant through forfeiture by wrongdoing w/ the intent to prevent that declarant from testifying at the trial/hearing

Question 127

Hearsay –> Hearsay Within Hearsay (Double Hearsay)

Answer 127

Rule 805 - An OOC statement contains additional OOC statements, both the primary statement and the included statement must have a separate basis for admissibility, meaning a hearsay exception must be found to apply to each bit of hearsay.

• —> If the underlying hearsay cannot be redacted, the entire statement is inadmissible.
• —> Common situations: business records, medical records, or charts

Question 128

Hearsay –> Attacking and Supporting the Declarant’s Credibility

Answer 128

Rule 806 - Impeachment and rehabilitation of a hearsay declarant is accomplished in the same way that a declarant on the stand is impeached or rehabilitated.

Question 129

Hearsay –> Residual Exception (Catch-All)

Answer 129

Rule 807 - A statement NOT otherwise covered by an exception to the hearsay rule is nevertheless NOT excluded by the hearsay rule under certain circs.

• —> The statement must be more probative and on point than any other evidence and req’s suff indicia of trustworthiness.
• —> The party intending to offer evidence under this exception must give notice to the opposing party
• —> Whether the prerequisites for use of this rule are satisfied is a preliminary question of law for the judge

Question 130

Authentification and Identification –> Authenticating or Identifying Evidence: Rule

Answer 130

Rule 901 - Authentication as a condition precedent to admissibility req’s evidence suff to support a finding that the matter in question is what its proponent claims it to be.

• —> Suff evidence is that which a reasonable person could find “genuine” by a POTE.
• —> The judge determines admissibility; the jury has the final decision as to how much weight to give
• —> With the exception of voice identification (eg who was on the other end of the line in a phone convo) and evidence describing a process/system (eg a computer based fingerprint analysis machine results), only TANGIBLE evidence needs to be authenticated.

Question 131

Authentification and Identification –> Authenticating or Identifying Evidence: Documentary Evidence

Answer 131

Includes writings such as letters, Ks, books, newspapers, motion pictures, tape recordings, xrays, photos, ancient writings, computer printouts, self authenticating docs, and handwriting specimens.

Question 132

Authentification and Identification –> Authenticating or Identifying Evidence: Demonstrative Evidence

Answer 132

Term of art given to certain types of evidence whose relevance depends on its ability to explain or simulate material facts of the case.

Question 133

Authentification and Identification –> Authenticating or Identifying Evidence: Authentification

Answer 133

Extrinsic or Intrinsic Methods

• –> Extrinsic: a witness is req’d to authenticate the item
• –> Intrinsic: the item is self-authenticating (no need for a witness)

Extrinsic Authentication (Sponsoring Witness Req’d)

• –> Direct evidence: someone with personal knowledge of (or familiarity w/) the item, or a custodian of records testifies to authenticate the item.
• –> A custodian of records is a person charged in an organization (business or govt) w/ maintaining records of the organization

Test for a photograph or diagram

• –> Must be a fair and accurate representation of what the proponent claims it depicts.
• –> Need not be the actual photographer, merely someone who knows the scene at the relevant time is suff.

Circumstantial Evidence

• –> Chain of custody - commonly for undistinguishable items; witnesses can testify to where item was from the moment that mattered to the moment when offered.
• ————-> Chain of custody also serves to confirm that the item of tangible evidence is in substantially similar condition in which the witness found it; this confirms it was not tampered w/ or materially altered.
• –> Ancient documents rule - old doc (at least 20 yrs old) found in a place where it would likely be found under circumstances suggesting authenticity.
• –> Other distinctive characteristics - distinctive appearance, contents, substance, internal patterns, etc.

Question 134

Authentification and Identification –> Authenticating or Identifying Evidence: Evidence that Satisfies Authentification Req

Answer 134

1. the testimony of a witness w/ knowledge that an item is what it is claimed
2. non-expert’s opinion that handwriting is genuine based on familiarity w/ it not acquired in litigation
3. comparison w/ an authenticated specimen by an expert witness or the trier of fact
4. the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together will all circs
5. an opinion identifying a person’s voice based on hearing the voice previously
6. evidence describing a process or system and showing that it produces an accurate result
7. any method of authentication or identification provided by Cong or SCOTUS

Question 135

Authentification and Identification –> Self-Authenticating Evidence

Answer 135

Rule 902 - Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT req’d w/ respect to the following (CONTAC):

(1) Certified docs
- –> docs bearing a seal of the US, or any state, district, commonwelath, etc. (public docs under seal)
- –> certified docs bearing no seal, if a public officer certifies under seal tha tthe signer has official capacity to sign and that the sig is genuine
- –> certified foreign docs: genuineness of the sig and the authorized person’s official position req’d; or
- –> certified copies of (official) public records:
- ————–> must be filed/recorded in a public office and cert’d as correct by either the custodian or other qualified person
- ————–> certified copies of business records
- ————–> certified electronically stored data, w/ notice

(2) Official publications
- —> Books, pamphlets, and other publications issued by a public authority

(3) Newspapers and periodicals

(4) Trade inscriptions
- —> Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control, or origin

(5) Acknowledged docs
- —> Notarized docs

(6) Commercial paper
- —> Negotiable instruments, bills of lading.
- —> Sigs req’d as provided by general commercial law (UCC)

Question 136

Authentification and Identification –> Subscribing Witness’s Testimony: Handwriting

Answer 136

Special Rules for Handwriting Authentication

• –> By a layperson w/ familiarity (NOT acquired for litigation)
• –> By comparison by an expert w/ person’s known writing sample; or
• –> By comparison by the trier of fact (unique!)

Question 137

Authentification and Identification –> Subscribing Witness’s Testimony: Telephone Conversations

Answer 137

• –> Call to number assigned to person and circumstances show person answering is the one called.
• –> Call to number assigned to business and reasonably related business was transacted.

Question 138

Authentification and Identification –> Subscribing Witness’s Testimony: Voice

Answer 138

Special Rules for Voice Authentication

—> Opinion of person who has heard speaker at any time, even if familiarity is acq’d for the litigation.

Question 139

Contents of Writings, Recordings, and Photographs –> Definitions (Writing, Recording, Photograph, Original, Duplicate)

Answer 139

Writing - consists of letters, words, numbers, or their equivalent set down in any form.

Recording - consists of letters, words, numbers, or their equivalent recorded in any manner.

Photograph - photographic image or its equivalent stored in any form

Original - original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it

Duplicate - means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original

Question 140

Contents of Writings, Recordings, and Photographs –> Requirement of the Original: Rule

Answer 140

Rule 1002 - To prove the content of a writing, recording, or photo, the ORIGINAL writing, recording, or photo is req’d, except as otherwise provided by these rules/Congress.

Question 141

Contents of Writings, Recordings, and Photographs –> Requirement of the Original: Best Evidence Rule

Answer 141

Best Evidence Rule = covers every tangible process to record works, pics, and sounds

Applies ONLY where contents of a writing are in issue; 2 main situations:

(1) Legally operative docs
- —> where the writing has independent legal sig (ie the writing itself creates/destroys a legal relationship)
- —> Exs: K, will, deed, mortgage, lease, DL, movie in obscenity action, photo in porn action, written libel, divorce decree.

(2) Document-dependent testimony
- —> where the testimony is reliant on the writing, not on personal knowledge

Question 142

Contents of Writings, Recordings, and Photographs –> Requirement of the Original: Best Evidence Rule Exceptions

Answer 142

Independent Source Rule

• —> Where a fact to be proved has a source independent from the writing (ie the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the BER does not apply.
• —> Exs: sales receipt (not req’d to prove goods/services paid for); birth cert (not req’d to prove fact/DOB); death cert; marriage cert
• —> Caveat: if the receipt or cert is offered as evidence to prove a birth, death, sale, etc. then the original must be produced absent goods cause.

Question 143

Contents of Writings, Recordings, and Photographs –> Admissibility of Duplicates

Answer 143

An original includes either the original itself or a duplicate.
—> Duplicates are admissible so long as there is no issue with authenticity (BER).

3 substitutes for original:

(1) duplicate (photocopy)
(2) certified copy of public record (803 [8])
(3) summaries of voluminous records (1006)

Question 144

Contents of Writings, Recordings, and Photographs –> Admissibility of Other Evidence of Content

Answer 144

Rule 1004 - The original is not req’d and other evidence of the contents of a writing, recording, or photo is admissible (CLOTS) if:

(1) Collateral
- —> Where the writing, recording, or photo is not closely related to a controlling issue (ie witness merely refers to a writing but not to prove contents)
(2) Lost
- —> All originals have been lost or destroyed unless the proponent lost/destroyed them in bad faith
(3) Opponent
- —> The opponent has possession of the original and has refused to deliver it (even on notice by pleadings or by the ct)
(4) Testimony or admission by opponent
(5) Subpoena
- —> The original cannot be obtained by any available judicial procedure.

Question 145

Contents of Writings, Recordings, and Photographs –> Copies of Public Records to Prove Content

Answer 145

Rule 1005 - The contents of an official record may be proved by copy, certified as correct in accordance w/ Rule 902, or by witness testimony upon comparison w/ the original.

Question 146

Contents of Writings, Recordings, and Photographs –> Summaries to Prove Content

Answer 146

Rule 1006 - The contents of voluminous writings, recordings, or photos that cannot conveniently be examined in ct may be presented in the form of a chart, summary, or calculation.

• —> Originals shall be made available for examination, copying, or both by other parties at a reasonable time and place.
• —> Ct may also order production in ct.

Foundation

• —> A showing that the originals themselves would be admissible hearsay (substantive evidence) under either an exception or exclusion.
• —> The opponent must be given reasonable pretrial access.
• —> Authentication: summaries must be properly authenticated by the preparer

Question 147

Contents of Writings, Recordings, and Photographs –> Testimony or Statement of a Party to Prove Content

Answer 147

Rule 1007 - Contents of a writing may be proved by testimony, deposition, or admission of the opposing party w/o accounting for the non-production of the original writing because (usually) it is not in their possession.

Question 148

Contents of Writings, Recordings, and Photographs –> Functions of the Court and Jury

Answer 148

Rule 1008 - Finder of fact (usually the jury) decides:

(1) whether the asserted writing (the original) ever existed
(2) whether another writing produced at trial is the original
(3) the accuracy of the writing; and
(4) the jury has the final decision on whether the item is genuine and how much weight to give it.

Question 149

General Provisions –> Introduction: Vocabulary - Substantive v. Limited Use

Answer 149

Substantive use —-> admissible for and usable by TOF for any purpose
Limited use —-> admissible for and usable by TOF for limited purpose (eg impeachment)

Question 150

General Provisions –> Introduction: Vocabulary - Proponent v. Opponent

Answer 150

Proponent —-> party sponsoring the evidence

Opponent —-> party challenging the evidence

Question 151

General Provisions –> Introduction: Vocabulary - Admissibility v. Weight

Answer 151

Admissibility —> always a question of law for the judge
Weight —> means how much the TOF chooses to believe it
NOTE: Bar questions are always about admissibility, not weight

Question 152

General Provisions –> Vocabulary: Types of Evidence - Direct Evidence

Answer 152

Requires no inference

Ex: “I saw the D shoot the victim.”

Question 153

General Provisions –> Vocabulary: Types of Evidence - Circumstantial Evidence

Answer 153

Requires an inference.

Ex: footprints in snow lead to door where newspaper was placed; used to show person delivered paper

Question 154

General Provisions –> Vocabulary: Types of Evidence - Real Evidence

Answer 154

Would include the murder weapon, the actual written K or will, the stolen items, and confiscated drugs.

Question 155

General Provisions –> Vocabulary: Types of Evidence - Demonstrative Evidence

Answer 155

Evidence that is prepared in anticipation of trial to assist a jury or factfinder in understanding the facts which are at issue in the case.
Ex: PP pres, photo enlargements, scale models

Question 156

General Provisions –> Preliminary Questions (Rule 104) - Conditional Admissibility

Answer 156

When the relevance of evidence depends on whether a fact exists, proof must be introduced suff to support a finding that the fact does exist.
—-> The ct may admit the proposed evidence n the condition that the proof be introduced later.

Question 157

Judicial Notice –> In General - Civil v. Criminal (+ when raised)

Answer 157

When Raised
–> Issues of judicial notice may be raised for the first time either pretrial, during trial, or on appeal.

FRE 201 [f] (effect of jury instruction on judicial notice)

• -> A civil jury must accept a judicially noticed fact as conclusive.
• -> A criminal jury may (but is not req’d to) accept a judicially noticed fact as conclusive.

Question 158

Burdens and Presumptions –> Burdens Generally: Burden of Production (AKA WHO)

Answer 158

The burden of going forward/producing evidence is on the P civilly, and on the prosecution criminally.

Question 159

Burdens and Presumptions –> Burdens Generally: Burden of Production (AKA HOW MUCH)

Answer 159

The degree to which the evidence must be proven; three different burdens of persuasion.

(1) Preponderance of the Evidence
(2) Clear and Convincing Evidence
(3) Beyond a Reasonable Doubt

(See also PC and RAS - Crim Pro)

Question 160

Relevancy and Its Limits –> Admissibility: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (Rule 403) - Consciousness of Guilt Situations

Answer 160

Fact patterns often test consciousness of guilt situations (generally considered very probative):

• Evidence the D fled the scene
• Hiding from police or using an alias
• Failure to submit to a breathalyzer

Rule 403 balancing test favors ADMISSION rather than exclusion, therefore most 403 objections are properly overruled.

Question 161

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Generally

Answer 161

The character evidence rules are in Art 4, Relevance and Its Limits of FRE (Rules 404, 405 and 412-415).

• —> Because, while often logically relevant, character evidence presents substantial danger that trier of fact will use evidence in improper ways that are unfairly prejudicial.
• —> Therefore, its admissibility may be limited.
• —> Typically offered in form of witness testimony
• —> Character witness must have suff familiarity w/ person/community.

May be macro or micro character

• —> Macro-character: evidence of a general personality trait (good law-abiding citizen)
• —> Micro-character: evidence of a specific personality trait (neat, punctual, violent)

Question 162

Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Analysis Overview

Answer 162

(1) Is it character evidence at all?
(2) Why is CE being offered and is it admissible for that purpose?
(3) If admissible for that purpose, what is the permissible method of proving character?

Question 163

Witnesses –> Impeachment: Why is CE being offered and is it admissible for that purpose?

Answer 163

CE will be offered for one of 3 purposes (ICE)

(1) Impeachment character evidence
(2) Conformity character evidence
(3) Element character evidence

Question 164

Privileges –> Generally (Rule 501)

Answer 164

Only CL privileges are recognized as interpreted by fed cts.
—-> Absent contrary provisions by the USC, Congress, or SCOTUS, the law of privilege is governed by CL subject to superseding state law.

How it works

• In civil cases (diversity actions), the privileges of a witness is determined by state law (Erie Doctrine)
• In fed question cases and fed crim cases, issues of privilege are determined by fed CL

Question 165

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Eavesdroppers (2 types)

Answer 165

Unknown eavesdroppers DO NOT destroy AC privilege.

Known or anticipated eavesdroppers DESTROY the privilege.

Question 166

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Client Definition

Answer 166

Includes any person (public officer, corp, or association - public or private) who is SEEKING professional legal services OR consulting w/ the possibility of obtaining legal services.

Question 167

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Lawyer Definition

Answer 167

Includes any person authorized or reasonably believed by the client to be authorized (ie disbarred attny, nonlawyer) to engage in the practice of law in any state or nation.
—> Extends to individuals who are furthering some purpose of the relationship or are hired by the attny to assist in the rendition of legal services.

Special consideration
—> If an attny sends the client to a dr, those statements made to the dr are not protected by the dr-patient privilege because treatment is not being sought by the client; however, they would still qualify as confidential communications under the AC privilege.

Question 168

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Waiver of AC Privilege (Rule 502)

Answer 168

Failure to assert a privilege in a timely manner usually results in waiver.

• –> Waiver of a privilege generally operates only as a partial waiver.
• –> Privilege waived only to extent to permit reasonable scrutiny of disclosed info by the opposing party.

Blanket/Total Waiver

• –> Results ONLY IF:
  (1) Waiver was intentional; and
  (2) Both the disclosed and undisclosed info concerns the same subject matter

Inadvertent Waiver

• –> Ct will NOT find waiver if:
  (1) the client did NOT intend to waive the privilege
  (2) the client took reasonable steps to protect the info; and
  (2) the client took timely steps to remedy the disclosure

Question 169

Privileges –> Privileges under Common Law: Attorney-Client Privilege - Work Product Doctrine

Answer 169

Mainly a discovery rule that permits refusal to provide docs in discovery.
—> Work product is material prepared by the attny in anticipation of litigation (docs, files, notes, thoughts, impressions).

Exception

• –> If the party seeking work product can show a substantial hardship and no other way of obtaining the evidence, then the work product is discoverable (must be provided).
• –> Whether the demand for the work product req’s disclosure is a preliminary question of law for the judge

Question 170

Privileges –> Privileges under Common Law: 5A Privilege Against Self-Incrimination - Derivative Use Immunity

Answer 170

Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person.
—> If granted, this bars assertion of the privilege.

Question 171

Privileges –> Privileges under Common Law: 5A Privilege Against Self-Incrimination - Use Immunity

Answer 171

Statements by the witness may not be used against them, but the pros does not agree that it will never prosecute, nor is the pros barred from using evidence obtained as a result of the statement.

• –> Narrow
• –> NOT suff to bar assertion of the privilege

Question 172

Witnesses –> In General: Oath or Affirmation

Answer 172

Rule 603- A witness must declare to testify truthfully by oath or affirmation “in a form calculated to awaken his conscience.”
—> If a witness refuses to take an oath for religious reasons (or an affirmation) the judge shall NOT allow the witness to testify

Question 173

Witnesses –> Impeachment: General

Answer 173

Impeachment is evidence which detracts from a witness’s credibility.

• –> Suggests witness should not be believed because the witness is a liar, is lying in the testimony, or is mistaken for any number of reasons.
• –> Impeachment evidence is ALWAYS relevant, even if beyond the scope of direct examination
• –> Credibility of witness may be attacked by any party, including the party calling the witness (Rule 607)

Question 174

Witnesses –> Impeachment: Rehabilitation

Answer 174

After a witness is impeached, evidence which detracts from the impeachment is admissible.

• –> No “bolstering” (evidence to enhance a witness’s credibility is NOT admissible until after the witness has been impeached)
• –> Need not rehabilitate by same method used to impeach

Methods of Rehabilitation

(1) Explain or deny
(2) Prior consistent statement
(3) Character evidence for truthfulness by reputation or opinion

Question 175

Witnesses –> Impeachment: Methods of Impeachment (3 I’s 4 C-ing)

Answer 175

I = Interest, motive, or bias
I = Incapacity to observe, recall, or relate
I = (Prior) Inconsistent Statement 
C = Character evidence for truthfulness by reputation or opinion
C = Character evidence for truthfulness by prior bad acts
C = (Prior) Conviction of crime
C = Contradiction (like PINS except other evidence or witnesses contradict)

Question 176

Witnesses –> Impeachment: Impeachment by Evidence of a Criminal Conviction - Crimes Involving Dishonesty or False Statement (Rule 609 [a][2])

Answer 176

Crimes involving dishonesty or false statement include both felonies and misdemeanors.
—> If 10 years old or less, admission to impeach is mandatory.

Examples (Admissible)
—> Perjury, forgery, theft specifically involving a lie (larceny by trick, false pretenses, embezzlement), criminal fraud, crimes involving deceit, untruthfulness, or falsification

Examples (Inadmissible)
—> Assault/battery, prostitution, DUI, poss of drugs, theft in general (not involving lie)

Question 177

Witnesses –> Examination of Witnesses: Impeachment by Contradiction

Answer 177

A witness can always be impeached w/ evidence that contradicts the witness’s testimony.
—> Similar to PINS, except it is not the witness’s own statement that contradicts the witness; rather, it’s other evidence or witnesses who contradict the witness’s testimony.

Extrinsic Evidence
—> EE of contradiction permitted unless it involves a collateral matter.

Question 178

Witnesses –> Examination of Witnesses: Impeachment by Religious Beliefs/Opinions

Answer 178

Rule 610 - Evidence of a witness’s religious beliefs are inadmissible to impeach or rehabilitate credibility.

Question 179

Witnesses –> Examination of Witnesses: Mode and Order of Examining Witnesses and Presenting Evidence - Leading Questions

Answer 179

Rule 611 [c] - Leading questions (questions suggesting an answer) generally NOT allowed on direct.

Except with:
—> Hostile witnesses, adverse witnesses, child witnesses, preliminary background info, and refreshing recollection of witness

Caveat
—> Where the examiner and the witness are on the same side of the case, leading questions are generally NOT allowed.

Question 180

Opinions and Expert Testimony –> Acceptable Testimony: Testimony by Expert Witnesses - Proper Subject Matter Req (Reliability of Scientific Tests)

Answer 180

Rule 104 [a] - TC acts as gatekeeper.

Daubert - Reliable means the science/expertise behind the opinion must be reliable and any tests or methods used must have been reliable and reliably applied.

Daubert Elements (TAPES)
T = Has the theory been tested? If so, how extensive?
A = General acceptance in the relevant community
P = Peer review regarding the scientific theory
E = Degree or rate of error
S = Standards 

Minority Rule (Frye test)
---> No elements, rather, only req's general acceptance of the test in the scientific community

Question 181

Hearsay –> Non-Hearsay Categories: Prior Statements of Witnesses - General

Answer 181

Besides a statement of a party opponent, 3 other types of prior witness statements are exempted from the exclusionary effect of the hearsay rule and are admissible as substantive evidence:

(1) Prior inconsistent statements made under oath in a ct-type proceeding
(2) Prior consistent statements offered to rebut an allegation of recent fabrication; and
(3) Statements of prior identification

To be exempted, all 3 req that the declarant must:

(1) testify at the trial or hearing; and
(2) be subject to cross-examination concerning the statement