Evidence Flashcards

Question

Documents --> Authentication: Handwriting

Answer 1

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!)

Answer 2

- --> 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.

Answer 3

Special Rules for Voice Authentication | ---> Opinion of person who has heard speaker at any time, even if familiarity is acq'd for the litigation.

Answer 4

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. 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

Answer 5

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.

Answer 6

An original includes either the original itself or a duplicate. ---> Duplicates are admissible so long as there is no issue w/ authenticity (BER). 3 substitutes for original: (1) duplicate (photocopy) (2) certified copy of public record (803 [8]) (3) summaries of voluminous records (1006)

Answer 7

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.

Answer 8

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

Answer 9

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

Answer 10

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.

Answer 11

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

Answer 12

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

Answer 13

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)

Answer 14

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

Answer 15

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)

Answer 16

Inability to observe, communicate, or remember. | ---> Extrinsic evidence is admissible

Answer 17

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.

Answer 18

The general rule is that evidence of a person's character/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.

Answer 19

A criminal D may offer evidence of the V'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.

Answer 20

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.

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

Answer 22

In any civil or crim proceeding involving alleged sexual misconduct, reputation and opinion evidence is generally inadmissible to prove: (1) that a V engaged in other sexual behavior; or (2) a V's sexual predisposition Exception (criminal and civil) In a crim case, the following evidence is admissible (absent other reasons for inadmissibility): (1) Evidence of spec instances of a V'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 V'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 USC rights In a civil case, the ct may admit evidence offered to prove a V'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 V's reputation is admissible only if the V has placed it in controversy.

Answer 23

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

Answer 24

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.

Answer 25

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 - ----> 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 crim 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 - ----> 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)

Answer 26

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

Answer 27

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).

Answer 28

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

Answer 29

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.

Answer 30

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

Answer 31

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.

Answer 32

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.

Answer 33

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

Answer 34

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)

Answer 35

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.

Answer 36

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

Answer 37

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

Answer 38

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)

Answer 39

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 docs are NOT privileged (bank records, deeds) Caveats (1) Fee arrangements are not privileged; neither are billing records.

Answer 40

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.

Answer 41

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

Answer 42

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).

Answer 43

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 No Privilege Situations 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)

Answer 44

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

Answer 45

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).

Answer 46

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

Answer 47

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

Answer 48

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

Answer 49

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

Answer 50

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 (PCS) (3) Character evidence for truthfulness by reputation or opinion (CE - RO)

Answer 51

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 ```

Answer 52

Statement --> A statement is a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. Declarant --> A declarant is the person who made a statement. Hearsay --> 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

Answer 53

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.

Answer 54

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.

Answer 55

1. State of Mind? 2. Effect on Listener? 3. Verbal Act or Words of Independent Legal Sig? 4. Impeachment? 5. Provide Context/Meaning?

Answer 56

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

Answer 57

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

Answer 58

Effect on listener statements are not hearsay as relevant based solely upon the fact said when offered to establish knowledge, notice, or awareness, etc., on the part of the listener. ----> Such knowledge, notice, or awareness, etc., is relevant when the probable state of mind of the listener is itself an issue.

Answer 59

Nonhearsay purpose of giving context to the defendant’s answers (ex: explaining the detective’s interview technique).

Answer 60

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.

Answer 61

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

Answer 62

Five Types: (1) Statement by a named party (2) Adoptive admission (either by words, conduct, or silence) - ----> 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 (3) Authorized admission - --> A statement by a party's agent or representative. - --> A principal authorizes agents to make statements or representations to third parties. (4) Employee admission; and - --> 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 (5) Co-conspirator's admission - --> 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.

Answer 63

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

Answer 64

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

Answer 65

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.

Answer 66

An admission by a party-opponent is an exception to the prohibition against hearsay evidence. ----> The exception applies to the party's own statements and any statements that were authorized or adopted by the party as well as certain statements made by an agent or coconspirator of the party.

Answer 67

Declarant Unavailable? 1) Dying Declaration? 2) Former Testimony? 3) Declaration Against Interest? Declarant Availability Immaterial? 1) Present Sense Impression? 2) Excited Utterance? 3) State of Mind? 4) Past Recollection Recorded? 5) Present Recollection Refreshed? 6) Business Records? 7) Medical Treatment?

Answer 68

A statement made by the declarant describing or 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

Answer 69

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)

Answer 70

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.

Answer 71

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.

Answer 72

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 LEO 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 Absence of Public Record 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.

Answer 73

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

Answer 74

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.

Answer 75

On direct examination, the examiner may jog a forgetful witness's memory. - --> If a writing is used 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)

Answer 76

Triggering Events (1) Privilege - ---> Assertion of a privilege (based on the judge's ruling whether the privilege applies) - ---> 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) Statement Offered Against a Party that Wrongfully Caused the Declarant's Unavailability - ----> 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.

Answer 77

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).

Answer 78

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

Answer 79

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.

Answer 80

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

Answer 81

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

Answer 82

JN is a substitute for proof where the ct accepts certain adjudicative facts as true w/o req'ing formal presentation of evidence. ----> JN is MANDATORY if req'd by a party and if necessary info 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.

Answer 83

(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)

Answer 84

When Raised Issues of JN may be raised for the first time either pretrial, during trial, or on appeal. Effect of jury instruction on JN - -> 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.

Answer 85

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

Answer 86

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.

Answer 87

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.

Answer 88

Burden on Who? The burden of going forward/producing evidence is on the P civilly, and on the prosecution criminally. How Much? 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)

Answer 89

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.