Evidence

Question 1

The Federal Rules of Evidence are applicable in all criminal and civil proceedings, except:

Answer 1

(1) Preliminary fact determinations by the judge; (2) Grand jury proceedings; (3) Other miscellaneous proceedings (sentencing, extradition, bail hearings, probation, etc.)

Question 2

Relevance asks…

Answer 2

Whether the evidence has any tendency to make the existence of a consequential fact more or less probable.

Material (proposition must be of consequence) + probative (makes fact more or less likely)

Question 3

What evidence is admissible under the FRE?

Answer 3

All relevant evidence is admissible, unless: (1) excluded by specific rule; or (2) court excludes by its discretion under FRE 403 balancing.

Relevance is a low bar to overcome – this is why most FRE are exclusionary rules.

Question 4

What is the FRE 403 balancing test?

Answer 4

The judge has the power to exclude relevant evidence if its probative value is substantially outweighed by risk of:

• (1) unfair prejudice (jury will decide case on emotional basis)
• (2) confusion of issues (evidence creates a side issue)
• (3) misleading the jury (danger jury will give undue weight to the evidence)
• (4) undue consumption of time (delay, waste of time, cumulative evidence)

Question 5

Is “unfair surprise” a valid ground for excluding relevant evidence?

Answer 5

No. FRE 403 allows for considerations of unfair prejudice, confusion of issues, misleading the jury, and undue time consumption. Unfair surprise is not a valid consideration.

Question 6

What is evidence of a prior similar occurrence? Is evidence of prior similar occurrences admissible?

Answer 6

Evidence of a prior similar occurrence – involves some time, place, or person other than those in the present case.

Generally not admissible. Probative value weak, risk factors outweigh easily.

Question 7

What are the exceptions to the general rule that prior similar occurrences are inadmissible?

Answer 7

(1) Plaintiff’s accident history – prior false claims; same bodily injury
(2) Similar accidents or injuries caused by same event/condition – under “substantially similar circumstances;” to show: existence of dangerous condition, causation, notice. _Absence of similar accident_s – admissible only to show lack of knowledge.
(3) Previous similar acts admissible to prove intent
(4) Sales of similar property – around same time, to prove property’s value (mere offers not admissible)
(5) To rebut a claim of impossibility – ex: to prove car can go 50mph, show instances where it did
(6) To show causation – ex: damage to nearby homes caused by X, so damage to P’s house also caused by X
(7) Habit or routine business practice – to prove person or organization acted in accordance
(8) Industry custom as evidence of standard of care – to show how party in present case should have acted; not conclusive (entire industry may be acting negligently)

Question 8

Why do we have public policy exclusions? What are they?

Answer 8

Public policy exclusions render relevant evidence inadmissible because society favors the behavior involved. Don’t want to dissuade people from these behaviors.

(1) Limited liability insurance
(2) Subsequent remedial measures
(3) Civil settlements and settlement negotiations
(4) Plea discussions
(5) Payments or offers to pay medical expenses

Question 9

Is evidence of liability insurance admissible?

Answer 9

Inadmissible to prove: negligence or other wrongful action.

Admissible to prove: (1) ownership or control; (2) impeachment (usually bias); (3) as part of an admission of liability (where reference to insurance coverage cannot be severed)

Question 10

Is evidence of subsequent remedial measures admissible?

Answer 10

Subsequent remedial measures include evidence of repairs or other precautionary measures taken after an injury.

Inadmissible to prove: negligence, culpable conduct, defect

Admissible to prove: (1) ownership or control; (2) rebut claim that precaution or repair was not feasible; (3) prove opposing party has destroyed evidence

Question 11

Is evidence of civil settlements and negotiations admissible?

Answer 11

Evidence of a compromise or settlement, or offer to compromise, covers all conduct and statements involved, including direct admissions of liability.

Inadmissible: (1) to prove or disprove the validity or amount of a disputed claim; (2) to impeach by prior inconsistent statement (bias okay).

*Note: Disputed claim requirement – there must be a claim, or some indication that a claim would be made, and it must actually be in dispute as to liability or amount.

Limited exception – civil negotiations with the government (or regulatory authority) are not excluded when offered in a criminal case.

Question 12

Are plea discussions admissible?

Answer 12

Plea discussions include: offers to plead guilty, statements in plea discussions, withdrawn guilty pleas, and no-contest pleas.

These are inadmissible.

Note: An actual guilty plea, that is not withdrawn, is admissible as a party admission.

Question 13

Are payments or offers to pay medical expenses admissible?

Answer 13

This evidence is inadmissible to prove liability.

• Note:* No disputed claim requirement – there need not be a claim or impending claim to exclude this evidence.
• Note:* Accompanying statements of fact are admissible. Unless, the offer to pay medical expenses is also a settlement offer (then, more restrictive rule for settlement negotiations applies).

Question 14

What is character evidence?

Answer 14

Evidence that refers to a person’s general propensity or disposition (ex: for honesty, fairness, peacefulness, violence).

Question 15

What are the three methods of introducing character evidence?

Answer 15

(1) Reputation testimony
(2) Opinion testimony
(3) Specific acts (most restricted)

Question 16

What rules govern character evidence in a criminal case?

Answer 16

Defendant’s character:

(1) D may introduce evidence of his own good character in case-in-chief – reputation or opinion evidence
(2) P may introduce evidence of D’s character when: (i) D “opens the door” – reputation, opinion, or specific acts (cross-examination of D’s witnesses only); (ii) non-propensity use (MIMIC); (iii) sexual assault or child molestation case

Victim’s character: (opinion and reputation evidence only)

(1) D may introduce if relevant to his innocence (i.e. self-defense case; sexual assault exception)
(2) P may rebut with: (i) evidence of defendant’s bad character for same trait; or (ii) evidence of victim’s good character for same trait.

Special rule: In homicide cases, where D pleads self-defense, evidence of any kind (not just character) showing that victim was initial aggressor “opens door” to introduce good victim character evidence.

Question 17

What rules govern character evidence in civil cases?

Answer 17

In civil cases, character evidence is generally not permitted.

Exceptions include:

(1) Where character is directly at issue – an essential element of claim or defense (ex: defamation, negligent hiring or entrustment, child custody)
(2) Similar specific acts in sexual assault or child molestation case
(3) Non-propensity uses (MIMIC)

Question 18

What rules govern character evidence in a sexual assault case?

Answer 18

Evidence of the victim’s past sexual behavior is generally inadmissible.

Criminal exceptions:

(1) Proof that someone other than D is source of semen, injury, or other physical evidence
(2) Prior instances between victim and D to prove consent

Civil exceptions:

(1) If probative value substantially outweighs danger of harm to victim.

Question 19

What are admissible non-propensity uses for character evidence? (also called “independently relevant”)

Answer 19

“MIMIC”

Motive – ex: burning a building to hide embezzlement

Intent – to show guilty knowledge or lack of good faith

Mistake (absence of)

Identity – “signature” crimes, modus operandi

Common plan or scheme – committing one crime to prepare for another

Question 20

What is real evidence? What does it require?

Answer 20

Real evidence – actual physical evidence addressed directly to the trier of fact.

Real evidence requires:

(1) Authentication – sufficient to support jury finding of genuineness. Methods: (i) witness testimony recognizing object as what proponent claims it is; or (ii) chain of custody.
(2) Condition of object – must be in substantially same condition at trial as it was at relevant time.

Question 21

What are the four types of real evidence?

Answer 21

(1) Direct – offered to prove facts about the object as an end in itself; ex: evidence of permanent injury shown by the injury itself
(2) Circumstantial – facts about object proved as the basis for an inference that other facts are true; ex: race of the child same as the alleged father, offered in paternity case
(3) Original – has some connection with transaction in question at trial; ex: alleged murder weapon
(4) Prepared – also called “demonstrative”; ex: sketches, models, jury view of scene (must illustrate, or conform to, substantially similar conditions as original event)

Question 22

What is the evidentiary standard for authentication?

Answer 22

Must have proof showing the item is what a proponent claims, sufficient to support a jury finding of genuineness.

Question 23

What are the methods of authentication for writings or recordings?

Answer 23

(1) Opponent’s admission – party against whom it is offered has admitted its authenticity, or acted upon it as if it were authentic
(2) Eyewitness testimony – someone who saw it executed or heard it acknowledged
(3) Handwriting verifications – (1) opinion of a lay witness familiar with writer’s handwriting in normal course of affairs (not for purpose of testifying); (2) opinion of expert who has compared samples; (3) finding of the jury upon comparison to samples
(4) Ancient documents – at least 20 years old, condition creates no suspicion as to authenticity, found in place where writing would likely be kept (Note: Different from hearsay AD exception, applies before 1998)
(5) Reply letter doctrine – evidence it was written in response to a communication sent to alleged author
(6) Photographs and videos – only if identified by witness as portrayal of facts relevant to the issue, and verified as fair and accurate representation of those facts (personal knowledge). Unattended camera – if operating properly and proof footage obtained from that camera.
(7) X-Rays, Electrocardiograms, etc. – cannot be authenticated by witness testimony; must be shown that process was accurate, machine working, operator qualified, and chain-of-custody established.

Question 24

What are the methods of authenticating oral statements?

Answer 24

(1) Voice identification – opinion of anyone who has heard the voice at any time, including after litigation has begun and for sole purpose of testifying
(2) Telephone conversations – any party to the call who testifies they: (1) recognized speaker’s voice; (2) speaker had knowledge of certain facts; (3) speaker answered phone number and identified themselves or their residence; (4) speaker who answered business’s phone spoke on business matters

Question 25

What are self-authenticating documents? Examples?

Answer 25

Some writings “prove themselves” without extrinsic evidence of authenticity. _Examples_: newspapers and periodicals; notarized documents; official publications; domestic public documents with seal; etc.

Question 26

What is the Best Evidence Rule?

Answer 26

To prove the content of a writing, recording, or photograph, the **original** must be produced _if its terms are material_. This only applies where: (1) the writing is ***a legally operative or dispositive instrument*** (the writing itself creates rights and obligations); or (2) ***a witness's knowledge of a fact comes from the writing*** (no personal knowledge otherwise). **Original** – writing itself, or counterpart intended to have same effect; includes negative of photographs, printouts of electronic information. **Duplicate** – exact copy of original *_made by mechanical means_*. \*Duplicates are admissible to same extent as originals, unless: (1) circumstances make it unfair; or (2) genuine questions as to authenticity of original. _Secondary evidence_ allowed if the original is unavailable for some reason other than serious misconduct of proponent (*ex:* loss or destruction, cannot be obtained by judicial process, possession by adversary who does not produce upon notice). If valid excuse, ***no*** “Second-Best Evidence” Rule – can prove contents by any type of secondary evidence.

Question 27

What are the exceptions to the Best Evidence Rule?

Answer 27

(1) Summaries of voluminous records – may present summary or chart (must still make originals available for inspection or copying) (2) Certified public records (3) Writing is collateral (minor importance) to litigated issue (4) Testimony or written admission of opponent

Question 28

Competency of witnesses

Answer 28

The FRE *_presumes witnesses to be competent_*. Subject to two requirements: (1) Personal knowledge of subject matter; and (2) Sworn oath or affirmation. No automatic disqualifications based on age (case-by-case) or insanity (if understand obligation, and have capacity to, tell the truth).

Question 29

Are judges and jurors competent witnesses?

Answer 29

Not with regard to the present case. Jurors are also prohibited from testifying in the future about what occurred during deliberations, or anything that may have affected a juror's vote. *Note:* With regard to i_nquiry into verdict or indictment_, jurors may testify to: (1) extraneous prejudicial information improperly brought to jury's attention; (2) outside influence; (3) mistake in verdict form; (4) clear statement that a juror relied on racial stereotypes or animus to convict criminal defendant.

Question 30

Dead Man Statutes

Answer 30

Not recognized by the federal rules → only by state statutes (may be applied under *Erie* doctrine). DMS – bar an interested person from testifying in a civil case as to a communication with a deceased, if that testimony is offered against a representative of the deceased. “Interested” if party stands to gain or lose by the judgment, or judgment may be used against them in subsequent action.

Question 31

Leading questions

Answer 31

\*Judge ultimately has discretion to control questioning LQs – questions that **suggest the desired answer**. Generally allowed **only on cross-examination**, not direct. _Exceptions_: (1) To elicit preliminary or introductory matters (2) Witness needs help responding (loss of memory, immaturity, physical or mental weakness) (3) Witness is hostile, an adverse party, or affiliated with adverse party

Question 32

Scope of cross-examination

Answer 32

Usually limited to: (1) scope of direct examination (including all reasonable inferences that may be drawn); (2) matters that test credibility of the witness

Question 33

Can a witness use documents to aid oral testimony?

Answer 33

_General rule_: Witness **cannot read** from a prepared memorandum; must testify on basis of current recollection. _Exceptions_: (1) Refreshing Recollection; and (2) Recorded Recollection. **Refreshing Recollection:** Witness may use any writing or object to refresh recollection on the stand, but may not read from the writing while testifying (not authenticated, not on evidence). *Adverse party entitled to:* Have the writing produced at trial; cross-examine witness about the writing; introduce portions of the writing relevant to witness's testimony into evidence. **Recorded Recollection:** If witness has insufficient recollection, even after attempt to refresh, the record itself may be read into evidence if a proper foundation is laid. *Foundation must include proof that:* Witness has insufficient recollection; witness had personal knowledge when record made; record made by witness, or under their direction, or adopted by W; record made when matter fresh in W's mind; W vouches for accuracy. ***Note:*** Record may be read into evidence and heard by jury, but *_cannot be admitted as exhibit_* unless offered by adverse party.

Question 34

Opinion testimony by lay witnesses

Answer 34

Generally inadmissible. Admissible only where _no better evidence can be obtained_, and: (1) rationally based on witness's perception; (2) helpful to jury; and (3) not based on scientific or technical knowledge. *Ex:* General appearance or condition of a person, state of emotion, speed of moving object, intoxication, rational or irrational nature of another's conduct. _Not admissible_: Legal conclusions – opinions as to whether someone acted as an agent, or whether a contract was made.

Question 35

Opinion testimony by expert witnesses

Answer 35

(1) **Is subject matter one where expert testimony would assist trier of fact?** (relevant and reliable) Court is the gatekeeper on reliability – *Daubert* test (TRAP): (1) Testing of principle or methodology; (2) Rate of error; (3) Acceptance by experts in same discipline; (4) Peer review and publication. (2) **Is expert qualified on subject?** Special knowledge, skill, experience, training, or education. (3) **Does expert possess reasonable probability regarding opinion?** Not mere guess or speculation. (4) **Is opinion supported by proper factual basis?** _Acceptable bases include_: personal observation, facts made known at trial, facts supplied outside courtroom of a type reasonably relied upon by experts in the field (need not be admissible; need not disclose on direct examination) ***Note:*** In a criminal case, where defendant's mental state constitutes an element of the crime or defense, expert may _not_ state an opinion as to whether accused possessed that mental state.

Question 36

Learned treatises

Answer 36

Relevant excerpt can be used during expert testimony; may be used to impeach, or to provide substantive evidence. _Limitations_: (1) Treatise must be established as reliable authority by: (i) testimony of expert on the stand; (ii) testimony of another expert; or (iii) judicial notice. (2) Must be used in the context of expert testimony. (3) Can be read into evidence but not received as an exhibit

Question 37

Exclusion of witnesses

Answer 37

Upon a party's request, judge _must_ order witnesses excluded from the courtroom. Judge can also do *sua sponte*. A judge may not exclude: (1) a party, or a designated officer or employee of party; (2) a person whose presence is essential to presentation of a party's claim or defense; (3) a person statutorily authorized to be present.

Question 38

Can the court call its own witnesses? Can it cross-examine party witnesses?

Answer 38

Yes and yes. Each party is entitled to cross-examine any witnesses called by the court. A party may object to a court's examining or calling a witness immediately, or at next available opportunity when jury not present.

Question 39

What is impeachment?

Answer 39

Impeachment is discrediting a witness.

Question 40

Can a party impeach its own witness?

Answer 40

Yes. Old common law rule no longer applies. Parties may attack credibility of any witness, including its own.

Question 41

Can you accredit or bolster the testimony of a witness absent impeachment?

Answer 41

Generally, no – you cannot attempt to strengthen witness credibility **before** that credibility is attacked. Rehabilitation (after attack) is permissible. ## Footnote _Exceptions_: Evidence that a witness made timely complaint (*ex:* in a sexual assault case); prior statements of identification

Question 42

_Impeachment method_: Prior inconsistent statement. What is it? How to introduce?

Answer 42

Evidence that the witness has, on another occasion, made statements inconsistent with present testimony. _May introduce by_: **cross-examination** or **extrinsic evidence** (proper foundation must be laid, and the statement must be relevant to ***material*** issue in case). To lay foundation for EE: (1) witness must have opportunity to explain or deny statement; (2) adverse party given opportunity to examine witness about the statement. _Exceptions_ to foundation requirement: (1) PIS is opposing party's statement; (2) hearsay declarant; (3) where justice requires.

Question 43

Can a prior inconsistent statement, used for purposes of impeachment, also come in for its truth as substantive evidence?

Answer 43

Only if the prior statement was made under oath at a prior proceeding.

Question 44

If a witness omits a fact that was included in a prior statement – is that an inconsistency for purposes of impeachment?

Answer 44

It may be, only if it would have been natural to include that fact. _On the other side_: A witness's *present* lack of memory is generally not inconsistent with a prior statement relating that fact.

Question 45

_Impeachment method_: Bias What is it? How to introduce?

Answer 45

Evidence that a witness is biased, or has an interest in the outcome of the case – implying has motive to lie. _May introduce by_: **cross-examination** or **extrinsic evidence** (*_only if_* witness is first asked on cross). Even if witness admits bias on cross, doesn't preclude admission of EE.

Question 46

_Impeachment method_: Sensory deficiencies What is it? How to introduce?

Answer 46

Evidence that witness's faculties of perception or recollection make it doubtful they could have perceived or recalled those facts; or, no personal knowledge of the facts. *Ex:* bad hearing or eyesight, poor memory, consumption of alcohol or drugs at time of event _May introduce by_: **cross-examination** or **extrinsic evidence** (no foundation requirement; witness need not be confronted with impeaching fact).

Question 47

_Impeachment method_: Contradictory facts What is it? How to introduce?

Answer 47

Can try on cross-examination to make a witness admit that they lied or were mistaken about some fact they testified to during direct. If witness admits lie or mistake → impeached by contradiction If witness sticks to story → extrinsic evidence permitted to prove contradictory fact ***only if*** fact is **material** (if collateral, no EE)

Question 48

_Impeachment method_: Opinion or reputation evidence of untruthfulness What is it? How to introduce?

Answer 48

Introduce character witness to testify as to the target witness's bad character for truthfulness. No specific acts permitted.

Question 49

_Impeachment method_: Prior conviction of a crime What is it? How to introduce? What types of crimes admissible?

Answer 49

Proof of a **conviction** (arrest or indictment are insufficient) for certain crimes. _May introduce by_: **cross-examination** or **extrinsic evidence** (no foundation requirement). _Types of crimes_: (1) Any crime (felony or misdemeanor) involving **dishonesty or false statement** – no discretion to exclude (2) Any other **felony** – court has discretion. *Balancing test:* (i) criminal witness (probative value outweighs prejudicial effect; favors exclusion); (ii) any other witness (403 balancing test; favors admission). _Limit on remoteness_: Must be within 10 years of date of conviction or release from confinement (whichever is later). *Note:* May admit in extraordinary circumstances (inverse 403 test + notice).

Question 50

May evidence of a pardoned crime be used to impeach?

Answer 50

A pardoned conviction may **not** be used to impeach ***if:*** (1) pardon based on rehabilitation and witness not convicted of a subsequent felony; or (2) pardon based on innocence.

Question 51

_Impeachment method_: Prior bad acts of untruthfulness What is it? How to introduce?

Answer 51

May be interrogated on cross-examination with respect to an act of misconduct, if the act is probative of truthfulness (involves deceit or lying). **No extrinsic evidence** is allowed. _Other limitations_: (1) Cross-examiner must have good-faith belief that W committed the misconduct. (2) Cross-examiner cannot refer to any consequences resulting from bad act. *Note:* May **not** inquire about ***arrests***. An arrest itself is not a bad act.

Question 52

Can a party impeach a hearsay declarant?

Answer 52

Yes. The credibility of a hearsay declarant may be attacked by evidence that would be admissible if declarant had testified as a witness. HD need not be given the opportunity to explain or deny a prior inconsistent statement.

Question 53

What are the methods of rehabilitation? (after witness impeached)

Answer 53

(1) **Explanation on redirect** – may explain or clarify facts brought out on cross (2) **Good character for truthfulness** – when character for truthfulness was attacked; no specific acts (3) **Prior consistent statement** – when charged with lying or exaggerating because of some motive, and prior consistent statement pre-dates the alleged motive; or when witness impeached on other non-character ground (inconsistency, faulty memory, etc.) * Note:* Rehabilitation must meet the attack. If impeached for bad eyesight, cannot rehabilitate with good character for truthfulness.

Question 54

What is hearsay?

Answer 54

An out-of-court statement, intended as an assertion, intended to prove the truth of the matter asserted.

Question 55

What is hearsay within hearsay?

Answer 55

An out-of-court statement that incorporates other hearsay within it. It is admissible only if both the “outer" and “inner” hearsay statements fall within an exception.

Question 56

What is a “statement” with regard to hearsay?

Answer 56

* Oral or written assertion * Nonverbal conduct intended as an assertion * Made by a human – no machines or animals

Question 57

How to determine if a statement is being offered for its truth? (hearsay)

Answer 57

_Ask_: Are we relying on the declarant's credibility? Does it matter whether the declarant is telling the truth? If not → no hearsay

Question 58

What are the four common non-hearsay uses? (statement not offered for its truth)

Answer 58

(1) **Verbal acts** – *ex:* entering a contract, getting married, defamatory words (2) **Effect on the reader or listener** – *ex:* to prove notice in a negligence case (3) **Circumstantial evidence of declarant's state of mind** – *ex:* to prove knowledge, insanity, fear (child custody) (4) **Impeachment**

Question 59

_Non-hearsay exclusion_: Statement of party opponent Definition? What are the three types?

Answer 59

Statement **attributable** to a party and **offered against** that party. (1) _Judicial and extrajudicial statements_ – ***formal*** (pleadings, stipulations) are conclusive, can't be contradicted; ***informal*** (testimony or out-of-court) are not conclusive, can be explained. (2) _Adoptive statements_ – party adopts expressly, impliedly, or by silence. *Silence requirements*: (i) heard and understood statement; (ii) capable of denying statement; (iii) a reasonable person would have denied under the circumstances. (3) _Vicarious statements_ – attributable because of relationship to party. *Ex:* agents and employees, partners, co-conspirators, etc.

Question 60

_Non-hearsay exclusion_: What kind of relationships can create admissions by a party opponent based on vicarious statements? What do these require?

Answer 60

* **Authorized spokespersons** * **Agents and employees** – if: (1) concerned matter within scope of a/e; and (2) statement made during existence of a/e relationship * **Partners** – if statement relates to matters within scope of partnership * **Co-conspirators** – statements made *in furtherance of* conspiracy * Privies in title and joint tenants – state courts only *Note:* Statements of _co-parties_ are ***not*** vicarious statements – insufficient relationship.

Question 61

_Non-hearsay exclusion_: Prior inconsistent statement of testifying witness

Answer 61

Admissible as substantive evidence when prior statement made under oath at a prior proceeding or deposition.

Question 62

_Non-hearsay exclusion_: Prior consistent statement of testifying witness

Answer 62

Admissible in certain circumstances when offered to rehabilitate impeached witness.

Question 63

_Non-hearsay exclusion_: Statements of identification by testifying witness

Answer 63

Admissible as non-hearsay, even if witness does not remember making the identification.

Question 64

_Hearsay exception_: Former testimony Requirements? Availability?

Answer 64

Declarant must be **unavailable**. Party against whom testimony is offered must have been a party in the former action – had similar opportunity and motive to develop declarant's testimony at prior proceeding. GJ testimony not admissible – no cross-examination.

Question 65

_Hearsay exception_: Statement against interest Requirement? Availability?

Answer 65

Declarant must be **unavailable**. HD must have known at the time that the statement was _against her interest_, such that a reasonable person would only have made it if they believed it to be true. _Interest_: pecuniary (money), proprietary (property), or penal (criminal). *Note:* In a criminal case, a statement against penal interest must be corroborated.

Question 66

_Hearsay exception_: Dying declaration

Answer 66

Declarant must be **unavailable**. Admissible *only* in **homicide** and **civil cases**. No attempted homicide. _Requirements_: (1) HD believed their death was imminent (need not actually have died); (2) Statement concerned the cause or circumstances of what HD believed to be their impending death (based on perceptions and first-hand knowledge).

Question 67

_Hearsay exception_: Statement of personal or family history Requirements? Availability?

Answer 67

Declarant must be **unavailable**. HD must be member of family or intimately associated with it. Statement must be based on personal knowledge, or knowledge of family reputation. *Ex:* Regarding births, marriages, divorces, relationships, genealogical status

Question 68

_Hearsay exception_: Statement against party procuring availability Requirements? Availability?

Answer 68

Declarant must be **unavailable.** Statement of HD is admissible against a party who procured HD's unavailability by _deliberate wrongdoing_ (to prevent testimony).

Question 69

When is a hearsay declarant unavailable?

Answer 69

* Unable to testify due to death, or physical or mental illness * Exempt based on privilege * Refuses to testify despite court order * Testify that they do not remember the subject matter * Are absent and beyond the reach of a subpoena *Note:* If able to give deposition testimony in lieu of attending trial – available.

Question 70

Excited utterance

Answer 70

Hearsay exception where **unavailability is immaterial**. Statement relates to a startling event, made while under stress of excitement from the event.

Question 71

Present sense impression

Answer 71

Hearsay exception where **unavailability is immaterial**. Statement describes or explains an event or condition, made while or immediately after declarant perceives it.

Question 72

Then-existing state of mind, emotion, or sensation

Answer 72

Hearsay exception where **unavailability is immaterial**. Statement that evidences declarant's then-existing state of mind, or their emotional, sensory, or physical condition. No statements of memory or belief. This includes _statements of intent_ – what HD intends to do in the future, including engaging in conduct with another person.

Question 73

Statements for purposes of medical diagnosis or treatment

Answer 73

Hearsay exception where **unavailability is immaterial**. Statement that describes medical history, past or present symptoms, or their inception or general cause, if made for medical diagnosis or treatment. Includes statements of past condition. Does ***not include*** _victim identification statements_ (not made for purposes of medical treatment).

Question 74

Business records

Answer 74

Hearsay exception where **unavailability is immaterial**. Any writing or record made as a memo of an act, event, condition, opinion, or diagnosis, if: (1) made in the regular course of business; (2) made near time of event; (3) made with personal knowledge of the entrant, or of someone with duty to transmit such matters to the entrant. Authenticity must be established by a _sponsoring witness_.

Question 75

Official records

Answer 75

Hearsay exception where **unavailability is immaterial**. Made within scope of duty of public employee, and made at or near time of event. Records setting forth activities of office or agency, recordings of matters observed pursuant to duty imposed by law, etc. _Excludes_: Records detailing ***police observations*** in criminal cases. Public records and reports are generally inadmissible against the defendant in a criminal case.

Question 76

Ancient documents (hearsay exception)

Answer 76

Statements in any authenticated document prepared before January 1, 1998 are admissible.

Question 77

Hearsay and the Confrontation Clause

Answer 77

6A – right of criminally accused to confront their accusers. Hearsay statement offered against the accused are barred in a criminal case, even if within an exception, if: (1) Declarant is **unavailable**; (2) Statement is “**testimonial**" in nature; and (3) Accused had **no opportunity to cross-examine** statement prior to trial. “**Testimonial**” – made in course of police investigation with primary purpose to establish facts potentially relevant to later criminal prosecution; affidavits or written reports of forensic analysis. _Excludes_: Statements to assist with ongoing emergency (non-testimonial).

Question 78

Privilege is waived by:

Answer 78

* Failure to claim the privilege * Voluntary disclosure of the privileged matter by the privilege-holder (not destroyed by “eavesdropper”) * A contractual provision waiving in advance the right to claim privilege

Question 79

Attorney-client privilege

Answer 79

Federal privilege. Protects **confidential communications** between A &C (or reps) during professional legal consultation (payment irrelevant). Client holds the privilege. Termination of relationship does not terminate privilege (survives even death).

Question 80

_Attorney-client privilege_: Joint clients

Answer 80

Communications are privileged as to third parties, but the privilege does not apply between clients with a common interest who consult the same attorney.

Question 81

_Attorney-client privilege_: Corporate clients

Answer 81

Corporation is the client. Statements made by corporate officials or employees are protected ***if*** authorized or directed by corporation to make such statements.

Question 82

_Attorney-client privilege_: When is it non-applicable?

Answer 82

* Seeking legal advice in furtherance of a crime or fraud * Dispute between attorney and client (breach of duty) * Client puts legal services at issue

Question 83

Marital privileges

Answer 83

Federal privileges. (1) **Spousal immunity** – privilege not to testify Only in _criminal_ cases. Privilege belongs to the witness-spouse. Can only be asserted _during_ marriage. (2) **Marital communications privilege** – protects communications only Both civil and criminal cases. Privilege applies to _both spouses_. Communication must have been made during the marriage (in reliance on intimacy of relationship), but divorce does not terminate retroactively.

Question 84

_Marital privileges_: Exceptions (not applicable)

Answer 84

* Legal actions between spouses * Cases involving crimes against either spouse's children * In furtherance of a joint crime or fraud

Question 85

Besides attorney-client and marital communications, what are the other federal privileges?

Answer 85

* Psychotherapist / social worker - client (similar to attorney-client; not applicable where patient puts medical condition at issue in case) * Clergy-penitent privilege * Privilege against self-incrimination (5A) * Governmental privileges

Question 86

Physician-patient privilege

Answer 86

**State** privilege (majority recognize). Information must be acquired *_while professional relationship exists*_, for the _*purpose of diagnosis and treatment*_, and be _*necessary_* for diagnosis and treatment. Privilege belongs to the **patient**. _Not applicable where_: Dispute between physician and patient, patient puts physical condition at issue, physician's assistance sought to aid wrongdoing, patient contracted to waive privilege

Question 87

Burden of production

Answer 87

Producing evidence sufficient to make out a ***prima facie case*** – creating a legal issue for the trier of fact. Party who has burden of pleading (i.e. plaintiff) usually has burden of production. Once this burden is satisfied, other side comes forward to rebut accepted evidence.

Question 88

Burden of persuasion

Answer 88

Arises after parties have sustained burdens of production. Standard applicable for trier of fact's persuasion. _Civil cases_ – generally **preponderance of the evidence** (more probably true than not); sometimes **clear and convincing evidence** (high probability) _Criminal cases_ – **beyond a reasonable doubt**

Question 89

Preliminary questions of admissibility decided by the jury?

Answer 89

Whether evidence is relevant at all. *Ex:* whether evidence is authentic, whether person acting as party's agent, whether witness has personal knowledge

Question 90

Preliminary questions of admissibility decided by the judge?

Answer 90

Decides facts affecting the competency of the evidence. Ex: If witness is mentally competent, whether privilege exists, whether meets requirements of hearsay

Question 91

What is judicial notice?

Answer 91

Recognition of a fact as true without the formal presentation of evidence. For facts that are not subject to reasonable dispute. Judicially noticed facts are ***conclusive*** in a civil case (binding on the jury), but **not** in a criminal case.

Question 92

_Judicial notice_: adjudicative vs. legislative facts

Answer 92

Adjudicative facts – Those relating to the particular case Legislative facts – Those relating to legal reasoning and lawmaking

Question 93

What is the rule of completeness?

Answer 93

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require immediate introduction of any other part of the statement (or related statement), that ought *_in fairness_* be considered at the same time.

Question 94

What is limited admissibility?

Answer 94

Evidence may be competent for one purpose, or against one party, but not for or against another. Upon a party's request, the judge *must* issue a _limiting instruction_, telling the jury the proper scope of consideration for the evidence. However, the party must request this (and there are reasons it may not want to – i.e. calling undue attention to the evidence).