Evidence Flashcards
The Federal Rules of Evidence are applicable in all criminal and civil proceedings, except:
(1) Preliminary fact determinations by the judge; (2) Grand jury proceedings; (3) Other miscellaneous proceedings (sentencing, extradition, bail hearings, probation, etc.)
Relevance asks…
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)
What evidence is admissible under the FRE?
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.
What is the FRE 403 balancing test?
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)
Is “unfair surprise” a valid ground for excluding relevant evidence?
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.
What is evidence of a prior similar occurrence? Is evidence of prior similar occurrences admissible?
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.
What are the exceptions to the general rule that prior similar occurrences are inadmissible?
(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)
Why do we have public policy exclusions? What are they?
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
Is evidence of liability insurance admissible?
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)
Is evidence of subsequent remedial measures admissible?
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
Is evidence of civil settlements and negotiations admissible?
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.
Are plea discussions admissible?
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.
Are payments or offers to pay medical expenses admissible?
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).
What is character evidence?
Evidence that refers to a person’s general propensity or disposition (ex: for honesty, fairness, peacefulness, violence).
What are the three methods of introducing character evidence?
(1) Reputation testimony
(2) Opinion testimony
(3) Specific acts (most restricted)
What rules govern character evidence in a criminal case?
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.
What rules govern character evidence in civil cases?
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)
What rules govern character evidence in a sexual assault case?
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.
What are admissible non-propensity uses for character evidence? (also called “independently relevant”)
“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
What is real evidence? What does it require?
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.
What are the four types of real evidence?
(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)
What is the evidentiary standard for authentication?
Must have proof showing the item is what a proponent claims, sufficient to support a jury finding of genuineness.
What are the methods of authentication for writings or recordings?
(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.
What are the methods of authenticating oral statements?
(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
What are self-authenticating documents? Examples?
Some writings “prove themselves” without extrinsic evidence of authenticity.
Examples: newspapers and periodicals; notarized documents; official publications; domestic public documents with seal; etc.
What is the Best Evidence Rule?
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.
What are the exceptions to the Best Evidence Rule?
(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
Competency of witnesses
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).
Are judges and jurors competent witnesses?
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.
Dead Man Statutes
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.
Leading questions
*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
Scope of cross-examination
Usually limited to: (1) scope of direct examination (including all reasonable inferences that may be drawn); (2) matters that test credibility of the witness
Can a witness use documents to aid oral testimony?
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.
Opinion testimony by lay witnesses
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.
Opinion testimony by expert witnesses
(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.
Learned treatises
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
Exclusion of witnesses
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.
Can the court call its own witnesses? Can it cross-examine party witnesses?
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.
What is impeachment?
Impeachment is discrediting a witness.
Can a party impeach its own witness?
Yes.
Old common law rule no longer applies. Parties may attack credibility of any witness, including its own.
Can you accredit or bolster the testimony of a witness absent impeachment?
Generally, no – you cannot attempt to strengthen witness credibility before that credibility is attacked. Rehabilitation (after attack) is permissible.
Exceptions: Evidence that a witness made timely complaint (ex: in a sexual assault case); prior statements of identification
Impeachment method: Prior inconsistent statement.
What is it? How to introduce?
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.
Can a prior inconsistent statement, used for purposes of impeachment, also come in for its truth as substantive evidence?
Only if the prior statement was made under oath at a prior proceeding.
If a witness omits a fact that was included in a prior statement – is that an inconsistency for purposes of impeachment?
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.
Impeachment method: Bias
What is it? How to introduce?
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.
Impeachment method: Sensory deficiencies
What is it? How to introduce?
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).
Impeachment method: Contradictory facts
What is it? How to introduce?
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)
Impeachment method: Opinion or reputation evidence of untruthfulness
What is it? How to introduce?
Introduce character witness to testify as to the target witness’s bad character for truthfulness.
No specific acts permitted.
Impeachment method: Prior conviction of a crime
What is it? How to introduce? What types of crimes admissible?
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).
May evidence of a pardoned crime be used to impeach?
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.
Impeachment method: Prior bad acts of untruthfulness
What is it? How to introduce?
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.
Can a party impeach a hearsay declarant?
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.
What are the methods of rehabilitation? (after witness impeached)
(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.
What is hearsay?
An out-of-court statement, intended as an assertion, intended to prove the truth of the matter asserted.
What is hearsay within hearsay?
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.
What is a “statement” with regard to hearsay?
- Oral or written assertion
- Nonverbal conduct intended as an assertion
- Made by a human – no machines or animals
How to determine if a statement is being offered for its truth? (hearsay)
Ask: Are we relying on the declarant’s credibility? Does it matter whether the declarant is telling the truth?
If not → no hearsay
What are the four common non-hearsay uses? (statement not offered for its truth)
(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
Non-hearsay exclusion: Statement of party opponent
Definition? What are the three types?
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.
Non-hearsay exclusion: What kind of relationships can create admissions by a party opponent based on vicarious statements? What do these require?
- 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.
Non-hearsay exclusion: Prior inconsistent statement of testifying witness
Admissible as substantive evidence when prior statement made under oath at a prior proceeding or deposition.
Non-hearsay exclusion: Prior consistent statement of testifying witness
Admissible in certain circumstances when offered to rehabilitate impeached witness.
Non-hearsay exclusion: Statements of identification by testifying witness
Admissible as non-hearsay, even if witness does not remember making the identification.
Hearsay exception: Former testimony
Requirements? Availability?
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.
Hearsay exception: Statement against interest
Requirement? Availability?
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.
Hearsay exception: Dying declaration
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).
Hearsay exception: Statement of personal or family history
Requirements? Availability?
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
Hearsay exception: Statement against party procuring availability
Requirements? Availability?
Declarant must be unavailable.
Statement of HD is admissible against a party who procured HD’s unavailability by deliberate wrongdoing (to prevent testimony).
When is a hearsay declarant unavailable?
- 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.
Excited utterance
Hearsay exception where unavailability is immaterial.
Statement relates to a startling event, made while under stress of excitement from the event.
Present sense impression
Hearsay exception where unavailability is immaterial.
Statement describes or explains an event or condition, made while or immediately after declarant perceives it.
Then-existing state of mind, emotion, or sensation
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.
Statements for purposes of medical diagnosis or treatment
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).
Business records
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.
Official records
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.
Ancient documents (hearsay exception)
Statements in any authenticated document prepared before January 1, 1998 are admissible.
Hearsay and the Confrontation Clause
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).
Privilege is waived by:
- 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
Attorney-client privilege
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).
Attorney-client privilege: Joint clients
Communications are privileged as to third parties, but the privilege does not apply between clients with a common interest who consult the same attorney.
Attorney-client privilege: Corporate clients
Corporation is the client.
Statements made by corporate officials or employees are protected if authorized or directed by corporation to make such statements.
Attorney-client privilege: When is it non-applicable?
- Seeking legal advice in furtherance of a crime or fraud
- Dispute between attorney and client (breach of duty)
- Client puts legal services at issue
Marital privileges
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.
Marital privileges: Exceptions (not applicable)
- Legal actions between spouses
- Cases involving crimes against either spouse’s children
- In furtherance of a joint crime or fraud
Besides attorney-client and marital communications, what are the other federal privileges?
- 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
Physician-patient privilege
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
Burden of production
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.
Burden of persuasion
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
Preliminary questions of admissibility decided by the jury?
Whether evidence is relevant at all.
Ex: whether evidence is authentic, whether person acting as party’s agent, whether witness has personal knowledge
Preliminary questions of admissibility decided by the judge?
Decides facts affecting the competency of the evidence.
Ex: If witness is mentally competent, whether privilege exists, whether meets requirements of hearsay
What is judicial notice?
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.
Judicial notice: adjudicative vs. legislative facts
Adjudicative facts – Those relating to the particular case
Legislative facts – Those relating to legal reasoning and lawmaking
What is the rule of completeness?
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.
What is limited admissibility?
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).
