Evidence Flashcards
Character evidence is
Documentary evidence or testimony offered to prove that a person acted in conformity with a particular character trait
Character evidence is inadmissible when
Offered to prove propensity (with certain exceptions)
Impeachment evidence is
Evidence that proves the witness is not credible for some reason or another
Hearsay is
Any statement made outside the court proceeding that is being offered to prove the content of the statement
Most commonly made objections
OPRAH Original Writing Rule Privilege Relevancy Authentication Hearsay
Definition of hearsay “statement”
- oral or written assertion
- conduct intended as an assertion
Has to be a human statement, not one by an animal or a machine
Hearsay: difference between assertive and nonassertive conduct
Assertive conduct is conduct intended as a substitute for words.
When it is offered for its truth, such a statement can be hearsay (nod, wink, smirk)
Nonassertive conduct is conduct NOT intended as a statement or assertion (fleeing, staggering)
It is not hearsay because it is not a statement
Adoptive Admission by Silence elements
- a party hears and understands an accusation against him
- the party is capable of denying it
- A reasonable person would have denied the accusation if it was untrue
Admission by party-opponent
- statement is by or attributable to a party
- personal knowledge of facts NOT required
- statement need NOT have been against interest when made
- declarant need NOT be unavailable
Declarations Against Interest
- declarant need NOT be a party
- personal knowledge of facts required
- statement must have been against interest when made
- declarant MUST be unavailable
6A right to confront applies in
Criminal cases only
Present sense impression
A statement that describes or explains an event or condition, made while the declarant is perceiving the event or condition or immediately thereafter
No time to lie!
“unexcited utterance”
3 forms of character evidence
- reputation testimony
- opinion testimony
- specific acts
Character evidence in CIVIL cases
- INADMISSIBLE to prove the person acted in conformity with the trait
- exception: ADMISSIBLE when character is “in issue” (essential element of a cause of action, claim or defense) (all three forms admissible)
Civil causes of action where character is in issue
Defamation (as to P) Child custody (as to parents) Negligent entrustment (as to trustee) Negligent hiring (as to ee)
4 main impeachment methods
- bias
- sensory defects
- prior inconsistent statements (PINS)
- character
Bias material or collateral?
Always material, never collateral
The collateral matter rule (extrinsic evidence on collateral matters is inadmissible to impeach) never applies to bias
Prior inconsistent statements
Usually admissible only to impeach
Extrinsic evidence may be introduced if a foundation is laid (witness given opportunity to explain or deny the statement)
If the PINS is sworn (under oath at trial, depo, or other proceeding) or falls within another hearsay exemption or exception, it is also admissible as substantive evidence AND to impeach
If a party makes a PINS, that is an admission, don’t need to worry about PINS rules, admissible substantively and to impeach as hearsay exception
Character impeachment – 4 methods
- reputation or opinion testimony
- bad act impeachment
- felony convictions
- conviction of crimes involving dishonesty or false statement
Bad act impeachment requirements
- in the form of a question
- on cross-exam
- inquires into prior unconvicted acts of misconduct bearing on truthfulness
May NOT be proven by extrinsic evidence
Felony conviction for impeachment requirements
- felony not involving dishonesty/false statement
- 10-year time limit
- court has discretion to exclude (balancing test)
Conviction involving dishonesty/false statement for impeachment requirements
- any crime involving dishonesty or false statement
2. automatically admissible (no balancing test, unless more than 10 years old)
Excited Utterance elements
- statement that relates to a startling event
- made while the declarant was under the stress of the excitement
- excitement must have been caused by the startling event
- personal knowledge by the declarant is required
Dying Declaration elements
(CUBA)
Concern: statement must concern the cause or circumstances of death
Unavailable: declarant must be unavailable
Belief: declarant must have believed that death was imminent
Any: dying declaration may arise in any civil case or criminal homicide case
Ways to constitute unavailability under 804(a)
PRISM
- Privilege: court rules that a privilege applies
- Refusal: to testify
- Incapacity: due to death, illness, or injury
- Subpoena: failure to comply with/beyond the reach of
- Memory: lack of memory
Definition of relevance
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence
Rule 403- Judge has broad discretion to exclude relevant evidence if
Probative value is substantially outweighed by the danger of:
Unfair prejudice
Confusion
Misleading the jury (jury will give undue weight to the evidence)
Undue delay
Waste of time
Needlessly cumulative
(this list is exhaustive and does NOT include unfair surprise)
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:
(1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident)
Absence of similar accidents is admissible to show
D’s lack of knowledge of the danger
A party’s similar conduct may be admissible to show
Intent in the current case
Sales of comparable property admissible to prove
Property’s value
prices quoted in mere offers, not sales, not admissible
Evidence of a person’s habit (or evidence of the routine practice of an organization) is admissible
as circumstantial evidence that the person (or organization) acted in accordance with the habit on the occasion at issue in the case
Habit definition
describes a person’s regular response to a specific set of circumstances. 2 defining characteristics of habit: (1) frequency of conduct and (2) particularity of circumstances
Distinguish habit evidence from character evidence
Routine of toothbrushing (habit) versus reputation for cleanliness (character)
Industry custom may be admissible to show
Standard of care
not conclusive on this point, whole industry could be negligent, other companies could be overly cautious
Liability insurance inadmissible
To prove negligence
Liability insurance may be admissible
To prove ownership or control (if disputed)
To impeach a witness (usually to show bias)
As part of an admission of liability (where the reference to insurance coverage cannot be severed without lessening probative value ex: “don’t worry, my insurance will pay”)
Subsequent remedial measures inadmissible to show
Negligence
Culpable conduct
Defect in product or design
Need for warning or instruction
Subsequent remedial measures admissible to show
Ownership or control (if disputed)
To rebut a claim of infeasibility
To prove the opposing party destroyed evidence
Settlements, offers, and conduct/statements in negotiations are inadmissible to
Prove validity or amount of claim
Impeach by prior inconsistent statement or contradiction (impeachment with bias permitted)
The public policy exclusion for settlements and negotiations only applies if
If there is a claim or indication that a claim will be made and the claim is disputed as to liability or amount of damages
(need not actually file suit)
Exception to the exclusion for settlements and offers
conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case
Admissibility of plea discussions
Generally inadmissible in any criminal or civil case against the D who made the plea or participated in discussions:
Offers to plead guilty
Withdrawn guilty pleas
Actual nolo contendere pleas
Statements of fact made during plea discussions
Actual/unwithdrawn guilty pleas admissible
In related litigation as a party admission
Payments and offers to pay medical expenses
Inadmissible to prove liability
Accompanying admissions of fact are admissible
If an offer to pay medical expenses accompanies a settlement offer
The more restrictive rule for settlement offers applies, and accompanying admissions of fact are NOT admissible
Character evidence is admissible as substantive evidence…
To prove a person’s character in the rare situation where their character is directly in issue (an essential element of a claim or defense) (never an element of a crime)
To serve as circumstantial evidence of how a person probably acted (propensity evidence)
Methods of proving character
(depending on the purpose/situation)
Evidence of person’s specific acts
Opinion testimony of a witness who knows the person
Testimony of general reputation in the community
Prosecution _____ initiate evidence of D’s bad character to show conduct in conformity therewith
CANNOT
Defendant _____ initiate evidence of D’s good character to show conduct in conformity therewith
CAN
and D opens the door to prosecution rebuttal
a character witness for the defendant may testify as to
the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant (no specific acts)
Once D opens the door by introducing character evidence, the prosecution can
- Cross D’s character witness by asking “have you heard”/“did you know” questions about specific act to show that character witness lacks knowledge (any conduct including prior arrests) (no extrinsic evidence) and/or
- call its own character witnesses to provide reputation and/or opinion testimony
Defendant can offer reputation and/or opinion testimony concerning victim’s
character for relevant trait (usu violence for self-defense claim)
(except in sexual assault cases)
Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:
Victim’s good character for the same trait
Defendant’s bad character for the same trait
Character evidence can also be used to show defendant’s state of mind T/F
TRUE
Specific acts are admissible for this purpose (non-propensity purpose)
In a HOMICIDE case where D claims SELF-DEFENSE, if D offers evidence of any kind (not just character evidence) that the victim was the first aggressor
P can introduce evidence that the victim had a good character for peacefulness
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is
generally inadmissible
Exceptions to inadmissibility of rape victim’s past behavior in criminal cases
Specific instances of victim’s sexual behavior admissible to prove the someone other than D is the source of semen/injury/other physical evidence
Specific instances between victim and D are admissible by P for any reason and by D to prove consent
Exceptions to inadmissibility of rape victim’s past behavior in civil cases
Where probative value substantially outweighs danger of harm to victim and unfair prejudice
(reverse-403 that favors exclusion)
In civil cases, character evidence is ____ to prove conduct in conformity therewith
Generally inadmissible
Character evidence is admissible in a civil case where
Character is directly in issue
(defamation, negligent hiring/entrustment, child custody)
(all forms admissible (reputation, opinion, specific acts))
Evidence of a person’s other crimes, wrongs, or acts is _____ if offered solely to prove conduct in conformity/propensity
Generally inadmissible
possibly admissible if offered for some independently relevant purpose/non-propensity
Most common non-propensity purposes for offering evidence of D’s other crimes or misconduct
MIMIC Motive Intent Mistake (absence of) Identity Common plan or scheme (crime in preparation for another crime)
Admissibility for non-propensity evidence of D’s other crimes or misconduct (MIMIC evidence)
- may be proved by any evidence
- must be sufficient evidence to support a jury finding that D committed the other misconduct
- subject to Rule 403 standard
- Prosecution must provide notice (in writing, in advance of trial) (notice req excused for good cause)
MIMIC/non-propensity evidence is admissible only if
D is actually contesting the non-character issue (D has to open the door)
Evidence of a defendant’s other acts of sexual assault or child molestation is _________ in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation
ADMISSIBLE for any relevant purpose
must disclose to D 15 days before trial or later with good cause
Standard for authentication of writings
sufficient to support a jury finding of genuineness
Methods of authenticating writings
- opponent’s admission
- eyewitness testimony
- handwriting verifications
- opinion of laywitness with familiarity not acquired for the purpose of the current litigation
- expert opinion
- fact-finder’s comparison
Ancient documents can be authenticated by evidence that:
- at least 20 years old
- in a condition that creates no suspicion as to authenticity
- found in a place where such a writing would likely be kept
Reply letter doctrine
A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
Photographs and videos can be authenticated by
A witness who identifies it as a fair and accurate representation
A showing that the camera was properly operating (if unattended camera and no one saw the scene)
X-rays/ECGs/etc. can be authenticated by
A showing that the process used is accurate, the machine was in working order, and the operator was qualified, establishment of custodial chain
Oral statements when the identity of the speaker matters can be authenticated by
Voice identification by anyone who has heard the voice at any time (including after litigation has begun and for the sole purposes of testifying)
Statements made during telephone conversations can be authenticated by
any party to the call who testifies that:
- they recognized the other party’s voice;
- the speaker had knowledge of certain facts that only a particular person would have;
- they called a particular person’s number and a voice answered as that person or that person’s residence; or
- they called a business and talked with the person answering the phone about matters relevant to the business
Self-authenticating documents include
- public documents bearing seal
- official publications
- certified copies of public records
- newspapers and periodicals
- trade inscriptions and labels
- notarized documents
- commercial paper
- business records
Best Evidence Rule
To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material
Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence
2 situations where the Best Evidence Rule applies
- where the writing is a legally operative or dispositive instrument
- where the knowledge of a witness concerning a fact results from having read it in the writing
Best Evidence Rule does not apply when
A witness has personal knowledge of the facts to be proved, even if that fact happens to also be recorded in a writing
(so oral testimony may be given w/o producing the original writing)
Definition of “original” writing
The writing itself or any counterpart that is in- tended by the person executing it to have the same effect as an original. This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information
Definition of “duplicate” writing
An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy)
Duplicates are admissible (and satisfy the Best Evidence Rule) to the same extent as originals, unless:
- the circumstances make it unfair to admit the duplicate, or
- a genuine question is raised about the authenticity of the original
Admissibility of secondary evidence
If the proponent cannot produce the original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original
All types equally preferable
Excuses for nonproduction of original
- loss or destruction (unless in bad faith by proponent)
- cannot be obtained by any available judicial process
- possession by adversary who refuses to produce
Exceptions to the Best Evidence Rule
- summaries of voluminous records
- certified public records
- writing is collateral to litigated issue
- testimony or written admission of opponent about the contents of the writing
Authentication of real evidence
Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or
Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test)
Standard of proof: sufficient to support a jury finding
If the condition of the object is significant,
it must be shown to be in substantially the same condition at trial
FRE requirements for witnesses
- must be evidence sufficient to support a finding that the witness has personal knowledge
- must give oath or affirmation
Juror testimony
Cannot testify before a jury on which they are sitting
During an inquiry into validity of verdict or indictment, can testify as to
-extraneous prejudicial information
-outside influence
-mistake on verdict form
-clear statements by juror that they relied on racial stereotypes or animus to convict a crim D (court must find significant motivating factor)
Dead Man’s Act
Interested person incompetent to testify against decedent’s estate or successors about any personal transaction or communication with the deceased
(rule in some states, not in the federal rules—so only apply if question says so)
When leading questions are allowed on direct
- preliminary matters
- witness needs help because of loss of memory/immaturity/physical or mental weakness
- witness is hostile, adverse party, or affiliated with an adverse party
Scope of cross-exam
Generally limited to the scope of direct and credibility
Refreshing recollection
A witness may use any writing or object for the purpose of refreshing their present recollection
Usually may not read from the writing while testifying
Writing is NOT in evidence
If a witness refreshes their recollection with a writing on the stand, the adverse party is entitled to
-have the writing produced at trial
-cross-exam the witness about the writing
-introduce portions of the writing relating to the witness’s testimony into evidence
If a witness refreshes their recollection with a writing BEFORE taking the stand, the adverse party is entitled to the above only if the court decides justice requires it
In a criminal case, if the prosecution fails to deliver a writing as ordered after refreshing recollection…
The judge MUST strike the witness’s testimony and can declare a mistrial
In a criminal case, if the prosecution fails to deliver a writing as ordered after refreshing recollection…
The judge can issue any appropriate order
Recorded recollection hearsay exception definition
Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:
• The witness has insufficient recollection to testify fully and accurately;
• The witness had personal knowledge of the facts in the record when the record was made;
• The record was made by the witness or under their direction, or it was adopted by the witness;
• The record was made when the matter was fresh in the witness’s mind; and
• The record accurately reflects the witness’s knowledge
Recorded recollection admission into evidence
- may be read into evidence and heard by the jury
- cannot be admitted as an exhibit unless offered by the adverse party
Requirements for opinion testimony by laywitnesses
Generally inadmissible, but may be allowed when
- rationally based on witness’s perception;
- helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; AND
- not based on scientific, technical, or other specialized knowledge
Admissible opinions of laywitnesses
- general appearance or condition of a person
- state of emotion
- matters involving sense recognition
- voice or handwriting identification (foundation required)
- speed of moving object
- value of own services
- rational or irrational nature of another’s conduct
- intoxication (foundation required)
Inadmissible opinions of laywitnesses
- whether they or someone else acted as an agent
- whether a contract was made
Requirements for admissibility of expert opinion testimony
- helpful
- based on sufficient fact or data
- reliable
- witness qualified by specialized knowledge, skill, experience, training, or education
Proper factual basis for expert opinions
- facts made known to the expert at trial
- facts of a type reasonably relied upon by other experts (need not be admissible, but if not must not be disclosed to jury unless their probative value outweighs prejudicial effect (reverse-403))
4 main Daubert factors used to determine reliability
TRAP Testing of principle or methodology Rate of error Acceptance by experts in the same discipline Peer review and publication
Learned treatise can be used for
Impeachment or as substantive evidence
Requirements for learned treatise as substantive evidence
hearsay exception
- treatise established as a reliable authority
- treatise called to expert’s attention on cross or relied on by expert on direct AND
- excerpt read into evidence but not received as exhibit
Can expert give opinion on ultimate issues?
Yes
EXCEPT in a criminal case in which D’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether D did or did not have the mental state in issue
Upon request, the trial judge MUST order witnesses excluded from the courtroom T/F
TRUE
The judge may also do so sua sponte
Witnesses that cannot be excluded from the courtroom
- a party of designated officer or employee of a party
- a person whose presence is essential to the presentation of a party’s claim or defense
- a person statutorily authorized to be present
The court may examine a party’s witness or call its own witness, each party may
Cross-examine the witness
Object to the court’s examining or calling a witness
Generally cannot bolster witness until
The witness has been impeached (rehabilitation)
Exceptions to rule against bolstering
In some cases can offer evidence to show witness made a timely complaint (sexual assault cases) or a prior statement of identification (usu crim D-comes in as substantive evidence as well)
Under the FRE, a witness may be impeached by
Any party, including the party that called them
Forms of impeachment
Cross exam or extrinsic evidence
Methods of impeachment
Prior inconsistent statements Bias Sensory deficiencies Contradiction Opinion/reputation evidence of untruthfulness Prior convictions Bad acts involving untruthfulness
Prior inconsistent statements
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
When can a prior inconsistent statement come in as substantive evidence?
When the PIS was made under oath it is admissible nonhearsay
Foundation requirement for extrinsic evidence for prior inconsistent statement
Can be introduced only if at some point (either before or after the extrinsic evidence is introduced) the witness is given an opportunity to explain or deny the statement and the adverse party is given the opportunity to examine the witness about it
When does the foundation requirement for extrinsic evidence for prior inconsistent statement NOT apply?
if the PIS is an opposing party’s statement
Foundation requirement for extrinsic evidence for bias
Courts have lots of discretion (not specified in rule)
The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross
Court can permit extrinsic evidence even if the witness admits the bias
Foundation requirement for extrinsic evidence for sensory deficiency
None!
Witness does not need to be confronted with the impeaching fact
Extrinsic evidence permitted for impeachment by contradictory facts?
Yes, unless the impeaching fact is collateral (no significant relevance to the case or witness’s credibility)
Forms of evidence for impeachment with evidence of untruthfulness
Opinion/reputation
NO specific acts
Impeachment with prior conviction
A witness may be impeached with proof of a conviction (NO arrest or indictment) of any crime involving dishonesty or false statement or a felony (court has discretion to exclude felonies)
Balancing test for exclusion of felony to impeach witness
Crim D: the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect (stricter than 403)
Other witness: the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect (standard 403)
Convictions older than ___ years are generally not admissible for impeachment
Ten
from date of conviction or release, whichever is later
Requirements for court to use discretion to admit conviction older than 10 years for impeachment
- its probative value substantially outweighs its prejudicial effect
(reverse-403); and - the proponent gives the adverse party reasonable written notice of their intent to use it
Foundation requirement for extrinsic evidence of conviction for impeachment
None
Effect of a pardon on admissibility of conviction for impeachment
Inadmissible if
- based on rehabilitation and no subsequent felonies; OR
- based on innocence
Juvenile convictions are ____ admissible for impeachment
Generally NOT
in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence
Can a constitutionally defective conviction be used for impeachment?
No, use of such convictions is inadmissible for all purposes
Requirements for bad acts involving untruthfulness for impeachment
Can only inquire on cross, no extrinsic evidence (stuck with witness answer)
Must have good faith basis to believe the bad acts occurred
Cannot refer to any consequences of the bad act
Cannot inquire about arrests (not a bad act)
Up to discretion of judge
Impeachment is ___ on collateral matters
NOT allowed
Can a hearsay declarant be impeached?
Yes, to the same extent as in-court witnesses
Need not be given the opportunity to explain or deny
Methods of rehabilitation after impeachment
- explanation on redirect
- good character for truthfulness w/ reputation/opinion evidence (if character for truthfulness was attacked)
- prior consistent statement (in 2 situations)
When can prior consistent statements be used to rehabilitate?
- When witness attacked with charge of lying or exaggerating because of some motive, and the statement predates the motive
- When witness impeached on other non-character ground (ex faulty memory)
If meets these reqs, also admissible as substantive evidence
Definition of “statement” for hearsay purposes
A PERSON’s oral or written assertion, or nonverbal conduct intended as an assertion
Common non-truth purposes for offering statements
Verbal acts/legally operative words (ex words of contract or defamatory words)
Statements offered to prove the effect on the listener (ex notice)
Statements offered as circumstantial evidence of D’s state of mind (ex insanity or knowledge)
Prior statements by a testifying witness subject to cross are not hearsay if
- prior statement of identification
- prior inconsistent statement under oath
- prior inconsistent statement if
- witness charged with lying or exaggerating due to recent motive and statement pre-dates motive
- witness impeached on other non-character ground
A party’s formal judicial statements are
Conclusive and cannot be contradicted during trial
A party’s informal judicial statements
Can be explained
Adoptive statements
Party’s express or implied adoption of another’s statement can be used against them
Requirements to use silence against them:
-party heard and understood
-party was capable of denying it
-reasonable person would have denied it
(not applicable to statements by police for crim D)
Vicarious statements
Certain statements by another person are admissible against a party because of the relationship between them
(NOT against co-parties merely because they are joined)
-authorized spokesperson
-agents/employees
-partners
-co-conspirators
-privies in title and joint tenants (state courts only)
When is a statement by an agent/employee admissible against the employer as a vicarious statement?
If it concerned a matter within the scope of the employment/agency relationship
AND was made during that relationship
When are statements of co-conspirators admissible as vicarious statements?
Statements of one co-conspirator made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy
Before admitting a vicarious statement, the court must
Make a preliminary determination of the declarant’s relationship
The court must consider the contents of the statement, but it alone is not sufficient to establish the required relationship, there must be some independent evidence
Standard: preponderance
Grounds for unavailability for hearsay exceptions
- death or illness
- privilege
- refusal to testify despite court order
- inability to remember subject matter
- absent and attendance cannot be procured
Hearsay exceptions that require unavailability
Former testimony Statements against interest Dying declaration Statements of personal or family history Statements offered against party procuring declarant’s availability
Former testimony hearsay exception requirements
- witness unavailable
- testimony was given under oath
- party against whom the testimony is being offered (or in civil cases, their predecessor in interest) had opportunity and similar motive to develop it
- -so party must have been a party in the former action and it must have involved the same subject matter (NO grand jury testimony- no opportunity to develop)
Statement against interest hearsay exception requirements
- witness unavailable
- must be against the pecuniary, proprietary, or penal interest when made such that a person in the declarant’s position would have made it only if they believed it to be true
- personal knowledge
- aware the statement was against their interest when they made it
- in criminal cases, statements against penal interest must be corroborated
- statement can only be the single remark that inculpates the declarant
Dying declaration hearsay exception requirements
- witness unavailable
- homicide or any civil case
- declarant believed death imminent
- statement concerned cause or circumstances of believed impending death
Statements of personal or family history hearsay exception requirements
- declarant unavailable
- concerns births, marriages, divorces, relationships, genealogy etc.
- declarant is a member of the family in question and intimately associated with it
- based on personal knowledge or reputation
Statements offered against party procuring declarant’s availability hearsay exception requirement
- declarant unavailable
- offered against party that engaged/acquiesced in wrongdoing that intentionally procured unavailability
- motivation was to prevent testimony
Excited utterance hearsay exception requirements
- relates to a startling event
- made while under the stress of the excitement
Present sense impression hearsay exception requirements
- describes or explains an event or condition
- made while or immediately after the declarant perceives the event or condition
Present state of mind hearsay exception requirements
- statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition
- does NOT include statements of memory or belief (except for certain things relating to the declarant’s will)
Statements made for the purpose of medical dx or tx hearsay exception requirements
- describes medical history, past or present symptoms, or inception or general cause of symptoms
- made for and reasonably pertinent to medical dx or tx
- covers statements of past and present condition
- admissible even if made to dr employed to testify
Business records hearsay exception requirements
record of act, event condition, opinion, or dx admissible if
- “business” (includes nonprofits)
- entry made in the regular course of business, and business regularly keeps such records
- entry made near the time of the event
- consists of matters within the personal knowledge of the entrant, with a or within the knowledge of someone with a duty to transmit such matters to the entrant
Foundation requirements for business records
Custodian of records or other qualified witness must provide either in-court testimony or a written certification
May a court exclude business records and public records for lack of trustworthiness?
Yes, burden is on opponent to show this
Official records hearsay exception requirements for public records and reports
- records setting forth the activities of an agency
- matters observed pursuant to a legal duty, but not including police observations in criminal cases
- records of factual findings resulting from legally authorized investigation, but not against D in criminal case
- must be made by and within the scope of the duty of a public employee
Police reports admissible?
Generally not admissible against criminal D under public records or business records exception
Generally admissible otherwise under the public records exception
Statement of absence of public record admissible?
Yes, but in criminal cases this type is admissible only if P notifies D at least 14 days before trial and D does not object within 7 days of receiving notice
Ancient documents hearsay exception requirements
Under the FRE, statements in any authenticated document prepared before 1/1/1998 are admissible
Documents affecting property interests hearsay exception requirements
Admissible if statement is relevant to the document’s purpose
Not admissible if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document
Reputation hearsay exception requirements
hearsay exceptions that admit reputation evidence to prove: (1) character; (2) personal or family history; (3) land boundaries; and (4) a community’s general history
Residual/catch-all exception for hearsay
- trustworthy (court must consider: (1) the totality of the circumstances in which the statement was made, and (2) any evidence that corroborates the statement
- strictly necessary
- proponent must give reasonable notice to adversary
Confrontation Clause - Hearsay inadmissible if
- offered against crim D
- declarant unavailable
- accused had no opportunity to cross-examine declarant about statement; and
- statement is testimonial
Definition of “testimonial” statement for confrontation clause/hearsay
-includes prior sworn testimony
-includes statements to LEOs
-includes certain documents
To aid in ongoing emergency = nontestimonial
To provide information for later prosecution = testimonial
Affidavits/written reports of forensic analysis that has the effect of accusing a targeted individual = testimonial
Choice of law for privilege
Cases based on federal law – federal common law applies
Diversity cases – state privilege law applies
Federal common law privileges
-attorney-client
-spousal immunity
-confidential marital communications
-psychotherapist/social worker-patient
-clergy-penitent
-governmental
NO physician-patient, accountant-client, professional journalist (only in some states)
How is privilege waived?
- failure to claim
- voluntary disclosure
- contractual waiver in advance of right to claim
- waiver by one joint holder does not affect right of other holders
- not waived by eavesdropper
Attorney-client privilege applies to
-confidential communications between an attorney or client (or representatives of either) made during professional legal consultation, unless the privilege is waived or an exception is applicable
What privilege applies to communications between client and doctor during exam made at attorney’s request?
NOT physician-patient because no treatment is contemplated
Attorney-client applies, as long as doctor is not called as a testifying expert
Joint client rule for privilege
When joint clients have a common interest, their communications with attorney are not privileged if they sue each other
Exceptions to privilege, no privilege if
- attorney’s services sought to aid in crime/fraud
- client put legal services at issue
- relevant to an issue of breach of duty in dispute between attorney and client
- relevant to parties claiming through the same deceased client
Physician-patient privilege (some states recognize, NOT federal)
Confidential information acquired by physician privileged if
- professional relationship existed,
- information acquired for purposes of dx or tx, and
- information necessary for dx or tx
Exceptions to the physician-patient privilege
No privilege if
- pt puts their physical condition in issue
- physician’s assistance was sought to aid wrongdoing
- relevant to dispute between physician and pt
- pt agreed in contractual waiver
- federal case applying federal law of privilege
Psychotherapist/social worker privilege
- operates like a-c privilege
- not applicable if pt puts mental condition at issue
Testimonial privilege/spousal privilege
-prevents D’s spouse from testifying against D in criminal trial
only applies in criminal cases
-privilege only lasts during the valid marriage
-what matters is whether they are married at time of trial
-witness-spouse holds the privilege
Privilege for confidential marital communications
- applies in any civil or criminal case
- confidential communications between spouses are privileged
- either spouse can claim privilege
- marriage must exist when communication is made
- divorce will not terminate the privilege
- communication must be confidential in nature
When neither marital privilege applies
- communications in furtherance of future joint crime/fraud
- legal actions between the spouses
- spouse charged with crime against other spouse or against either spouse’s children
Burden of production
- usu same party who has burden of pleading
- once satisfied, other side has to come forward with evidence to rebut
Burden of persuasion/proof
- civil: usu preponderance
- criminal: beyond a reasonable doubt
Preliminary facts decided by jury
Issues affecting relevance, including -whether evidence is authentic -whether person was acting as an agent -whether witness has personal knowledge Judge first determines that there is sufficient proof to support a jury finding that the fact exists
Preliminary facts decided by judge
Issues affecting competency/admissibility of evidence, including
- is witness mentally competent to testify
- does a privilege exist?
- does the evidence meet the requirements of a hearsay exception?
What evidence may judge consider for preliminary questions?
All non-privileged evidence
Not bound by the FRE
When MUST the jury be excused from the courtroom?
The hearing involves the admissibility of a confession
The D in a criminal case is testifying and requests it
Justice so requires
Does testimony by criminal D for preliminary issues waive privilege against self-incrimination?
no
Facts appropriate for judicial notice
A court may tale judicial notice of any fact that is “not subject to reasonable dispute” because
-facts generally known in the trial court’s jurisdiction OR
-fact can be accurately and readily determined
Adjudicative facts, not legislative facts
Conclusiveness of judicially noticed facts
Conclusive in a civil case, but NOT in a criminal case
Courts ____ take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts ____ take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature.
MUST
MAY
Rule of Completeness
When some or all of a writing or recorded statement is admitted, adverse party may require proponent to introduce any other part, or any related writing or recorded statement, that ought in fairness be considered at the same time
Even relevant evidence can be excluded if
Its probative value is substantially outweighed by danger of unfair prejudice
Effect of judicial notice of a fact introduced by prosecutor in a criminal case
The prosecutor’s burden of producing evidence on that point is satisfied
It is NOT conclusive
Burden always stays with the _____ in a criminal case
Prosecution
Can the court take judicial notice of court records or general public records?
Court records only
5 rules for character evidence in a criminal case
- P cannot introduce any reputation/opinion evidence of D’s bad character if the purpose is to show that D probably acted in conformity with that character and committed the crime charged
(NO propensity evidence) - D is allowed to present evidence of a RELEVANT good character trait to show that D acted in conformity with that character and did NOT commit the crime (limited to reputation and opinion evidence only (no specific acts))
- If D does present evidence of D’s good character, D opens the door and P can rebut w/ evidence of D’s bad character (P limited to reputation and opinion, no specific acts)
- Evidence of prior crimes or prior bad acts are never admissible to show that D probably acted unlawfully again and committed the crime charged (may be admissible to prove another point other than propensity (MIMIC))
- If D testifies, automatically places character for truthfulness/untruthfulness in issue, and P can present evidence to establish that D is not a truthful person
3 rules for character evidence in a civil case
- Character evidence in civil case inadmissible unless character is directly in issue or an essential element of P’s claim or defense (no propensity evidence)
- If a litigant has some purpose other than propensity for the introduction of the character evidence, then the rule prohibiting character evidence will not keep it out
- If a party testifies, they automatically character for truthfulness/untruthfulness in issue
5 major ways to impeach credibility of a witness
- prior inconsistent statements
- bias
- prior conviction
- specific acts of misconduct bearing on truthfulness/untruthfulness
- reputation/opinion evidence of untruthfulness
Is a PINS hearsay?
No, it is nonhearsay
Rule 403 balancing test
Judge can exclude if probative value is substantially outweighed by danger of unfair prejudice, etc.
REVERSE 403 balancing test
Judge can admit if probative value substantially outweighs the danger of unfair prejudice, etc.
