Evidence Flashcards
1
Q
What is Relevance for Evidence purposes?
A
Evidence is relevant if it has ANY TENDENCY to make the existence of any FACT OF CONSEQUENCE to the determination of an action (materiality) MORE OR LESS PROBABLE than it would be without the evidence (probative).
2
Q
Besides specific exclusionary rules, what discretion do courts have to exclude relevant evidence?
A
A trial judge has broad discretion to exclude relevant evidence if its PROBATIVE VALUE is SUBSTANTIALLY outweighed by the danger of one or more of the following considerations:
- Danger of unfair prejudice (there is a danger that the jury will decide the case on an emotional basis)
- Confusion of the issues (the evidence creates a side issue)
- Misleading the jury (there is a danger that the jury will give undue weight to the evidence) (EX: expert testimony)
- Undue delay
- Waste of time
- Needless presentation of cumulative (repetitive) evidence
NOTE: Balancing probative value VS. the above pragmatic considerations above. If the latter substantially outweigh the former, then it’s inadmissible (but it’s in favor of admissibility).
NOTE: unfair surprise is NOT a valid ground upon which to exclude relevant evidence.
3
Q
When may unfair surprise be used as a grounds for excluding evidence?
A
Unfair surprise is NOT a valid ground upon which to exclude relevant evidence, idiot.
4
Q
What is the rule of evidence regarding Similar Occurrences that might be used in the present trial?
A
As a general rule, if evidence involves some time, event, or person other than that involved in the present case, it is inadmissible. The rationale is that the evidence often does not survive the Rule 403 balancing test; in other words, the relevance is weak to begin with and the probative value is substantially outweighed by pragmatic considerations (for example, the dangers of confusing the issues, misleading the jury, or wasting time).
Despite the general rule, some recurring situations have produced concrete rules that may allow prior similar occurrences to be admitted. The following are examples of relevant similar occurrences:
- Plaintiff’s Accident History
- Similar Accidents or Injuries Caused by Same Event or Condition
- Previous Similar Acts Admissible to Prove Intent
- Sales of Similar Property
- Rebutting a Claim of Impossibility
- Causation
- Habit and/or Business Routine Evidence
- Industry Custom as Evidence of Standard of Care
5
Q
What is the rule for admissibility of a Plaintiff’s Accident History?
A
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone.
However, such evidence may be admissible if it tends to show something other than carelessness of the plaintiff. EX:
- Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.
- Evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff’s condition is attributable (in whole or in part) to the prior injury rather than the current accident.
- Habit and/or Business Routine Evidence
6
Q
What is the rule for admissibility of Similar Accidents or Injuries Caused by Same Event or Condition?
A
Generally, other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness.
However, 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/or
(3) that the defendant had NOTICE of the dangerous condition (if the other accident occurred before the plaintiff’s accident).
7
Q
What is the rule for admissibility for the Absence of Similar Accidents?
A
Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to show the defendant’s lack of knowledge of the danger.
8
Q
What is the rule for admissibility of Previous Similar Acts to Prove Intent?
A
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case.
9
Q
What is the rule for admissibility for Sales of Similar Property?
A
Evidence of sales of similar personal or real property around the same time period is admissible TO PROVE THE PROPERTY’S VALUE. However, prices quoted in mere offers to purchase generally aren’t admissible.
10
Q
What is the rule for admissibility of evidence of prior occurrences for Rebutting a Claim of Impossibility?
A
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (for example, the defendant’s claim that the car will not go above 50 miles per hour can be rebutted by showing occasions when the car went more than 50 miles per hour).
11
Q
What is the rule for admissibility for proving complex Causation scenarios?
A
Complicated issues of causation may be established by evidence concerning other times, events, or persons (EX: damage to nearby homes caused by D’s blasting is relevant to prove D’s blasting damaged P’s home).
12
Q
What is the rule for admissibility of Habit and/or Business Routine Evidence?
A
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 describes a person’s regular response to a specific set of circumstances. Thus, there are 2 defining characteristics of habit: (1) frequency of conduct and (2) particularity of circumstances.
- Watch for key words such as “always,” “invariably,” “instinctively,” and “automatically” in a question’s fact pattern. These words may indicate habit.
13
Q
What is the rule for admissibility for Industry Custom as Evidence of Standard of Care?
A
Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care (to show how the party in the current case should have acted). However, industry custom isn’t conclusive on this point; for example, an entire industry may be acting negligently.
14
Q
What is the rule for admissibility of Liability Insurance?
A
Evidence of a party’s insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully (fault or absence of fault). However, it may be admissible for other relevant purposes, such as:
- To prove ownership or control, if disputed;
- To impeach a witness (usually to show their bias); or
- As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (EX: “Don’t worry, my insurance will pay it off”).
15
Q
What is the rule for admissibility of Subsequent Remedial Measures?
A
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, it may be admissible for some other relevant purpose, such as:
- To prove ownership or control, if disputed;
- To rebut a claim that a precaution was not feasible; or
- To prove that the opposing party has destroyed evidence.
16
Q
What is the rule for admissibility of Civil Settlements and Settlement Negotiations?
A
Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to: (1) prove or disprove the validity or amount of a disputed claim, or (2) impeach a witness by prior inconsistent statement or contradiction. Conduct or statements made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.
- NOTE: Evidence of a settlement is admissible to impeach a witness on the ground of bias.
- The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability (validity of the claim) OR (2) amount.
17
Q
What exceptions apply to the inadmissibility rule of Civil Settlements and Settlement Negotiations?
A
Civil Dispute with Government Authority: Under the Federal Rules, 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 (EX: a defendant’s admissions of fact during settlement negotiations with a securities enforcement agency would be admissible against the defendant in a related criminal trial).
18
Q
What is the rule for admissibility of Plea Discussions?
A
The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions: (1) Offers to plead guilty; (2) Withdrawn guilty pleas; (3) Actual pleas of nolo contendere (“no contest”); or (4) Statements of fact made during any of the above plea discussions.
- NOTE An actual guilty plea (not withdrawn) is generally admissible
in related litigation as a statement of an opposing party.
19
Q
What is the rule for admissibility of Payments of and Offers to Pay Medical Expenses?
A
Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.
However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible.
- NOTE: “I’ll pay your medical expenses if you drop the case” is a settlement offer!
20
Q
What is Character Evidence?
A
Character evidence refers to a person’s general propensity or disposition (EX: for honesty, fairness, peacefulness, violence).
21
Q
When can Character Evidence be offered at trial to prove a fact at issue?
A
Character evidence might be offered as substantive evidence (to prove a fact at issue in the case) for the following purposes: (1) To prove a person’s character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense); or (2) To serve as circumstantial evidence of how a person probably acted during the events of the case. This is also known as “conduct in conformity with character” or “propensity” evidence. This purpose is PERMITTED ONLY IN A FEW SITUATIONS.
22
Q
What are the methods of proving character?
A
Depending on the purpose of the offer and the nature of the case, some or all of the following methods of proving character may be allowed:
- Evidence of the person’s specific acts;
- Opinion testimony of a witness who knows the person; and
- Testimony as to the person’s general reputation in the community.
23
Q
What are the rules regarding a defendant’s character in a criminal case?
A
The prosecution cannot initiate evidence of the defendant’s bad character (reputation or opinion) to show conduct in conformity (propensity).
However, because the defendant’s life or liberty is at stake, the defendant is permitted to introduce evidence of their own RELEVANT GOOD CHARACTER TRAIT(S) (in the form of reputation or opinion testimony) to show their innocence. If the defendant introduces evidence of their good character, then the prosecution can rebut with evidence (reputation or opinion) of the defendant’s bad character.
- 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.
24
Q
What may evidence of prior misconduct (bad acts) or crimes be used for?
A
Not propensity to do misconduct, but yes for motive, intent, mistake (or absence of mistake), identity, or a common plan or scheme (MIMIC).
25
What are the prosecution's options when the defendant has offered evidence of his good character?
Once the defendant opens the door by introducing character evidence, the prosecution can take either or both of the following actions: (1) The prosecution can cross-examine the defendant’s character witness regarding the basis for their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of the defendant that show the defendant’s bad character for the trait in question. The permitted purpose of the cross-examination is to show the character witness’s lack of knowledge, not to prove the defendant’s bad character; (2) The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.
- Prosecution may not introduce any extrinsic evidence of misconduct.
26
When and how may the defendant bring evidence of a Victim's character?
(Except in sexual assault cases) The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence.
Although a victim’s character usually has no bearing on the defendant’s innocence, it becomes relevant when the defendant claims self-defense and argues that the victim was the first aggressor.
27
What may the prosecution do when the defense brings evidence of a Victim's character?
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: (1) The victim’s good character for the same trait, or (2) The defendant’s bad character for the same trait.
28
What is the special character evidence homicide case rule?
In a homicide case in which the defendant pleads self-defense, evidence of any kind (not just character evidence) that the victim was the first aggressor (EX: eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness. The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity.
29
What are the special rape victims evidentiary rules?
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.
In a CRIMINAL case:
(1) Specific instances of a victim’s sexual behavior are admissible to prove that SOMEONE OTHER THAN D is the source of semen, injury, or other PHYSICAL EVIDENCE.
(2) Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove CONSENT.
In a CIVIL case:
- Evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (favors excluding the evidence).
- Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.
30
What is the general rule for character evidence in civil cases?
In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence.
[Rare] When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is “directly in issue.” This is rare, and for bar exam purposes is generally limited to:
- Defamation cases where truth is a defense (plaintiff’s character is at issue);
- Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
- Child custody cases (parents’ character is at issue)
When character is directly in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible.
31
What is the rule for admissibility of unrelated misconduct?
Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity. In other words, the evidence can’t be offered just to suggest that because the defendant tends to do bad things, they are more likely to have committed the charged crime.
Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases). In other words, if a defendant’s other misconduct shows something specific about the charged crime—something more than just bad character— evidence of that misconduct may be admissible as bearing on guilt. Such evidence is usually offered in criminal cases, but it can also be used in civil cases (such as in tort actions for fraud and assault).
Non-character purposes for offering the evidence may include motive (for example, burning a building to hide embezzlement), intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, “signature” crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another).
[MIMIC] Motive; Intent; Mistake (Absence of); Identity; Common scheme or plan.
^ not comprehensive/
32
What is the rule for admissibility of character evidence indicating propensity to commit sex crimes?
Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause).
33
What are the main issues involved when a writing is involved in an evidentiary matter?
Authenticity, Best Evidence Rule, and Hearsay.
34
What is the general rule for authentication of writings?
As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (a reasonable juror could conclude that the writing is genuine).
35
What are examples of Authentication?
- Opponent's Admission: A writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.
- Eyewitness testimony of someone with knowledge: A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.
- Lay Opinion on Handwriting (if Lay Witness has pre-existing familiarity with the handwriting):
- Expert Opinion on Handwriting: expert who has compared the writing to samples of the alleged writer’s handwriting.
- Jury: The jury as factfinder can make the determination.
- Ancient Documents: A document can be authenticated by evidence that it (1) Is at least 20 years old when offered into evidence; (2) Is in a condition that creates no suspicion as to authenticity; and (3) Was 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: Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with the scene, object, or person is sufficient.
- X-Ray Pictures, Electrocardiograms, Etc.: Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.
36
What is the general rule for authentication of Oral Statements?
When a statement is admissible only if said by a particular person (EX: as a statement by an opposing party), authentication as to the identity of the speaker is required.
37
What is the Authentication rule for Voice Authentication?
A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.
38
What is the Authentication rule for Telephone Conversations?
Statements made during a telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party’s voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business.
39
What are Self-Authenticating documents? Examples?
Certain writings are said to “prove themselves.” Extrinsic evidence of authenticity is not required for the following:
- Domestic public documents bearing a seal, and similar official foreign public documents;
- Official publications (EX: government pamphlet);
- Certified copies of public records or private records on file in a public office;
- Newspapers and periodicals;
- Trade inscriptions and labels;
- Acknowledged (notarized) documents;
- Commercial paper (including signatures thereon) and related documents; and
- Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection.
40
What is the Best Evidence Rule?
This rule is more accurately called the “original document rule.” To prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data; we’ll use “writing” as shorthand going forward), 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. The key inquiries are: (1) What does it mean to “prove the contents” of a writing? (2) What is an “original?” (3) What are the exceptions to the best evidence rule?
41
In what situations does the Best Evidence Rule usually apply?
(1) Where the writing is legally operative or dispositive (EX: contract, will, etc.)
(2) Where the knowledge of a witness concerning a fact results from having read it in the writing (EX: witness is the only one who watched a videotape of the event)
42
What is an Original for evidence purposes?
An Original is the writing itself or any counterpart that is intended 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.
43
What is a Duplicate for evidence purposes? To what extent are they admissible?
A Duplicate is an exact copy of an original made by mechanical means (EX: a photocopy or carbon copy).
Duplicates are admissible to the same extent as originals, unless: (1) the circumstances make it unfair to admit the duplicate (EX: it's a bad copy), or (2) a genuine question is raised about the authenticity of the original.
44
When may Secondary Evidence be offered as evidence of the contents of a writing?
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.
45
What are Valid Excuses for the non-production of an original writing?
Valid excuses justifying the admissibility of secondary evidence include:
- Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith.
- The original cannot be obtained by any available judicial process. Usually, this means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite a reasonable effort.
- The original is in the possession of an adversary who, after due notice, fails to produce the original.
46
What are the Exceptions to the Best Evidence Rule?
- The original is lost or destroyed (unavailable through no fault of the proponent).
- Summaries of Voluminous Records: When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.
- Certified Public Records: The rule does not apply to copies of public records that are certified as correct or testified to as correct.
- Writing Is Collateral to Litigated Issue: The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy.
- Testimony or Written Admission of Opponent: Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.
47
What kinds of duplicates is it the duty of the jury (not the judge) to make decisions of admissibility for?
Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original.
However, the Federal Rules reserve the following questions of preliminary fact for the jury:
- Whether the original ever existed;
- Whether a writing produced at trial is an original; and
- Whether the evidence offered correctly reflects the contents of the original
48
What is Real Evidence? What are the requirements for its introduction?
Real evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
Real evidence must be RELEVANT and meet the following requirements:
- The object must be IDENTIFIED AS WHAT THE PROPONENT CLAIMS IT TO BE,
either by: (1) Testimony of a witness that they recognize the object as what the proponent claims it is (EX: witness testifies that a gun is the one found at the crime scene); or (2) Evidence that the object has been held in a substantially unbroken chain of possession (EX: blood taken for blood-alcohol test).
- IF the CONDITION of the object is SIGNIFICANT, it must be shown to be in SUBSTANTIALLY the SAME CONDITION at trial.
49
What are some types of Real Evidence?
- Reproductions and Explanatory Real Evidence (Relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (meaning, they are not given to the jury during its deliberations).)
- Maps, Charts, Models, Etc. (Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted.)
- Courtroom Demonstrations (The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly traumatize the injury)
- Exhibition of Injuries (Exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that the court has discretion to exclude this evidence for unfair prejudice)
- Jury View of the Scene (The trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations here)
50
What are the basic requirements under the federal rules for witness competency?
(1) There must be evidence sufficient to support a finding that the witness has PERSONAL KNOWLEDGE of the matter about which they are to testify (note that proof of personal knowledge may consist of the witness’s own testimony); and
(2) The witness must give an OATH OR AFFIRMATION to testify truthfully.
51
What are the Modern Disqualifications for witness competency?
- Children: The competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge.
- Insanity: An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.
- Judges and Jurors: The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting OR post-verdict proceedings (NOT other situations, like asking a juror to provide info about a defendant's testimony at a prior trial).
52
May a juror testify about deliberations or what affected their vote?
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. However, a juror may testify as to: (1) Whether any extraneous prejudicial information was improperly brought to the jury’s attention; (2) Whether any outside influence was improperly brought to bear on any juror; (3) Whether there is a mistake on the verdict form; or (4) Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. The rationale for allowing this evidence is to permit the court to determine whether the defendant’s 6th Amendment right to a jury trial was violated. Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.
53
What are Dead Man Acts?
Ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have what are known as “Dead Man Acts.” These statutes provide that in a CIVIL CASE, an INTERESTED PERSON (or their predecessor in interest) is incompetent to testify to a PERSONAL TRANSACTION or COMMUNICATION with a DECEASED, when such testimony is offered against the representative or successors in interest of the deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.
- NOTE: There's no federal Dead Man's Act
54
What are Leading Questions? When are they allowed?
Leading questions (questions that suggest the desired answer) are generally allowed only on cross-examination and are not permitted on direct examination. However, the court will ordinarily allow leading questions on direct examination in the following circumstances:
- To elicit preliminary or introductory matter;
- When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
- When the witness is hostile, an adverse party, or a witness affiliated with an adverse party (EX: employee).
55
What is the Scope of Cross-Examination?
A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to: (1) The scope of direct examination, including all reasonable inferences that may be drawn from it, and (2) Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module).
56
May a witness read a memorandum or other writing when they give their testimony?
As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection. However, a memorandum or other record may be used in certain circumstances.
57
What is Refreshing Recollection?
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
58
What are the Safeguards Against Abuse of the Refreshing Recollection procedure?
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: (1) Have the writing produced at trial; (2) Cross-examine the witness about the writing; and (3) Introduce portions of the writing relating to the witness’s testimony into evidence.
59
When a witness lacks memory of an event but a recording of their former recollection is available, what options does the party wishing to introduce the recorded recollection have?
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: (1) The witness has insufficient recollection to testify fully and accurately (that is, showing the document to the witness fails to jog their memory); (2) The witness had personal knowledge of the facts in the record when the record was made; (3) The record was made by the witness or under their direction, or it was adopted by the witness; (4) The record was made when the matter was fresh in the witness’s mind; and (5) The record accurately reflects the witness’s knowledge.
- In other words, even though the witness cannot currently remember the facts, this requirement is satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted.
60
What are the rules/requirements for opinion testimony by lay witnesses?
Opinions by lay (nonexpert) witnesses are generally inadmissible.
However, there are many cases where no better evidence can be obtained. Opinion testimony by a lay witness is admissible when it is: (1) Rationally based on the witness’s perception; (2) Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge.
- Can't testify about legal conclusions (EX: "a contract was made")
61
What are the requirements for admissibility of Expert Testimony?
For expert testimony to be admissible, the proponent must demonstrate to the court that it is more likely than not that: (1) the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact; (2) the opinion is based on sufficient facts or data; (3) the opinion is the product of reliable principles and methods; and (4) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
- The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education.
- The expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following 3 possible sources of information:
--- Facts based on the expert’s own personal observation (EX: the expert personally examined the injured plaintiff).
--- Facts made known to the expert at trial (EX: the expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question).
--- Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence. But if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (reverse 403).
NOTE: Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination. However, the expert may be required to disclose such information on cross-examination.
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What surety must experts have regarding their testimony?
The expert must possess reasonable probability regarding their opinion. A mere guess or speculation is not sufficient.
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How do judges gauge the reliability of expert testimony?
Federal courts determine the reliability of all expert testimony (scientific or otherwise). Although courts have discretion to consider a wide variety of factors in making this determination, there are 4 principal Daubert factors that courts use to determine the reliability of experts’ principles and methodologies. [TRAP]
- Testing of principle or methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and publication
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What are the rules regarding the admissibility of treatises? What can they be used for?
A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Under the Federal Rules, these “learned treatises” can be used not only to impeach experts, but also as substantive evidence (that is, to prove that what the treatise says is true) under the “learned treatise” exception to the hearsay rule, subject to the following requirements/limitations:
- The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice;
- The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and
- The excerpt is read into evidence but cannot be received as an exhibit.
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May experts offer opinions on legal conclusions?
An expert is generally permitted to render an opinion as to the ultimate issue in the case (EX: “X was drunk” or “X was insane” or “That is X’s signature on the document”).
However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state at issue.
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What are the rules for jury exclusion and sequestration?
Upon a party’s request, the trial judge MUST order witnesses excluded from the courtroom. The judge may also do this on their own motion.
The judge, however, must not exclude: (1) a party or a designated officer or employee of a party, (2) a person whose presence is essential to the presentation of a party’s claim or defense, or (3) a person statutorily authorized to be present. The court may also issue an order prohibiting disclosure of trial testimony to excluded witnesses and prohibiting the excluded witnesses from accessing trial testimony.
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What is Impeachment? When evidence is offered to impeach, what is it being offered for?
Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not being offered as substantive evidence (to prove some fact at issue in the case) but to show that the witness can’t be trusted.
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May a party seek to bolster/strengthen their witness' credibility?
Generally, a party is not permitted to bolster or accredit the testimony of their witness (EX: by introducing a prior statement by the witness that is consistent with their testimony) until the witness has been impeached.
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Who may impeach a witness?
ANY PARTY may impeach a witness.
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What are the general methods/tools for impeaching a witness?
- Cross examination
- Extrinsic Evidence (other witnesses or documents)
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How may a witness be impeached with 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.
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When is a Prior Inconsistent Statement admissible as substantive evidence?
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, a testifying witness’s prior inconsistent statement was made UNDER OATH at a prior legal proceeding, it is admissible non-hearsay and may be admitted as substantive evidence of the facts stated. The rationale is that the statement is reliable because of the oath, and because the witness is now subject to cross-examination about the statement.
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What is required before extrinsic evidence may be offered to prove a prior inconsistent statement?
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point: (1) The witness is given an opportunity to explain or deny the statement; and (2) The adverse party is given an opportunity to examine the witness about the statement.
However, no foundation is required when the prior inconsistent statement is an opposing party’s statement.
The court may dispense with the foundation requirement where justice requires.
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Under what circumstances may a witness be impeached with evidence of Bias or Interest?
Always admissible. Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie (EX: friend, employee, relative, grudge, etc.).
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What foundation must be offered to show bias or interest? When may a witness be impeached with extrinsic evidence of bias or interest?
Because impeachment with bias is not specifically addressed by the Federal Rules, much is left to the court’s discretion. 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-examination.
- NOTE: the court has discretion to permit extrinsic evidence even if the witness admits the bias.
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How may a witness be impeached with Sensory Deficiencies?
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.
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What foundation must be offered to show Sensory Deficiencies in an impeachment?
There is no foundation requirement for proving the sensory deficiency with extrinsic evidence (the witness does not need to be confronted with the impeaching fact--other party CAN, but they DON'T NEED TO).
78
How may a witness be impeached with Contradictory Facts?
The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination. If the witness admits the mistake or lie, they have been impeached by contradiction.
If the witness sticks to their story, extrinsic evidence is permitted unless the contradictory fact is collateral (has no significant relevance to the case or to the witness’s credibility).
- Although not specifically addressed in the Federal Rules, impeachment by contradiction is a recognized method of impeachment.
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May a witness be impeached with Opinion or Reputation Evidence of Untruthfulness? If so, how?
A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand. This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.
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How may a witness be impeached with the Conviction of a Crime?
A witness may be impeached by proof of a conviction (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.
- A witness may be impeached by ANY CRIME (felony or misdemeanor) requiring an ACT OF DISHONESTY or FALSE STATEMENT. The court has no discretion to bar impeachment by these crimes.
- A witness may also be impeached by a FELONY that does not involve dishonesty or false statement, but the court has discretion to exclude these convictions. The balancing test depends on whether the witness is the defendant in a criminal case, or someone else: (1) If the witness being impeached is a CRIMINAL DEFENDANT, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect (neutral—not 403); or (2) In the case of ALL OTHER WITNESSES, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect (403).
- Generally, if more than 10 years have elapsed since the date of CONVICTION or the date of RELEASE FROM CONFINEMENT (whichever is later), the conviction is inadmissible. The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (reverse Rule 403); and (2) the proponent gives the adverse party reasonable written notice of their intent to use it.
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What is the foundation requirement for admitting evidence of a Prior Conviction?
A prior conviction is usually shown by either direct or cross-examination of the witness or by introducing a record of the judgment, although other methods of proof (such as testimony from witnesses) may be permitted. No foundation is necessary.
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What effect does a Pardon have on the admissibility of a prior conviction?
A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either: (1) The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or (2) The pardon was based on innocence (irrespective of any subsequent convictions)
83
How may a witness be impeached with a Juvenile Conviction?
Juvenile offenses are generally not admissible for impeachment purposes. However, 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 (1) the evidence would be admissible to attack the credibility of an adult and (2) the evidence is necessary to a determination of the accused’s guilt or innocence.
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How may a witness be impeached with Misconduct Involving Untruthfulness?
Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct (no conviction) if the act is probative of truthfulness (an act of deceit or lying). The cross-examiner must have a good-faith basis to believe the witness committed the misconduct.
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What extrinsic evidence may be offered to support impeachment with Misconduct Involving Untruthfulness?
Extrinsic evidence of the misconduct is not permitted. In other words, this method of impeachment can be accomplished only by cross-examination of the witness.
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May a cross-examiner refer to the consequences that a witness suffered as a result of their prior bad act? Why or why not?
A cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act. The rationale is that the consequence (such as an arrest, termination, etc.) is, in essence, a third person’s opinion that the witness committed the act, and thus a form of extrinsic evidence.
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What is the rule for impeachment on a collateral matter?
Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
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How may a Hearsay Declarant be impeached?
A Hearsay Declarant may be impeached to the same extent as an in-court witness.
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What opportunities must an opposing party to a Hearsay Declarant give that Declarant to explain or deny a prior inconsistent statement?
The Hearsay Declarant need not be given the opportunity to explain or deny.
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What is Witness Rehabilitation?
A witness who has been impeached may be rehabilitated to support their credibility.
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What are the methods of witness rehabilitation?
- Explanation on Redirect: The witness on redirect may explain or clarify facts brought out on cross-examination.
- Good Character for Truthfulness: When the witness’s general bad character for truthfulness was attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.
The character witness cannot testify about specific acts of truthful conduct by the impeached witness; only reputation and opinion are allowed.
- Prior Consistent Statement: There are 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement: (1) if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some MOTIVE, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence. (2) if the witness’s testimony is impeached on some different ground (OTHER THAN a general attack on the witness’s CHARACTER for TRUTHFULNESS), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.
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What is hearsay? Is it admissible?
Hearsay is an OUT OF COURT STATEMENT, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the TRUTH OF THE MATTER ASSERTED.
- Hearsay is inadmissible upon appropriate objection unless an exception applies.
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What is hearsay within hearsay?
An out-of-court statement that incorporates other hearsay within it (“hearsay within hearsay” or “double hearsay”) is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
- Admissible only if each piece of hearsay falls within an exception.
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What is a Statement in the context of hearsay?
A “statement” is a person’s: (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion (EX: a nod of the head).
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Can non-human declarations be hearsay?
No. There is no such thing as animal or machine hearsay; there must be an out-of-court statement by a person.
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What does the "out of court" part of hearsay mean?
The term “out-of-court” means that the statement was not made by the declarant at the current trial or hearing.
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What is the "truth of the matter asserted" part of hearsay?
If offered for a non-truth purpose, it doesn’t matter that the declarant wasn’t cross-examined when they made the statement (EX: verbal acts / legally operative facts (like the words of contract or defamatory words); effect on the listener; party's statement that indicates a state of mind (like insanity)).
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What Hearsay rules apply for Prior Out-of-Court Statements of Testifying Witnesses?
As a general rule, a witness’s own prior out-of-court statement is hearsay and is inadmissible unless an exception applies.
However, under the Federal Rules, a prior statement by a TESTIFYING WITNESS who is SUBJECT TO CROSS-EXAMINATION is not hearsay (exemption) if: (1) The prior statement is one of identification of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification); (2) The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; OR (3) The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or charge of faulty memory.
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For the Opposing Party Statement exclusion to the hearsay rule, what types of judicial statements can and can't be argued against?
Judicial and Extrajudicial Statements: A party’s formal judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial.
A party’s informal judicial statements made during testimony and extrajudicial (out-of-court) statements are not conclusive and can be explained.
A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case.
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What is the rule for admissibility of adoptive statements? What about when a party is silent regarding another’s statement?
Where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them.
Remaining silent in the fact of an accusation (outside of a police interrogation, which silence is always inadmissible) is generally inadmissible, but may be used if: (1) the party heard and understood the accusation; (2) the party was capable of denying it; and (3) a reasonable person would have denied it.
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What is the rule for admissibility of vicarious statements?
Certain statements by another person are admissible against a party because of the relationship between them.
- NO: Statements of a party are not receivable against their CO-PARTIES merely because they happen to be joined as parties.
- MAYBE: The statement of a person AUTHORIZED BY A PARTY to speak on its behalf (such as a statement by company’s press agent) can be admitted against the party.
- MAYBE: A statement by an AGENT OR EMPLOYEE is admissible against the principal if the statement: (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship.
- YES: After a partnership is shown to exist, a statement of one PARTNER relating to MATTERS WITHIN THE SCOPE OF THE PARTNERSHIP business is binding upon their co-partners.
- YES: Statements of one COCONSPIRATOR, made to a third party IN FURTHRANCE OF A CONSPIRACY to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
- YES: (In most state courts) Statements of each JOINT OWNER are admissible against the other, and statements of a former owner of real property made at the time they held title are admissible against those claiming under them
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What establishes unavailability for hearsay purposes?
A declarant is unavailable if they: (1) Are unable to testify due to death or physical or mental illness; (2) Are exempt from testifying because of privilege; (3) Refuse to testify concerning the statement despite a court order; (4) Testify that they do not remember the subject matter; OR (5) Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means.
- NOTE: a declarant who is able to give deposition testimony in lieu of attending trial is considered to be an available witness—except with respect to (1) the former testimony exception and (2) the forfeiture by wrongdoing exception
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What exception(s) apply to former testimony when the declarant is unavailable?
The testimony of a now-unavailable witness is admissible if: (1) The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and (2) The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an OPPORTUNITY and SIMILAR MOTIVE to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination.
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What hearsay exceptions apply when a Declarant's personal interests are involved?
Statement Against interest: A statement of a person, now UNAVAILABLE as a witness, may be admissible if it was AGAINST THAT PERSON'S pecuniary (money), proprietary (property), or penal (criminal) INTEREST WHEN MADE, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true. The declarant must also have had PERSONAL KNOWLEDGE of the facts, and must have been aware that the statement was against their interest when they made it.
105
What special rule(s) apply for statements against interest in penal cases?
In criminal cases, statements against penal interest (statements that would subject the declarant to criminal liability) must be corroborated.
106
What hearsay exception(s) apply to Dying Declarations?
In a HOMICIDE prosecution or in ANY CIVIL CASE, a statement made by a now-UNAVAILABLE DECLARANT is admissible if: (1) The declarant BELIEVED THEIR DEATH WAS IMMINENT (they need not actually die); and (2) The STATEMENT CONCERNED THE CAUSE OR CIRCUMSTANCES of what the declarant believed to be their impending death. Note that the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened (an unsupported opinion or speculation will not qualify).
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What result for hearsay purposes when a party procured the absence of a declarant?
The statement of a person (now unavailable as a witness) is admissible when offered against a party who has ENGAGED OR ACQUIESCED in WRONGDOING that intentionally PROCURED the declarant’s UNAVAILABILITY. The party’s MOTIVATION must be to PREVENT THE DECLARANT from testifying.
108
What is the Excited Utterance hearsay exception?
An out-of-court statement relating to a startling event, made while UNDER THE STRESS OF THE EXCITEMENT from the event (before the declarant had time to reflect upon it), is admissible.
- Unavailability of declarant is immaterial.
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What is the Present Sense Impression hearsay exception?
A present sense impression is a statement that DESCRIBES OR EXPLAINS AN EVENT OR CONDITION and is made WHILE or IMMEDIATELY AFTER the declarant perceives the event or condition.
110
What hearsay exception(s) apply regarding a declarant describing their state of mind?
A statement of the declarant’s THEN-EXISTING (present) STATE OF MIND (including their motive, intent, or plan) or their EMOTIONAL, SENSORY, or PHYSICAL CONDITION is admissible.
- However, except as to certain facts concerning the declarant’s will, a statement of memory or belief is NOT admissible to PROVE THE TRUTH of the fact remembered or believed.
- State of mind includes INTENT to engage in conduct.
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What hearsay exception(s) apply when a declarant is seeking medical diagnosis or treatment?
A statement that describes a person’s medical history, past or present symptoms, or the symptoms’ inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment (will exclude statements that just serve to blame).
- Usually, a declarant will be describing their own condition, but this is not required (EX: the declarant might be seeking medical assistance for a family member).
- Statements falling within this exception are usually made to medical personnel, but this is not an absolute requirement.
112
What hearsay exception(s) apply for the record(s) of a regularly conducted activity?
Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if: (1) the record was made in the regular course of business and (2) the business regularly keeps such records (meaning, the entrant must have had a duty to make the entry).
- “Business” includes every business, organization, occupation, or calling, including nonprofit organizations.
- Self-serving accident reports prepared primarily for litigation are usually inadmissible.
- The entry must be made at or near the time of the event.
- The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker).
(b/c businesses are motivated to keep accurate records)
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When does the Business Records exception to hearsay apply?
A writing or record is admissible under the Business Records exception if it was (1) made in the regular course of the business, (2) the regular practice of the business to make the record, (3) made at or near the time of the event, and (4) made by a person who had a duty to make the record and who had personal knowledge of the event (or who obtained the information from another person at the business with personal knowledge and a duty to report).
The record must also be authenticated through the testimony or written certification of a records custodian or other qualified witness.
114
What foundation is required for the business records exception to hearsay?
The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (it does not need to be the author of the record in question). This can be accomplished by the records custodian (1) testifying that the record meets the elements of the business records exception, or
(2) certifying in writing that the record meets the elements of the business records exception.
115
Can non-occurrence of a matter be proved with the Business Records Hearsay Exception?
A record that meets the business records hearsay exception requirements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.
116
What sorts of public records may overcome the Hearsay requirements?
The following records of a public office or agency are admissible:
- Records setting forth the activities of the office or agency (EX: payroll records);
- Recordings of matters observed pursuant to a duty imposed by law (EX: weather bureau records of temperature), but not including police observations in criminal cases; and
- In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law (EX: an FAA report on the cause of a plane crash).
NOTE: Police and other investigatory reports generally inadmissible against a criminal defendant.
117
What is the Recorded Recollection hearsay exception?
If a testifying witness’s memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. The record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.
118
What is the Ancient Documents hearsay exception?
Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible.
119
In a criminal trial, what effect on hearsay exceptions?
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where: (1) The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases); (2) The declarant is unavailable; (3) The statement was “testimonial” in nature; and (4) The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial.
- NOTE: the defense still can't procure the declarant's absence.
- “Testimonial” evidence includes sworn testimony (such as at a grand jury, prior trial, or preliminary hearing). However, it also includes statements to law enforcement (sworn and unsworn) and certain documents.
120
What is the difference between taking judicial notice in a civil case vs a criminal case?
In a civil case, the judge taking judicial notice is binding on the jury. In a criminal case, the prosecutor’s burden of producing evidence on that point is satisfied.
121
What statements are considered to not be hearsay (exemptions)?
Admissions and prior statements of a testifying witness (prior sworn inconsistent statements, prior consistent statements, and prior identifications) AND statements by an opposing party.
122
Who may testify as to the authenticity of a signature?
ANY PERSON can testify to the authenticity of another's signature as long as that witness has seen the person's signature and can express an opinion regarding its authenticity. The only restriction is that a nonexpert CANNOT become familiar with the handwriting merely for the PURPOSE OF TESTIFYING (unlike voice authentication, which allows that).
- No requirement that they saw the signature recently.
123
What privileges do spouses have regarding being compelled to testify about communications between spouses?
The marital privilege provides that either spouse has a privilege not to testify as to a confidential communication made between spouses during the marriage. The communication must be made in reliance upon the intimacy of the marital relationship, and the privilege survives the marriage.
- NOTE: the privilege doesn't apply if the communication is revealed to a third party.
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What result when a public document is signed and certified?
A public document that has been signed and certified is self-authenticating, so no testimonial sponsorship for the document is required.
