Evidence Flashcards
Exception to where state law is applied instead of evidence law
Law of privilege in a diversity case
Except for rules relating to privilege, the Federal Rules do not apply in:
(1) the court’s determination of a preliminary question of fact relating to admissibility
(2) grand jury proceedings; and
(3) other miscellaneous proceedings, including those involving sentencing, extradition, issuing an arrest or search warrant, preliminary examination in a criminal case, bail, and probation.
Evidence is relevant if ___
it has any tendency to make the existence
of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Elements of relevance:
- Material: that is, the proposition must be “of consequence” in the case (though it does not need to be the ultimate issue); and
- Probative: meaning, the evidence has “any” tendency to make the proposition more or less likely
All relevant evidence is admissible, unless:
- It is kept out by some specific exclusionary rule of evidence that you will be learning about in subsequent modules (hearsay, privilege, public policy exclusions, etc.); or
- The court uses its Rule 403 discretion to keep it out
Rule 403
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by a list of dangers
Dangers for Rule 403
- 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)
- Undue delay
- Waste of time
- Needless presentation of cumulative (repetitive) evidence
Under the Federal Rules, ____ is not a valid ground upon which to exclude relevant evidence.
unfair surpise
As a general rule, if evidence involves some time, event, or person other than _____, it is inadmissible.
that involved in the present case
Despite the general rule above (evidence relating to another event/time/person don’t survive 403), some recurring situations have produced concrete rules that may allow prior similar occurrences to be admitted, these include:
- Plaintiff’s Accident History—Prior False Claims or Same Bodily Injury
- Similar Accidents or Injuries Caused by Same Event or Condition
- Previous Similar Acts Admissible to Prove Intent
- Sales of Similar Property
- Rebutting Claim of Impossibility
- Causation
- Habit and Business Routine Evidence
- Industry Custom as Evidence of Standard of Care
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:
- 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.
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 ____ is admissible to prove:
substantially similar circumstances
(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).
Many courts are reluctant to admit evidence of the ____ of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to
show ____
absence; the defendant’s lack of knowledge of the danger.
Similar conduct previously committed by a party may be admissible to prove ____ in the current case.
the party’s present motive or intent
Evidence of ____ is admissible to prove the property’s value. However, prices quoted in ____ generally aren’t admissible.
sales of similar personal or real property around the same time period; mere offers to purchase
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to ____
rebut a claim of impossibility
Complicated issues of causation may be established by evidence concerning other ____
times, events, or persons
Habit and Business Routine Evidence
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.
There are 2 defining characteristics of habit:
(1) frequency of conduct and
(2) particularity of circumstances.
As opposed to habit evidence character describes someone’s general disposition or propensity with respect to ____
general traits.
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
Public Policy Exclusions
- Liability Insurance
- Subsequent Remedial Measures
- Civil Settlements and Settlement Negotiations
- Plea Discussions
- Payments of and offers to pay medial expenses
Evidence of a party’s insurance against liability (or lack thereof) is NOT admissible to show ____
whether the party acted negligently or otherwise wrongfully (meaning, it is inadmissible to prove the party’s fault or
absence of fault).
Evidence of a party’s insurance against liability (or lack thereof) is admissible to:
- 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 (for example, “Don’t worry, my insurance will pay it off”)
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.
Evidence of repairs or other precautionary measures made following an injury is admissible to:
- 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
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 ____—including direct admissions of liability—are also inadmissible for these purposes [prove validity/amount of claim, impeachment].
negotiating a compromise
Evidence of 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 ____. Furthermore, the claim must have been in dispute as to
either ____
a party was going to make a claim (although the party need not have actually filed suit); (1) liability or (2) amount.
Rules, conduct or statements made during compromise negotiations regarding a civil dispute with ___ are not
excluded when offered in ____
a governmental regulatory, investigative, or enforcement authority; a criminal case.
The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:
- Offers to plead guilty;
- Withdrawn guilty pleas;
- Actual pleas of nolo contendere (“no contest”); or
- Statements of fact made during any of the above plea discussions
An actual ____ plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party.
guilty
Evidence that a party has paid or offered to pay an injured person’s ___ is inadmissible to prove liability for the injury. However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are ____
medical, hospital, or similar expenses; admissible.
Beware, of an offer to pay medical expenses that is also an offer to settle (for example, “I’ll pay your medical expenses if you drop the case”). In that situation, the ____ applies; meaning, any accompanying statements or conduct would be excluded along with the offer.
more restrictive rule for settlement negotiations
Character evidence refers to a person’s ____
general propensity or disposition (such as for honesty, fairness, peacefulness, violence).
Character evidence might be offered as substantive evidence (meaning, to prove a fact at issue in the case) for the following purposes:
- 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
- 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 for offering character evidence is the focus of the federal rule
Evidence of a witness’s bad character for truthfulness might be offered for ____
impeachment purposes
Potential 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
The ____ cannot initiate evidence of the defendant’s bad character to show conduct in conformity. However, because the defendant’s life or liberty is at stake, the ____ is permitted to introduce evidence of their own good character to show their innocence.
prosecution; defendant
If the defendant introduces evidence of their good character, then the prosecution can ____
rebut with evidence of the defendant’s bad character.
Under the Federal Rules, a character witness for the defendant may testify as to the defendant’s good reputation for a ____ and may give their ___
pertinent trait; personal opinion/rep concerning that trait of the defendant (but not specific acts!)
A defendant does not put their character in issue merely by ___
testifying
–> Taking the stand places the defendant’s credibility (as opposed to character) in issue; meaning, the prosecution is limited to offering impeachment evidence rather than substantive character evidence.
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.
____ misconduct, including prior arrests, may be inquired about while cross examining a defendant’s character witness.
Any
While cross examining a defendant’s character witness the prosecutor is
limited to inquiry of the witness; they may not introduce any ____ of the misconduct
extrinsic evidence
Be careful to distinguish asking a character witness whether they are aware of the defendant’s prior arrests, which is ____, and impeaching a witness with the witness’s own arrests, which is ___
proper; improper
Except in sexual assault cases (see 4.3.3, below), the defendant may introduce ____ evidence of a bad character trait of the alleged ___ when it is relevant to show the defendant’s innocence.
reputation or opinion; crime victim
Although a victim’s character usually has no bearing on the defendant’s innocence, it becomes relevant when the defendant claims ____ and argues that the victim was the ____
self-defense; first aggressor.
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:
- The victim’s good character for the same trait, or
- The defendant’s bad character for the same trait
The character rules apply where evidence of the victim’s character is being offered for propensity purposes (to prove how the victim likely acted during the altercation at issue). But evidence of a victim’s character might also be offered for a non-propensity purpose—to prove the defendant’s ____
state of mind at the time of the altercation.
–> If the defendant knew at the time of the altercation that the victim had a violent reputation or had committed violent acts in the past, evidence of the victim’s reputation or acts may be admitted to prove the defendant acted reasonably in responding to the victim’s aggression
In a ____ case in which the defendant pleads self-defense, evidence of ____ that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) opens the door to evidence that the victim had ____
homicide; any kind (not just character evidence); a good character for peacefulness.
When prosecution can initiate questioning about character evidence
In a homicide case in which the defendant pleads self-defense (i.e., The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity).
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the ____ is generally inadmissible.
sexual behavior or sexual disposition of the victim
Exceptions to inadmissibility of Rape Victim’s past behavior - criminal cases
- Specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence.
- Also, 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.
Specific instances of a victim’s sexual behavior with others are admissible to prove that ____
someone other than the defendant is the source of semen, injury, or other physical evidence.
Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for ____ and by the defense to prove ____
any reason; consent.
Exception to inadmissibility of Rape Victim’s past behavior - civil cases
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 (reverse 403)
In civil rape cases evidence of an alleged victim’s reputation is admissible only if ____
it has been placed in controversy by the victim.
Character evidence in a civil case
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.
–> this applies even in a civil case based on criminal conduct
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, ____ forms of character evidence (reputation, opinion, and specific acts) are admissible.
all
Evidence of a person’s other ____ is generally inadmissible if offered solely to prove conduct in conformity/propensity.
crimes, wrongs, or acts
-> 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 ____ to commit the crime charged
other than their character or propensity
Non-character purposes for offering the evidence may include:
MIMIC
- 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).
Even though “MIMIC evidence” is a helpful shorthand, keep in mind that this is not a comprehensive list of permitted purposes. The evidence can be admitted as long as it is relevant to ____
any purpose other than the defendant’s general character or propensity to commit the charged crime.
Requirements for admission of misconduct in MIMIC-type contexts: The misconduct may be proved by any evidence, such as witness testimony, the defendant’s criminal conviction, etc. There must be _____ that the defendant
committed the other misconduct.
sufficient evidence to support a jury finding (meaning, a reasonable juror could come to this conclusion).
Requirements for admission of misconduct in MIMIC-type contexts - criminal cases
the prosecutor must provide reasonable
notice of any evidence of this type that the prosecutor intends to offer at trial.
Such notice usually must be in writing and provided in advance of trial (but the court may excuse lack of pretrial notice for good cause). The notice must articulate the non-propensity purpose for which the evidence will be offered and the reasoning that supports the purpose.
MIMIC evidence is admissible only if the defendant is ____ the non character issue (for example, identity or intent).
actually contesting
If a MIMIC category is satisfied, the prosecution may use the evidence of misconduct as part of its ___
case-in-chief.
–> In other words, because MIMIC evidence is being offered for a non-propensity purpose, it is admissible even if the defendant does not “open the door” to character evidence.
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.
–> Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes
DEFENDANT’S SIMILAR MISCONDUCT IN SEX-CRIME CASES: The party intending to offer this evidence must disclose it to the defendant _____ before trial (or later with good cause).
15 days
Whenever you are faced with a writing on an Evidence question, be alert to 3 potential issues:
(1) authentication,
(2) best evidence rule, and
(3) hearsay.
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
In authenticating documents the proof must be ____
sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).
Parties may admit the genuineness of a document by ____. A document can also be authenticated by other evidence.
the pleadings or by stipulation
Evidence that may properly authenticate a document:
- Opponent’s admission
- Eyewitness testimony
- Handwriitng verifications
- Ancient docukments
- Reply letter doctrine
- Photographs and Videos
- X-Ray Pictures, Electrocardiograms, Etc.
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.
A writing can be authenticated by testimony of anyone who ____. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.
saw it executed or heard it acknowledged
A writing can be authenticated by evidence that the maker’s handwriting is genuine. This evidence may be in the form of:
- The opinion of a lay witness (non-expert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (not acquired for purposes of the current litigation)
- The opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting (can be in preparation for litigation); or
- The fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting
Where a lay witness authenticates handwriting the knowledge must be acquired
in the course of normal affairs (not acquired for purposes of the current litigation)
An “ancient” document can be authenticated by evidence that it:
- Is at least 20 years old when offered into evidence;
- Is in a condition that creates no suspicion as to authenticity; and
- Was found in a place where such a writing would likely be kept
Note that while documents may be authenticated if they are at least
_____, the related hearsay exception for ancient documents will only apply if the document was prepared ____
20 years old; before 1998
Reply Letter Doctrine
A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author.
Generally, photographs and videos are admissible only if identified by a witness as a portrayal of _____ and verified by the witness as a ____ of those facts
certain facts relevant to the issue; fair and accurate representation
Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with ____ is sufficient.
the scene, object, or person
If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that ___
the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.
To authenticate an X-ray 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.
When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to ____ is required.
the identity of the speaker
A voice can be identified by the opinion of ____ who has heard the voice at ____, including after litigation has begun and for the sole purpose of testifying.
anyone; any time
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.
Self-Authenticating Documents
- Domestic public documents bearing a seal, and similar official foreign public documents;
- Official publications (such as a 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
Best Evidence 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 a writing, such as oral testimony, is admissible only if the proponent provides ____
a satisfactory excuse for the original’s absence.
When does the best evidence rule apply
- Where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations); or
- Where the knowledge of a witness concerning a fact results from having read it in the writing
When does the best evidence rule NOT apply
The rule does not apply where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing.
-> Oral testimony of the fact may be given without producing the original writing that recorded the event.
The term original for the BER means:
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.
The term duplicate for the BER means:
An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy).
Under the BER duplicates are admissible to the same extent as originals, unless:
(1) the circumstances make it unfair to admit the duplicate, or
(2) a genuine question is raised about the authenticity of the original.
It is important to distinguish photocopies and copies made by hand. Photocopies are ____ and, thus, are usually treated the same as originals. In contrast, handwritten copies are considered ____ and are admissible only if the original or a duplicate is unavailable.
duplicates; secondary evidence
Valid excuses justifying the admissibility of secondary evidence (under the BER) 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.
- The original is in the possession of an adversary who, after due notice, fails to produce the original
If there is a valid excuse, the Federal Rules permit a party to prove
the contents of a writing by ____ of secondary evidence.
any type (such as handwritten copies, notes, oral testimony, etc.).
-> One type ofsecondary evidence is not preferred over the other.
Exceptions to Best Evidence Rule
- Summaries of Voluminous Records
- Certified Public Records
- Writing Is Collateral to Litigated Issue
- Testimony or Written Admission of Opponent
When it would be inconvenient to examine a voluminous collection of records in court, the proponent may ____. However, the proponent must make the originals or duplicates ____, and the court may order the proponent to produce the records in court
present their contents in the form of a chart or summary; available for inspection or copying
The BER does not apply to copies of public records that are _____
certified as correct or testified to as correct.
The BER does not apply where the writing is of ____ to the matter in controversy.
minor importance (that is, collateral)
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 ____ and need not give an excuse for non-production of the original.
use this evidence
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
Real evidence must be relevant and meet the following legal requirements:
- Authentication
- Condition of Object
The real object must be identified as what the proponent claims it to be, either by:
- 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)
To authenticate real evidence the proof must be ____
sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the
object is what the proponent claims it to be).
If the condition of the real object is significant, it must be shown to be in ____ condition at trial.
substantially the same
Particular Types of Real Evidence (beyond things directly use/relevant to the crime)
- Reproductions and Explanatory Real Evidence
- Maps, Charts, Models, Etc.
- Demonstrations
- Exhibition of Injuries
- Jury View of the Scene
++ While the evidence below is often admissible, remember that the court still has discretion to exclude it under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, etc.
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., 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.
The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be ____ to those attending the original event. Demonstrations of bodily injury may not
be allowed where the demonstrations would ____.
performed under conditions that are substantially similar
unduly traumatize the injury
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.
The trial court has ____ to permit the jury to view places at issue in the case. The ____ are relevant considerations here.
discretion; need for the view and changes in the condition of the premises following the events at issue in the case
Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally ____ until the contrary is established.
presumed to be competent
The Rules do not specify any mental or moral qualifications for witness testimony beyond these 2 limitations:
- 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 - The witness must give an oath or affirmation to testify truthfully
The competency of a child depends on the ____ as determined by the trial judge.
capacity and intelligence of the particular child
An insane person may testify, provided they understand the obligation to ___ and have the capacity to ____
speak truthfully; testify accurately.
The ____ judge may not testify as a witness. Likewise, ___ are incompetent to testify before the jury in which they are sitting.
presiding; jurors
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about ____, and the court may not receive evidence of a juror’s statement on such matter
what occurred during deliberations or about anything that may have affected a juror’s vote
A juror may testify as to:
- Whether any extraneous prejudicial information was improperly brought to the jury’s attention;
- Whether any outside influence was improperly brought to bear on any juror;
- Whether there is a mistake on the verdict form; or
- Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant.
–> 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.
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.”___
“Dead Man Acts.”
“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.
The Federal Rules state that the judge should exercise ____ in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment.
reasonable control over the examination of witnesses
- Several rule apply, but keep in mind that the judge ultimately has discretion to control the questioning.
Leading questions (questions that suggest the desired answer) are
generally allowed only on ____
cross examination and are not permitted on direct examination.
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
Cross-examination is generally limited to:
- The scope of direct examination, including all reasonable inferences that may be drawn from it, and
- Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module)
Improper Questions
Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted.
Improper Answers
Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.
As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of ____
their current recollection.
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not ____ while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
read from the writing (should be set aside once memory is refreshed)
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
- Have the writing produced at trial;
- Cross-examine the witness about the writing; and
- Introduce portions of the writing relating to the witness’s testimony into evidence
If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options (produced at trial, cross about it, introduce into evidence) only if ____
the court decides that justice requires it.
In a criminal case, if the prosecution fails to produce or deliver a writing used to refresh memory as ordered, the judge must ____—and, if justice requires, ____.
When the defense or a party in a civil case fails to comply, the judge has more discretion and can ____
strike the witness’s testimony; declare a mistrial
issue “any appropriate order.”
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 for a past recorded recollection must include proof that:
- The witness has insufficient recollection to testify fully and accurately (that is, showing the document to the witness fails to jog their memory);
- 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.
Although the past Recorded
Recollection may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit unless ____
offered by an adverse party.
Opinions by lay (nonexpert) witnesses are generally inadmissible. However, opinion testimony by a lay witness is admissible when it is:
- Rationally based on the 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
An opinion of a lay witness is generally admissible with respect to:
- The general appearance or condition of a person;
- The state of emotion of a person;
- Matters involving sense recognition;
- Voice or handwriting identification;
- The speed of a moving object;
- The value of the witness’s own services or property;
- The rational or irrational nature of another’s conduct; and
- A person’s intoxication
Situations Where Opinions of Lay Witnesses Are Not Admissible
A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge.
-> The lay witness may testify only as to the surrounding facts.
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 possible sources of information:
- Facts based on the expert’s own personal observation
- Facts made known to the expert at trial
- 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.
Where the experts factual basis if from 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 ____ be admissible
as evidence.
need not
But if the facts that an expert relies on would be inadmissible, the proponent of the expert testimony must not ___ to the jury unless the court determines that their ____
disclose the facts; probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (reverse 403)
Unless the court orders otherwise, the expert need not disclose the basis of the opinion on ____. However,
the expert may be required to disclose such information on ____.
direct examination; cross-examination
The expert must possess ____ regarding their opinion. A mere ____ is not sufficient.
reasonable probability; guess or speculation
Although courts have discretion to consider a wide variety of factors in determining the reliability of expert testimony, the Daubert factors that courts use to determine the reliability of experts’ principles and methodologies:
The “TRAP” mnemonic may help you remember them:
- Testing of principle or methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and publication
A relevant excerpt from a ____ may be used during expert testimony.
treatise, periodical, or pamphlet
Under the Federal Rules, these “learned treatises” can be used to both ____ under the “learned treatise” exception to the hearsay rule, subject to limitations
impeach experts and as substantive evidence (that is, to prove that what the treatise says is true)
Limitations to using learned treatises in expert testiony:
- 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 (cross/direct); and
- The excerpt is read into evidence but cannot be received as an exhibit
An expert is generally permitted to render an opinion as to the ___ in the case. However, in a _____, an expert may not state an opinion as to whether the accused did or did not have that.
ultimate issue; criminal case in which the defendant’s mental state constitutes an element of the crime or defense
A court has broad discretion to appoint ____ witnesses. On a party’s motion or its own, the court may order the parties to show cause why ____
expert; experts should not be appointed and may ask the parties to submit nominations.
What must occur when the court appoints an expert witness:
- The court may then appoint any expert who consents to act, and the court must inform the expert of their duties.
- The expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert.
- The expert is entitled to reasonable compensation as set by the court.
- The court may authorize disclosure to the jury that the expert was appointed by the court.
Upon a party’s request, the trial judge ____ order witnesses excluded from the courtroom. The judge may also do this on their own motion.
must
The judge, however, must not exclude a witness where:
(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 ___ and prohibiting the excluded witnesses from ____ trial testimony
excluded witnesses; accessing
The ___ may examine a party’s witness or call its own witness. Each party is entitled to ____ a witness called by the court.
court; cross-examine
A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when ____
the jury is not present.
When evidence is admissible only to impeach, it is not being offered as ____ but to show that the witness can’t be trusted
substantive evidence (that is, to prove some fact at issue in the case)
Generally, a party is not permitted to bolster or accredit the testimony of their witness until the witness has been ___
impeached.
Exceptions to Rule Against Bolstering
- A party may offer evidence that the witness made a timely complaint (in a sexual assault case, for example) or
- a prior statement of identification (usually, identifying the defendant as the
perpetrator of the charged crime) even if this tends to bolster their in-court testimony.
–> The prior identification may also serve as substantive evidence that the identification was correct (see hearsay exception)
Under the Federal Rules, a witness may be impeached by ____
any party, including the party who called them.
A witness may be impeached either b
(1) cross-examination (eliciting facts from the witness that discredit their own testimony) or
(2) extrinsic evidence (calling other witnesses or introducing documents that prove the impeaching facts).
++ different timing rules for when this can happen and when foundation should be laid
Methods for impeaching a witness with facts that are specific to the current case
- prior inconsistent statements
- bias
- sensory deficiencies
- contradiction
Methods for involve impeaching a witness with their general bad character for truthfulness
- opinion or reputation evidence of
untruthfulness - prior convictions
- bad acts
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 a prior inconsistent statement by extrinsic evidence, a ____
proper foundation must be laid and the statement must be relevant to some issue in the case.
A prior statement that omits a fact asserted during the current testimony may constitute an inconsistency if ____
it would have been natural for the witness to include the fact in the statement if they believed it to be true.
On its own, a witness’s present ____ of a fact is generally not inconsistent with a prior statement relating that fact (however, the court may find an inconsistency where the witness’s memory loss appears to be ___).
On the other hand, if the witness remembers the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered ____.
lack of memory ; feigned
inconsistent
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, a testifying witness’s prior inconsistent statement was ____, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated (see the Hearsay rule)
made under oath at a prior proceeding
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point:
- The witness is given an opportunity to explain or deny the statement;
and - The adverse party is given an opportunity to examine the witness about the statement
Under the Federal Rules, the opportunity to explain or deny extrinsic evidence of a prior inconsistent statement can be given ____ introduction of the extrinsic evidence
before or after
The foundation requirement for extrinsic evidence of a prior inconsistent statement (giving the witness an opportunity to explain or deny; allowing the adverse party to examine
them) does not apply in the following circumstances:
- The foundation requirement does not apply if the prior inconsistent statement is an opposing party’s statement
- an inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation.
- The court may dispense with the foundation requirement where justice requires
Evidence that a witness is ____ tends to show that the witness has a motive to lie.
biased or has an interest in the outcome of a case
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.
The court has discretion to permit extrinsic evidence of bias of a witness even if ____
the witness admits the bias.
Evidence that is otherwise inadmissible (such as arrests or liability insurance) may be introduced if relevant to bias, provided ____
the proper foundation is laid.
A witness may be impeached by showing, either on ___, that their faculties of perception and recollection were so impaired as to ____
cross-examination or by extrinsic evidence; make it doubtful that they could have perceived those facts.
A witness may also be impeached by showing that they had ____ of the facts to which they testified.
no knowledge
There is no foundation requirement for proving the sensory deficiency with ____.
extrinsic evidence (meaning, the witness does not need to be confronted with the impeaching fact).
Examples of sensory deficiencies that can be used to impeach
Bad eyesight or hearing; poor memory; consumption of alcohol or drugs at the time of the event or while on the witness stand.
Although not specifically addressed in the Federal Rules, impeachment by ___ is a recognized method of impeachment.
contradiction
If the witness admits the mistake or lie, they have been impeached by ___.
contradiction
For impeachment by contradiction extrinsic evidence is ___ unless the ____
permitted; contradictory fact is collateral
A witness can be impeached with reputation or opinion evidence of their own bad character for ____, to suggest that they were not telling the truth while on the stand. This is accomplished by ____
truthfulness; calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.
A witness may be impeached by proof of a ___ for certain crimes.
conviction (an arrest or indictment is not sufficient)
A pending review or appeal ____ the use of a conviction for impeachment.
does not affect
A witness may be impeached by any crime, felony or misdemeanor, requiring an act of _____. The court has ____ to bar impeachment by these crimes.
dishonesty or false statement; no discretion
Although many crimes are arguably dishonest in nature, courts interpret this category of conviction impeachment narrowly to include only crimes in the nature of “___”
crimen falsi (Look for a crime that involves some “uttering or writing of false words.”)
A witness may also be impeached by a felony that does not involve dishonesty or false statement, but the court has ____ to exclude these convictions.
discretion
For non-dishonesty crime of 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. (This is a more difficult balancing test than for other witnesses.)
For non-dishonesty crime on the case of all other witnesses (non-criminal def’s), the court will exclude the conviction if it determines that ___
its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.
Generally, if more than ___ have elapsed since the date of ____, the conviction is inadmissible.
10 years; conviction or the date of release from confinement (whichever is later)
The conviction rules apply only for ___ crimes
felony
The court may admit an older conviction if:
(1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and
(2) the proponent gives the adverse party reasonable written notice of their intent to use it.
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.____ is necessary
No foundation
If a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot later claim on appeal that ___.
the conviction was erroneously admitted
A conviction cannot be used to impeach a witness if the conviction was subject to ___ or equivalent procedure, and either:
a pardon
- The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony;
- The pardon was based on innocence (irrespective of any subsequent convictions)
Juvenile offenses are generally ____ for impeachment purposes. However, in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness ____ if the evidence would be admissible to ___
not admissible; other than the accused
attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence.
A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including ____
impeachment.
Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of ___. The cross-examiner must ____
truthfulness; have a good-faith basis to believe the witness committed the misconduct.
___ evidence of the bad acts is not permitted.
Extrinsic
This method of impeachment (misconduct going to truthfulness)can be accomplished only by____. Additionally, the cross-examiner cannot
refer to any ____ the witness may have suffered as a result of their bad act.
cross examination of the witness; consequences (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.)
Remember that asking about bad acts does not include inquiring about ____.
arrests (an arrest itself is not a bad act, it’s an act of someone else)
–> Thus, it is permissible to ask a witness whether they embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement.
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 ____ either by extrinsic evidence or by a prior inconsistent statement.
proving the statement untrue
The credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if _____
the declarant had testified as a witness.
In particular, the hearsay declarant need not be given the opportunity to explain or deny a ____, In addition, the party against whom the out-of-court statement was offered may ____ and cross-examine them about the statement.
prior inconsistent statement; call the hearsay declarant as a witness
For purposes of this rule (impeachment of hearsay declarant), a “hearsay declarant” means a person whose out-of-court statement has been admitted into evidence:
(1) under an exception to the hearsay rule, or
(2) as a vicarious statement
of an opposing party
A witness who has been impeached may be rehabilitated by the following methods:
- Good Character for Truthfulness
- Prior Consistent Statement
When the witness’s general bad character for truthfulness was attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), ____ may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.
Note that the character witness cannot testify about ____ of truthful conduct by the impeached witness; only reputation and opinion are allowed.
other witnesses
specific acts
Rehabilitation must ____ the attack
meet
There are 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement.
- First, 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.
- Second, 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.
A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as ____
substantive evidence of the truth of its contents (see the Hearsay rules)
Hearsay is ___
a 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
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.
When checking for multiple hearsay, look for an out-of-court declarant who ____
repeats or transcribes another person’s statement.
For purposes of the hearsay rule, a “statement” is a person’s:
(1) oral or written assertion, or
(2) nonverbal conduct intended as an assertion (like a nod of the head).
Nonhuman Declarations
There is no such thing as animal or machine hearsay; there must be an out-of-court statement by a person.
The term “out-of-court” means that the statement was not made by the declarant at ____
the current trial or hearing.
If offered for a ____ purpose, it doesn’t matter that the declarant wasn’t cross-examined when they made the statement.
non-truth
Common Non-Truth Purposes (that is, they are not being offered for the truth
of the matter asserted.)
- Verbal acts or legally operative facts (such as words of contract or defamatory words)
- Statements offered to show their effect on the listener or reader (for example, to prove notice in a negligence case)
- Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity or knowledge)
Do not confuse statements offered as circumstantial evidence of declarant’s state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that reflect directly on declarant’s state of mind (for example, “I feel sad” or “I’m going on a trip tomorrow”), which are usually offered to establish emotion or intent. The former is ____, while the latter is hearsay subject to a _____.
not hearsay; specific exception
There are certain statements that meet the basic definition of hearsay (that is, out-of-court statement offered for the truth of the matter asserted), but have been specifically designated as “not hearsay” under the Federal Rules. These statements are often referred to as hearsay ____
“exclusions” or “exemptions,”
A statement can be nonhearsay either because ____
(1) it doesn’t fall within the basic definition of hearsay (for example, it’s not being offered for the truth of the matter asserted), or (2) it falls within one of these special hearsay exclusions.
Hearsay exemption/exclusions (broad categories):
- Prior Statements of Testifying Witnesses
- Statements by or Attributable to Opposing Party
As a general rule, a witness’s own ____ is hearsay and is inadmissible unless an exception applies.
prior out-of-court statement
Under the Federal Rules, a prior statement by a testifying witness who is subject to cross-examination is not hearsay if:
- 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); - The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
- 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
Remember that these 3 hearsay exclusions apply to statements of ____ only.
testifying witnesses (who is subject to cross)
An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is ____ under the Federal Rules.
not hearsay
To qualify as an opposing party’s statement, the statement need not have been ____. Personal knowledge is not required; the statement may be predicated on hearsay.
against the declarant’s interest when made, and may even be in the form of an opinion
A party’s ____ judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial. A party’s ____
judicial statements made during testimony and extrajudicial (out-ofcourt)
statements are not conclusive and can be explained.
formal; informal
A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in ____
another case.
Example: if a defendant pleads guilty to a traffic charge relating to a car accident, that plea can be admitted against them as an opposing party’s statement in a subsequent civil case arising out of the same accident.
Where a party expressly or impliedly ____ in the statement of another, the party’s acquiescence may be admissible against them.
adopts or acquiesces
If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met:
- The party heard and understood the statement;
- The party was physically and mentally capable of denying the statement; and
- A reasonable person would have denied the accusation
Silence in the face of accusations by ____ is almost never considered an admission of a crime.
police in a criminal case
Certain statements by another person are admissible against a party because of the relationship between them, including (high level):
- Authorized Spokesperson
- Agents and Employees
- Partners
- Co-Conspirators
- Privies in Title and Joint Tenants (State Courts Only)
Statements of a party are NOT receivable against their ____
co-parties merely because they happen to be joined as parties.
The statement of a person authorized by a party to ____ can be admitted against the party.
speak on its behalf (such as a statement by company’s press agent)
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 (doesn’t matter whether they are currently working or not)
After a partnership is shown to exist, a statement of one partner relating to matters ____ is binding upon their co-partners.
within the scope of the partnership business
Statements of one conspirator, made to a third party in ____ at a time when the declarant was ____, are admissible against co conspirators. The court must determine the existence of a conspiracy, and the party’s participation in it, by a ____ standard
furtherance of a conspiracy to commit a crime or civil wrong; participating in the conspiracy
preponderance of the evidence
The admission of Statement against an opposing party from those Privies in Title and Joint Tenants applies in ___ Only
State Courts
Note: These statements do not qualify as opposing party statements under the Federal Rules, but may be admissible under one of the hearsay exceptions
In most state courts, statements of each ___ owner are admissible against the other, and statements of a former owner of real property made at the time they ___ are admissible against those claiming under them (grantees, heirs, etc.).
joint; held title
Before admitting an out-of-court statement as a vicarious statement of an opposing party, the court must make a preliminary determination of ______
In making such a determination, the court must consider the ____, but the statement
alone is ____ to establish the required relationship; there must be some independent evidence.
declarant’s relationship with the party against whom the statement is offered
contents of the statement; not sufficient
Three broad categories of hearsay exceptions
- Where declarant is unavailable
- Where it doesn’t matter
- Residual catch all exception
HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE
- Former testimony
- Statements against interest
- Dying declarations
- Statement of personal or family history
- Statements Offered Against Party Procuring Declarant’s Unavailability
Statements Offered Against Party Procuring Declarant’s Unavailability
- Are unable to testify due to death or physical or mental illness;
- Are exempt from testifying because of privilege;
- Refuse to testify concerning the statement despite a court order;
- Testify that they do not remember the subject matter; or
- 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.
A declarant who is able to give deposition testimony in lieu of attending trial is considered to be an ____ witness—except with respect to ____
available; (1) the former testimony exception and (2) the forfeiture by wrongdoing exception
A declarant is not considered unavailable for purposes of the hearsay rule if the proponent of the declarant’s statement ____ the declarant’s unavailability (for example, by intimidating or killing them) in order to ____
procured or wrongfully caused; prevent them from attending or testifying (need specific intent)
The former testimony of a now-unavailable witness is admissible if:
- The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and
- 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.
–> “Predecessor in interest” refers to a person in a privity relationship with the party (examples would include grantor-grantee, testator-executor, or joint tenants).
On a practical level, the “opportunity and similar motive” requirement means that the party against whom the testimony is offered (or, in a civil case, their predecessor in interest) must have been ____, and the former action must have involved the ____
a party in the former action; same subject matter (but the causes of action need not be identical).
Because grand jury proceedings do not provide the accused with an opportunity for cross-examination, the grand jury testimony of an unavailable declarant is ____ against a defendant under the former testimony exception to the hearsay rule. Be careful not to confuse this with a prior inconsistent statement given under oath by a now-testifying witness (one of the hearsay exclusions discussed in the prior section). Grand
jury testimony is ___ in that case, both as ____ evidence.
not admissible; admissible (impeachment and substantive)
Statements 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.
Limitation on Statements Against Penal Interest
In criminal cases, statements against penal interest (meaning, statements that would subject the declarant to criminal liability) must be corroborated.
If a person makes a declaration containing statements that are against their interest (for example, “I sold the drugs”) and statements that are not (for example, “X runs the drug ring”), the exception covers only those remarks that _____, not the entire extended declaration.
inculpate the declarant
Dying Declarations Exception
In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if:
- The declarant believed their death was imminent (they need not actually die); and
- 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 (meaning, an unsupported opinion or speculation will not qualify).
Beware of answer choices reflecting the traditional dying declaration rule, which:
(1) required that the declarant ultimately die of the injury, and
(2) could not be used in civil cases.
The dying declarations exception only applies in:
Homicide prosecutions (doesn’t include attempted homicide either) and civil cases
Statements of Personal or Family History
Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
- The declarant is a member of the family in question or intimately associated with it; and
- The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation
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. Remember, the statement meets this exception only if ____
the party’s motivation was to prevent the declarant from testifying.
-> If a party killed a declarant (or otherwise prevented them from testifying for a different reason, the declarant’s statement would not fall within this
exception.
The following exceptions to the hearsay rule do not require that the declarant be unavailable:
- Excited Utterances
- Present Sense Impressions
- Present State of Mind
- Statements Made for Purposes of Medical Diagnosis or Treatment
- Records of a Regularly Conducted Activity— Business Records
- Official Records and Other Official Writings
- Recorded Recollection
- Learned Treatises
- Ancient Documents
- Documents Affecting Property Interests
- Reputation
- Family Records
- Market Reports
Excited Utterances
An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible.
Sometimes a “failed” dying declaration may “succeed” as an ____
excited utterance (for example, where the declarant is available or had some hope of survival)
Present Sense Impressions
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
Present State of Mind Exception
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.
Except as to certain facts concerning the declarant’s will, a statement of____ is not admissible to prove the truth of the fact remembered or believed under the present state of mind exception.
memory or belief
“state of mind” includes statements about the declarant’s intent to do something in ____, including the intent to engage in conduct with ____.
the future; another person
The present sense impression excpetion covers a declarant’s statement—to
_____—about their current physical condition.
anyone
Statements Made for Purposes of Medical Diagnosis or Treatment
A statement that describes a person’s medical history, past or present symptoms, or their 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.
For the Statements Made for Purposes of Medical Diagnosis or Treatment exception Statements falling within this exception are usually made to medical personnel, but this is ____
not an absolute requirement.
There is a separate hearsay exception for statements of present physical condition, and this exception applies regardless of whether the declarant is seeking medical help. The difference here is that the “medical diagnosis or treatment” exception covers statements of ____
past condition (as well as present condition).
Note: when a declarant makes a statement of present physical condition for the purpose of medical diagnosis or treatment, it could technically be admitted under either exception.
Under the Federal Rules, declarations of past physical condition made to a doctor employed to ____ are admissible under this hearsay exception.
testify (that is, making a statement for the purpose of obtaining a “medical diagnosis” includes a diagnosis for the purpose of giving an expert opinion).
Business Records Exception
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 the elements are met.
Business Records Exception Elements
- “Business”
- Entry Made in Regular Course of Business
- Entry Made Near Time of Event
- Personal Knowledge
For the business records exception “Business” includes _____
every business, organization, occupation, or calling, including nonprofit organizations.
Entry Made in Regular Course of Business To be admissible:
(1) the record must have been made in the regular course of business and
(2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry).
Self-serving accident reports prepared primarily for ____ are usually inadmissible.
litigation
For the business records exception the entry must be made _____
at or near the time of the event
For the business records exception the business record must consist of matters within the personal knowledge of the ____, or within the knowledge of someone with ____
entrant; a duty to transmit such matters to the entrant (generally, a co-worker).
Business records and police reports often present a ____ problem.
multiple hearsay (so check that the statements contained inside were also report by someone with duty to report, otherwise = not admissible)
Foundation for Business Records
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).
Foundation for Business Records - ways to achieve:
(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.
A business record that meets the above requirements may also be used to prove the ____ if it was the regular practice of the business to record all such matters.
nonoccurrence or nonexistence of a matter
Even if a business record meets all requirements, it still may be excluded by the court if the opponent makes a showing that ____
the circumstances of the record indicate a lack of trustworthiness.
The following records of a public office or agency are admissible:
- Records setting forth the activities of the office or agency (for example, payroll records);
- Recordings of matters observed pursuant to a duty imposed by law (for example, 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 (for example, an FAA report on the cause of a plane crash)
For the public records exception the writing must have been made by and within ____, and it must have been made ___ the time of the event.
the scope of the duty of the public employee; at or near
As with business records, an otherwise qualifying public record may be excluded by the court if the opponent makes a showing that ____
the circumstances of the record indicate a lack of trustworthiness
As a general rule, police reports can be admitted under the public records exception. Even the officer’s opinions and factual (not legal) conclusions can be admitted under this exception. However, public records and reports generally are not admissible ____.
against the defendant in a criminal case
Most courts have held that these records (police reports can) can’t be admitted against a criminal defendant under the ____
business records exception (in other words, the business records exception can’t be used as a “back door” toget around this limitation in the public records exception).
Records of vital statistics are admissible if reported to a public office in accordance with ____
a legal duty.
Statement of Absence of Public Record
Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.
Statement of Absence of Public Record in criminal cases
A criminal defendant has a right to confrontation and may demand the presence of the person who prepared the
certification.
Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice (unless the court sets a
different timeline).
A certified copy of a judgment is always admissible proof that ____. The problem is to what extent ____ in the former proceeding can be introduced to prove facts in the present case.
such judgment has been entered; the facts adjudicated
A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove ____. In a criminal case, however, the government may use the judgment for this purpose only against ____; against others, it may be used only for ___
any fact essential to the judgment
the accused; impeachment purposes.
The public records exception does not apply to records of ____
prior acquittals.
–> This is because the evidentiary standard is higher in a criminal case (proof beyond a reasonable doubt), so an acquittal is not conclusive as to whether the defendant would be found liable in a civil case.
A civil judgment is inadmissible in _____ because of the different standards of proof.
a subsequent criminal proceeding
A civil judgment is generally also inadmissible in subsequent ____, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.
civil proceedings
Recorded Recollection Hearsay Exception
Under this 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 (analog of rule of using document to aid oral testimony)
–> Remember that under this exception, the record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.
As discussed in the Witnesses module, statements contained in a learned treatise are admissible as substantive proof if
(1) the treatise is established as reliable authority and
(2) the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination.
–> If admitted, such statements are read into evidence but are not received as an exhibit
Remember that learned treatises are admissible only if introduced in the context of ____
expert testimony.
Ancient Documents hearsay exception
Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible.
Documents Affecting Property Interests hearsay exception
A statement in a document affecting an interest in property (such as a deed, will, etc.) is admissible if the statement is relevant to the document’s purpose.
However, the exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document.
Reputation hearsay exception
Reputation evidence is hearsay because it summarizes various out-of-court statements by other people—but we know from the Character Evidence module that such testimony is routinely admitted.
That is because there are several 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.
Family Records hearsay exception
Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
market reports hearsay exception
Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which imposes the following conditions:
i - The hearsay statement must possess sufficient guarantees of trustworthiness. —> In making this determination, the court must consider: (1) the totality of the circumstances in which the statement was made, and (2) any evidence that corroborates the statement.
ii - The statement must be strictly necessary (that is, more probative
as to the fact for which it is offered than any other evidence that the proponent can reasonably produce).
iii. The proponent must give reasonable notice to the adversary as to their intent to offer the statement
–> This includes: (1) the substance of the statement, and (2) the name of the declarant.
The notice for the residual exception generally must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court, for ___
good cause, excuses a lack of earlier notice.
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where:
- The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases);
- The declarant is unavailable;
- The statement was “testimonial” in nature; and
- The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial
The defendant forfeits their right of confrontation if they ____
committed a wrongful act that was intended to keep the witness from testifying.
“Testimonial” evidence includes ____ (such as at a grand jury, prior trial, or preliminary hearing). However, it also includes statements to ____ (sworn and unsworn) and certain documents, as discussed below.
sworn testimony; law enforcement
Whether a statement made in response to police interrogation is testimonial depends on its ____
primary purpose
If the primary purpose of police interrogation is to enable the police to ____, statements made in the course of the interrogation are nontestimonial
help in an ongoing emergency
In determining whether an “ongoing emergency” existed at the time of the interrogation, relevant factors include:
(1) the nature of the dispute (public vs. private);
(2) whether the perpetrator is still at large;
(3) the scope of the threat to the victim and to the public; and
(4) the type of weapon involved.
When the primary purpose of the interrogation is to _____, statements are testimonial
establish or prove past events potentially relevant to a later criminal prosecution
It has been held that statements by a young child abuse victim to a school teacher about the abuse are ____.
not testimonial (because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator)
Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of ____ are testimonial and cannot be admitted unless the defendant previously had an opportunity to cross-examine the
author of the report. The testimony of the analyst’s supervisor who was not involved in the testing is ____ to admit the results.
accusing a targeted individual of criminal conduct (such as fingerprint test results); not sufficient
In a criminal case where there is an out of court declarant continue:
Hearsay, confrontation clause
Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would ____
deprive the accused of their right to a fair trial or deny their right to compulsory process (DPC)
What privilege rules apply and when:
- In a federal court case arising under federal substantive law, privileges are governed by federal common law.
- In a federal court case based on diversity jurisdiction, where state substantive law applies to parties’ claims and defenses (the Erie doctrine, covered in Federal Civil Procedure), the federal
court must apply privilege law of the state.
The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. Federal courts currently recognize the following major privileges:
- The attorney-client privilege;
- Spousal immunity;
- The privilege for confidential marital communications;
- The psychotherapist/social worker-client privilege;
- The clergy-penitent privilege; and
- Governmental privileges
These privileges are only recognized by certain states (not federal CL)
physician-patient, accountant-client, professional journalist
In general to be privileged, a communication must be shown or presumed to have been made ____
in confidence (meaning, not intended to be disclosed to third parties).
Any privilege is waived by:
(1) failure to claim the privilege;
(2) voluntary disclosure of the privileged matter by the privilege holder; or
(3) a contractual provision waiving in advance the right to claim a privilege.
What actions do not constitute waiver of privilege:
- A privilege is not waived when someone wrongfully discloses information without the privilege holder’s consent.
- A waiver by one joint holder does not affect the right of the other holder to assert the privilege.
- A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties. (Under the modern view, in the absence of negligence by the person claiming privilege, even the eavesdropper would be prohibited from testifying)
Elements of Attorney-Client
The privilege applies to:
- Confidential communications,
- Between attorney and client (or representatives of either),
- Made during professional legal consultation,
- Unless the privilege is waived or an exception is applicable
For the A/C privelge an “attorney” is ____
a member of the bar, or someone the client reasonably believes to be a member of the bar.
For the A/C privilege the “client” must be ____ at the time of the communication. Disclosures made before the attorney ____ the case are covered by the privilege.
seeking the professional services of the attorney; accepts or declines
Corporations are “clients” within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if ____
the employees were authorized or directed by the corporation to make such statements.
The A/C privilege applies to communications only; the privilege does not apply to _____
underlying information, pre-existing documents, or physical
evidence.
For the A/C privilege communications made in the known presence and hearing of a stranger are not privileged. However, ____ may be present without destroying the privilege.
representatives of the attorney or client
Communications made to third persons (such as administrative assistants, messengers, or accountants) are confidential and covered by the privilege if ____
necessary to transmit information between the attorney and client.
A favorite exam topic involves communications between a client and a doctor during an examination made at the attorney’s request (this is usually done to help the attorney evaluate the extent of the client’s injuries). What privilege applies in that case?
The physician-patient privilege (infra) does not apply because no treatment
is contemplated.
However, the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert.
If 2 or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to ____. But if the joint clients later _____, the privilege does not apply as between them.
third parties; have a dispute with each other concerning the common interest and one client sues the other
For the A/C privilege the primary purpose of the communication must be to obtain or render legal services, not to give ____
business advice or social advice.
For the A/C privilege the ___ _holds the privilege, and only they can waive it. However, the attorney’s authority to claim the privilege on behalf of the client is ____
client; presumed in the absence of contrary evidence.
How long does A/C privilege last
The attorney-client privilege applies indefinitely.
- It continues after the attorney-client relationship ends and even after the client’s death.
The client’s ____ has the power to waive the A/C privilege after the client’s death.
estate representative
Exceptions to A/C privilege
- If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
- Where the client has put the legal services at issue in the case
- For a communication relevant to an issue of breach of duty in a dispute between the attorney and client
- Regarding a communication relevant to an issue between parties claiming through the same deceased client
Although documents prepared by an attorney for their own use in a case are not protected by the A/C privilege, they are ____ to discovery except in cases of necessity.
not subject (attorney work product)
Under the A/C privilegegGenerally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection with respect to ____
the disclosed material
Under the A/C privilege undisclosed privileged material is subject to the waiver only if
There is no waiver if the disclosure was inadvertent and the holder
took reasonable steps to prevent disclosure and rectify the error.
(1) the waiver was intentional,
(2) the disclosed and undisclosed material concern the same subject matter, and
(3) the material should be considered together to avoid unfairness.
Under the A/C privilege there is no waiver if the disclosure was inadvertent and ____
the holder took reasonable steps to prevent disclosure and rectify the error.
Under state CL confidential information acquired by a physician is privileged if:
- There was a professional relationship between the physician and patient for the purposes of medical treatment;
- The information was acquired for the purpose of diagnosis or treatment; and
- The information was necessary for diagnosis or treatment (nonmedical information—for example, details of who was at fault in an accident—is not privileged)
PHYSICIAN-PATIENT PRIVILEGE - who is the holder
- The privilege belongs to the patient, and the patient may decide to claim or waive it.
- If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf.
The physician-patient privilege does not apply (or is impliedly waived)
if:
- The patient puts their physical condition in issue
- The physician’s assistance was sought to aid wrongdoing
- The communication is relevant to an issue of breach of duty in a dispute between the physician and patient
- The patient agreed by contract (in an insurance policy, for example) to waive the privilege; or
- It is a federal case applying the federal law of privilege
State approaches to PHYSICIAN-PATIENT PRIVILEGE in criminal cases
- In some states, the privilege applies in both civil and criminal cases.
- In a number of others, it cannot be invoked in criminal cases generally.
- In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.
When a psychiatrist is the doctor involved, the applicable privilege is the ____
psychotherapist-client privilege not the physician-patient privilege
Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or ___ and their patient/client. In most particulars, this privilege operates in the same manner as the ____
licensed social worker; attorney-client privilege
Similar to the privileges discussed above, there is no psychotherapist privilege where _____
the patient puts their mental condition at issue in the case (for example, by filing a claim for emotional injuries or asserting an insanity
defense).
There are 2 distinct spousal privileges:
the testimonial privilege (commonly known as “spousal immunity”) and the privilege for confidential marital communications.
Spousal Testimonial Privilege (Spousal Immunity)
- A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.
- Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.
The Spousal Immunity privilege applies in ___
criminal cases only
Scope of the Spousal Immunity privilege
There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage (even if the events at issue took place before the marriage)
What matters for the spousal immunity privilege is whether the spouses are married at ____
the time of trial.
Holder of Spousal Immunity Privilege
In federal court, the privilege belongs to the witness-spouse. This means that the witness-spouse cannot be compelled to testify, but may choose to do so.
Privilege for Confidential Marital Communications
In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged.
The Privilege for Confidential Marital Communications applies in ____ cases
civil and criminal
Holder of Privilege for Confidential Marital Communications
Either spouse can refuse to disclose the communication or prevent any other person from doing so.
For the Privilege for Confidential Marital Communications to apply, the marital relationship must exist when ____.
the communication is made
-> Divorce will not terminate the privilege, but communications after divorce are not privileged.
Private communications between spouses are generally presumed to be ____ (with exceptions)
confidential (the communication must be made in reliance upon the intimacy of the marital relationship).
What is not confidential under the Privilege for Confidential Marital Communications
- Threats or abusive language are not privileged.
- Communications made in the known presence of a third party are not privileged (though statements may still be confidential and privileged if made in the presence of young children living in the home).
Neither marriage privilege applies in the following situations:
- Communications or acts in furtherance of a future joint crime or fraud;
- In legal actions between the spouses; or
- In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children
Clergy-Penitent Privilege
Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege.
Example: the privilege will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser
Governmental Privileges
Official information not otherwise open to the public may be privileged.
The government also holds a privilege that protects the identity of ____. The privilege is waived if the informer’s identity is ____
informer (someone who has provided the government with details of a potential crime)
voluntarily disclosed by a privilege holder (an appropriate government representative).
Accountant-Client Privilege (State Only)
Many states recognize a privilege for statements made to an accountant, and the elements of this privilege are very similar to the attorney- client privilege. However, there is no federal accountant-client privilege.
Professional Journalist Privilege (State Only)
There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privilege.
The burden of proof encompasses:
(1) the burden of producing or going forward with the evidence and
(2) the burden of persuasion
Burden of Production
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case
Once the party has satisfied the burden of production, it is incumbent upon the other side to _____
come forward with evidence to rebut the accepted evidence
After the parties have sustained their burden of production of evidence, the question is whether ____
the party with the burden of persuasion has satisfied it.
The burden of persuasion for civil cases
is usually by a ____ , although some civil cases (such as fraud or an oral contract to make a will) require proof of ____. The burden of persuasion for criminal cases is ____.
preponderance of the evidence (more probably true than not true); clear and convincing evidence (high probability)
beyond a reasonable doubt.
The Federal Rules distinguish preliminary facts to be decided by ____
the jury from those to be decided by the judge.
Preliminary Facts Decided by Jury
- The jury decides certain preliminary facts relating to whether evidence is relevant at all.
- whether evidence is authentic, whether a person was acting as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.
Before such a question is brought before the jury, the judge must determine that ____ that the preliminary fact exists.
there is sufficient proof to support a jury finding
Preliminary Facts Decided by Judge
Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge
For example: Is a witness mentally competent to testify? Does a privilege exist? Does the evidence meet the requirements of a hearsay exception?
Under the Federal Rules the judge is ____ by the rules of evidence, except ____.
not bound; privilege
–> Remember, this evidence isn’t necessarily being introduced at trial; the judge is simply considering it to determine if other evidence should be admitted at trial.
Whether the jury should be excused during the preliminary fact determination is generally within the ____ of the trial judge. However, the jury must be excused if:
discretion
(1) the hearing involves the admissibility of a confession;
(2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or
(3) justice so requires.
An accused may testify on any preliminary matter (for example, circumstances surrounding an allegedly illegal search) without subjecting themselves to ____. Furthermore,
testifying about the preliminary matter does not subject the accused to cross-examination about ____
testifying at trial generally (i.e., it does not waive privilege against self-incrimination); other issues in the case.
Judicial notice is the ____
recognition of a fact as true without formal presentation of evidence.
A court may take judicial notice of any fact that is ____
“not subject to reasonable dispute”
A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:
- The fact is generally known within the trial court’s jurisdiction
or - The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
Courts often take judicial notice of the reliability of _____ as a type of “generally known” fact. The court will admit these test results into evidence upon a showing that ____
well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests)
the test was properly conducted.
Judicial notice can be taken at ____ stage of the proceedings (and can even be taken for the first time ____).
any; on appeal
If a court does not take judicial notice of a fact on its own accord, a party must ____. If the party does this, the court is required to take judicial notice of the fact.
formally request that notice be taken and provide the court with the necessary
information
A judicially noticed fact is conclusive in a ___ case but not in a ___ case.
civil; criminal (In a criminal case, the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive)
The Federal Rules, and thus their requirements, govern only judicial notice of ____ facts. ____ facts (meaning, those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed.
“adjudicative” (meaning, those that relate to the particular case)
“Legislative”
Courts MUST take judicial notice of ____ law and the official regulations of those governments.
Courts MAY take judicial notice of ____.
federal and state
municipal ordinances and private acts or resolutions of Congress or of the local state legislature; Laws of foreign countries may also be judicially noticed.
A presumption is a rule that requires that ____.
a particular inference be drawn from an ascertained set of facts.
-> It is a form of substitute proof, because proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
Mail delivery presumption
A letter, properly addressed, stamped, and mailed, is presumed to have been delivered
Death Presumption
If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.
Suicide Presumption
When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
The presumption against suicide applies in ___
civil cases only
Legitimacy presumption
Every person is presumed to be legitimate (meaning, born to legally married parents).
Sanity presumption
Every person is presumed sane in civil and criminal cases until the contrary is shown.
Ownership of Car presumption
Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.
Chastity Presumption
Every person is presumed chaste and virtuous.
Regularity presumption
It is presumed that persons acting in an official office are properly performing their duties.
Continuance presumption
Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
Solvency presumption
A person is presumed solvent, and every debt is presumed collectible.
Bailee’s Negligence Presumption
Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
Marriage Presumption
Upon proof of a marriage ceremony, a marriage is presumed valid.
Until rebutted, a presumption operates to shift the burden of ____ to the party against whom the presumption operates.
production
Remember that a presumption does not shift the burden of ____. It remains on the
same party throughout a trial
persuasion
A presumption is overcome or destroyed when the adversary ____.
produces some evidence contradicting the presumed fact
-> Once sufficient contrary evidence is admitted, the presumption is of no force or effect.
In a criminal case the judge cannot instruct the jury that it ____; the judge must instruct them that they ___ regard the basic facts as sufficient evidence of the presumed fact.
must find a presumed fact against the accused; may
A permissible inference may allow the party to ____, but does not ____
meet their burden of production (establish a prima facie case); shift the burden to the adversary.
Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of ___
substantive law.
When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on _____
the weightier considerations of policy and logic.
Under the Federal Rules, ____ governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.
state law
Rule of completeness
Where part or all of a statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related statement—that ought in fairness to be considered at the same time.
–> The adverse party may do so over a hearsay objection.
Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon timely request, ____
restrict the evidence to its proper scope and instruct the jury accordingly (limiting instruction).
The court may exclude the evidence entirely if it determines that, even with a ____, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose (in other words, the judge may exclude the evidence if it fails the Rule 403 balancing test).
limiting instruction
A party may claim error in the court’s ruling if it affects a ____ of the party.
substantial right
If the court admitted evidence, the party opposing its admission needs to make a ____ or move to strike the evidence. Once the court rules definitively on the record (either before or at trial), the party ____ renew its objection or offer of proof to
preserve the claim of error for appeal.
timely objection; doesn’t have to
If the court excluded evidence, the proponent of the evidence needs to ____, unless its substance was apparent from the context.
inform the court of the evidence’s substance by an offer of proof
Objections at trial should be made after ____, but before ___, if the question calls for inadmissible information.
Otherwise,
a motion to strike must be made ____
the question; the answer
as soon as an answer emerges as inadmissible.
At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when ____ or it may be waived. Objections based on the substance of a question or answer may be postponed until ____
the question is asked; the deposition is offered in evidence.
Failure to object is deemed a waiver of ____ for objection.
any ground
-> In other words, if no objection is made, otherwise inadmissible evidence will be admitted.
An objection may be either specific (for example, “Objection, hearsay”) or general (“I object”). The Federal Rules call for a specific objection unless ____
the ground for the objection was apparent from the context.
A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if ___
their adversary offers evidence on the same subject.
If an answer is unresponsive but otherwise admissible, only ____ counsel can move to strike the answer; ____ counsel cannot.
examining; opposing
It is not necessary for a party to ____ from a trial ruling in order to preserve the issue for appeal.
“except”
This was a common law rule that has
been abolished.
An offer of proof may be made, disclosing the ____, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal.
nature, purpose, and admissibility of rejected evidence
An offer of proof may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered.
The court can require the offer of proof to be made in _____
question-and- answer form (meaning, the lawyer conducts their examination of the
witness so that the judge hears exactly what the witness would have said in front of the jury).
The court may take notice of a plain error affecting a substantial right of a party, even if ____
the claim of error wasn’t properly preserved.
A judge ____ on the weight of the evidence in federal courts.
may comment
To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not ____
suggested to the jury by any means.
