evidence Flashcards
what does a witness need to have to testify?
they need to have personal knowledge of what they are testifying about
refreshing recollection
if a witness does not remember something, their recollection can be refreshed by any object, sound, smell, ANYTHINGGGG.
the witness may only briefly gaze upon the refresher then testify from memory.
what rules does not apply to refreshing recollection / and what rule must be followed?
the best evidence does not apply to refreshers.
there is only one rule: the witness can’t just. start reading off the writing.
Because then the lawyer could just write little notes to the witness and coach him. This isn’t a game of telephone motherfucker, this is a trial.
opposing sides rights when it comes to refreshing recollection
- inspect our refresher
- use our refresher on cross examination against our witness
- introduce it into evidence as an exhibit
exception to refreshing recollection
if a witness uses something to refresh their recollection before testifying, the court has discretion whether to let the opposing side view it.
objections
objections are just statements opposing something that has happened in court or that is about to happen. you are asking for the judge’s immediate ruling on it.
rules around objections
1) timely –> at the earliest opportunity possible
2) specific –> you could say you are objecting on grounds of ____.
when is it not timely to object
when a witness leaves the stand.
uh oh goat, i should have objected earlier, what about jury instructions? (and expection)
you just waived that issue on appeal.
however, when it comes to jURY INSTRUCTIONS you can object later on IF PLAIN ERROR affecting motha fucking substantial rights has occurred.
how to show plain error in jury instructions
To show plain error in this circumstance you need to show the instructions are a clearly inaccurate statement of the law that would probably lead to an incorrect verdict.
Otherwise, without plain error -> the objection is waived if it is not timely.
Plain error doesn’t only occur with jury instruction fuck ups, it can occur anytime there is an enormous error affecting someone’s substantial rights.
offers of proof
When an opponent at trial argues against the admission of a piece of your evidence (whether physical evidence or testimonial), you may make an offer of proof:
Basically, an offer of proof is just you telling the judge
(1) what the evidence is (describing it or showing it to the judge),
(2) an explanation of how the evidence relates to the case itself, and
(3) arguments supporting admissibility of the evidence.
used to help determine if the judge abused their discretion.
motions to strike evidence at trial m
A motion to strike happens when some evidence got in that shouldn’t be admissible, and you’re asking for the jury to disregard it and preserve the error on appeal.
lay witness opinions - admissibility
Rabbits bouncing with purpose
In order for a lay-witness opinion to be admissible it must be:
Rationally based on the witness’s perception
+ Helpful to the jury.
+ Not based on technical, scientific, or other specialized knowledge.
But the ANSWER on the F24 will say the words:
Rationally based on the witness’s perception.
no opinions allowed, no conclusions allowed.
competency of witnesses
Basically you have to make sure the child (or crazy person) is reliable
The only important thing you need to know is that they have to have the capacity to understand their obligation related to telling the truth
dead mans statute
When it comes to civil, I repeat civil actions… you cannot testify in support of your own interest about a dead person’s estate
You can’t be like “oh yea Bob? I know Bob is dead and I stand to inherit his fortune but… he told me I could have all his shit twelve seconds before he died and he wanted to cut out my sister Karen”
if a dead mans lips are sealed by death, the survivors lips are sealed by the law.
A witness in violation of the dead man’s statute is deemed incompetent and cannot testify.
Pro-Tip: There is no federal dead man’s statute, but in diversity cases they will apply a state dead man’s statute.
judicial notice
Sometimes the court takes judicial notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, unquestionable sources
I’m talking about the motherfucking farmer’s almanac, historical facts, geographical facts
The court can take judicial notice of a fact on it’s own, or at the request of a party who supplies them with the necessary information
You have to remember, there are no mandatory presumptions in criminal cases.
In a criminal case you are PRESUMED INNOCENT
THE PROSECUTION MUST PROVE EACH AND EVERY LITTLE BABY ELEMENT OF THIS CRIME
So nothing is mandatory for the jury to consider.
In civil cases, you can have mandatory presumptions that the jury must consider.
what does a judge actually do to justify their 190,000 a year, unlimited benefits, and 3 hours of work a day?
DETERMINE RULES OF LAW AND ADMISSIBILITY
- determine preliminary questions of fact upon which admissibility depends.
like whether a witness is competent.
they aren’t bound by the rules of evidence when they do this. they can consider affidavits which are hearsay, really anything. jury doesn’t have to be present, and typically isn’t.
- judge can’t testify as a witness if they are presiding over a trial
- judges, not juries, determine admissibility of hearsay evidence and confessions. must be outside presence of jury.
- run the court rule
determine order of witnesses, timing, who presents, determines what evidence comes in, etc.
can a judge let in circumstantial evidence?
I mean… my Goats… all evidence doesn’t need to be direct. A defendant using an alias or nickname could be let in, for example, so long as there was other corroborating evidence that linked him to the crimes.
Or perhaps I send you $100,000 in cash to your bank account. That isn’t by itself illegal… but it will serve as circumstantial evidence that we were standing on some Goat Gang business together.
what can juries do / not do
- determine credibility - judges determine admissibility, juries determine credibility and reliability of witness testimony.
- jury misconduct - things like lying during voir dire or running your own experiments or googling stuff can lead to a new trial.
- jurors can talk to press - but only once the trial is done.
- can’t testify about the deliberation - can never. can testify about outside influences.
- can’t be witnesses
what level of juror misconduct will get us a new trial?
we are looking for crazy, overt acts or concealed bias.
Such as:
Intentionally agreeing to nullify the verdict (i.e. choosing the side the jury wants to win to make a societal statement, not based on the facts)
A juror, EVEN WITH THE BEST OF INTENTIONS, bringing in “expert” or “specialized” opinions could be grounds for a new trial. I saw one case at the civil court where a train conductor told everyone how the gate sensors work on the train track warning things… and the case got remanded for a new trial lol.
Goat-Note: If a juror has specialized knowledge and agrees not to use it, they can still serve on the jury. Merely possessing specialized knowledge isn’t an automatic knock-out.
Using a random ass formula to come up with a verdict, like adding everything up and dividing by 7. These are called “quotient” or “compromise” verdicts… NOT ALLOWED.
Communications with others about the case, via social media or in-person.
So in summary: We can’t hear about arguments inside the jury room -
If a juror says afterwards “yea Donny screamed at me back there in the jury room and I got intimidated” or “the whole thing seemed to be a bit… harsh… so I went with my gut.” This will all be inadmissible and not grounds for a new trial.
Refusing to deliberate at all
presumptions - two nuances
- the state has the burden of proving every element of the offense - if there are three elements to the crime, the state has to prove all three elements.
- there are no mandatory presumptions allowed in criminal trials
jury instructions asking which one violates the defendant’s due process
The one that says “IF WE PROVE A, WE DON’T HAVE TO PROVE B” will be the right answer.
mail presumptions
This is related to the idea that government officials (like post office workers) will carry out their duties of actually delivering the mail.
So if one side shows the damn mail was properly addressed, stamped, and sent out… it is then presumed to be received by the other side.
Obviously, the other side can still rebut this with evidence it wasn’t received, but without any evidence rebutting it… the jury will hear that it was received (in civil trials, not criminal trials… in criminal trials it is still up to the jury’s discretion and only permissive presumptions are allowed)
standard of proof for overturning a judge’s evidentiary rule is
abuse of discretion
Remember: The Appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted arbitrarily or irrationally.
leading questions
allowed on cross
They are just questions which suggest a right or wrong answer.
i.e. “You were dancing in the rain, weren’t you?”
They are never allowed on direct examination.
Leading questions are only allowed for hostile witnesses who are adverse to us (which is why we almost exclusively allow leading on cross-examination, because all those witnesses are typically adverse or hostile lol)
HOWEVER, leading questions are sometimes allowed on direct in certain limited circumstances, such as:
- Introductory matters (you can kind of speed up the initial questioning process and be like “alright Kevin you’re from Cleveland, right? Married?” etc.
- Very young or forgetful witnesses. The judge will allow you to guide them a bit with leading questions.
leading questions… what if a witness YOU called is being biased, evasive, argumentative, or changing their story on YOUR DIRECT EXAMINATION of them?
If you ask permission… Daddy Judge will let you cross your own witness in most cases.
basics of cross examination - scope of cross
you can only ask about matters within the scope of the direct examination OR things that test the witness’s credibility (bias, perception, memory)
you can’t just start talking about some crazy shit, only what was discussed on direct.
when can you impeach someone
at anytime!
Impeachment is always relevant and can always be brought up, even if it’s not within the scope of the earlier questioning.
re-direct
surprise, you can only talk about what was on cross.
opening the door
So when a witness “opens the door” and brings something in which is OUTSIDE the scope of the previous questioning… we have a big problem.
Now the other side will have a chance to respond to cure the prejudice from your little fuck-up.
If we are talking about apples… and you start talking about bananas… well now on my re-direct I can bring up the bananas.
witnesses / who can be excluded from the court room
Witnesses can be excluded from the courtroom so they don’t hear what other people are saying and tailor their testimony to that.
We don’t want people listening in on other witnesses and thinking up crazy ass intricate lies that all fit together.
what witnesses cannot be excluded from the court room?
- people permitted by statute (like victims)
- a person whose presence is essential to a party presenting their case (like a jury expert or a summary witness)
- the parties themselves (and their lawyers)
goat note: Remember, a party themselves (like the defendant) doesn’t have the right to be present for all parts of the trial (like when the lawyers go back and argue a quick in limine motion)… just the important parts in front of the jury.
Sometimes the MBE tries to trick you into thinking certain people can be excluded because they have bad records lmao. No, they can still testify. They will just get impeached based off their bad records.
what can a judge do with witnesses?
it seems like everything
The judge can also examine any witness they want or call their own witnesses or experts. If a lawyer is fucking up badly, the judge will just start cross-examining the witnesses on their own. My old boss was 87 years old and the judge himself would basically play the role of defense lawyer and question everyone lmao.
what is impeachment
simply casting an adverse reflection on the veracity of a witness aka calling a witness on their bullshit
The only limitation is that you can’t call a hostile witness solely to impeach them lmao.
impeaching someone with extrinsic evidence
(and when I say extrinsic evidence, I’m talking about calling other witnesses or bringing in documents to prove someone is lying)
ways to impeach someone
- sensory deficiencies
- sounds of silence in a civil trial (in criminal you have the right to remain silent)
- prior convictions (dependent on the amount of time passed, what type of crime it is, and whether or witness is the defendant or not)
can we impeach with prior convictions
- any crime over 10 years old… excluded unless probative value substantially outweighs prejudice risk (hard test)
- any crime under 10 years old
dishonest crime = comes in
nondishonest crime = defendant is a witness = felonies only, excluded unless probative value outweighs prejudicial risk
defendant is not a witness = felonies only; admissible as long as it passes 403 balancing test (not meant to waste time, confuse jury, etc)
crimes that involve dishonesty
whether felony or misdemeanor ARE COMING IN.
Forgery.
False statements to IRS.
It’s coming in to impeach your ass.
The reasoning: If you lied back then, your ass is lying on the stand now you hecking liar.
old ass crimes over 10 years old from release from prison or conviction… whichever is LATER
look for word: SUBSTANTIAL
Okay Goat, we know all that dishonesty shit gets in.
But when it comes to the old shit… the probative value of the conviction must substantially outweigh its prejudicial effects
& you have to give the other side ADVANCED notice of your intent to use it!
basically… if a non-defendant witness gets locked up in 2007 for two years then released, the conviction is admissible until 2019 (10 years after the later of the two dates, release or conviction… so 10 years after 2009 lol).
After 2019… we get hit with the harder substantially test.
Before 2019… we get the easy test (probative value must be substantially outweighed by a 403 danger like wasting time or confusing the jury)
what about when the defendant is a witness when we’re talking the defendant and it’s a felony under 10 years?
We are a little more protective when our defendant is a witness.
The probative value must outweigh the prejudicial risk.
The judge simply has to determine if it’s more important than prejudicial.
So when we’re talking the defendant and it’s a felony under 10 years… we have to make sure it’s probative.
what about when the witness is not the defendant for felonies
For any other witness we aren’t concerned that much that they get screwed over by a prior conviction impeachment or look bad in front of the jury.
When the witness is a non-defendant the prior felony convictions are admissible so long as they pass the 403 balancing test (will not confuse or mislead the jury, result in unfair prejudice, needlessly present cumulative evidence, YOU GET THE DRILL)
You can bring in the records of their conviction without laying any foundation as well.
When we’re talking about a normal witness… we basically have to make sure we aren’t wasting the juries time lol.
break down of prior convictions impeaching a witness
over 10 years = substantial
under 10 years defendant = probative
under 10 years witness = not wasting jury time
impeaching with prior bad acts (weren’t arrested) process
You can bring in specific bad acts which involve untruthfulness (things like lying and deceit, NOT prior arrests) as kind of a “shots fired” question on cross only
But you can’t go into it after you fire your shot
I could say to a witness on cross-examination who was talking shit “Isn’t is true that you… lied on your college application?”
If the witness says “no” … I can’t then bring in EXTRINSIC evidence to prove he did lie (like documents or witnesses)
Because then we’d have a goddamn TRIAL within a TRIAL
IF THE WITNESS DENIES THE CROSS EXAMINATION BY PRIOR BAD ACTS… I JUST HAVE TO ACCEPT THE DENIAL AND MOVE ON WITH THE PUPPY TRIAL
impeaching with prior bad acts (weren’t arrested) points
You have to have a reasonable basis to bring up these facts or it will be an ethics violation. I can’t just get up there and accuse a motherfucker on cross-examination prior bad act impeachment of attacking 57 grandmas with no basis… lmao. The judge will be like “um… what basis did you have to even ask that?”
- you can only reference the bad act itself, not any consequence that flowed forth from it.
- you can’t dirty up the witness either by impeaching them on collateral matters or irrelevant issues unrelated to truthfulness.
impeachment by contradiction
We need a way to police the witness. If the witness starts going a little nuts up there… we need to be able to take him down if we have in our possession directly contradictory evidence.
Students get caught up in all the crazy impeachment rules they forget about good old fashion impeachment by contradiction.
So if you get up on the stand and say “I have never once in my life ever seen cocaine.”
I can say “Well, you have 27 drug convictions for cocaine and you directly said an hour ago that you loved how cocaine made you feel in this same trial.”
If a man says “I’d never touch my wife” you can bring a witness up to say that he saw this man beat his wife.
So long as you are directly impeaching them on what they said and not impeaching them on some random collateral shit that doesn’t relate to the main facts, this will work.
what if a witness has a bias or interest in the case?
they can be impeached on that at any time. The most common bias or interest situations the MBE highlights are having a financial interest at play, or a personal vendetta against someone they are testifying about, or they are afraid of abuse from their husband, etc.
Remember… and this is kind of a mindfuck… but the bias and interest rules trump the other exclusionary rules.
Yea we can’t normally bring up issues of insurance, right? We can if this motherfucker is trying to burn his house down and we’re showing he has a financial interest to lie.
We can’t normally bring up what happened in the settlement conference, right? We can if this motherfucker got angry about something that was said in the conference and is now making up some shit on the stand to get back at someone.
So yea, just remember bias or motive. Can be raised at any time.
Random Goat-Note: Religious beliefs can’t be used to attack the credibility of a witness (example: you are not credible because you are a part of the church of Satan) but they can be used to show bias and motive (example: you attacked the christian church because you are part of the church of satan)
prior inconsistent statements
If we have two statements by the same person at different times, we can bring in the earlier statement to show that the defendant is being untruthful in court
Prior inconsistent statements are usually not available as substantive evidence… because they are almost always out of court statements and thus hearsay
If we want to impeach someone with extrinsic evidence of a prior inconsistent statement… The witness has to be given an opportunity to explain or deny the statement.
Once Goat left the jurisdiction he became unavailable, and you cannot impeach Goat using extrinsic evidence (i.e. a witness like Kevin Tipcorn) to show that Goat made a prior inconsistent statement without allowing him a chance to explain or deny the statement.
mind fuck exceptions to prior inconsistent statements
- You can impeach a hearsay declarant with a prior inconsistent statement without giving them a chance to explain or deny.
Remember, if a hearsay declarant’s statement gets in under an exception or exclusion… we can impeach it, and even rehabilitate it… just as if they were an actual witness testifying.
The credibility of BOTH the testifying witness and the hearsay declarant can be attacked through impeachment methods like prior inconsistent statements, prior convictions, bias, sensory deficiencies -> you name it, it can be attacked.
- If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed. It will get in as an opposing party admission automatically.
- If the court finds in the interest of justice that the prior inconsistent statement should get in without an opportunity to explain or deny from the witness, it gets in.
two times when the prior inconsistent statement can be brought in both to impeach and as substantive evidence
Mindfuck Concept #1: Normally the prior inconsistent statement is just allowed in for impeachment… however it can be allowed in substantively (meaning the jury can consider it for it’s truth as well, not just for it’s ability to show the witness a liar) when it is given under oath at a prior formal hearing, proceeding, trial or deposition.
Remember deposition, I bet that is how they will test it in F24.
Mindfuck Concept #2: Normally, as we said before, prior inconsistent statements are only brought in to impeach. However, when they are from an opposing party they can also be brought in substantively and be considered for their truth.
pro tip: you can impeach your own witness with a prior inconsistent statement usually by calling another witness.
prior consistent statement
Prior consistent statements can only come in when:
- Declarant testifies and is subject to cross; AND
- The previous statement is consistent with declarant’s in court testimony; AND
- The opposing party has attacked the witness’ in-court testimony; AND
Goat Trick Alert: Sometimes the MBE will try to mess with your head and have someone be rehabilitated… who wasn’t even attacked in the first place lmao. Not allowed.
- The statement must have been made before the motive to fabricate could arise;
I mean… if Alice and Bob have a huge argument THEN Alice says she saw Bob kill the guy… the statement can’t come in. The other side would have to show it occurred before the motive to fabricate could arise.
Remember, the prior consistent statement is a hearsay exception that comes in as substantive evidence, not just to rehabilitate! It can be considered by the jury for its’ TRUTH.
what proceedings do evidence rules apply in?
the federal rules of evidence apply at all proceedings except:
Grand jury proceedings
When judge is determining preliminary issues of fact (i.e. hearsay is available in motions to suppress)
Extradition proceedings
Preliminary hearings to determine probable cause
Sentencing
At sentencing hearings random people can just come in and fuck you up with some hearsay evidence just to smear your name lmao.
I was at one where this old lady got up and read this 40 page letter and said my client was lower than trash… then she turned on me and there was like 10 pages taking me down for some reason.
Parole/probation hearings
Hearings related to search warrants
Bail and bond proceedings
Final-Note: Federal law governs issues of privilege in federal court. But in diversity cases, they use the state privilege laws =)
relevancy
all relevant evidence is admissible so long as it is not hearsay and so long as it doesn’t hit a 403 danger.
usually the correct answer choice for relevancy questions will almost always say the word “probative” or “tendency”
I made a mnemonic: P.T. -> Physical Therapy (that this woman is about to have to do after crashing into my custom Bugatti Chiron)
403 dangers
confusing or misleading the jury,
wasting time,
causing unfair prejudice,
or being needlessly cumulative
Unfair surprise is NOT a reason to exclude relevant evidence. This is not a 403 danger lol. They always put that in the answer choices… it is a motha-fucking distractor and is wrong.
the standard in determining whether something is relevant is
does the evidence have ANY TENDENCY to make a fact of consequence more or less likely?
basically, does it move the needle, even slightly, on any fact that matters in our trial
scenarios involving consciousness of guilt
If a defendant destroys evidence…
Uses an alias…
Runs from law enforcement and flees the country…
or escapes from jail…
Well… this is all relevant evidence showing consciousness of guilt.
when evidence isn’t probative
Sometimes we have situations where evidence might be relevant… but the jury will likely put too much weight on it or there will be a danger of unfair prejudice.
If a man is arrested for burglary… evidence that he had a tiny bag of marijuana on him that he wasn’t charged for is likely going to be more prejudicial than probative.
showing the jury stuff
Sometimes things are too prejudicial simply because they are excessively emotional, shocking, or grotesque and they’d overwhelm the juries senses
Bar-Exam Pro-Tip: If the other side opens the door or puts a fact in controversy… you can take them down with evidence you normally wouldn’t be allowed to get in. The judge will almost always allow you to respond to any evidence placed in front of the jury (even if it shouldn’t have been) in order to cure the prejudice or respond to controverted facts
So if you have some fucked up pictures of a corpse… yea the judge will only allow that in to identify the victim, show the location of the death, prove the death, etc.
He won’t allow you to just continuously publish 100 pictures of the corpse from different angles.
But if the other side tries to get cute and say that the injury never happened or wasn’t bad or perhaps the death was a peaceful one…
The 100 corpse pictures are coming in Walking Dead style.
demonstrative exhibits being too prejudicial as well
the court won’t allow an expert to get up there and violently shake a baby for 15 minutes in order to prove a point in a shaken baby death case.
Finally, you can’t have prejudicial demonstrations that are not realistic.
All demonstrations and experiments have to be substantially the same conditions as the original event in question
conditionally relevant evidence
One final note: Some evidence is conditionally relevant and can be let in even if its relevance is based on a separate fact… provided that fact is proved first.
Such as: If I am charged with trespass, and you sent me a text two weeks prior which said “Come over whenever you want Goat!” … the text would be relevant only if I had actually read the text message.
So the court can admit the text conditionally, provided that the lawyer claims they will establish that I actually read it at one point first.
objections that can be made that might keep potentially relevant evidence out (6)
Lack of Foundation: This is when you are saying a witness has insufficient personal knowledge, so the evidence should not come in!
Calls for speculation: You’re supposed to testify based on personal knowledge, not guessing. Experts have a little more room to make some guesses, but not lay witnesses.
Compound: Asks two questions simultaneously and a “yes” or “no” answer could be to either one. i.e. “Can you dance if you want to and leave your friends behind?”
Argumentative: Not an actual question, you’re basically just talking shit, being sarcastic, or trying to get in a fight. i.e. “Do you REALLY think the jury will believe that?” or “THAT’S FUCKING RIDICULOUS”
Calls for a legal conclusion: “Did you think he was negligent?” … NOT allowed. The witness is not qualified to make this determination.
Misstating the Evidence: Question includes evidence that was never presented. “Isn’t it true that Johnny got shot 15 times?” when Johnny was only shot once.
authentication
before any evidence is actually admitted, we have to show that it is authentic first.
Well… we don’t have to conclusively prove it is authentic, but we definitely have to offer sufficient evidence that it is authentic before we can talk about it.
the burden is quite low
how to show evidence is authentic
chain of custody to show that an object is what we say it is. chain of custody authentication is only needed for items that are not readily identifiable. If an item is readily identifiable and can’t really easily be changed in any meaningful way, we don’t need chain of custody.
Unless there is a suggestion the evidence has been fucked with, the chain of custody will be met even though it may not be technically “perfect” i.e. it could be missing one link in the chain or one person may not show up to testify or we may be missing one signature, etc.
it is fine so long as no one is contesting it.
how do we authenticate photographs?
Photographs can be authenticated in several ways:
- Testimony of the photographer themselves; OR
- Testimony of someone who WITNESSED the photography; OR
- Testimony of someone who was there at the time or who has been to the location of the photograph to testify that the photograph is a fair and accurate representation of the area.
The key words here are that the photograph is a fair and accurate representation.. so long as this is testified to, it doesn’t matter that it isn’t the actual photographer who is testifying.
how do we authenticate photographs from unattended cameras?
If the camera is unattended, like a traffic camera of some sort, you must show that it was -
Properly installed;
The film was properly removed;
& THEN show chain of custody.
how do we authenticate x-rays and other medical renderings?
Okay so unlike photographs, X-Rays can’t be authenticated by the testimony of a witness that they are an accurate representation of… the bones lmao
You must show instead that:
- The process used to create the X-Ray is accurate;
- The machine was working properly; AND
- The operator was qualified to use the machine.
You also must show that it came through a proper chain of custody to ensure no one fucked with it.
how do we authenticate documents?
Party Admissions: If a party says that they themselves actually wrote a document… that is sufficient to authenticate it.
or
Personal Knowledge: A witness saying they viewed someone else write a document works to authenticate it as well!
how do we authenticate ancient documents?
When it comes to ancient documents… there will be a presumption of authentication if:
The document is AT LEAST 20 years old;
There is no suspicious shit on it (i.e. no white-out marks or things crossed out);
And it is found in a place of natural custody (such as an old book or newspaper being found in a library… not your friend Jimmy’s house next to his laser printer and counterfeit money machine)
how do we authenticate handwriting?
- handwriting expert
- lay witness opinion (someone who previously was familiar with the author’s handwriting)
- visual comparison by jury
authenticating phone calls - outgoing calls
if it’s outgoing (where the testifying witness is identifying the source of someone who they called) we need
(1) proper phone number, and
(2) person answers with the same name as who the phone number is linked to.
So basically… the rules of evidence assume people are not complete schizo lunatics who answer THEIR OWN PHONE… BY GIVING SOMEONE ELSE’S NAME lmao
So if I call Cow… and I can prove that I called Cow’s phone number in the phone book… and Cow answers and says: “hello this is cow”
authenticating phone calls - incoming calls
When it’s incoming (where the testifying witness is identifying the source of someone who called them) we need
(1) the caller to identify themselves, and either
(i) recognition of their voice,
(ii) you recognize what they are talking about, or
(iii) you recognize their reply technique when you ask them a question.
When it is a call to a business, all you need is to prove that you dialed the number of the business, and they answered the phone talking about business shit.
The assumption is that… if you call Home Depot’s number… and someone picks up the phone and says “Home Depot… how may we help you?” … well… that should be reliable enough for you to talk about that call in court.
authenticating a voice that is not on a phone call
So a voice can be identified based on the opinion testimony of any person who is familiar with the speaker’s voice… and this familiarity may be acquired at ANY TIME
So the actual interaction I’m talking about at trial… I can say “yea I know Kyle… that’s how his voice sounded… so when he called that day I knew it was him.”
But… if I hear your weirdass raspy voice and I don’t know what it is at first… like I just hear someone yell “I’M GOING TO SHOOT”…
then I learn it is KYLE’S VOICE later on when a detective plays me a recording of Kyle’s voice… I can testify BACKWARDS and say “yea that was fucking Kyle’s voice… I gained a familiarity with it later on.”
you just need to offer enough evidence sufficient to show that the voice should get in… then the jury will decide the weight they give it.
you can gain this familiarity with a voice by hearing it in person or electronically through the phone or on a recording device.
self-authenticating documents
Certain documents do not need a witness to testify to their authenticity.
These include:
Official publications;
Newspapers or periodicals;
Pro-Tip: We can’t get the contents of the articles in, mainly just the newspaper to show that a party had notice of something like a class action or some shit.
Trade inscriptions;
Notarized documents
Certified copies of public records OR certified copies of business records; Like a vehicle registration form
Commercial paper
character evidence
evidence that describes the nature or disposition of a person… or how it is anticipated they will act under certain defined circumstances.
three ways to prove character
- Opinion testimony i.e. a witness testifies “I know Goat personally, and in my opinion he is a very honest person”
- Reputation testimony i.e. a witness testifies “I know Goat’s reputation in our pasture, and he is considered to be extremely non-violent.”
- Specific acts i.e. a witness testifies “A year ago I saw Goat save a grandma from being attacked by a mugger.”
At different times, we are allowed to use different methods.
character evidence in civil cases
evidence of good character is NOT ALLOWED in civil cases UNLESS it is an essential element of the claim or defense.
- negligent hiring
- child custody hearings
- defamation
Example: If someone is suing you for defamation for calling them a thief, prior acts of them actually stealing shit will be admissible to refute the charge and raise the defense of truthfulness. Character can come in. - negligent entrustment
So anytime character is an essential element of a claim or defense in a civil case, you can bring in ANY of our three ways to prove character (1) opinion, (2) reputation, AND (3) prior bad acts.
character evidence in criminal trials, sexual crimes
the prosecution cannot be the first side to bring up character evidence in a criminal case… unless we are talking about rape, sexual assault, and child molestation.
And thus, FRE rules 413, 414, and 415 were born to allow the prosecution to strike directly at a defendant using propensity evidence.
If you are being charged with child molestation, and have been accused of it in the past… the prosecution can get on the stand and say “This defendant is a child rapist who has been accused of it in the past before, even though he was not convicted.”
Even if the defendant never testifies.
It can be used as purely propensity evidence, saying, in essence “because the defendant acted this way before, he is guilty now too.”
character evidence in criminal trials
Okay so besides sexual crimes, the prosecution can never be the first person to bring up character evidence and they can never use propensity evidence like that.
the defendant opens the door to character evidence
Defendant may introduce evidence of a relevant… I repeat relevant character trait (through reputation or opinion testimony of one of their buddies A.k.A. a CHARACTER WITNESS), which then opens the door for the prosecution to rebut this evidence. They can introduce this reputation or opinion evidence even if they do not testify.
they cannot open up with prior act character evidence, so having a character witness say “I once saw goat save a caravan full of grandmas from certain death” is not allowed. this is the trial within the trial thing.
what is a relevant character trait?
The defendant can only open the door with a pertinent character trait to the crime at issue.
ONE THAT IS RELATED TO THE CRIME WE ARE THERE FOR!!!!!
In a murder case for example, evidence that the defendant is violent or peaceable is related to the charge, so the defendant can open the door with this evidence.
In a fraud case, honesty is a pertinent character trait, so the defendant can open the door to reputation and opinion evidence about his incredible honesty.
In a perjury case, truthfulness is a relevant character trait.
However, in a battery case… honesty is not a relevant character trait.
The MBE will try to trick you and make you think the defendant can bring in evidence of his honesty for a violent case… no, not pertinent.
However, things like whether someone is law-abiding are generally relevant in all criminal proceedings.
how can the prosecution respond to these reputation and opinion witnesses?
when the defendant opens the door, the prosecutor can shut it in two ways:
- when defendant opens the door, prosecution can respond with their own reputation or opinion witness.
- when defendant opens the door, the prosecution can ask the character witness about specific bad facts related to the defendant.
evidence of the victims character can be introduced in self-defense situations
So sometimes… a victim may have a bit of a bad reputation in the community for beating the shit out of everyone.
And when the defendant is alleging self-defense… this bad reputation can come in (through opinion or reputation evidence that the victim was a crazy violent fuck like our friend Monterio, the baddest motherfucker in town)
It’s relevant because it may show that the victim was the initial aggressor.
how prosecution may challenge reputation or opinion evidence of the victim
they can respond by showing
- the victims good character; OR
- the defendant’s bad character for the same trait (basically saying the defendant has a reputation for being violent THEMSELVES)
reputation / opinion evidence in homicide cases
If the defendant offers ANY evidence that the victim was the first aggressor… doesn’t even have to be in the form of opinion or reputation evidence… the prosecution can offer evidence of the victim’s good character for peacefulness.
evidence of a habit of a person / routine practice of a business
is admissible to prove that on a particular occasion, the person or business acted in conformity with their habit or routine
We need three things for our habit to be admissible:
- Regularity;
- Specificity;
- And it must be an involuntary or semiautomatic response.
The fucking habit doesn’t even have to be in the presence of witnesses or corroborated in any way.
Yes it can be offered through opinion or witness testimony but you can also just talk about your own habits.
The other side can offer your habits against you OFFENSIVELY through specific acts as well.
what about evidence of custom in the industry?
If you don’t follow an industry custom that everyone else is following, it won’t be conclusive evidence you breached the standard of care (usually… negligence).
It can only be offered as some evidence towards your breach of the standard of care.
MIMIC evidence
Motive
Intent
Mistake or accident or absence of mistake
Identity
Common scheme or plan
what type of evidence is MIMIC evidence considered?
They are considered relevant prior acts which relate to aspects of the crime at issue, not to show that the defendant is a bad person because of his prior bad acts.
not considered character evidence.
MIMIC - identity
modus operandi
If you can prove that the defendant is only killing motherfuckers in a Garfield mask… every time… WELL YES… the fact that six other people were attacked by an UNKNOWN ASSAILANT in a Garfield mask is pretty damn indicative of a modus operandi and will get in.
a particular way or method of doing something, especially one that is characteristic or well-established.
MIMIC - intent
Past acts of racism for example will prove intent. If the person is constantly burning crosses in front of black people’s houses for example… well… this could be used to show that he had intent to commit a crime against black people later on due to his racism.
MIMIC - common scheme or plan
Basically, we’re looking for a pattern which is all connected together. If someone has burned down six of their houses for insurance money for example… or if someone has written 2,000 opiate prescriptions in the course of one month… we can see this motherfucker has a common plan to break the law. The evidence is coming in my Goats.
Of course the defendant will fight against this evidence and say it is propensity evidence.
It’s up to the judge and there will be motions surrounding all this shit before trial… but often… it’s coming in if the evidence has a strong tie to a relevant MIMIC factor.
And remember, the other act doesn’t even necessarily have to be criminal to come in under MIMIC.
MIMIC evidence can be proven by prior convictions or evidence that proves the act occurred
So long as the prosecution provides sufficient evidence for a reasonable jury to conclude that the defendant did these acts by a preponderance of the evidence... it will come in (the court will still weigh the probative vs. prejudicial value though)
If it’s too prejudicial or not similar enough to the crime at hand… that MIMIC is not getting in son.
Quick GOAT-NOTE: You can’t bring in evidence that someone has filed a bunch of other lawsuits as MIMIC evidence, unless you can prove they have a pattern of filing false lawsuits to show their fraudulent motive. They could try to trick you in F24 and give you someone who just filed a shitload of lawsuits or got into a ton of car accidents… I mean… this on it’s own doesn’t prove they have a bad motive. They’re just a litigious little bitch. You need to show that these prior lawsuits and accidents were actually scams.
PRO-TIP: Anytime one of these “mimic” options are in the answer choices, I’d honestly just fucking pick it. Because it’s kind of hard to make that a false answer choice since they are all such broad ideas and terms. I’m going to freestyle here for a second and say that if one of the answer choices has a MIMIC option in it… there’s an 84% chance that is the right answer.
expert witnesses
An expert witness is a witness with knowledge, skill, training or education to give a specialized opinion about the evidence in a trial or a fact at issue
to be an expert witness you must:
1. be qualified and
2. the testimony must be based on sufficient facts or data and be the product of reliable principles and methods.
2A - and the expert witness actually must have those reliable principles and methods in this case.
expert witness testimony
needs to be helpful to the jury - the expert gives information that is both relevant and helpful.
The party offering the expert has to show by a preponderance of the evidence that he is qualified and the judge has huge discretion to not let someone sketchy in as an expert. The decision will be reviewed under the abuse of discretion standard.
the expert witness can testify based on
1. personal knowledge
2. evidence presented at trial and witnesses he has heard.
3. use of a hypothetical
4. facts outside the record IF those facts are typically relied on by experts in the field.
can an expert give an opinion on an ultimate issue in a civil trial?
in a civil case, an expert can give an opinion on an ultimate issue (cause of accident, whether a product is defective, whether a signature is forged, etc)
but they can’t give an opinion in a civil case on a legal conclusion related to the ultimate issue (such as the defendant is contributorily negligent” or “ the defendant intended to kill Walter”
factual opinions = fine
legal conclusions = bad
expert testimony in a criminal trial
- The expert cannot say directly that the defendant is guilty or not guilty
- An expert cannot say that the defendant was legally sane or legally insane, but they CAN testify to the fact that the defendant has a disorder (mental or emotional illness) and talk about what the disorder is.
- An expert can’t talk about whether someone had intent or not… but they can talk about issues surrounding intent which could be relevant (if an expert comes in to testify that the way marijuana was packaged and vacuum sealed is indicative of the defendant being a large scale drug dealer… this will come in even though it technically embraces the issue of the intent to sell drugs)
- Basically… an expert in a criminal case can testify to ultimate factual issues (like whether a defendant had schizophrenia or was packaging up drugs like a drug dealer) but they cannot testify to whether someone is legally insane or had intent to commit a crime or is guilty.
He can point to the way the goat is selling the grass and how he is packaging it up illegally to show FACTUALLY he is a drug dealer:
typical expert cross examination
experts can be cross examined to show their bias (the first questions of the cross are always how much have you been paid to be here today? and how often do you testify for the plaintiff/defense?)
So the other side can attack their credibility, their education, their credentials, their bias.
They can also be impeached with prior inconsistent statements and they can be cross examined on conflicting data in the field.
scientific evidence from experts
TRAP
T - Tested principles and methodology
R - Rate of error must be low
A - Acceptance by other experts in the field
P - Peer reviewed
learned treatises to aid an experts testimony
allowed - the jury just can’t bring it back with them into the court room because it will confuse the shit out of them.
The treaty can come in as substantive evidence when an expert is on the stand and explaining it to the jury. It can also be used to impeach the other side’s expert.
The relevant portions can be read into evidence but the jury cannot take the treatise back with them in the deliberation room… because there is a danger they’d sit back there looking through a bigass book and get confused as shit.
fake experts
Just be on the lookout for lay people that have kind of legit sounding finance jobs… then they try to testify to high level economics or something. Or a farmer who testifies to the meteorological weather cycle of Saturn or the exact temperature in Cupertino California without having an iPhone.
You don’t need formal education… but if you have absolutely zero training and only tangential experience with the topic you’re talking about… this shit will not be helpful to the jury.
trigger words for right expert witness answers
the words “it would be helpful to the jury” or “it would assist the trier of fact.”
demonstrative exhibits
Demonstrative exhibits are just physical objects used as aids to help the jury understand the testimony
Sometimes real evidence is physically inconvenient, too voluminous, or indecent, so we allow other things to be brought in to represent it
- Photos and diagrams of evidence or locations can be brought in if they are relevant and accurate.
- Charts can be brought in and summaries of data and models, so long as they are authenticated by the person that made them and the real evidence behind them is available.
- Experiments are allowed in the courtroom (subject to the judge’s discretion) so long as they are done in the same or substantially the same conditions.
The judge can actually allow the jury to take a trip to view places. I was at a trial where this happened, and the jury went to the parking lot where the murder happened. A bus took them. Shit was kind of cool.
*Injuries and people can be viewed too (a scar, a child in a paternity suit)
spousal immunity / faithful lover exception
applies in criminal cases only and says that a witness spouse can’t be forced to testify against a defendant spouse in a criminal case as to any communication made between the two DURING or BEFORE their marriage.
the spouse being called to testify can waive this privilege and testify away if they want
You cannot prevent your spouse from testifying if they waive this privilege
This privilege ends upon divorce
It covers all information learned during and before the marriage
This privilege is not available if the government grants the defendant spouse immunity… so if your golden retriever husband is not in danger of being in trouble… you can be forced to testify against him.
If the government only gives the witness spouse immunity… the privilege STANDS and you can still refuse to testify against your man, even if they give YOU immunity
marital communications privilege / pillow talk prevention privilege
applies in both criminal and civil cases
says that one spouse may not, even if they want to… testify to any confidential communications between the couple during a valid marriage unless the other spouse waives the marriage.
This privilege stays alive EVEN IF the marriage ends
Both spouses hold the privilege and can use it to stop each other from testifying
The privilege survives divorce (unlike the spousal immunity privilege)
The communication actually must be confidential!
If you scream it out in public, NO PRIVILEGE
If you say it in front of young children, PRIVILEGE SURVIVES
Remember, must be made DURING MARRIAGE
BEFORE MARRIAGE = NO
AFTER MARRIAGE = NO
If Goat and Rainbow Brown are married, and Rainbow Brown tells Goat “I murdered Kevin Tipcorn” during their marriage… and then their marriage ENDS and Rainbow Brown gets charged…
GOAT CAN’T EVEN TESTIFY IF HE WANTS TO
exceptions to marital privilege stuff (4)
- Violence against spouse/children… veil will be pierced and privilege dies
- Communications where BOTH spouses are planning to commit a crime or in furtherance of a crime… NOT JUST ONE… BOTH. The veil is getting pierced on the privilege.
- The Madoff Wife Exception: If one spouse is getting MONEY from the illegal activity of another spouse, the privilege around those communications no longer stands.
- Communications to third parties (once you tell a random person, the privilege is waived my Goats)
work product = SSS
Secret Strategy Shit
Work product are essentially documents prepared by an attorney for their own use when fighting their clients case. They are prepared in anticipation of litigation.
Think conclusions, legal theories, mental impressions, opinions on the discovery, strategy notes scribbled on a legal pad. These are all work-product.
The MBE sometimes tests the difference… so it’s important to know that these documents are NOT protected by the attorney client privilege, but instead they are protected by the work product rule.
Even an expert who works for your client can produce protected work product. They are a third party, but any notes they make are protected.
However, technical reports prepared by an expert are not work product. They are discoverable.
how does a party get work product?
Any party who wants to compel work product has to show good cause and it may be subject to an in-camera review by the judge before it is tendered to the other side.
attorney client privilege
The attorney-client privilege states that communications between an attorney (and their law clerks and staff) and the client are usually privileged from disclosure.
However, only confidential communications are privileged, NOT acts (if a client shows up and is smoking crack in Goat’s office… Goat could be called to the stand to testify that the client was smoking crack)
Written client communications are also protected (e-mails, letters, etc.)
Goat-Note: If someone listens in and eavesdrops on an attorney client conversation, the conversation is still privileged.
However… if you have two or more clients with a common interest consulting an attorney together… they still have a privilege against third parties… but they do NOT have a privilege against each other if they get into litigation down the road.
There is obviously no privilege to pre-existing documents and discovery and whatnot. You can’t immunize that shit by giving it to the lawyer.
Otherwise you could just hire a lawyer and give him a bunch of documents from your crazy ass Ponzi scheme and then be like “lol nobody can discover this now.”
is identity privileged?
no, if the gov calls an attorney in front of the grand jury to identify a client of theirs, they have to identify them.
EXCEPTION - last link doctrine.
If the attorney is the last link connecting the client to the crime, then they do NOT have to give up the client name.
when does attorney client privilege not apply? (8)
- The privilege does not apply when you are using a lawyer’s services to further a FUTURE crime or fraud WHICH YOU HAVEN’T COMMITTED YET
- Next, if the client asks the attorney to conceal evidence, it won’t be protected.
- Also, if the attorney was involved in a crime with the client… obviously it won’t be protected lol
- And finally, if the attorney personally observes the client doing illegal activity like shooting someone in his office… it won’t be protected
- fee information
- observations of clients demeanor
- the fact you are representing client
- battles between two FORMERLY jointly represented co-clients
attorney client disputes
If the client sues the attorney for malpractice, or the attorney sues the client for a fee… no more privilege related to anything involving the fee or the aspect of the representation alleged to be malpractice.
It’s on then.
No more secrets.
waiver - accidental emails
Sometimes… a client or their lawyer accidentally send an e-mail with some attorney-client privileged information or work product in it. This is called an inadvertent disclosure
You have to disclose and be aware that you disclosed some secret shit… and not do anything about it.
This will not be a waiver of any privilege so long as you take reasonable steps to prevent and rectify the disclosure (this just means reaching out and letting the other side know to delete it and that you sent it on accident)
waiver - voluntary disclosure
definitely getting waived
You can waive through conduct as well, like loudly talking about some privileged shit in the middle of a damn Olive Garden
waiver - half waive / selectively disclose
There is no half-stepping out here, and no half-waiving
If you half-waive some shit and discuss only part of a privileged communication, the other communications or documents on this topic will come in. It’s a weird rule, but it’s true.
For example, you can’t selectively disclose to the government. If you reveal some shit on a certain topic, it will trigger a waiver of everything relating to that topic.
This is complicated but if a CEO is being investigated and tells the SEC about some financial fraud, he waives the privilege on the source documents related to that selective disclosure.
waiver - forced by court to disclose
if you are forced to disclose something in court BY THE COURT itself… it does not operate as a waiver against this information later on in litigation
doctor patient privilege?
It is important to note at the outset that federal courts do NOT recognize a doctor-patient privilege, and it is NOT in the FRE. It will ONLY be applied in diversity cases if a state has the privilege.
The privilege belongs to the client and the client ONLY, and only THEY can choose to disclose if they want.
Saying or doing criminal or illegal shit = not protected
No duty to report mental health or physical health information UNLESS the case puts it in issue (injury or insanity status)
Specific threats to people = must report
Non-specific threats = don’t need to report
No federal privilege for any of these, they will only be recognized in diversity cases when a state has the privilege
There is a small exception with therapists: Tarasoff says that therapists owe a duty to SPECIFIC, identifiable people who their patient is making threats about. This is some torts shit, but you should know it.
do journalists have the ability to protect their sources?
Nope. No federal privilege exists for this, they are taking your ass in front of the grand jury Deep Throat.
Is there a patient-child privilege not to incriminate your own children in a crime?
Nope, not federally.
Accountant Client Privilege?
Nope.
Remember though, if the accountant is an agent of the lawyer who is helping out with litigation, this will be protected.
If it is just a straight communication between a CLIENT and their accountant, it will not be protected.
Priests or Clergy privilege?
Yes, confidential spiritual communication is protected.
But you need to be doing a confession or like some secret spiritual talk or some shit…
You can’t just be talking to a priest at a party and then reveal to him you killed people.
privilege against self-incrimination
A witness can’t be forced to testify against themselves.
If the question asked could tie a witness to a crime or would allow law enforcement to find evidence tying the witness to a crime… the witness can invoke the privilege
You can ONLY invoke it to avoid criminal prosecution though, not loss of employment or embarrassment or anything like that
This applies to both criminal and civil proceedings where testimony is forced, so even in depositions
So long as you are asked a question that puts you in danger of criminal prosecution… it applies
If you are given immunity (even the lower level derivative use immunity), you cannot invoke this privilege and can be forced to testify in front of a grand jury
exclusions - some things the jury should never see, no matter how true they are - insurance coverage
- insurance coverage -
Evidence that someone has insurance is not admissible to prove negligence or somehow show that because they had insurance, but insurance can be used to show other things such as ownership or control and can be used to impeach.
exclusions - some things the jury should never see, no matter how true they are - subsequent remedial measures
- subsequent remedial measures - just fixes or repairs or changes you do after someone got injured by a product or condition - can’t use it to show negligence or culpable conduct. we want people to make repairs and make things safer.
If someone is talking shit and flexing like there was NO WAY to make the product safer… you can show that they indeed… MADE IT SAFER after the injury. if they say it was reasonably safe, they do NOT open the door.
It is the same thing with products
If the computer company is saying there was no way to not make the computer start on fire
Then two days later they remove the little black box which caused the fire…
Um…
You just opened the door to some SRM son.
exclusions - some things the jury should never see, no matter how true they are - settlements
- Settlement discussions in civil cases are not admissible to show someone is at fault or liable or to prove how much damages they caused in (1) the current case, and (2) subsequent criminal prosecutions (remember this, they test it sometimes)
You can’t have settlement talks with someone that fall through then go to the trial and be like “JURY LISTEN UP. Lawyer Johnson over here… haha… well… do I have a story for you about lawyer Johnson. He came to me the night before this very trial with an offer to settle for $200k. HE STANDS BEFORE YOU TODAY ASKING FOR A MILLION!!!!!!!”
No. Mistrial. We want to encourage settlement not discourage it.
But be very careful. To have a real and protected settlement discussion we need two things:
- we need a real dispute about how much money is owed. not two people agreeing with each other AND
- we also need a real claim - it doesn’t necessarily have to be the filing of a lawsuit
the right answer regarding settlement exclusion
“It is a statement made in the course of compromise negotiations.”
when can you bring in settlement discussions?
-
To impeach with bias (obviously lol)
Let’s say the witness took some money in a settlement to testify… well… this is now allowed to come in - To negate an accusation that you were delaying the case (you can be like “we were in settlement discussions… I wasn’t stalling”)
And remember… you can’t just bring something up in the course of a settlement discussion to try and immunize it later on.
Let’s say you’re in a settlement negotiation relating to a breach of contract….
You can’t say “Our company was having financial difficulties and going bankrupt and not able to fulfill the contract at the time. Now that I just said that… you can’t bring that up at trial because we are in a settlement negotiation. Gotcha!”
Um… no.
The evidence of your companies financial difficulties and bankruptcy would normally be admissible in a breach of contract action.
You can’t bring it up just to immunize it from trial.
Statements about what the case is worth or your willingness to negotiate or accept a certain amount of money… or issues involving honest and open discussions of liability… this is fine.
in settlement discussions, if a claim is not disputed…
it’s coming in as an opposing party admission.
If it is a CIVIL CASE, and they start the damn problem by saying “A plumber sued a carpenter” or “in a civil case”… just whisper to yourself “opposing party fucking admission.”
Please. It will get you questions right on the test, I promise you that.
exclusions - some things the jury should never see, no matter how true they are - criminal guilty pleas
An offer to plead guilty in a criminal case is never admissible, even in a civil case later on.
A withdrawn guilty plea is never admissible.
A guilty plea… however… can be brought up in later cases.
exclusions - some things the jury should never see, no matter how true they are - medical expenses
Alright the law wants to encourage people to offer to pay medical expenses when an accident occurs.
So these offers are not admissible to prove culpable conduct.
However… if you make admissions of fact related to your nice little medical offer… it’s coming in as… guess what?
an opposing party fucking admission
So if someone says “I’m sorry my cat bit your face, and I will pay for the hospital bills” … the PART ABOUT THE CAT IS ADMISSIBLE as an opposing party admission.
And remember… unlike settlement offers, there doesn’t even need to be a DISPUTED CLAIM at issue to keep offers to pay medical bills out.
They are kept out so long as they are not accompanied by admissions of fact
offers to pay medical expenses never come in (we want people to be nice and offer to pay)… but FACTUAL ADMISSIONS attached to them… those are coming in for sure.
exclusions - some things the jury should never see, no matter how true they are - past sexual conduct of a victim (rape shield doctrine) civil / criminal
When we are in a civil or criminal proceeding where sexual harassment or rape is alleged (or any other type of sexual misconduct) we CANNOT bring in evidence of the past sexual behavior of the victim UNLESS:
- The other side is put on NOTICE and it is relevant to the identity of the alleged rapist; OR
- The other side is put on NOTICE and it relates to past sexual behavior between the victim and the accused rapist.
We are not allowed to bring in evidence of opinion or reputation evidence showing that the victim was sexually promiscuous or dressed a certain way.
exclusions - some things the jury should never see, no matter how true they are - past sexual conduct of a victim (rape shield doctrine) criminal
This type of evidence can only be brought in criminal cases in three circumstances:
- To prove someone other than the defendant was the source of physical evidence (i.e. semen or injury) SO LONG AS the relationship occurred at roughly the same time as the alleged incident with the accused rapist
- If Defendant is claiming consent and ONLY WHEN DEFENDANT IS CLAIMING CONSENT!!! You can bring in the victim’s past sexual behavior to show that the victim consented to the sexual behavior at issue. Essentially you can be like “we were hooking up all the time, so it was consensual this time”
- And finally, if the victim says they are chaste and pure.
An argument like this OPENS THE DOOR to evidence of a victim’s sexual history and needs to be responded to otherwise it will deprive the defendant of a confrontation right. So if a victim says they are a virgin… I mean… you can now bring in other sexual evidence from their past
You can also bring in past sexual conduct by the victim for the so-called love triangle defense.
If the victim is with someone else romantically they may not want their original partner to know, so you can bring in this evidence if this is what you are alleging.
If they are living with a husband they may have more of an incentive to say they were assaulted vs. engaging in adultery, etc. Kind of a weird exception, but there it is.
exclusions - some things the jury should never see, no matter how true they are - past sexual conduct of a victim (rape shield doctrine) civil
When it comes to civil cases, the victim’s past sexual behavior is admissible if its’ probative value substantially outweighs its prejudicial effect.
Before trying to get any of victim’s prior sexual conduct admitted, the defendant must make a motion within 15 days of trial accompanied by a written offer of proof for a hearing in front of the judge.
best evidence rule
The Best Evidence Rule is concerned with disputes about what is actually depicted on the document itself (or the recording or picture)
Not the facts the document, recording, or picture MIGHT BE EVIDENCE of
You can think of it like this: If the person trying to offer the document’s WHOLE CASE turns on the words of that document… they must produce the original document
muscle milk example - don’t need receipt to show you bought it, but need the receipt to show how much protein it had
best evidence rule - personal knowledge exception
when a witness is testifying to something they saw or heard that was later (or simultaneously) written down, audio recorded, or captured in a photograph, the witness can just talk about it! no evidence needed!
if the contents of the evidence ITSELF are disputed… bring that shit in
If you are bragging about dumb shit you did in real life… JUST TALK ABOUT IT.
better evidence trick
an undercover officer secretly listened in on and recorded goat during a conversation he had with goat.
the other side objects under the best evidence rule because he did not bring in the secret recording and secret video.
He can still testify to his conversation with Goat even though a recording exists.
JUST BECAUSE ““BETTER EVIDENCE”” EXISTS… DOESN’T MEAN IT NEEDS TO COME IN
photo copies or scanned copies of documents or pictures
Parties can submit photocopies or scanned copies of documents or pictures during litigation without running into any issues… UNLESS… a genuine question is raised about the authenticity of the original
OR it would be unfair to admit the duplicate (such as when it is blurry or things are crossed out)
what should the best evidence rule be called instead
“If it’s an important fucking piece of paper and you want to talk about a random line in it to prove that you are conclusively right and should win the case, bring the damn document in… but if it’s just some random shit you saw or heard that was written down or recorded at the same time you saw it or heard it, you can just talk about it on the stand without bringing the document in…
oh and also copies are allowed unless somebody did some sketchy shit to them… and if you can’t get the original because (1) it’s destroyed without bad faith on your part, (2) you can’t get it with legal process, or (3) it is lost or can’t be found with due diligence… you don’t need to have it.
3 excuses for not having the original document
- destroyed without bad faith
- lost / cannot be found with due diligence
- cannot be obtained with legal process
charts in court
When the contents of voluminous writings or photographs or documents or recordings are simply too large to bring into court and present one by one, we can present them in the form of charts or summary exhibits to the jury or judge
The originals must be made available to the party opponent so that they can examine them for accuracy and authenticate them
Anyway, if the opposing party takes a look at the underlying paperwork and thinks it is sketchy or created by ChatGPT… they can have a hearing on it
if the underlying information is inadmissible -> the summary is inadmissible
A summary has to be authenticated by what is called a sponsoring witness… essentially just an expert who says they reviewed all the documents and the summary chart is an accurate representation of the underlying documents
the summary rule
So in summary, the summary rule says that if we have a TRULY large amount of records… and if the other side is given notice and given the originals to separately authenticate to make sure they are real… we can present a motha-fucking graph with an expert witness and it will not be in violation of the Best Evidence Rule
completeness rule
When only a part of a writing is offered into evidence (or part of a recording), the other side has the right to offer the rest of the writing or recording if not doing so would lead to an unfair result.
when can we get the omitted portion into evidence?
- avoid misleading the jury
- to ensure a fair and impartial understanding of the omitted portion
- whenever the other side is sketchy on some shit
- to explain / give context to the admitted portion.
Basically, anytime someone is being sketchy and lets in a misleading portion of a document or recording… the other side can then admit the rest of the document to show the jury or judge they are bullshitting everyone else
We don’t want the jury to be misled by only a small portion of a document
If someone tries this, the whole document will be let in
hearsay definition
an out of court statement offered to prove the truth of the matter asserted.
policy behind hearsay
We want first hand-accounts.
We want the jury to evaluate the people that say words.
We don’t want someone DRAGGING IN a speech bubble from outside the courtroom… to talk about some words another motherfucker said!
I mean we don’t want fucking statements coming in based on the credibility…. OF ANOTHER MOTHERFUCKER… who IS NOT EVEN THERE AT THE TRIAL
My Goats excuse me if I digress a bit… but everyone has the right to face witnesses against them at a trial. They have a right to cross-examine these witnesses and impeach their credibility. Bringing in these random bullshit (probably made up) statements is just unfair.
Hearsay is just testimony given by a witness who is telling what someone else SAID, not about what they themselves know personally
what actually happens when a hearsay objection is made?
when someone objects and says “hearsay,” we have to defend ourselves because this is life or death.
we have 3 responses.
(1) your honor this is not hearsay as it is defined (not offered for the truth, not a statement, not out-of-court) - we’ll talk about this in a minute you impatient fucks
(2) your honor this is not hearsay because it is a hearsay exclusion/exemption under 801(d), or
(3) your honor this is indeed hearsay, and my opponent is right to point that out, however…it is an exception under 803.
hearsay defenses - not hearsay as defined (out of court statement)
out of court
if someone asks you what you said on direct examination, that’s not out of court, that’s in court.
hearsay statements can come in many forms
- oral assertions
- written assertions
- non-verbal conduct - so long as the person meant it as an assertion (thumbs up, pointing)
hearsay defenses - not hearsay as defined (truth of the matter asserted)
figure out what “an out of court statement offered to prove the truth of the matter” asserted really means
if you are trying to say that a random motherfucker said something… which solves the whole Scooby Doo mystery of why you are at trial in the first place, it’s hearsay.
If we are all at trial because Goat is being charged with a gun…. and Karen gets up there and says… “Kyle told me Goat had a gun.”
WELL FUCK. Thanks Karen. We might as well all go home now.
You just Scooby Doo solved THE TRUTH OF THE MATTER
SHE JUST SCOOBY DOO SOLVED THE WHOLE MYSTERY OF THE TRIAL WITH AN OUT OF COURT STATEMENT. AND IF THE OUT OF COURT STATEMENT WAS TRUE, WE COULD ALL GO HOME.
NOT ALLOWED KAREN.
hearsay defenses - non hearsay
A hearsay declarant must be a person, not a machine or gorgeous dog
Computers cannot be hearsay declarants because they can’t THINK and make assertions
Emotional reactions are also not hearsay because they are not intended as assertions.
So nicknames aren’t actually assertions. If you get up on the stand and say “We called him Little Dick Walterson” … uh… you aren’t offering it to show the truth of the matter… that his name was actually little dick walterson. You are using it to show that that’s just what everyone called him. Not a fuggin ASSERTION.
impeachment is also non-hearsay because you aren’t really offering it for the truth of the matter asserted, you are using it to say someone is a lying motherfucker
hearsay defenses - non hearsay - words of independent legal significance
Think about the words of a contract between two consenting adults
Or someone saying “I do” in a marriage.
THE WORDS OF A CONTRACT OR THE WORDS OF MARRIAGE THEMSELVES CREATE LEGAL OBLIGATIONS, REGARDLESS OF WHETHER THEY ARE TRUE OR NOT.
So they are non-hearsay.
hearsay defenses - non hearsay - statements manifesting awareness
I call this the “explains conduct” non-hearsay rule.
This isn’t actually an official rule… it’s just a subset of “not offered to prove the truth of the matter asserted”… but the case law talks about it a lot. And I read the caselaw.
These are statements offered to show the effect on the listener… essentially that the listener had either NOTICE or KNOWLEDGE and therefore they are not offered for their truth
non-hearsay - trying to bring in a statement to show notice examples
if you see “notice” in the answers, just pick it.
bringing in car trying to show goat mechanic that the brakes were broken.
I mean the man who owned the car wouldn’t be bringing this in to prove his brakes were broken in a lawsuit regarding the brakes (the truth of the matter asserted)… he would be bringing in this statement to show mechanic Goat had notice that he was supposed to fix them.
I want my Goats to have one more example of how statements can be brought in to show notice - defective products against toasters incorporated
toasters incorporated has received 50 fucking letters in the past about their dogshit toasters catching on fire
admissible = not to show they are defective, to show they were put on notice
non-hearsay - show why someone took a particular action
Let’s say Farmer John is being charged with a misdemeanor goat abuse charge for chasing Goat with a stick
And Goat gets on the stand and this exchange happens:
lawyer: why did you run that day?
goat: the reason i ran away is because i saw farmer john had a stick
He’s not trying to prove Farmer John had a stick (TOMA GANG RISE UP)… he’s EXPLAINING WHY HE RAN!
non-hearsay - show why someone didn’t take a particular action
(if the lawyer asks “Goat… why the fuck did you just stay in the desert for 3 weeks?”)
You could say “these fuckers told me they’d come back for me, and that had an EFFECT on my little ears and mind”
hearsay defined again
It’s an out-of court (not in-court) statement (written, spoken, or conduct that means something) offered to prove the truth of the matter asserted (Scooby doo mystery solving)
non hearsay - effect on listener summary
also called notice
also called explains conduct (did or didn’t take action)
you can bring in a little statement to show the effect on the listener (you).
(pro-tip: the bar exam is fucking obsessed with people bringing things in to show notice lmao… if it’s an option just pick it)
Goat-Note: A lot of times these statements get in when people talk about how they felt threatened by someone else.
Being threatened by someone else requires a little back story… so you kind of have to bring in effect on listener statements to show why you took certain actions and reacted a certain way to someone
Final Goat Note: Sometimes they like to bring in effect on listener to show why someone did not know they were committing a crime.
For example, if you are being charged with receiving stolen property in the form of a stolen Playstation 5 from Goat… and you bring in a statement from Goat where he says “MY MOM GAVE THAT PLAYSTATION TO ME YESTERDAY!” … well, you’re not bringing in that statement to talk about Goat’s mom… you’re bringing in that statement to show that it had an effect on you and you weren’t really trying to steal that shit.
non-hearsay - circumstantial evidence of a speaker’s state of mind
“i am a prophet of god” = admissible
if someone says that Goat said this for example… they are not really bringing it in for the truth of the matter asserted… that Goat is, in fact, the Lord Baby Jesus (although I am)
They are bringing it in to show that Goat is a fucking lunatic off his meds.
If someone brings in words spoken by someone else… and you take those words to make an ADDITIONAL INFERENTIAL STEP about the person’s state of mind… it is non-hearsay
YES I JUST SAID THAT
AN ADDITIONAL INFERENTIAL STEP
RANDOM PSYCHOTIC WORDS PEOPLE SAY ARE NON-HEARSAY CIRCUMSTANTIAL EVIDENCE OF WHAT IS GOING ON WITH THEIR MIND (I.E. WHAT THEY ARE FEELING)
non-hearsay - circumstantial evidence of a speaker’s state of mind continued to show difference from hearsay exception - present state of mind.
he said to me “I nearly died when i heard the robber walk in”
this is non-hearsay. obviously the speaker didn’t actually die from just hearing something, so we are bringing in the statement to make the inferential leap to show he was terrified (state of mind), not for the truth that the actually almost died form sound mothafucka.
This is circumstantial evidence of a speaker’s relevant state of mind
STATEMENT + OBSERVATION ABOUT WHAT IT MIGHT MEAN THIS WEIRDO IS FEELING
But with our hearsay EXCEPTION 803(3) for present state of mind… we just got DIRECTLY what a motha-fucka was FEELING, NO EXTRA STEP TO FIGURE OUT THE TRUE FEELINGS IN HIS HEART
“he said to me ‘i’m terrified’”
the not offered for the truth of the matter asserted gang has five things in it we need to remember
- effect on the listener - we are offering it to show WHY the person actually acted the way they did (because they heard some crazy shit) not for the TOMA
- impeachment - we are offering it to show that someone is a fucking liar, not for TOMA
- circumstantial evidence of speakers state of mind - they could say gibberish like “blah blah meow” … i’m not offering blah blah meow for the truth… it doesn’t mean shit.. i’m offering it to show the person is nuts.
- words of independent legal significance - a contracts terms are not offered for their truth … no one gives a fuck you need to buy some apples you creep. we are offering them to show the words of the agreement and the relationship between the parties. same as “i do” in marriage. i’m not offering it to show that you’ll eb with me forever… obviously you will break my hear… i’m offering it to show that we legally got married.
- notice / knowledge - if i say “i told the mechanic the breaks were broken” i am not bringing that into show that the brakes were actually broken (TOMA) i am bringing it to show that he had knowledge i wanted my brakes fixed.
non-hearsay - prior inconsistent statements under oath
So we need a prior statement made under oath: at a hearing, proceeding, OR DEPOSITION and is available for cross-examination
If it’s NOT made under oath, it’s just a prior inconsistent statement that is only admissible for impeachment only
non-hearsay - prior consistent statements
Let’s say Goat is accusing Rainbow Brown of robbing his house
During cross-examination, the defense attorney suggests that Goat had a personal dispute with Rainbow Brown and was now accusing him of stealing his shit because of their little personal dispute.
Boom.
It’s now time for us to rebut a charge of recent fabrication or improper motive they just levied at us.
The prosecution can now introduce a statement that Goat made to the police immediately after the robbery, which occurred MONTHS before the personal dispute with Rainbow Brown, where Goat IDENTIFIED HIM at the scene!
This happened before their little tiff.
We identified yo ass.
Hide your kids, and hide your husbands. Because they are failing everyone out here.
And this is the magic of the prior consistent statement, which gets in substantively.
non-hearsay - prior statement of identification
The court doesn’t really like when people identify someone… then change their story at trial.
This can happen for several reasons, One of them being witness intimidation
So when a witness at trial identified someone in the past, but now on the stand they mysteriously “can’t remember”… the court wants that earlier more reliable identification in
So… if the witness is:
1. Subject to cross-examination;
and
2. The statement they made earlier is about identification.
The first statement gets in.
Even if the earlier statement the witness gave was just to draw a damn sketch, that is still an earlier statement of identification
WILL NOT WORK if the witness refuses to testify at trial, because they are not subject to cross.
non-hearsay opposing party admissions
absolutely any fucking statement another party makes, at any place, at any time, and under any circumstances is admissible against the party who made the statement.
It simply must be said by the opposing party
And it simply must be relevant
It can be based on hearsay too
Example: Goat claims that Rainbow Brown agreed to certain terms in a contract. The civil trial begins. Goat brings in a witness who says that Rainbow Brown said “yea Goat… I AGREE TO THESE TERMS”
Bingo. Opposing party admission.
non-hearsay opposing party admissions - silence
It can even be based on silence when a normal person would have said something!
If someone says something… That a reasonable person would have denied or responded to…
Their silence can be deemed an admission
non-hearsay opposing party admissions - adoptive admissions by signature
Let’s say I’m the CEO of a company called GoatBarPrep that is about to be sued by the NCBE and my lawyer draws something up (my friend Hussein)… then I sign it. Well… uh… I’ve kind of adopted it at this point. Let’s say I look at it… and just remain silent… I’ve adopted that shit too.
non-hearsay opposing party admissions - statements by authorized persons
If a party is authorized to speak on behalf of you (like your lawyer for example or your publicist who speaks on your behalf)… if the lawyer says some wild shit in litigation or negotiations… IT’S AS IF YOU SAID IT
Like when your lawyer brings a motion…
IT’S BASICALLY LIKE THE CLIENT BROUGHT THE MOTION
EVEN THOUGH YOUR CLIENT DOESN’T KNOW SHIT ABOUT THE LAW
non-hearsay opposing party admissions - vicarious admissions by employee’s concerning matters within the scope of their employment
They just must be made during the employment relationship to get in
If Goat works at Applebee’s and say this: “we may have served some poisonous mozarella sticks last night and gotten a few people sick.”
So anything said at work or after work if you’re hanging out on the job site, it will be vicariously admissible against your employer…
However - it will not be admissible if you quit, are fired, have retired, etc.
non-hearsy - co-conspirator admissions
So co-conspirator admissions are also non-hearsay and admissible for their truth
We need a few things for a proper co-conspirator admission
- we need two co-conspirators (two people who joined together for a little crime that could have been completed alone)
- the statement must take place during the conspiracy itself (before the objective of the conspiracy has been accomplished)
- it must be in furtherance of the conspiracy (can’t just be them talking shit about going to the strip club or something)
A statement like “yes El Chapo Goatman, I will deliver the 900 tons of fentanyl through an underground tunnel in Eagle Pass Texas”
This would be a co-conspirator admission and would be admissible against you in court
The insane part about this rule is that EVEN statements made by co-conspirators before the defendant actually joined the conspiracy can be used against them.
AND statements made by co-conspirators after you get arrested can be used against you (unless you become a government witness or withdraw)
self-serving admission by a party themselves
A party cannot introduce their own party statement lmao. Nobody invited your party statement to the party you liar. That would be self-serving. I can’t just get up there and say “well… yea… I mean at that point I told everyone I wanted to back out and I was calling the police on everyone”
jimmy brings a lawsuit because Bob broke his arm. Jimmy calls a neighbor best friend of his to the stand who says “oh yeah jimmy told me he was dying of pain for months”
opposing party admission? fuck no. Jimmy called that guy up to quote HIS OWN STATEMENT
that’s a self-serving admission by a party themselves, NOT an opposing party admission.
who is the opposing party in a criminal case?
the defendant themselves
Just know the government and the victim are not opposing parties to the defendant
hearsay within hearsay
Anytime you Goats see a document with some people talking in it, that’s definitely going to be a hearsay within hearsay issue.
requires us to solve both damn hearsays.
goat got in a car accident with rainbow brown. a civil lawsuit was filed. a police officer prepared a report after interviewing an eye witness two days after the crash.
police report = business public record
two days later? not present sense impression, not excited utterance.
this is mf double hearsay and we only have one layer, not going to work. if we can’t get a second statement in, that part cannot be read to the jury or judge.
double hearsay.. he said that he said
This often happens in cases where a child is being abused. They make an excited utterance to another child. This is fine, as it is a hearsay exception. The second child then goes and tells their mother about what the abused child said. This is double hearsay… and the second child’s statement to the mother would likely not have a hearsay exception, so the statement could not come in.
hearsay exception - the present sense impression
A present sense impression is a statement describing an event AS IT IS OCCURRING or directly after it occurred
The statement must explain or describe the event and must be made at the SAME time you are perceiving it
if you make the statement a few minutes after you perceive something, that is still fine. But it has to be soon as fuck.
One final note about PSI’s… just remember that the bar exam uniquely loves this scenario of someone telling someone else about a license plate as someone speeds away or recording the plate number on audio. This… is an admissible present sense admission.
hearsay exception - excited utterance
An excited utterance is a statement made while still under the stress of a startling event
And on the MBE… every single time… it has an exclamation mark in it
- First, that the statement is actually startling
- Second, there is a short time between the startling event and the statement
The time can be a lot longer than that allowed for a present sense impression, even a few hours sometimes if you’re still under the stress of the startling event
- That you did not have time to reflect and falsify… so the court will look at what activity you were engaged in between the startling event and your little outburst
The startling event doesn’t even need to be the event which is the cause of the crime or litigation.
EVEN if the statement is made in response to a police officer’s questioning, it can still be an excited utterance (if the police show you camera footage of someone robbing a bank and you say “holy shit, that looks like my brother!” … that’s admissible)
hearsay exception - excited utterance with children
When it comes to children… the courts are much more lenient on the timeframe allowed for a statement to get in as an excited utterance
If a child’s father crashes a car while the child is in it for example… and the child hides for three hours and waits for police THEN has an outburst… this will count as an excited utterance… since the child was still under the stress of the startling event, even three hours later
Sadly these excited utterances with children most often get in with cases of sexual assault or physical abuse. A child can still be under the stress of such an attack or assault even months afterwards… and this will still count as an excited utterance.
hearsay exception - present states of mind and physical condition (1 - existing state of mind)
We are talking about calling people up to the stand to quote OTHER people who are saying these little “present state of mind” exceptions.
1st - it can be used to show the declarant’s then existing state of mind.
These are “I” statements: I hate the bar exam, I am tired, I am sad, I feel worthless
The declarant can be anyone, and they do not need to be available
Statements looking backwards… are not allowed
If my friend testifies and says on the stand that I said: “I felt worthless yesterday” .. no. That isn’t present state of mind, that’s past state of mind.
hearsay exception - present states of mind and physical condition (2 - current physical condition)
We are talking about calling people up to the stand to quote OTHER people who are saying these little “present state of mind” exceptions.’
2nd - we have statements about current physical conditions.
If someone says that Goat said “My neck hurts” -> this WORKS
You cannot say that Goat said “my neck hurt last week”
… that is about a past physical condition. Same thing with states of mind - they gotta be current.
Past physical conditions are only admissible if made to a medical professional for the PURPOSE of a medical diagnosis.
hearsay exception - present states of mind and physical condition (3 - present intent to do a future act)
We are talking about calling people up to the stand to quote OTHER people who are saying these little “present state of mind” exceptions.’
3rd - We can bring in statements someone has said about their intent to do something in the future
If I say on the stand that Goat found a Goyard wallet on the ground then said “I am going to return this wallet” … that is fine too. Present intent to do a future act.
But you can never bring in statements of memory or belief when it comes to present states of mind
You can say “I plan to go to the store” but you cannot say…
“I think Kevin robbed me.” -> this is a BELIEF.
You also can’t say: Goat once told me “I remember back in high school, I was the quarterback”
NO. This is a MEMORY.
NO MEMORIES OR BELIEFS YOU DREAMER.
WE WANT TO KNOW THE REAL SHIT THAT WENT DOWN IN YOUR MIND, YOUR BODY, AND WITH YOUR FUTURE INTENTIONS
hearsay exception - present states of mind and physical condition (3 - present intent to do a future act) EXCEPTION
If the statement is of a memory or belief of the past is relating to a will execution of a dead person… it can get in.
If your cousin Johnny O leaves everything to you in his will then dies… then someone tries to say that Johnny O said once “I remembering being really scared of my cousin growing up” … that’s admissible even though it’s not his present state of mind, but his past state of mind.
It’s just important when we have wills to know everything if the creator of the will is dead - so remember with wills we can let in backwards looking statements.
hearsay exception - statements made for medical diagnosis
So statements that are made to medical personnel regarding PAST or PRESENT symptoms… OR the general reason of why you need treatment or diagnosis get in as a hearsay exception
The declarant does NOT need to be available
The statements themselves must describe:
- Pain
- Past or present symptoms
- Sensations
- the cause of injury
But the most important fucking thing is: the statement must be reasonably related to the actual injury, not you being a little bitch and specifically blaming a named person
ex. my hooves hurt bc deer hit me in his porsche after he blew a stop sign.
This is a statement for medical diagnosis motherfucker, not a time to shit talk Deer with your little sneak dissing ass.
You can make statements to nurses, EMT’s, even family members so long as you think the family member will GIVE the statement to the doctor… these are all admissible.
hearsay exceptions - medical diagnosis crazy shit
the rule allows for statements made to expert witnesses who have a DUAL purpose of providing a diagnosis and testifying for you at trial.
So statements made to expert witnesses who are diagnosing you and testifying can get in as hearsay exceptions.
ex. let’s say you have a broken heart and go to your regular doctor, next thing you know you’re at a fucking specialist getting a diagnosis. I’m over here suffering from Takatsubo disease and nobody cares.
Then this doctor gets up to testify at trial (after we pay him $44,000 a day to lie) saying “they talked for two days on Reddit and he will never be able to meaningfully work again he has takasubo disease.”
ADMISSIBLE - it was used for diagnosis and testimony.
if it was JUST used for testimony, it would not come in.
hearsay exception - past recollections recorded
So if a witness wrote a document at one point when they had a fresh memory, but now they can’t remember it on the stand…. the document can be read into evidence but NOT admitted as an exhibit unless at the request of the other party
We need a few things to make sure our document can actually be read into evidence though my Goats:
- Showing the writing to the witness must FAIL to refresh their memory; THEY DON’T REMEMBER SHIT.
- Witness needed to have PERSONAL FIRST-HAND KNOWLEDGE OF WHAT THEY WERE WRITING ABOUT WHEN THEY WROTE ABOUT IT!!!!!!
- The writing either must be MADE by the witness, or ADOPTED by the witness (either a third party is writing it at the witness’s direction or they sign it or some shit)
- The writing must have taken place when the event was FRESH in their memory
- And the witness must actually be able to say that it is ACCURATE
Then it just gets straight up read into evidence. Only admitted if the other side requests it.
it doesn’t have to be a writing. It can be something you tape recorded or made a little audio recording of as well.
record recollection versus refreshed recollection
both can’t remember shit
refreshed: can not be read, can be any document, can not be read into evidence, non-hearsay, and not subject to best evidence.
recorded: can be read, must be an accurate writing by witness when it was fresh in their mind, can be read into evidence, exception to hearsay, and subject to best evidence rule.
readability - refreshed can not be read, recorded can be read into evidence,
document - refreshed can be anything, recorded must be an accurate writing made by witness when it was fresh in their mind.
read into evidence - refreshed no, recorded yes.
hearsay- refreshed is non-hearsay recorded is exception to hearsay.
best evidence rule? refreshed - not subject to BER, recorded - subject to BER
hearsay exception - business records
Businesses are inherently trustworthy.
And because it is necessary for these records to be truthful for the proper running of the day to day operations of a business… our little friend, the FRE, lets in these bad boys as an exception
- any type of record, any form - data, document, memo, etc.
- made in the ordinary course of business
- the business regularly keeps such records as these
- the entires were made AT or NEAR the time the event actually occurred
- matter is made with personal knowledge
- made by a person with a business duty
- in terms of someone having a “business duty”… this shit just can’t be a private memo you are distributing out like a psycho lmao. The chart or document or whatever actually has to be part of a BUSINESS DUTY… like a list of the amount of grain you have in a grain silo… not you passing notes at the water cooler about Janice’s botox.
- The person “setting the foundation” for the record can even be a criminal who is helping you record things about drug sales. If your criminal buddy was there at the time… and had personal knowledge of the workings of the TRAPHOUSE… that’s good enough for the Federal Rules. And yes, the business records can get in even if the business is illegal. If the business record lacks trustworthiness… it won’t get in. I mean sometimes people prepare records solely for the purpose of litigation.Be on the lookout for little “self-serving” employee reports in preparation for litigation when customers slip and fall and stuff like that. They will likely lack indicators of trustworthiness on the Bar Exam.
- The records need to be made in the ORDINARY COURSE OF BUSINESS... NOT THE ORDINARY COURSE OF A WEIRD “CLUSTER A” PERSONALITY DISORDER EMPLOYEE WHO MAKES A LOT OF STICKY NOTES FOR HIMSELF
Always remember police reports may be considered business or public records in civil cases, but not criminal cases. They are specifically carved out of the public records exception in criminal cases because we don’t want the prosecution to prove their whole case through these second-hand hearsay reports of the officer and witnesses in a police report.
hearsay exception - absence of a business record
So if the business didn’t make a record… that they NORMALLY would have made… a witness can bring that in to be like “why the fuck didn’t you make this record, you clearly didn’t do some shit”
The classic example is the medication chart
So basically if a hospital has a chart showing that they were supposed to give you Xanax three times a day at 3PM, 6PM and 9PM (ideal life tbh)… and they miss 9PM on the chart… there’s no record for it… well…
This evidence will come in as an exception to the hearsay rule and it can be used to show that the hospital was negligent.
hearsay exception - public records
Public records, reports, FIRE MARSHALL REPORTS………. statements, data, are admissible so long as we meet a few key elements:
- They have to actually be public records - showing activities of a public agency or matters which are observed pursuant to a LEGAL DUTY to report!
And NO… THE RULE SAYS THIS IS NOT FOR POLICE OFFICERS IN CRIMINAL CASES
- The records and reports both have to be trustworthy too… same with business records… nothing sketchy can be going on with them and if there is a motive to fabricate them, they will be looked upon with suspicion
- The report is also admissible regardless of whether the declarant is available as a witness or not!
Absence of a public record also can come in as an additional hearsay exception.
public records versus public reports
Public records are things like:
* Data about those who have been deported
* Voting records
* A manual prepared by an agency to file employment harassment claims.
Public REPORTS on the bar exam are more like
* investigation reports:
* Airplane crash reports
* Fire investigations
* These factual findings in the public reports are admissible even if they contain conclusions.
hearsay exception - learned treatises
On DIRECT examination of your OWN expert… your expert must
(1) recognize the treatise, and
(2) say that they relied on it to authenticate it
If you BUST out a full blown treatise on cross examination against an expert (when you are the enemy of the expert testifying)… and you show him a treatise to TAKE HIS ASS DOWN… and he doesn’t know what it is… you have two options
1) Get it in through daddy judge and judicial notice, or
2) Call your own expert to testify that the treatise is reasonably relied upon in the field
So even if an expert is like “I’ve never seen that bullshit before” … the judge can be like “sorry kid, Walters 7th Guide to Combustible Flammable Liquids in Copper Based Metallic Supplements is LAW in this jurisdiction you little bitch, now RESPOND to the questions about it.”
Or you can bring up your OWN expert to be like “I have a P.H.D in combustible copper based liquid sheet metals…. Walter’s 7th guide is my BIBLE.”
Basically what I’m trying to say is that a qualified expert of some sort usually has to lay the foundation and say that it is a reliable authority in the field. They themselves don’t HAVE to have relied on it in the past… they just have to RECOGNIZE it as a reliable authority in the field.
hearsay exception - former testimony
With prior inconsistent statements under oath we’re bringing in one LiL baby inconsistent statement and only that statement… and the person must be AVAILABLE and given an opportunity to explain or deny
But what if we wanted the whole damn ICE CHUNK of testimony to be brought in and our witness was UNAVAILABLE.
Now we need the prior testimony exception to save us
So if they’re unavailable and they gave former testimony in a trial or deposition… this former testimony can be used against them
The main thing to remember here is that the OPPONENT who the statement is being offered against must have had a meaningful opportunity to cross-examine (or challenge in other words) the witness on essentially the same issue
If the first hearing was a GRAND JURY for example… well… WE DIDN’T HAVE A CHANCE TO MEANINGFULLY CROSS EXAMINE THE OFFICER.
THE DEFENSE CAN’T ASK QUESTIONS AT GRAND JURIES
hearsay exception - former testimony
civil / criminal cases
If we want to offer prior testimony against the defendant in a CRIMINAL case, the defendant has to be THERE at the prior hearing (be a party in it)
If we want to offer prior testimony in a CIVIL case against someone, the other party doesn’t necessarily need to BE there or be a party in the prior hearing… but a predecessor in interest must be there - just someone who has the same interests as the person currently offering the testimony against them now. Supreme Court hasn’t really defined “predecessor in interest”… even though I’ve written to them for clarification. But just remember that phrase.
hearsay exception - former testimony
what if a witness is unavailable by wrong-doing of the other party?
If someone threatens or intimidates a witness or otherwise causes them to be unavailable, it’s over… their former testimony is getting in against the party that made them unavailable
An affidavit though, which is just a sworn written statement with a notary, is NOT admissible if someone dies. They sometimes like to ask about this on the MBE. An affidavit is not former testimony… it’s just hearsay. Nobody cross-examined anyone who wrote that stupid shit.
My clients always want people to “write affidavits” for them … they ask me about it at least 40 times a day. It’s just hearsay that you took to a notary. It’s not some magical shit.
They act like I’m going to pull out an affidavit from their friend and the judge is going to say “OH MY GOD. AN AFFIDAVIT. I’VE NEVER SEEN SUCH A BEAUTIFUL PIECE OF LITERATURE. PLEASE… DROP THE CHARGES PROSECUTOR WALTERS. THIS IS AMAZING.”
The judge will say “this bullshit is not getting in you idiot, what’s the next thing we have to cover before trial?”
hearsay exception = making statements against your interest
when these show up in the MBE, it will always be a random ass person admitting to some illegal shit they did… and this random ass person will NOT be there in trial or one of the parties… and what they are saying is going to be in quotation marks
Statements of interest are just statements against peoples financial or legal interest - no they aren’t statements that would simply embarrass someone - THEY ARE AGAINST FINANCIAL OR LEGAL INTEREST (ON THE MBE - most commonly these are statements which would get a motherfucker arrested)
The whole theory behind these statements is this: why would someone make a statement implicating themselves in a crime or against their financial interest if it wasn’t reliable?
Now if it’s a criminal case… back up… we can’t get too wild. As a defendant, I can’t bring in an exculpatory statement to free MYSELF unless it is reliable lmao.
I cannot say on the stand, for example: “Yea, I know Rainbow Brown left for Medellin, but I would like everyone to know he told me that he committed the vicious killings I am being accused of right before he left”
Courts will look at the circumstances of the statement and whether the parties are family members or whether there exists any corroborating evidence before defendant can bring in SOMEONE ELSE’S statement against interest which SHOWS THE DEFENDANT IS NOT GUILTY
And one last point: The statement agains interest must be non-testimonial. It CANNOT be made to the police. You have a right to confront your accuser, they cannot backdoor you with statements made to the police and then have the motherfucker not show up to court. They can’t prove their case with ghost witnesses in criminal cases. We’ll talk about that more in a bit, but remember that - because often times the right answer choice will say “the statement is against interest and is non-testimonial.”
difference between self against interest and opposing party admission
statement against interest = hearsay exception
opposing party admission = non-hearsay
statement against interest = against interest when made
opposing party admission = doesn’t have to be against interest
statement against interest = anyone can make these statements
opposing party admission = this has to be from a party or their agent
statement against interest = must be unavailable
opposing party admission = doesn’t have to be unavailable
statement against interest = based off personal knowledge
opposing party admission = any statement
hearsay exception = making statements against your interest
PRISM
privilege
refusal to testify
incapacity
somewhere else
memory lacking
hearsay exception = NOT A making statements against your own interest example
goat is charged for theft by his employer. at trial, the prosecution seeks to call Goat’s estranged daughter, who would testify that her brother told her “i helped dad rob the farm supply store.” the brother is AVAILABLE to testify, but would be a hostile witness.
Should the court permit the daughter to testify? \
THE BROTHER IS AVAILABLE = OPPOSING PARTY ADMISSION
hearsay exception - dying declaration
So first of all, the person doesn’t have to dead
Dying declarations are made when the declarant believes that death is both certain and imminent. The person must fully believe they are about to die.
If, on the bar exam, Goat gets shot by Rainbow Brown… and on the ground Goat says this “Yep… I’m finally going to have to kill Rainbow tomorrow for this”
… this is not a dying declaration because CLEARLY Goat thinks he will live until tomorrow to seek VENGEANCE upon his enemy Rainbow Brown.
The statement must only concern the cause of death… on the ground I can’t be like “impending death is NEARRRRRRRRRR, but KEVIN TIPCORN still owes me money for that 8 ball I sold him!!!!!!!!!!!!!!”
No. Not allowed.
You actually don’t even need to die either. You can live. So long as you believed you were going to die, that is enough.
Please take a moment to write down in your notes that these statements are only admissible in homicide or ANY civil cases
And remember, they HAVE to be unavailable due to our little PRISM
Privilege
Refusal to take the stand
Incapacity (they died or are ill…. but they don’t HAVE to die)
Someplace else (they left the jurisdiction)
Memory gone
random exceptions to hearsay
*statements within ancient documents over 20 years old
*records of vital statistics (marriage, death, birth certificates)
*market reports and publications
*family records - genealogies, family tree charts, tombstone words, family portraits, and statements about a declarants own family history (birth, death, divorce, adoption)
*recorded documents affecting property interest and statements within documents affecting property interests.
*prior felony convictions
a prosecutor can violate your right to confront witnesses if they engage in what I call “the holy trinity”
unavailable witness
talking shit about the defendant
and the defendant can’t cross examine him.
emergency doctrine
if someone calls 911 and we have an active shooter situation, and they are on the phone like “HOLY SHIT. THIS GUY IS GOING NUTS. HE IS ABOUT 6 FOOT TALL. HE RAN THIS WAY.”
Well… that is going to get in. As a present sense impression. Even if this guy doesn’t show up to trial.
It isn’t testimonial because he’s not DIRECTLY ACCUSING the defendant of something AFTER THE FACT
911 CALL ACCUSING OUR LITTLE DEFENDANT = THAT COMES IN
WITNESS TALKING SHIT AFTER OUR DEFENDANT GETS ARRESTED? TESTIMONIAL AND VIOLATES CONFRONTATION CLAUSE
If the primary purpose of the communication is to respond to an ONGOING EMERGENCY… it is not testimonial
THIS ISN’T TESTIMONIAL. It’s ongoing. He’s calling 911 to solve the crime.
If the primary purpose of the communication is to help SOLVE THE CRIME after the defendant has been arrested … it is testimonial.
This scene would be testimonial evidence if the defendant was already caught an hour ago and the kids were giving information on what he looked like… then the kids DIDN’T show up to trial.
injunctive relief
Injunctive relief is just a fancy word for saying that we ask the court “can you kindly stop these crazy motherfuckers from doing anything weird while our civil case is going on?”
at the start of the lawsuit, what injunctions can we file?
preliminary injunction or temporary restraining order
preliminiary injunctions
orders by the court telling someone to stop doing harmful conduct while the case is going on, or forcing someone to continue a course of action while the case is going on.
only lasts until trial
what things do we need for preliminary injunctions to be granted?
- likelihood of winning on the merits
- imminent irreparable injury
trade secrets preliminary injunction
pretty common in practice when people switch high powered jobs.
imagine somone at coca cola who knew the secret formula switched jobs and violated their non-compete to work at pepsi. they would preliminary injunct this motherfucker so fast.
preliminary injunctions SIMP
1. show your likelihood of success
2. irreperable injury
3. money can’t compensate
4. post that bond
civil bond to reimburse the enjoined party in case the injunction ends up being wrongful. So if you stop someone from doing something and they should have been allowed to do it… they can now collect some damages from you for stopping them.
preliminary injunctions what do you need
- likelihood of winning on the merits
- imminent irreparable injury
- balance of hardship clearly favors plaintiff
can also show that a preliminary injunction would advance the public interest.
permanent injunctions
occur after a trial.
you have to show that the defendant actually committed a tort and now the court needs to stop them forever.
how to demonstrate need for permanent injunction
once again, money damages are not good enough.
the balance of equities must always tip in the plaintiffs favor.
1. the defendant doesn’t have any money OR
2. the harm cannot be measured in monetary terms (environmental damage, destroying your grandma’s home that has sentimental value, losing a trade secret). and/OR
3. the conduct is likely to be ongoing after trial.
negative injunction
stopping someone from doing something.
doesn’t really pose any enforcement issues. Stopping someone from working somewhere, or from selling your product online, or smashing down your barn is easy… all you have to do is wait and see if they do it, then punish them when they do.
positive injunction
forcing someone to do something.
how are judges going to monitor and force something?
temporary restraining order vs preliminary injunction differences
Duration:
temporary restraining orders are short term
preliminary injunctions last until the end of the trial.
notice:
temporary restraining orders can be issued without notice or a hearing in certain circumstances.
preliminary injunctions always require notice to the other seide and a hearing
temporary restraining orders
simply an emergency measure to preserve the status quo to give the court additional time to hear more evidence and schedule a hearing for them to decide whether to issue a preliminary injunction for the duration of the trial.
ex parte TRO
normally TRO’s require you to inform the other party that you are seeking a TRO. however, the legendary ex parte TRO (where the other side isn’t even informed through written or oral memes) can be given if a few elements are met:
1. an affidavit showing that immediatey and irreparatble injury will result before you can be heard
2. certify in writing that you tried to give notice but you couldn’t, and the reasons why notice should not be required
3. bond - you always have to provide a security deposit anytime you want to restrain someone so that if they are found to be unlawfully restrained later on, you can compensate them.
lasts 14 days
It will automatically expire after 14 days unless you get an extension for good cause.
You can only get one extension for a total of 28 days then the TRO just automatically dissolves. You have to move for the extension within the first 14 days. And the extension must be for good cause.
can decisions granting or denying TRO’s be appealed?
no
when it comes to a TRO with notice… what happens if it lasts more than 28 days?
it will be treated as a preliminary injunction, which CAN be appealed.
temporary restraining order vs injunction
similiarities
- both injunctions and TRO’s require a bond or security to be paid (unless the gov is bringing it.. they don’t have to post a bond)
- an order granting a TRO or injunction requires the court to state 1) why the court issued the TRO or injunction, AND 2) the specific terms of it (meaning the actinos to be restrained.
who are the people bound to injunctions?
are those who receive actual notice
you actually need to receive notice of it to be bound by it. you need to enforce the damn order in the mail, have it handed to you, or be otherwise informed of it.
you also need to be one of the parties listed on the TRO or injunction or one of their employees or agents bound by it.
pleadings - complaint
a complaint must contain a few things
1. a statement of the court’s jurisdiction
2. demand for judgment asking for damages
3. short and plain statement of the claim showing that the pleader is entitled to relief (notice pleading)
notice pleading
what needs to be in the complaint for a short and plain statement of the claim showing that the pleader is entitled to relief.
The federal rules use a little something called notice pleading.
Which means we want to give… notice… to the other party…. About the events that gave rise to the claim…..About the general nature of the legal rights the plaintiff is asserting.
No technical requirements… we just need to give a general statement of the claims themselves.
We don’t need every fact.
We don’t need every element.
We just need facts supporting a plausible claim.
Let’s do an example, because questions on this always appear on the test:
Let’s say Goat was driving the new Tesla Cybertruck (someone online called this a cucktruck the other day and I thought that was kind of funny)
So Goat was driving his cucktruck and hit Moose while he was walking in a crosswalk.
Moose files a complaint in federal court that says “on june 22, 2024, on main street in chicago illinois, the defendant negligently drove a cybertruck, striking the plaintiff. as a result, the plaintiff hereinafter (Moose) was physically injured, lost wages, and inucrred medical expenses of $90,000”
Goat moves to dismiss for failure to state a claim, arguing the facts lack sufficinet detail.
Will the court grant goat’s motion? NO. the complaint here alleges facts “showing plausible entitlement to releif”
3 circumstances in which we have to plead with much more detail
in these instances, our pleadings must have specificity to each element (meaning that the facts supporting each element must be stated vs. just saying something like “he drove negligently”)
1. fraud
2. mistake
3. special damages
how many days does the defendant have to file an answer to the complaint?
21 days
what must the defendant put in their answer?
- admit the allegations in the complaint
- deny the allegations in the complaint
- state that they lack enough information to answer
AND OR
- raise an affirmative defense
specific denial
when a defendant only means to deny part of an allegation, they have to specify what is true and what is not.
general denial
where you just deny the whole allegation.
when the parties knows that party of the claim is actually true, and they give a general denial instead of a sepcific one, the general denial will be ineffective and the allegation will be admitted as true.
if you know some of it is true and some of it is false, you have to fucking say so.
denying allegations
Failing to deny an allegation will count as an admission to the allegation. You can’t just ignore the allegation. That will be an admission.
Saying you lack the information necessary to respond counts as a denial. Mostly people will say “Defendant doesn’t have sufficient information to respond to this and thus, denies it.”
what is the point of requiring denial of allegations in answers?
The whole purpose of this is to narrow down the potential issues in the lawsuit at the outset. We make people deny and admit stuff and then we’re only left with what is actually contested.
when do amendments arise?
So there we are. The plaintiff’s complaint. The defendant’s answer. Shots have now been fired by both sides.
But as time goes on, so does the parties understanding of the case itself.
And this leads to amendments needing to be made to the pleadings to reflect that evolving understanding of the facts.
FRCP 15 guides us on Amendments.
FRCP 15 - amendment rules
1. everybody gets one free shot to amend.
if you are a plaintiff, you can amend a complaint within 21 days without asking for anyone’s permission. the amended pleading just becomes the original complaint and replaces it.
- if you are the the defendant, and your answer “closes the pleadings” - meaning no response is allowed to it, you may amend your answer without anyone’s permission within 21 days of serving it.
- if your pleading requires a response, (for example - the original complaint requires a response: the answer) the pleading party can also amend 21 days after service of the opposing party’s response.
Goat files a complaint. Rainbow Brown files an answer. Goat may amend his complaint within 21 days after Rainbow Brown serves an answer on him (or a motion to dismiss - sometimes the defendant files that first)
what happens to amendments after 21 days?
So after 21 days you will have to seek the leave of the judge or the other party to amend your pleading.
The federal courts have an extremely chill policy around allowing these amendments after 21 days. The rules say that they should “freely give leave to amend when justice requires.”
In practice, they allow almost every amendment. They don’t want a defective lawsuit to move through the pipeline. The trial should be based on the true understanding of the parties, not what they originally thought.
It’s a discretionary decision… and the only reason judges usually do not allow it is when trial is approaching.
what happens if we want to amend our pleadings (to add a new claim) after the statute of limitations has run?
relation back
Adding a new claim or party after the statute of limitations has run out, and having this new claim or party be treated as if it was included originally.
same transaction and occurrence as original claim
Parties can do this!
I call relation back of claims: a Charizard situation
Let’s say on January 1st, 2022, Kevin Tipcorn and Goat entered into a contract for what Goat thought was a rare 1st edition flawless grade Charizard card for $50,000.
when he gets home and looks at it closer, This idiot just sold Goat a Dark Charizard. Goat had no idea what a “dark Charizard” was and scrambled onto google immediately to price check it and itr was only $44.
He flew into a rage and filed a breach of contract claim the next day (January 2nd, 2022) against Kevin Tipcorn.
The statute of limitations was two years and ran out on January 2nd, 2024.
Two years later, as the lawsuit was still raging on, Goat walked into Kevin’s store again on January 3rd, 2024 (one day after the statute of limitations had run) and Kevin selling fake char dragon cards.
Who the fuck was Char Dragon and why was this man defrauding everyone with fake Charizards.
Goat realized… it wasn’t a mistake. It was a scam from day one.
So on January 3rd, 2024, one day after the statute of limitations had run, he added a new claim for fraud against Kevin Tipcorn.
Is this allowed?
Yes, it is.
The fraud claim will be treated as if it was filed on January 2nd, 2022 instead of January 3rd, 2024.
But why do we allow relation back AkA time travel as a legal fiction?
We allow this because the whole point of the statute of limitations is to make sure the defendant can prepare themselves and are put on proper notice to gather all their evidence!
This scammer Kevin Tipcorn already WAS put on notice that he was fucking around with the Pokemon cards in 2022, so it doesn’t prejudice him by amending this new claim after the statute of limitations because it’s based on the same damn Pokemon scam.
So long as the new claim to be added after the statute of limitations arises from the same conduct, transaction or occurrence… it can be amended in and will relate back. It won’t be barred by the statute of limitations!
what happesns if we want to add a new party after the statute runs out?
officer goatina situation.
Let’s say Rainbow Brown was in a high speed chase with the police one night
When they finally caught up with him a few hours later in the morning, Officer Goatina Jackson beat up Rainbow and his girlfriend Cinnamon Mischief pretty badly.
The other two officers on scene didn’t touch Rainbow or Cinnamon
Rainbow was pretty high that day though, and in his mind he thought Sergeant Billy Gruff was the one who beat him up… instead of Officer Goatina Jackson
So anyway, Goat goes to a civil rights lawyer and files a federal civil rights action against Sergeant Billy Gruff for excessive physical force used in making the arrest.
Sergeant Gruff shows officer Jackson the lawsuit the moment he receives it and says “I never laid a hand on Rainbow Brown. This was clearly meant for you.”
The statute of limitations runs out a year later and** Rainbow Brown, through discovery and depositions, realizes it was actually Officer Goatina Jackson who had laid hands on him**.
Can Rainbow amend the complaint to add a new party?
We have three elements we must meet to be able to do this:
1. The new party must receive notice of the lawsuit within 90 days of the filing of the original complaint (Goatina learned of it the same day it was filed, as Sergeant Gruff showed it to her)
notice can be direct or indirect.
2. The new party knows or should have known that the lawsuit would have been brought against them except for a mistake concerning the proper party’s identity (Goatina knows she was the only one who made the actual arrest and the only one who laid hands on Rainbow Brown and Cinnamon)
3. The amendment must concern the same transaction or occurrence as the original lawsuit(in this case it did, it brought in another officer from the same arrest)
So this is allowed!
