Evidence

Question 1

Relevant evidence

Answer 1

Has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be w/o the evidence. Components of relevance:
-(1) Material
-(2) Probative

General rule of admissibility:
-Irrelevant evidence is always inadmissible
-Relevant evidence is admissible unless (1) kept out by some evidence rule (e.g. hearsay), or (2) court uses Rule 403 discretion to exclude it.

Question 2

Rule 403 discretion

Answer 2

Judge has discretion to exclude [relevant] evidence if its probative value is substantially outweighed by the danger of any of the following considerations:
-Unfair prejudice
-Confusion of issues (evidence creates some side issue)
-Misleading jury (jury gives it undue weight in deliberations)
-Undue delay
-Waste of time
-Cumulative

Question 3

Prior similar occurrences

Answer 3

Generally inadmissible (usually under 403), but some exceptions:

-P’s accident history –> may be admissible to show something other than carelessness. Prior false claims to prove present claim is false; prior accidents involving same body part when causation at issue.

-Similar accidents caused by same event or conditions (other accidents involving the D): admissible to prove existence of dangerous condition; causation; notice to D [of dangerous condition] if those events occurred before the accident in question.

-Absence of similar accidents: evidence of the absence of complaints is admissible to show D’s lack of knowledge of the danger.

-Previous similar acts admissible to prove intent: party’s similar conduct admissible to show their intent in current case.

-Sales of comparable property: admissible to establish property’s value.

-Rebut claim of impossibility: similar occurrences admissible to rebut claim that occurrence at issue was not possible.

-Habit or business routine of an org: admissible as circumstantial evidence that person/org acted in accordance with habit on occasion.
-Habit: regular response to specific set of circumstances.

-Industry custom evidence: admissible as evidence of appropriate standard of care (how D should have acted).

Question 4

Public policy exclusions to admissibility of evidence

Answer 4

-Liability insurance: inadmissible to prove negligence/wrongful conduct. But admissible to prove ownership or control, if disputed; to impeach a witness.

-Subsequent remedial measures: inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction. May be admissible for other relevant purpose, like to prove ownership or control, if disputed; to rebut a claim that the precaution was not feasible/that the product couldn’t be made safer; or to prove that the opposing party has destroyed evidence.

-Civil settlements and settlement negotiations: settlements, offers, and conduct or statements in negotiations (incl. statements made during negotiations) inadmissible to: prove validity or amount of claim; impeach by prior inconsistent statement or contradiction (but impeachment with bias permitted).
-Disputed claim required: evidence excluded only if claim/indication of claim disputed as to validity OR amount. So need an actual claim and a dispute b/w the parties.
-Limited exception: conduct or statements in civil negotiation with government/regulatory authority admissible in criminal case.

-Plea discussions. The following are inadmissible: offers to plead guilty; withdrawn guilty pleas; no-contest pleas; statements in plea discussions. But D can waive these as long as knowing and voluntary.

-Payments of and offers to pay medical expenses / offers of compromise: inadmissible to prove liability, but accompanying admissions of fact are admissible (e.g. I’d like to give you $1k for your medical bill. I’m sorry I ran the red light” –> second sentence is admissible). Don’t need a disputed claim.
-But offers to settle are NOT admissible. E.g. “I’ll pay your medical bills if you drop the case”–> more restrictive rule applies, so this is inadmissible.
-Statements made in connection with an offer to pay medical expenses, unlike statements made in connection with a settlement offer, are admissible.

Question 5

Character evidence (definition)

Answer 5

Evidence that refers to a person’s general propensity or disposition (e.g. honesty, peacefulness, violence). Purposes for offering character evidence:
-Prove person’s character when directly in issue (rare)
-Prove how person probably acted (conduct in conformity/propensity evidence) (common)
-Impeachment (character evidence about party’s truthfulness).

Methods of proving character:
-Specific acts
-Opinion testimony
-Reputation testimony

Question 6

D’s character in criminal case

Answer 6

-Prosecution can’t initiate, but D can raise evidence of good character to prove evidence. If D does, opens the door to prosecution rebuttal. But D’s simply testifying does NOT open the door to general character evidence.
-D can prove by reputation and/or opinion testimony concerning pertinent trait; but CANNOT bring in specific instances of conduct and cannot be about an impertinent trait.

Prosecution’s options once D has opened the door:
-X D’s character witnesses: “Have you heard?’; “Did you know?” –> can test CW’s knowledge about specific instances of past misconduct that relates to the character trait at issue.
-Call own character witnesses –> but can’t follow up with external evidence to counter the witnesses’ answers.

Question 7

D’s character in civil case

Answer 7

Generally inadmissible to prove conduct in conformity (regardless of which party is trying to bring in the evidence), i.e. it cannot be offered to prove how a person probably acted during the events of the current case.
-If not being offered for propensity, can go in.

Admissible (reputation, opinion, specific act evidence) only when directly in issue. Rare and generally limited to:
-Defamation cases, where truth is a defense
-Negligent hiring or entrustment cases, where the person hired or entrusted’s character is an element and has to be proved.
-Fraud causes (D’s character)
-Child custody cases, where the parent’s character is an issue to see what’s in the best interest of the child in terms of custody arrangement.

Question 8

Victim’s character in criminal case

Answer 8

Initiated by D: D can offer reputation and/or opinion testimony concerning victim’s character for relevant trait (usually propensity to violence to support D’s self-defense claim).

Pros rebuttal: after D introduces evidence about victim, pros can rebut with reputation and/or opinion testimony concerning:
-Victim’s good character for same trait
-D’s bad character for same trait

Question 9

Victim’s character in homicide case

Answer 9

Initiated by P: in (1) homicide case (2) if D claims self-defense, evidence of ANY KIND that victim was first aggressor opens door to evidence of victim’s good character for peacefulness.

Question 10

Victim’s character in sexual assault cases

Answer 10

Victim’s past sexual behavior generally inadmissible, except:
-In criminal cases to prove different of injury or physical evidence or to show consent b/w victim and D.
-In civil cases when probative value substantially outweighs unfair prejudice (displaces Rule 403; cooked in favor of excluding evidence).

Question 11

Other misconduct for non-character purpose

Answer 11

Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity/propensity. But only admissible if D is actually contesting the non-character issue.
-Possibly admissible if offered for some independently relevant purpose (NOT character or propensity to commit crime).
-Common non-character purposes: motive; intent; mistake (absence of); identity (e.g. D has a signature way/MO of committing a crime and you can link previous signature to current crime); common plan or scheme.

Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that the defendant committed the prior act.
-But prior misconduct evidence is inadmissible if the danger of unfair prejudice substantially outweighs the probative value.

-If P offering this kind of evidence, must give D timely notice in advance of trial.

Question 12

D’s similar misconduct in sex crime cases

Answer 12

D’s other similar acts are admissible for any relevant purpose (even to show propensity to engage in sex crimes) in criminal or civil case involving alleged sexual assault or child molestation.

Question 13

Authentication

Answer 13

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated [by proof that the writing is what the proponent claims it is].
-Proof must be sufficient to support jury finding of genuineness.

Methods of authentication:
-Opponent’s admission
-Eyewitness testimony of someone with knowledge
-Handwriting verifications, e.g. lay opinion on handwriting (if lay witness has pre-existing knowledge).
-Expert opinion on handwriting
-Jury comparison of handwriting

Question 14

Ancient documents

Answer 14

Document can be authenticated if:
-At least 20 years old,
-In non-suspicious condition, and
-Found in place where such a writing would likely be kept.

Corresponding hearsay exception applies to documents older than 1998.

Question 15

Reply letter doctrine

Answer 15

Document can be authenticated by evidence it was written in response to communication sent to alleged author.

Question 16

Authentication of photographs and videos

Answer 16

Must be identified by witness as fair and accurate representation of facts depicted.
-Generally, photographer/filmer need not testify.

Unattended camera: photograph/camera admissible if camera was properly operating and photograph/video came from that camera.

Question 17

X-rays

Answer 17

Unlike photos, an x-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used was accurate: the machine was in working order and the operator was qualified to operate it. Last, custodial chain must be established to show the x-ray was not tempered with.

Question 18

Authentication of oral statements

Answer 18

Admissible only if said by a particular person, need to authenticate the speaker:
-Voice ID: voice can be identified by any person who has heard the voice at any time (even after litigation has begun and for the sole purpose of testifying).

Telephone conversations: statements authenticated in following ways:
-Party to call recognized speaker’s voice.
-Speaker had knowledge of certain facts.
-Speaker answered phone number and identified themselves or their residence.
-Speaker who answered business’s phone talked about business matters.

Question 19

Self-authenticating documents

Answer 19

-Domestic public docs with seal
-Official publications
-Certified copies of public records or private files on record at public office
-Newspapers and periodicals
-Trade inscriptions and labels
-Acknowledged (notarized) docs
-Commercial paper
-Business records and electronically generated records w/ certification and notice

Question 20

Best Evidence Rule

Answer 20

To prove content of a writing, recording, or photograph (including videos), the original must be produced if the terms of the writing are material.
-Secondary evidence admissible only if proponent has good excuse for not producing original.

When best evidence rule applies (2 main situations):
-Where writing is legally operative or dispositive
-Where witness’s knowledge results from having seen the writing/video/etc. E.g. only proof of break in was security guard seeing burglar on security camera and trying to testify on it –> objectionable, need original.

Original: writing itself, or any counterpart intended to have same effect; negatives of photos or prints of those; print out of original from computer.
Duplicate: exact copy made by mechanical means (note: handwritten copies are NOT duplicates). Admissible to same extent as original, unless either:
-Circumstances make it unfair to admit duplicate (e.g. it’s a bad copy), or
-Genuine issue raised as to authenticity of original

When does the rule NOT apply?
-When a witness has personal knowledge of the facts in the writing.
-A party may introduce other evidence of the doc’s content (e.g. via testimony) when a party against whom the original would be offered had control of the original, was put on notice that the original would be a subject of proof at trial, AND failed to produce the original at trial.

Jury’s role in evaluating best evidence:
-Whether the original ever existed
-Whether a writing produced at trial is or is not an original
-Whether the evidence offered correctly reflects the contents of the original

Question 21

Admissibility of secondary evidence of content

Answer 21

If the proponent cannot produce the original or an admissible duplicate, they may offer secondary evidence of its content, such as handwritten copies, notes, or oral testimony if a satisfactory explanation is given for the non-production of the original. Satisfactory explanations/excuses:
-Original lost or destroyed (unless proponent destroyed in bad faith, e.g. shredding in the dark of night)
-Original cannot be obtained (e.g. in possession of a third party abroad).
-Original in possession of adversary who fails to produce it.

Question 22

Exceptions to best evidence rule

Answer 22

-Summaries of voluminous records
-Certified copies of public records
-Collateral writings (of minor importance to the matter in controversy)
-Opponent testified or gave written admission about contents of writing

Question 23

Real evidence

Answer 23

Actual, physical evidence directly addressed to trier of fact. To be admissible:
-Has to be authenticated (e.g. by witness testimony; held in substantially unbroken chain of custody).
-Sufficient for reasonable jury’s finding of genuineness

Types:
-Reproductions and explanatory real evidence (e.g. relevant photos, diagrams, maps).
-Items used entirely for explanatory purposes (usually not actually admitted into evidence, just seen by jury).
-Demonstrations (e.g. experiments).

Question 24

Witness competency

Answer 24

-Personal knowledge about the things they are to testify
-Oath or affirmation to testify truthfully

Disqualifiers:
-Children: case-by-case basis
-Insanity: competent if understand obligation and has capacity to tell truth
-Judges and jurors: incompetent to testify during case
-Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility/character for truthfulness is thereby impaired or enhanced. But evidence of religious beliefs may be admissible to prove witness’s bias or self-interest.

Jurors - inquiry into past verdict or indictment. Jurors generally incompetent to testify about deliberations or matters affecting vote and can’t be called to testify before the jury on which they are impaneled, BUT may testify as to:
-Extraneous prejudicial information
-Outside influence
-Mistake in verdict form
-Another juror’s clear statement that they relied on racial stereotypes or animus

Dead Man’s Act (civil cases only): interested person incompetent to testify against decedent’s estate or successors about any personal transaction or communication with the deceased.
-No federal DMA! So need to be told there is one in the jurisdiction.

Question 25

Form of questioning witnesses

Answer 25

Judge should exercise reasonable control over the examination of witnesses in order to aid in the ascertainment of truth and to avoid wasting time and to protect witnesses from harassment. Following rules generally apply:
-Leading questions: q’s that suggest the desired answer and generally only permitted on cross, but not on direct. Allowed on direct for (1) prelim or introductory matters; (2) witness needs help responding; (3) witness is hostile, adverse party, or affiliated with adverse party.

General scope of x-examination:
-Scope of direct, and
-Matters that test witness’s credibility (impeachment)

Improper q’s and answers:
-Q’s that are misleading, i.e. can’t be answered w/o making an unintended admission.
-Compound
-Embarrassing
-Call for speculation
-Answers that lack foundation

Question 26

Using docs to aid oral testimony

Answer 26

As a general rule, a witness cannot read their testimony from a prepared memorandum. But there are exceptions:
-Refreshing recollection: witness may use any writing or object to refresh memory/present recollection [and then set the writing aside]. The writing is not actually being introduced into evidence, so doesn’t need to be authenticated and we’re not proving the contents of the writing.
-Adverse party’s options when a witness has used a writing to refresh her memory on the stand: have writing produced; x-examine witness with it; introduce portions into evidence.

-In criminal cases, if prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony and, if justice requires, declare a mistrial.
-When the defense or a party in a civil case fails to comply, the judge has more discretion and can issue any appropriate order.

Past recorded recollection: record may be read into evidence (but CANNOT be admitted as exhibit unless offered by adverse party) if proper foundation established after it fails to jog witness’s memory. Requirements:
-Witness has insufficient recollection
-Witness had personal knowledge when record was made.
-Record was made by witness, made under witness’s direction, or adopted by witness.
-Record was made when matters were fresh in witness’s mind.
-Record accurately reflects witness’s knowledge (witness vouches for it).

Question 27

Opinion testimony

Answer 27

General policy is to prohibit admissibility of opinion evidence, except in cases where the courts are sure that it will be necessary or at least helpful. Two categories:

(1) Lay opinion testimony. Admissible if:
-Rationally based on witness’s perception,
-Helpful, and
-Not based on specialized/technical knowledge
-Lay witness cannot give an opinion as to whether they or someone else acted as an agent or whether a contract was made –> legal conclusions that require specialized knowledge. Lay witness may only testify as to the surrounding facts.

(2) Expert opinion testimony. Admissible if:
-Helpful
-Based on sufficient facts or data
-Reliable
-Witness qualified by specialized knowledge, skill, experience, training, or education.
-Can be based on any of these sources of info (proper factual bases): facts based on expert’s own observation; facts made known to expert at trial (e.g. counsel relays facts to expert); facts supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in field. May give opinion testimony on direct examination w/o disclosing the basis of the opinion.
-The expert may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence.
-Reasonable probability requirement: the expert must possess reasonable probability re: their opinion; a mere guess or speculation is not sufficient.

Expert testimony –> court determines reliability via Daubert factors:
-Testing of principle or methodology
-Rate of error
-Acceptance by other experts in same discipline
-Peer review and publication

Expert opinion on ultimate issues: generally permitted, except testimony concerning D’s mental state in criminal case.

If an expert opinion relies on otherwise inadmissible facts or data, then that info may be disclosed to the jury only if the court determines that its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.

Question 28

Learned treatise

Answer 28

Scholarly treatise, periodical, or pamphlet. Used in connection with the x-examination and direct examination of expert witnesses.
-Statements from learned treatise may be read into evidence if (i) treatise established as reliable authority and (ii) treatise called to expert’s attention on cross or relied upon by expert on direct.

So the jury can’t examine the entire learned treatise, but CAN consider passages read to it by counsel or a witness.

Question 29

Exclusion and sequestration of witnesses

Answer 29

Upon request, judge must exclude witnesses from courtroom (and judge may exclude on their own). Judge may also do so at own discretion. But judge must not exclude:
-Party or party’s designed representative,
-Person whose presence is essential (e.g. expert) or
-Person statutorily authorized to be present

Question 30

Witnesses called or examined by court

Answer 30

Court may examine parties’ witnesses or call own witnesses. Each party is entitled to cross-examine a witness called by the court, and a party may object to the court’s examining or calling a witness either at the time they’re called or at the next available opportunity. when the jury is not present.

When a party raises a significant new matter while crossing a witness, the court MUST allow the opposing party to address that matter through redirect examination.

Question 31

Impeachment

Answer 31

Discrediting a witness. When evidence offered only to impeach, it’s not being offered as substantive evidence, but just that witness can’t be trusted.

Bolstering witness’s testimony before credibility has been attacked is generally prohibited. But rehabilitation OK after witness has been impeached.

Any party may impeach a witness - including the party who called the witness to the stand.

Question 32

Forms of impeachment

Answer 32

-Cross-examination
-Extrinsic evidence (other witnesses or documents that prove the impeaching facts)

Question 33

Impeachment methods (facts specific to case)

Answer 33

-Prior inconsistent statements: must be relevant to some issue in the case. Generally admissible for impeachment purposes only, but admissible as substantive evidence when made under oath at prior proceeding and now testifying/subject to cross (e.g. witness made the inconsistent statement at pre-trial hearing under oath –> if later contradicts, that statement can be used both for impeachment and for the truth of the matter).
-Before or after introducing extrinsic evidence one must: give witness opportunity to explain or deny; give adverse party opportunity to examine witness about it.
-No foundation required where: prior inconsistent statement is opposing party’s statement (can come in as substantive); hearsay declarant is being impeached; justice requires (e.g. witness has left the stand and is unavailable when their inconsistent statement is discovered).
-The credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

-Bias: extrinsic evidence of bias allowed, but witness first must be asked on cross about the facts that show the bias/interest.

-Sensory deficiencies: faculties of perception or recollection were so impaired as to make it doubtful that they could have perceived those facts. Admissible on cross or by extrinsic evidence.
-No foundation requirement, i.e. don’t have to confront the witness with that fact but can instead just prove the deficiency with other evidence right away.

-Contradiction: cross-examiner, while questioning witness, can try to get the witness to admit that they lied or were mistaken about some fact they testified to on direct. If they admit it, the witness has been impeached by contradiction.
-Extrinsic evidence permitted unless impeaching fact is collateral (i.e. no significant relevance to the case or to the witness’s credibility). So if not collateral, prosecution can bring in extrinsic evidence to prove the fact after witness has stuck to the original story/statement.

Question 34

Impeachment methods (general bad character for untruthfulness)

Answer 34

-Opinion or reputation evidence of untruthfulness: testimony from character witness admissible to show impeached witness has poor character for truthfulness.

-Prior convictions (arrest or indictment not sufficient) for: any crime involving dishonesty or false statement, e.g. perjury, embezzlement, fraud (court has no discretion to exclude these); felony not involving dishonesty or false statement (court has discretion to exclude via balancing test - criminal D: court excludes conviction unless probative value outweighs prejudicial effect; any other witness: Rule 403, court excludes conviction if probative value substantially outweighed by prejudicial effect).
-Remoteness: generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later. Court may admit an older conviction (>10 years) (1) if it’s probative value substantially outweighs its prejudicial effect and (2) the proponent gives the adverse party reasonable written notice to use this conviction.
-Allowed on examination of witnesses or by extrinsic evidence (record of judgment).
-No foundation requirement.
-Conviction cannot be used to impeach if: pardon based on rehabilitation and no subsequent felony conviction; pardon based on innocence.

-Prior bad acts involving untruthfulness (did not result in conviction): permitted on cross of witnesses (but can’t ask about an arrest explicitly b/c an arrest is not about truthfulness); extrinsic evidence prohibited –> so you’re stuck with witness’s answers on cross, though you may in good faith continue questioning on that point.
-Can only bring in through cross if the specific bad act is probative of the witness’s truthful character AND the inquiry into that bad act is made in good faith.

Question 35

Impeachment on collateral matters

Answer 35

Cannot prove collateral (unimportant/irrelevant) matter by extrinsic evidence or prior inconsistent statement.

Question 36

Impeachment of hearsay declarant

Answer 36

Hearsay declarant may be impeached to same extent as in-court witness.
-Need not be given opportunity to explain or deny prior inconsistent statement.
-The party against whom the OOC statement was offered may call the hearsay declarant as a witness and cross them about the statement.

Question 37

Rehabilitation

Answer 37

A witness who has been impeached may be rehabilitated by the following methods:
-Explanation on re-direct
-Good character for truthfulness (reputation or opinion testimony, but not about specific acts).
-Prior consistent statement (also admissible for truth): (1) when witness attacked with charge of lying or exaggerating b/c of some motive, and statement pre-dates motive; (2) when witness impeached on other non-character ground.

Question 38

Hearsay

Answer 38

A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.
-Hearsay statement inadmissible upon appropriate objection unless exception applies.

“Statement” - oral or written assertion; nonverbal conduct intended as assertion (e.g. nod).
“Not made at current trial or hearing” - statements made at a different trial or hearing can be hearsay.
“Offered to prove the truth of the matter asserted”

Common non-truth purposes:
-Verbal acts/legally operative facts (e.g. words of contract or defamatory words; words constituting acceptance are not offered for truth).
-Effect on listener or reader. E.g. notice (evidence showing that a seller had notice of a broken jar in supermarket aisle); motive.
-Circumstantial evidence of declarant’s state of mind.

Question 39

Hearsay exclusions/nonhearsay

Answer 39

Certain prior statements of testifying witnesses:
-(1) if the prior statement is one of identification of a person as someone the witness perceived earlier, even if the witness cannot remember making the identification
-(2) if the prior inconsistent statement was made under oath at a prior proceeding; or
-(3) if prior statement is consistent and is offered when (i) witness charged w/ lying or exaggerating due to recent motive and statement pre-dates motive or (ii) witness impeached on other non-character ground.

Statements by opposing party: statements by or attributable to an opposing party are not hearsay. Ergo, any statement by a party (both in their interest and against their interest) can be offered against that party.
-Formal statements (pleadings, stipulations) are conclusive and cannot be contradicted during trial.
-Informal judicial admissions (e.g. during testimony or from a different case) can be explained.

Adoptive statements: party’s express or implied adoption of another’s statement can be used against them. Remaining silent in face of accusation can be used against them if:
-Party heard and understood it
-Party was capable of denying it
-Reasonable person would have denied it

Vicarious statements by opposing party (court first has to find by a preponderance of evidence that the relationship exists):
-Authorized spokesperson
-Employee/agent if statement: (i) concerned matter within scope of employment/agency (but employee doesn’t need to be ‘on the clock’) and (ii) was made during the relationship.
-Partner
-Co-conspirator, if statement made in furtherance of the conspiracy.
-Privies in title and joint tenants (state court only).

Question 40

Hearsay exceptions (declarant unavailable at trial)

Answer 40

Grounds for unavailability:
-Death or illness
-Privilege (e.g. 5A)
-Refusal to testify despite court order
-Inability to remember subject matter
-Absent and attendance cannot be procured

Former testimony: (i) declarant unavailable; (ii) testimony was given under oath; (iii) party against whom testimony now being offered (or in civil cases, their predecessor in interest, i.e. someone in privity relationship like grantor/grantee/testator/etc.) had opportunity and similar motive to develop it.

Statement against interest: statement against unavailable declarant’s pecuniary, proprietary, or penal interest made –> basically declarant wouldn’t have made the statement if it wasn’t true b/c it was against their interest. Declarant must have had personal knowledge of the facts and must have been aware that the statement was against their interest when they made it.
-Limitation: in criminal cases, statements against penal interest must be corroborated (need some other evidence that the statement is true).

Dying declarations:
-Unavailable declarant
-Homicide prosecution or any civil case
-Declarant believed death imminent, but under modern rule, does NOT need to actually die
-Statement concerned cause or circumstances of their death

Statements of personal or family history. Statements by unavailable declarant concerning birth, death, and other family matters admissible if:
-Declarant is member of or intimately associated with family, and
-Statements are based on declarant’s personal knowledge of facts or family’s reputation

Statements offered against party procuring declarant’s unavailability: unavailable declarant’s statements admissible against party who intentionally caused declarant to be unavailable.

Question 41

Hearsay exceptions (regardless of declarant availability)

Answer 41

Excited utterances: relate to startling event, made while declarant under stress of excitement from event, thereby suspending declarant’s ability to fabricate statement.

Present sense impressions: describes or explains event or condition; made while or immediately after declarant perceives event or condition.

Present state of mind: includes statements of then-existing motive, intent, plan, and emotional, sensory, and physical condition. Has to be contemporaneous –> does NOT include statements of memory or belief.

Statements made for medical diagnosis or treatment: statements describing medical history, past or present symptoms, or their inception or general cause.
-Must be made for and reasonably pertinent to medical diagnosis (includes diagnoses made for the purpose of giving an expert opinion in court) or treatment.

Business records. Record of act, event, condition, opinion, or diagnosis admissible if:
-Made in regular course of business, and business regularly keeps such records.
-Made near time of event.
-Consists of matters within personal knowledge of entrant (or someone else who had duty to transmit information to entrant).
-Foundation: custodian of records or other qualified witness must provide either (i) in-court testimony or (ii) written certification.
-Proving that matter did not occur: admissible if business regularly recorded such matters.
-Court may exclude a business record for lack of trustworthiness, but burden is on opponent to prove that.
-Can’t use this exception as a backdoor to get police reports into evidence.

Public records:
-Activities of agency
-Matters observed pursuant to legal duty, but not including police observations in criminal cases
-Records of factual findings resulting from legally authorized investigation, but not against D in criminal case.

Other officials records:
-Records of vital statistics (if reported to a public office in accordance w/ legal duty)
-Absence of public record
-Judgments : always admissible proof that such judgment has been entered.

Recorded recollections and learned treaties:
-Read into evidence only (not entered as exhibit).
-Treatises only admissible in context of expert witnesses.

Other exceptions:
-Ancient documents (prepared before 1998)
-Documents affecting property interests
-Reputation
-Family records and market reports

Catch-all exception:
-Must possess sufficient guarantees of trustworthiness
-Court must consider the totality of circumstances in which the statement was made and any evidence that corroborates it
-Must be strictly necessary to be admitted
-Proponent must give reasonable notice to adversary

Question 42

Hearsay and the 6A Confrontation Clause

Answer 42

Hearsay statement inadmissible (even if exception applies) if:
-Offered against criminal D
-Declarant unavailable
-Accused had no opportunity to cross-examine declarant about statement
-Statement is testimonial

“Testimonial”: includes sworn testimony (e.g. at a grand jury, prior trial, prelim hearing); statements to LE (sworn or unsworn); forensic evidence like DNA tests or fingerprints. Depends on primary purpose:
-To aid in ongoing emergency –> nontestimonial
-To provide info for later prosecution –> testimonial

Question 43

Testimonial privileges (general info)

Answer 43

Permit a person to refuse to disclose and prohibit others from disclosing certain confidential information in judicial proceedings. Privilege can be invoked at all stages of a legal proceeding, including grand jury investigations.

What privilege law applies in federal court?
-Cases based on federal law –> federal common law applies.
-Diversity cases –> state privilege law applies.

Federally recognized privileges:
-A/C privilege
-Spousal testimonial privilege (spousal immunity)
-Confidential marital communications privilege
-Psychotherapist/social worker-patient
-Clergy-penitent privilege
-Government privileges
-NOT physician-patient privilege!!

General considerations:
-Privilege is personal to holder and can generally only be asserted by the holder
-Confidentiality: communication must be shown or presumed to have been made in confidence, it wasn’t intended to be disclosed to third parties
-Comment on a claim of privilege is forbidden
-Waiver: failure to claim; voluntary disclosure; contractual waiver.
-Eavesdropper does not destroy privilege (unless negligence by the holder).

Question 44

Testimonial privileges - A/C privilege

Answer 44

Attorney-client privilege:
-Confidential communications: must not be intended for outside disclosure; not privileged if made in known presence of stranger.
-B/w attorney (member of the bar or someone client reasonably believes is a member of the bar) and client (and either’s rep). Comms through agents privileged if necessary to transmit info b/w attorney and client.
-During professional legal consultation: client seeking professional services (includes preliminary consultations, even if attorney doesn’t end up representing client).
-Underlying facts that were shared w/ attorney are NOT covered by privilege.
-Unless exception applies. (i) Joint client rule: when joint clients have common interest, their comms with attorney are not privileged if they sue each other.
-Client holds privilege, but attorney can claim it for client.
-Privilege applies indefinitely, even after death.
-For corporate clients, federal law extends a/c privilege to confidential communications from any employee that (1) concerned matters within the employee’s corporate duties and (2) were made for the purpose of securing legal advice for the corporation.

Exceptions:
-Attorney’s services sought to aid in crime or fraud
-Client put legal services at issue (e.g. D on trial for tax fraud claims she relied on advice of her attorney in reporting income)
-Dispute b/w attorney and client (e.g. client sues attorney for malpractice)
-Parties claiming through same deceased client

Attorneys’ work-product privilege:
-Ordinary work product (e.g. witness statements) is discoverable if the requesting party shows a substantial need for the info and cannot otherwise obtain it without undue hardship.
-Opinion work product (e.g. attorney’s mental impressions) is discoverable only in rare instances.
-Limitations on waiver of privilege in work product: generally, a voluntary disclosure of privileged material operates as a waiver of privilege or work product protection only with respect to the disclosed material.

Question 45

Testimonial privileges - Physician-patient privilege (state privilege only + diversity cases)

Answer 45

Confidential information acquired by physician privileged if:
-Professional relationship existed
-The info acquired for purposes of diagnosis or treatment
-The info necessary for diagnosis or treatment

-The privilege belongs to the patient.

Exceptions:
-Patient put physical condition at issue in case.
-Assistance sought to aid wrongdoing.
-Dispute b/w physician and patient.
-Patient agreed to waive privilege.
-Federal case applying federal law.

Question 46

Testimonial privileges - Psychotherapist/social worker-patient privilege

Answer 46

-Operates like a-c privilege.
-No privilege where patient puts mental condition at issue.

Question 47

Testimonial privileges - Spousal testimonial privilege (spousal immunity)

Answer 47

Prevents D’s spouse from testifying against D in criminal case. Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is a D.
-Lasts only during the marriage (i.e. spouses must be married at time of trial), even if the events at issue took place before the marriage.
-Witness-spouse holds privilege. So witness-spouse may testify if he/she wants to.

Question 48

Testimonial privileges - Confidential marital communications privilege

Answer 48

-Applies in any civil or criminal case.
-Confidential communications b/w spouses during a valid marriage are privileged.
-Either spouse can claim privilege/refuse to disclose the communication or prevent any other person from doing so.
-Spouses must have been married at time of communication (privilege remains if they divorce but comms after divorce are not privileged).
-Communication must have been confidential in nature.

Question 49

Exceptions to both marital privileges

Answer 49

-Comms in furtherance of joint crime-fraud
-Legal actions b/w spouses
-Spouse charged w/ crime against other spouse or either spouse’s children

Question 50

Government-informant privilege

Answer 50

Generally allows the gov’t to withhold the identity of a confidential informant. However, the privilege does not preclude disclosure of the content of a communication provided by an informant if its disclosure will not reveal their identity.

Question 51

Burdens of proof

Answer 51

-Burden of production. Once satisfied, burden shifts to the other party to rebut with other evidence.
-Burden of proof/persuasion: civil cases - usually by preponderance of the evidence (but sometimes clear and convincing evidence); criminal cases - beyond a reasonable doubt.

Question 52

Preliminary facts decided by jury

Answer 52

Jury decides issues affecting relevance, including:
-Whether evidence is authentic
-Whether person was acting as agent
-Whether witness has personal knowledge

Judge first determines that there is sufficient proof to support a jury finding that the fact exists.

Question 53

Preliminary facts decided by judge

Answer 53

Judge decides whether evidence is admissible:
-Is witness competent to testify?
-Is evidence privileged?
-Does evidence meet requirements of hearsay exception?

May consider all non-privileged evidence when making determination, including hearsay, etc. Basically, not subject to FRE in consideration.

Presence of jury. Jury must be excused if:
-Hearing involves whether confession is admissible
-D in criminal case is testifying at hearing and requests jury be excused
-Justice so requires

A criminal D who testifies at a preliminary hearing can be crossed about issues related to the admissibility of the contested evidence and the D’s credibility - but not about other issues in the case.

Question 54

Judicial notice

Answer 54

Court’s ability to recognize that a fact is true without formal presentation of evidence.

Facts not subject to reasonable dispute because:
-Generally known within trial court’s jurisdiction, or
-Can be accurately and readily determined from sources that cannot reasonably be questioned (e.g. October 8, 2002 was a Tuesday).

Procedural issues:
-Can be taken at any stage (even on appeal, as long as it’s not unfair to opposing party AND doesn’t disrupt fact finder’s, i.e. usually jury’s, authority).
-Mandatory if party formally requests it and provides necessary information
-Conclusive in civil cases (judge must instruct jury that the fact is conclusive)
-In criminal cases, judge instructs jury that it may but is not required to accept the noticed fact as conclusive. I.e. the prosecutor’s burden of producing evidence on this point is satisfied.

Federal rules govern only judicial notice of adjudicative facts:
-Adjudicative facts: facts that relate to the particular case at trial.
-Legislative facts: facts related to legal reasoning or lawmaking that don’t need to be generally known nor capable of indisputable verification for the court to judicially notice them.

Judicial notice of law: courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal gov’t. Courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress, or of the local state legislature.

Question 55

Rule of completeness

Answer 55

When some or all of writing or recorded statement is admitted, adverse party may require proponent to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered at the same time.

Question 56

Limited admissibility

Answer 56

If evidence is admissible on a limited basis (for one purpose but not another), judge must - upon timely request - issue limiting instruction reflecting so.

Judge may also exclude evidence entirely under Rule 403.