Evidence Flashcards
1
Q
When is evidence relevant?
A
If it has any tendency to make a material fact more or less likely than would be the case without the evidence.
2
Q
When is relevant evidence admissible?
A
Always.
3
Q
What is the exception to the general rule that all relevant evidence is admissible?
A
The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by some countervailing pragmatic ground for exclusion.
4
Q
What are the six types of pragmatic consideration that may bar admission of relevant evidence?
A
Danger of unfair prejudice; Confusion of: issues and misleading the jury; Waste of Time: undue delay, waste of time, and unduly cumulative.
5
Q
What is the least likely reason to exclude evidence?
A
Unfair surprise.
6
Q
What are the general basis for policy exclusion?
A
Balancing relevance with pragmatic considerations, and encouraging parties to take socially useful conduct, by promising them that their statements and actions won’t be used against them in court.
7
Q
What is the rule for liability insurance?
A
Evidence that a person has or doesn’t have liability insurance is inadmissible for the purpose of proving fault or absence of fault.
8
Q
What is the exception to the liability insurance rule?
A
May be admissible to show (1) proof of ownership or control, if that issue is disputed, or (2) impeachment of a W on the ground of bias.
9
Q
Whether evidence is admissible often depends on what?
A
The purpose for which the evidence is offered.
10
Q
What happens if evidence is admissible for one purpose but not another?
A
Judge should give the jury a limiting instruction.
11
Q
What is impeachment?
A
Process of trying to show that a W should not be believed.
12
Q
What is bias?
A
There is some relationship between the W and a party that could cause the W to lie. Evidence of a W’s bias is almost always admissible.
13
Q
What are subsequent remedial measures?
A
Repairs and design or policy changes taken after an accident that might have prevented the accident or made it less likely.
14
Q
What is the rule for subsequent remedial measures?
A
Not admissible to prove the D’s fault. Why? Encourage potential Ds to make their products and premises safe to enter.
15
Q
What is the exception to the rule for subsequent remedial measures?
A
Admissible for some other relevant purpose such as proof of ownership, control, or feasibility of precautionary measures fi that issues is disputed and put at issue by D who says precautions were impossible.
16
Q
What is the rule for settlements and attempted settlements of civil (or criminal) cases?
A
If there is a disputed civil claim, then evidence of settlement or offer to settle or statement of fact made during settlement talks is inadmissible if offered to prove either the liability or the amount of the claim. Why? To encourage settlements and frank settlement discussions.
17
Q
What are the exceptions to the settlement rules?
A
If the civil claim is brought by govt, statement of fact by D during settlement negotiations in that civil case are admissible against that D at a later criminal trial; settlement evidence may be admissible if it is offered to impeach a W on the ground of bias.
18
Q
What is the VA distinction for the settlement rule’s exception?
A
An express admission of liability is admissible even if it takes place during settlement negotiations.
19
Q
When does the ban on settlement evidence apply?
A
Only if at the time of the discussion there is a claim and that claim is disputed by the other side.
20
Q
What is the rule for offers to pay medical expenses?
A
Evidence that a party has paid or offered to pay an accident V’s medical expenses is not admissible to prove liability. Why? To encourage charity.
21
Q
What is the limit for the rule about offers to pay medical expenses?
A
It does not include other statements made in connection with an offer to pay medical expenses. (No hearsay problem because statement by an opposing party.)
22
Q
What is the rule for pleas and plea discussions in criminal cases?
A
Unsuccessful offers to plead guilty, withdrawn guilty pleas, pleas of no contest, and statements of fact made during plea discussions by D or defense counsel in a criminal prosecution aren’t admissible for any purpose against D either in the criminal case or a subsequent civil case.
23
Q
What is the VA distinction related to nolo contendere pleas and related discussions?
A
Nolo plea in criminal proceeding allowed to be used as admission against party in civil litigation.
24
Q
May a guilty plea that is not withdrawn be admitted against D in subsequent civil litigation?
A
Yes, if civil litigation is based on the same facts under the rule of party admissions. Why? Difficult to withdraw a plea unless process is unreliable.
25
What is character evidence?
A person's general propensity or disposition. EX: honesty, peacefulness, or carefulness.
26
What are the four permissible purposes for offering character evidence?
Conforming conduct (prone to act in a certain way); impeachment or rehabilitation; other (prior bad act offered for a purpose other than propensity); essential element (trait is essential element of claim or defense).
27
What is the rule for admitting character evidence?
Not admissible to prove propensity; admissible for impeachment, to show veracity, for a non-propensity purpose, and when trait itself is an essential element.
28
What is the rule for D's character evidence offered by D?
Evidence of D's character is generally not admissible to prove propensity. Why? Fear jury will misuse the evidence and convict D not because he's guilty but because he's a bad person.
29
What are the exceptions to the rule for D's character evidence offered by D?
D may introduce evidence of own pertinent traits of good/lawful character. If D does this, P may rebut with evidence of D's bad character.
30
In what form may character evidence be offered?
When character evidence is admissible to prove propensity, the only proper methods are opinion or reputation, not allowed specific acts of conduct.
31
What is the VA distinction for the form in which character evidence may be offered?
Character evidence is admissible to prove conforming conduct by some person, the character W may only testify as to what they know about the person's reputation. Opinion testimony not allowed.
32
What is the rule for D's character offered by P to rebut D's proffer of own character evidence?
If D opens the door by calling character Ws, the P may rebut by (1) calling own Ws to testify to D's relevant bad character (opinion and reputation only) and (2) by cross-examining D's character Ws by questioning their knowledge of specific acts by the D that are relevant to the character trait at issue.
33
If P chooses to cross-examine D's character witnesses as to specific act knowledge, what is the proper purpose and limit?
Purpose to impeach W not to prove D's conduct. P is not allowed to prove specific act, but must have good faith basis to believe that specific act took place before it may ask D's character Ws about the act on cross.
34
What is the rule for V's character in self-defense case?
A criminal D may offer evidence of V's violent character to prove V was the first aggressor through opinion or reputation evidence.
35
How may P rebut D's evidence regarding V's character evidence in a self-defense case?
P may offer evidence of V's peaceful character or D's violent character.
36
What is the special rule for D's knowledge of V's character for violence?
D may offer ANY FORM OF evidence of own knowledge of V's bad character for violence at the time of the alleged offense for the purpose of showing mental state or reasonable fear of danger. Why? Relevant to show D's belief not V's propensity.
37
What is the rape shield rule?
In a case involving alleged sexual misconduct, D ordinarily may not introduce evidence of V's sexual history or V's sexual predisposition.
38
What are the rationales of the rape shield rule?
Promiscuity evidence has low probative value and may discourage rape victims from coming forward.
39
What are the exceptions to the rape shield rule?
D may introduce evidence of V's sexual activity w/ D but only if defense is consent, w/ others but only to prove that someone other than D was the source of injuries of other physical evidence, and evidence required to be admitted by D's constitutional right under CC to prove alleged V may have some motive to lie.
40
What is the rule for character evidence in civil cases?
Not admissible to prove conforming conduct.
41
What is the exception to the rule for character evidence in civil cases?
Evidence of person's character is admissible in civil action where such character is an essential element of a claim or defense. EX: negligent entrustment or defamation.
42
What is the rule for propensity evidence?
Inadmissible.
43
What is the exception to the rule for propensity evidence?
Habit of a person is admissible to infer how the person acted on the occasion at issue in the litigation.
44
What is habit evidence?
A repetitive response to a particular set of circumstances. Distinguishing characteristics are frequency of conduct (invariable) and regularity of response. Look for words like always, invariably, automatically, instinctively.
45
What is the business routine rule?
The regular practice of an organization is admissible to prove conduct on a particular occasion.
46
What is the rule for admitting D's other crimes for non-character purpose?
D's other crimes or specific bad acts are not admissible during P's case in chief if the only purpose is to prove propensity i.e. because D's bad character makes him more likely to have committed the crime charged.
47
What is the exception to admitting D's other crimes for non-character purposes?
MIMIC. D's other crimes or bad acts may be admissible if offered to show something specific about this crime for which he's on trial.
48
What are the common non-character purposes i.e. MIMIC?
Motive, Intent, Mistake or accident, Identity, or Common scheme or plan.
49
How may MIMIC-purpose crimes be proven and what is the burden of proof?
Proof of conviction, or any other admissible evidence. P must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence. May use in criminal or civil evidence.
50
What are the other requirements for admitting MIMIC evidence?
Must pass Rule 403 balancing test, court must give a limiting instruction, and if D requests P must give pretrial notice of intent to use MIMIC evidence.
51
What is the rule for admitting other sexual misconduct to show propensity for sexual assaults?
In any case alleging sexual assault or child molestation, the prosecution or plaintiff may offer evidence of D's prior similar acts for the purpose of proving D's propensity. Whether D convicted doesn't matter.
52
What is the rule for plaintiff's accident history?
P's history of accidents or lawsuits is inadmissible as it merely tends to show a propensity for being accident prone or careless or litigiousness. Exception: P's prior accidents admissible to show another explanation for injuries.
53
What is the rule for similar accidents caused by the same event or condition?
Other similar accidents generally not admissible UNLESS other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted to show dangerous condition, causation, or notice to D of defect.
54
What is the rule for experiments and tests?
Standard for admitting experiments and tests is that there must be substantial similarity between the experiment and the disputed fact.
55
What is the rule for intent in issue?
Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct.
56
What is the rule for comparable sales on issue of value?
The value of similar property is admissible as evidence of value of the property at issue.
57
What is the rule for industrial custom as standard of care?
Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted as evidence of the prevailing standard of care.
58
What is judicial notice?
Recognition of a fact as true w/o formal presentation of evidence.
59
When may a court take judicial notice?
Indisputable facts i.e. (1) matters of common knowledge w/in the court's territorial jurisdiction and (2) matters capable of ready determination by resort to reliable sources.
60
What are the procedural aspects of judicial notice?
Notice may be taken at any time, including on appeal. The effect of judicial notice: in a civil case, noticed facts are conclusive, but in criminal cases, jury may regard the fact as proved but doesn't have to.
61
When there is a writing on the exam, what are the potential issues?
Authentication, best evidence, hearsay, and privilege.
62
What is the general rule for authentication?
Party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what that party claims it to be.
63
What is the process of authentication called?
Laying the foundation.
64
What is the authentication rule for writings?
If relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.
65
What are the four ways to authenticate writings?
(1) Testimony by a W w/ knowledge; (2) proof of author's handwriting; (3) ancient document rule; (4) solicited reply doctrine.
66
How can proof of author's handwriting be given?
Lay opinion (acquired not in prep of litigation); expert W testimony; comparison of handwriting by jury.
67
What is the ancient document rule (w/ VA distinction)?
Infer authenticity if: (1) document is 20 years old (30 in VA); (2) is facially free of suspicion; (3) is found in tis natural location.
68
What is the solicited replay doctrine?
A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
69
What are the self-authenticating documents that don't require a foundation?
Official publications, certified copies of public or private documents on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged documents, commercial paper, and certified business records.
70
What is the rule regarding certified business records?
Must be certified by qualified W who knows how it was prepared and that these documents were made in the regular COB at or about the time of the events.
71
How make photographs and recordings be authenticated as demonstrative evidence?
If purpose of photo is to illustrate a W's testimony, it can be authenticated by W testifying, based on personal knowledge, that photo is an accurate depiction of the people or objects portrayed.
72
How can a photo be authenticated if it is the evidence itself?
Party offering photo must show camera was properly working, film was properly loaded and removed, and that the film has not been altered. Most effective way to do all of this is to show a chain of custody.
73
What is the best evidence rule?
If a party seeks to prove the contents of a writing, the party must either produce the writing or provide an excuse for absence. If court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony or a copy to prove the contents.
74
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing, which arises in two principal situations (1) the writing is a legally operative, or (2) W is testifying to facts that she learned solely from reading about them in a writing.
75
What is the difference between an original writing and a duplicate writing?
The original includes the writing itself, any counterpart intended to have the same effect, and any negative of film or print from the negative. A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (such as a handwritten copy or oral testimony).
76
What is the rule for admitting duplicates?
Admissible to the same extent as an original unless there is a question about the authenticity of the original OR it would be unfair to admit the duplicate.
77
When will non-production of the original be excused?
Original is lost or cannot be found w/o due diligence; has been destroyed w/o bad faith; cannot be obtained w/ legal process. If the court is persuaded by a preponderance of evidence that the excuse has been established then secondary evidence is admissible.
78
What are the escapes from best evidence rule requirements?
Voluminous records can be presented through a summary or chart (provided originals would be admissible); certified copies of public records; and collateral documents. BER almost never violated on bar exam.
79
What is real evidence?
Actual physical evidence displayed to trier of fact.
80
What is the authentication rule for real evidence?
Party seeking to introduce real evidence must introduce sufficient evidence that the item is what you claim it is.
81
What are the methods of authenticating real evidence?
Eye witness testimony; chain of custody, which must be reasonably reliable.
82
What is the requirement for the condition of real evidence?
If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition.
83
What is the general rule for competency of witness?
W must (1) have personal knowledge and (2) take an oath or affirmation that (a) demonstrates an understanding of the obligation to tell the truth and (b) promise to tell the truth.
84
What is the federal rule for the dead man statute?
No dead man statute. A W is not incompetent simply because she may have an interest in the outcome of litigation.
85
In states that have dead man statutes, what do they provide for?
In a civil action, an interested party may not testify against the estate of a deceased party about communications or transactions with the dead party.
86
What is a person "interested" for purposes of the dead man statute?
If the outcome of the case will have a legally binding effect on the person's rights or obligations.
87
When do federal courts have to apply dead man statutes?
Federal courts must follow state rules in a diversity case.
88
What is the VA distinction for the dead man statute?
Interested W may testify against decedent's estate but only if testimony is corroborated.
89
When is a question leading?
When the form of the Q suggests the answer.
90
What is the rule for leading questions?
No leading Qs on direct exam. Leading Qs allowed on cross exam.
91
When may leading Qs be asked on direct examination?
Undisputed preliminary matters; where necessary because of youth, insanity, etc.; hostile Ws; adverse parties.
92
What is the rule for present recollection refreshed?
W may not read from a prepared memo, but if a W forgets something he once knew, he may be shown a writing to jog his memory.
93
What are the safeguards for use of the rule for present recollection refreshed?
Opposing party has a right to 1) see the document, 2) use the document in cross-exam, and 3) offer it into evidence.
94
What is the rule for past recollection recorded?
Writing may be read to jury as a past recollection recorded if 1) W once had personal knowledge, 2) W now can't recall the matter, 3) writing either made or adopted by W, 4) writing was made when the event was fresh in his memory, 5) W can attest that when made the writing was accurate.
95
If the foundation for a recorded recollection is satisfied, what may happen?
W may read document to jury, but W may not show document to the jury. But the opposing party may show the document to the jury.
96
What is the rule for lay witness opinion testimony?
Admissible if it is rationally based on W's personal knowledge AND helpful to the jury.
97
What are common topics of lay W opinion?
Sobriety, emotions, speed, handwriting, smells.
98
What is the rule for expert witness opinion?
W may testify as an expert only if 1) W is qualified, 2) testimony is about a subject matter where scientific, technical or specialized knowledge will be helpful to jury, 3) opinion has a proper basis, and 4) opinion is reasonably reliable.
99
What is the proper basis of an expert opinion?
(1) Personal knowledge; (2) evidence admitted during trial; (3) fact outside the record but only if those facts are of a type reasonably relied on by experts in the particular field.
100
May the expert discuss the bases of her opinion?
Yes, but may not disclose facts that would be inadmissible. On cross, opponent may disclose all facts underlying the bases of the expert's conclusion.
101
When is an expert opinion sufficiently reliable to be admitted?
Expert used reliable methods and expert has reliably applied those methods to the particular facts of the case.
102
What is the federal rule for reliability of scientific evidence i.e. the Daubert standard?
TRAP: has the methodology been TESTED? Are there known RATES of error? Has the methodology been ACCEPTED? Has the methodology been subjected to PEER review?
103
May experts give opinion even as to ultimate issues in the case?
Yes. BUT in a criminal case, expert may not testify that D did or did not have the requisite mental state i.e. can't ask about legal issues.
104
When can a learned treatise be used in aid of expert testimony?
If a party can establish a treatise is reliable, it may be used on direct or cross of an expert and may be read to jury as substantive evidence. BUT the treatise itself may not be introduced as an exhibit.
105
How can the reliability of a treatise be established?
Own expert testifies treatise is authoritative; opponent's expert testifies treatise is authoritative; judge takes judicial notice that treatise is authoritative.
106
If W testifies but can't be crossed, what happens?
Court must strike W's testimony from the record.
107
What is the proper scope of cross examination?
Matters w/in scope of direct examination and matters that affect W's credibility.
108
What is credibility?
Whether a W is believable?
109
What is impeachment?
The process of trying to demonstrate a W is lying or wrong or otherwise unreliable.
110
What is rehabilitation?
Process of trying to support W's credibility after W has been impeached.
111
What is intrinsic impeachment?
Impeaching a W by asking W to admit impeaching details.
112
What is extrinsic impeachment?
Impeaching a W by introducing any evidence other than his admissions on cross-exam.
113
What are the methods of impeachment?
Prior inconsistent statements; bias, interest or motive to misrepresent; sensory deficiencies; reputation or opinion; criminal convictions; bad acts w/o conviction; contradiction. Reputation or opinion, criminal convictions and bad acts all go to dishonest character.
114
What is a prior inconsistent statement?
Statement that is materially inconsistent w/ W's trial testimony. It is any form of proof that W has changed his story.
115
What is the rule about prior inconsistent statements?
May be used to impeach W because W who says different things on different occasions may not be credible. Admissible ONLY FOR IMPEACHMENT.
116
What is the exception to the prior inconsistent statement rule?
Prior inconsistent statement even by W who is not a party to a case may be admitted both to impeach and as substantive evidence if the statement was made 1) under oath and 2) at trial, hearing or deposition.
117
What is the procedural consideration for allowing evidence of a prior inconsistent statement?
W being impeached must be given an opportunity to explain or deny the inconsistent statement. BUT timing is flexible. Not required to immediately confront W while on the stand, but W must be given a chance to explain or deny.
118
What is the exception to the procedural requirement of a prior inconsistent statement?
If W is the opposing party, there is no need to give W/party an opportunity to explain the prior inconsistent statement because the statement will also be admissible for substantive evidence under the separate hearsay exception for statements by opposing party.
119
What is bias, interest, or motive to misrepresent?
Some relationship between the W and a party or some other interest in the litigation that could cause the W to lie. EX: W is a party, friend, relative, employee, paid by a party, has a grudge against a party, or has something to win or lose in verdict.
120
What are the procedural issues with bias, interest, or motive to misrepresent?
Bias may always be proved with extrinsic evidence, but W should be confronted w/ alleged bias before it is proved by extrinsic evidence.
121
What is a sensory deficiency?
Anything that could affect W's perception or memory. EX: poor eyesight or hearing, cognitive limit, forgetfulness, intoxication.
122
What are the procedural issues with sensory deficiency?
Intrinsic and extrinsic impeachment are both admissible.
123
What is the opinion of W's bad character for truthfulness?
Character trait of being honest. W's bad character for veracity is a frequent subject of impeachment.
124
What is the rule for opinion of W's bad character for truthfulness?
Party may impeach W by calling another W to testify to target W's bad character for veracity.
125
What form of testimony may be offered to show W's bad character for truthfulness?
Opinion or reputation evidence, but not specific acts. Any W who has testified may be impeached by this method and extrinsic evidence is allowed.
126
Why are criminal convictions admissible against W for impeachment purposes?
Convict more likely to lie under other than is a person w/ unblemished record.
127
What is the rule for admitting a criminal conviction against W for impeachment purposes?
(1) Conviction or release from prison must be w/in 10 years of trial; (2) crimes of dishonesty or false statement must be admitted; (3) if not a crime of dishonesty, misdemeanors are not admissible, but felonies are admissible if the probative value of the conviction outweighs the risk of unfair prejudice.
128
What factors affect the probative balancing test when courts are considering entering a prior felony?
More likely to be probative if conviction is very serious and related to trust and deception. More likely to be prejudicial if inflammatory in nature or similar to currently charged offense.
129
What are the procedural issues in dealing with a W's prior conviction?
May be proved w/ intrinsic evidence or extrinsic evidence. No need to give W opportunity to explain.
130
What is the rule for evidence of bad acts that reflect adversely on W's character for truthfulness?
A W may be asked about prior bad acts if those acts relate to veracity of W.
131
What are the limits to the rule for evidence of bad acts that reflect adversely on W's character for truthfulness?
Cross examiner must have GF basis to believe bad act occurred; bad act may be proved by intrinsic evidence only; proof by extrinsic evidence only allowed if proof of bad act relevant for some other purpose.
132
When may an examiner use an arrest to impeach W?
When impeaching a character W's knowledge or impeaching a W by showing bias. NOT when impeaching W's character for veracity.
133
What is the rule for impeaching W by contradiction?
W may be impeached by showing she made a mistake or lied about any fact she testified to during direct exam.
134
What are the procedural issues for impeaching W by contradiction?
If contradiction goes to a matter significant to the case, it may be proved by extrinsic evidence. If issues is only collateral, proof is limited to intrinsic evidence.
135
When may examiner impeach his own W?
Under federal rules, any party may impeach any W. CL didn't allow this.
136
What is the rule for rehabilitation?
W may be rehabilitated only after W's credibility has been attacked through impeachment. Bolstering is not allowed.
137
What is the exception to the rule for rehabilitation?
A testifying W's prior statement of identification is admissible even if W's credibility has not yet been attacked. Why? Prior ID more reliable, so admissible as substantive evidence. BUT statement of prior ID must be made by testifying W subject to cross.
138
What are the permissible methods of rehabilitation?
Show good character for truthfulness or prior consistent statement.
139
What is evidence of good character for truthfulness and when is it allowed?
If W's character for truthfulness has been attacked, opposing party may introduce corresponding evidence of W's good character for truthfulness via opinion or reputation evidence (not specific acts).
140
What is a prior consistent statement and when may it be used to rehabilitate W?
When prior statement is consistent w/ trial testimony and opposing party has suggested through impeachment W's testimony was the result of some recent event giving a motive to lie, then may give evidence of a prior statement made before that event.
141
What is the rule for testimonial privileges in federal court?
Apply federal rules of evidence EXCEPT in a diversity case apply state evidence rules w/ respect to burdens of proof and presumption, competency of Ws, and privileges.
142
What are the typically recognized privileges?
Attorney-client, clergy-penitent, spousal, and psychotherapist-patient. Majority of states also have a doctor-patient privilege.
143
What are the elements of attorney-client privilege?
Privilege protects any communication between a lawyer and client so long as it is confidential and for the purpose of legal services. UNLESS privilege waived by C or an exception applies. Why? Encourage client to speak openly with attorney.
144
What are communications for A-C privilege?
Privilege applies only to communications not to underlying info, preexisting documents, and physical evidence.
145
Who is an attorney for A-C privilege?
Any member of the bar PLUS someone the client reasonably believes is a member of the bar AND representatives of the attorney if helping to provide legal services.
146
Who is a client for A-C privilege?
A person seeking to become a client and representatives of client are included.
147
What does confidential mean for A-C privilege purposes?
C must intend confidentiality.
148
What is the joint clients rule?
If 2+ clients w/ common interest consult same attorney, their communications w/ counsel concerning the common interest are privileged as to 3d parties, but not between them if they later have a legal dispute.
149
How may A-C privilege be waived?
Voluntary waiver, Subject matter waiver, or inadvertent waiver.
150
What is voluntary waiver in A-C privilege?
Only C has power to waive. Continues after C's death.
151
What is subject matter waiver for A-C privilege?
Voluntary wavier of privilege as to some communications waives privilege as to other communications if partial disclosure is intentional, the disclosed and undisclosed communications concern the same matter, and fairness requires that the disclosed and undisclosed communications be considered together.
152
What is inadvertent waiver for A-C privilege purposes?
Will not waive privilege so long as privilege holder took reasonable steps to prevent the disclosure and took reasonable steps to correct the error.
153
What are the exceptions to A-C privilege?
Future crime or fraud; client puts the advice in issue; A-C dispute.
154
What are the elements of doctor-patient privilege?
To encourage candor and protect privacy, the privilege includes any communication acquired by a doctor from a patient so long as it is confidential and for the purpose of medical treatment.
155
What are the federal and VA rules on doctor-patient privilege?
Fed covers only emotional and mental illness. VA allows physician-patient privilege in civil actions but not in criminal trials.
156
What is the spousal communication privilege?
Confidential communications between spouses are privileged. It applies to a relationship between married couples, covers confidential statements if couple married at the time of the communication, and may be waived only by both spouses.
157
What is the spousal immunity (testimony) privilege?
In a criminal case, the prosecution can't compel the D's current spouse to testify against D. Applies in criminal cases, covers everything known by W, if W and D are married at the time of the trial. May be waived by W spouse.
158
What are the exceptions to the spousal immunity privilege and spousal communications privilege?
No privilege if communications or acts 1) are in furtherance of a crime or fraud in which both spouses were joint participants OR 2) where one spouse is accused of a crime or tort against the other spouse or minor children residing in their household.
159
What is hearsay?
An assertion by a person (declarant; not animal or machine) offered to prove the truth of the matter asserted. Why? Can't test credibility through cross.
160
What is non-hearsay?
Key is the purpose for which the statement is offered. Out of court statement is not hearsay if not offered to prove the truth of the matter asserted in the statement i.e. we don't care if declarant is telling the truth.
161
What are the four principal categories of non-hearsay purposes?
Impeachment, verbal acts, showing the effect on a person, and circumstantial evidence of a speaker's state of mind.
162
What is the non-hearsay category for impeachment?
A prior inconsistent statement may be offered to show the W is an inconsistent person w/o necessarily being offered to prove the truth of the prior statement. BUT if purpose of prior statement is prove the truth of the assertion, then hearsay.
163
What are verbal acts?
Legally operative words like words of offer, repudiation or cancellation of K; words the have the effect of making a gift or bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation.
164
What is a non-hearsay verbal act?
Words with independent legal significance (the law attaches rights and obligations to certain words simply because they are said) won't be hearsay.
165
What is the non-hearsay rule for statements to show the effect on a person who heard the statement?
A statement is not hearsay if offered merely to prove that someone heard it simply so the jury can understand how statement affected the listener's state of mind. Works if listener is someone whose beliefs are relevant in the case.
166
What is the non-hearsay rule for circumstantial evidence of speaker's state of mind?
A statement that unintentionally reveals something about the speaker's state of mind is not hearsay.
167
What is the hearsay rule for prior statements of trial Ws?
A testifying W's prior statement if offered to prove the truth of the matter asserted in the statement is hearsay and is inadmissible unless an exception or exclusion applies.
168
What are the exceptions to the hearsay rule for prior statements of a trial W?
(1) Prior statement of identification; (2) prior inconsistent statement if made under oath during a hearing or deposition; (3) prior consistent statement if used to rehabilitate and made before event giving motive.
169
What are the 10 most common hearsay exceptions for the bar exam?
1) statement by opposing party (always available); 2-5) former testimony, forfeiture by wrongdoing, statement against interest, dying declaration (only if declarant unavailable); 6-10) excited utterance, present sense impression, statement of then existing mental emotional or physical condition, statement for purposes of medical treatment or diagnosis, business/public records.
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What is the rule for statements by an opposing party?
Any statement made by a party is admissible if offered by an opposing party. Exclusion may still be required by some other rule of evidence.
171
When may vicarious admissions be admitted as statements by an opposing party?
A statement by an agent of a party is admissible against the party if it concerns a matter w/in scope of the agency or employment and was made during the agency or employment.
172
When may admissions by a defendant's conspirators be admitted against the D?
A statement is admissible against other conspirators if the statement was made during and in furtherance of the conspiracy.
173
What is the threshold requirement for former testimony?
Unavailability. This is also a threshold requirement for forfeiture by wrongdoing, dying declarations and statements against interest.
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What are the grounds of unavailability?
Privilege, refusal to testify despite order, no memory, illness/death, or absence from jurisdiction.
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What are the elements of the former testimony exception?
Declarant is unavailable, prior statement given in trial or deposition, and is offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross examine or otherwise develop the testimony. NOTE: relevance of former testimony to the current trial must be substantially similar to its relevance in the prior proceeding.
176
What is forfeiture by wrongdoing?
A declarant's out of court statement may be offered against any party who knew the declarant would be testifying in that case or some other proceeding and who wrongfully caused that declarant to become unavailable for the specific purpose of preventing that W from testifying. Includes acquiescing in wrongdoing intended to procure absence.
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What is the burden of proving the party's wrongdoing in forfeiture by wrongdoing?
Preponderance of the evidence.
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What are the elements of statement against interest?
Declarant unavailable and statement against declarant's proprietary, pecuniary, or penal interest. Why? Less likely to lie if making a personally damaging statement.
179
What is the qualification for statements against interest in criminal cases?
Statement against penal interest must be supported by corroborating circumstances.
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How do statements against interest differ from party admissions?
A statement against interest 1) must have been against interest when made; 2) any person can make statement against interest; 3) personal knowledge is required; 4) declarant must be unavailable.
181
What is a dying declaration?
Declarant unavailable, statement made under a belief of impending and certain death, and the statement concerns the circumstances of the impending death. Only admissible in civil cases or criminal homicides.
182
What is an excited utterance?
Statement concerns a startling event and was made while the declarant was still under the stress of excitement caused by the event.
183
What factors may make a statement excited?
Nature of the event, how much time elapsed, and visual cues as to emotional state. On MBE, probably will have an exclamation point.
184
What is a present sense impression?
The statement describes the event and is made while the event is occurring or immediately thereafter.
185
What is a statement of then existing mental, emotional, or physical condition?
Admission of statement concerning declarant's then existing physical, mental or emotional condition. Doesn't include statement of memory or belief about a past condition, but does include statements of future intent (including intent to do something with a 3d person).
186
What are the elements of a statement made for purpose of medical diagnosis or treatment?
Made for the purpose of diagnosis or treatment; concerning present symptoms, past symptoms, or cause of condition but only if they are reasonably relevant to diagnosis.
187
What is the business records exception?
Allows admission of records of a business made in the regular COB where the business regularly requires such records made concurrently. The contents must consist of info observed by the employee of business or a statement that falls w/in some other hearsay exception.
188
What is the public records exception?
In addition to observations by employees of the public agency, may also include records by public employees after an accident. EXCEPT police record may not be offered against the defendant in a criminal case.
189
How must a party lay the foundation for business records?
Either 1) sponsoring W who can testify to the 5 elements of the business records hearsay exception or 2) self-authentication i.e. written certification under oath attesting to the elements of business records hearsay exception.
190
What is the 6th Am Confrontation Clause and what does this mean?
In criminal cases, D must be confronted w/ Ws against him. P may not offer testimonial hearsay in violation of D's right to cross examine the declarant.
191
What is the right to cross examine the declarant?
It is satisfied when D had chance to confront or cross declarant when the statement was made, at trial where evidence is offered, or waived right to confront by misconduct.
192
Is grand jury testimony testimonial?
Yes.
193
When are statements made in response to police interrogation testimonial or non-testimonial?
Testimonial if primary purpose of questioning is to establish or prove past facts potentially relevant to criminal prosecution; non-testimonial of primary purpose of questioning is to assist police in meeting an ongoing emergency.
194
What documents are testimonial/non-testimonial?
Police reports are testimonial; business records are non-testimonial.
195
What is the rule for hearsay declarants and impeachment?
If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of the hearsay declarant that could have been used if the declarant had testified live at trial.
196
What are the typical burdens of proof in criminal and civil cases?
Civil = preponderance. Criminal = beyond a reasonable doubt. Up to jury to decide whether the burden of proof has been met for each element of the charge, claim or defense.
197
What are the preliminary matters for the jury to determine?
Credibility and weight of the evidence such as whether a W has personal knowledge, an exhibit is authentic, or the D is in fact the person who committed a bad act offered as MIMIC evidence. The judge's role is simply to ensure there's sufficient evidence for a reasonable jury to conclude the conditional fact is true.
198
What questions does the judge decide?
Admissibility (whether testimony is admissible, a communication is privileged, or an expert is qualified). The burden of proof is preponderance of the evidence, and the judge may consider inadmissible evidence.
