Evidence Flashcards
1
Q
Relevance
A
Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence
2
Q
Relevance: 2 Prongs
A
Materiality: proposition must be “of consequence.” Need not be an ultimate issue
Probativeness: “any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever
3
Q
Admissibility of Evidence: General Rule
A
All irrelevant evidence is inadmissible. No exceptions.
All relevant evidence is admissible, unless
- Some specific exclusionary rule is applicable
- the court uses its rule 403 discretion to keep it out
4
Q
Rule 403
A
the court may exclude otherwise relevant evidence if it determines that the probative value of the evidence is substantially outweighed by one of the pragmatic considerations (MUD WUC)
5
Q
Rule 403: Pragmatic Considerations
A
MUD WUC
Misleading the jury (danger of jury giving undue weight to evidence)
Undue delay
Danger of unfair prejudice
Waste of time
Unduly Cumulative
Confusion of the issues (evidence creates a side issue)
6
Q
Similar Occurrences: General Rule
A
In general, if evidence involves some other time, event, or person OTHER than that involved in the case at hand, the evidence is irrelevant, inadmissible because probative value is usually outweighed by pragmatic considerations
7
Q
Plaintiff’s Accident History
A
Generally, plaintiff’s accident history is inadmissible because it only shows plaintiff is accident prone.
BUT plaintiff’s accidents are admissible if cause of plaintiff’s damages is in issue
8
Q
Similar Accidents Caused by Same Event or Condition
A
Generally, other accidents involving defendant are inadmissible because it only suggest general character for carelessness
BUT other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 reasons:
(1) existence of dangerous condition
(2) causation
(3) prior notice to defendant
9
Q
Intent in Issue
A
A person’s prior conduct may provide inference of intent on later occasion
10
Q
Comparable Sales on Issues of Value
A
Selling price of other property of similar type, in same general location and close in time to the period at issue, is some evidence of property at issue
11
Q
Character Evidence
A
Refers to a particular person’s general disposition or propensity (e.g. honesty, fairness, peacefulness, violence). Usually NOT admissible to prove conduct on a particular occasion.
12
Q
Habit
A
“Always, invariably, automatically, instinctively”
Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation
Frequency of conduct
Particularity of circumstances
13
Q
Industrial Custom as Standard of Care
A
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 (i.e. as evidence of the appropriate standard of care)
14
Q
Liability Insurance
A
Evidence that a person has, or does not have, liability insurance is inadmissible to prove the person’s fault or absence of fault.
BUT may be admissible for some other relevant purpose, such as
- proof of ownership/control
- impeachment of a witness (usually on the grounds of bias)
Policy: avoid risk that jury will base decision on availability of insurance rather than merits
15
Q
Limiting Instruction
A
A limiting instruction should be given to the jury whenever evidence is admissible for one purpose but not for another
Judge should tell the jury to consider the evidence only for the permissible purpose
16
Q
Subsequent Remedial Measures
A
Post-accident repairs, design changes, policy changes are inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.
BUT may be admissible for some other relevant purpose (if controverted):
- proof of ownership
- feasibility of safer condition
Policy: to encourage post-accident repairs, design changes, policy changes
17
Q
Settlements in Civil Cases
A
Evidence of a settlement or offer to settle a DISPUTED claim is inadmissible to
- prove liability or weakness of a parties case
- impeach through prior inconsistent statement or contradiction
Statement of facts made in course of discussions also inadmissible.
BUT these all may be admissible for purposes of impeaching a witness for bias
Policy: to encourage settlement
18
Q
Settlements in Civil Cases: Disputed Claim Required
A
The exclusionary rule only applies if there is a claim that is disputed (at the time of settlement discussion) either as to
(1) validity or
(2) amount of damages
19
Q
Offer to Plead Guilty
A
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
20
Q
Plea of Nolo Contendere
A
Cannot be used against the defendant in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
21
Q
Withdrawn Guilty Plea
A
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
22
Q
Plea of Guilty (Not Withdrawn)
A
Admissible in subsequent litigation based on the same facts under the rule of party admissions
23
Q
Offer to Pay Medical or Hospital Expenses
A
Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
No need to show disputed claim
Does not include statements of fact/admissions made in conjunction with offer
Policy: to encourage charity
24
Q
Potential Purposes for Offering Character Evidence
A
(1) character is a material element in the case
(2) to prove conduct in conformity with character at the time of the litigated evident (character as circumstantial evidence of conduct)
(3) witness’s bad character for truthfulness to impeach credibility
25
Evidence of Defendant's Character to Prove Conduct in Conformity
Ok to say "law-abiding"
Not admissible during prosecution's case-in-chief
Defendant may introduce evidence of a relevant character trait by reputation or opinion testimony to prove conduct in conformity, thereby opening the door to rebuttal by prosecution
Excludes specific evidence of conduct
26
If the Defendant has "Opened the Door" by Calling the Character Witnesses, the Prosecution May Rebut...
(1) by cross-examining defendant's character witness with "have you heard" or "did you know" questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced (need good faith basis) (purpose, to impeach)
and/or
(2) by calling its own reputation or opinion witnesses to contradict the defendant's witnesses
27
Reputation Questions
Have you heard?
28
Opinion Questions
Did you know?
29
Victim's Character in Self-Defense Cases
Criminal defendant may introduce evidence of victim's violent character to prove victim's conduct in conformity, ie as circumstantial evidence that the victim was the first aggressor
Method: character W may testify to victim's reputation for violence and may give opinion
30
Victim's Character in Self-Defense Cases: Prosecution Rebuttal
Once defendant has introduced evidence of victim's violent character, prosecution may rebut with opinion or reputation testimony regarding:
(1) victim's good character for peacefulness and/or
(2) defendant's bad character for violence
31
Victim's Character for Violence Where Defendant's Violent Reputation or Prior Specific Acts of Violence
If the defendant, at the time of the alleged self-defense, was aware of the victim's violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant's state of mind-- fear-- to help prove he acted reasonably in responding to victim's aggression
32
Character Evidence in Civil Cases: Conduct in Conformity
Character evidence is generally inadmissible to prove conduct in conformity.
Doesn't matter if plaintiff or defendant
Doesn't matter if conduct is criminal
First aggressor does not matter
33
Character in Civil Cases: Character Directly in Issue
Evidence of a person's character is admissible in civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, or specific acts)
Only a few situations
- Negligent hiring or entrustment
- Defamation (libel or slander)
- Child custody
34
Defendant's Other Crimes or Acts for Non-Character Purpose: General Rule
Other crimes or specific bad acts of defendant are not admissible during the prosecution's case-in-chief if the only purpose is to suggest that because of defendant's bad character he is more likely to have committed the crime currently charged
35
Defendant's Other Crimes or Acts for Non-Character Purpose: Specific Connection to Crime Charged
If defendant's other crimes or bad acts show something specific about the crime charged, something more than mere bad character, such evidence may be admissible as evidence bearing on guilt.
Most common non-character purposes: MIMIC
36
Most Common Non-Character Purposes
MIMIC
```
Motive
Intent
Mistake or accident (absence of)
Identity
Common scheme or plan
```
Court must ensure defendant is actually contesting the issue to which MIMIC crime is addressed. If satisfied, can be used in prosecution's case in chief.
Can also be used in civil cases!
37
Method of Proof of Independently Relevant Misconduct
(1) by conviction
(2) by other evidence (witnesses, etc.) that proves the crime or act occurred.
Conditional relevant standard: prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.
Upon defendant's request, prosecution must give pretrial notice of intent to use MIMIC evidence and give a limiting instruction if warranted
Can also be used in civil cases
38
Other Sexual Misconduct to Show Propensity for Civil or Criminal Sex Crime Case
In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the prosecution's case-in-chief or the plaintiff's case-in-chief for any relevant purpose including defendant's propensity for sex crimes (i.e. conduct in conformity with characters)
39
3 Potential Issues When You See a Writing (Other Than Relevance)
(1) Authentication
(2) Best evidence rule
(3) Hearsay
40
Authentication of Writings
A showing must be made that the writing is authentic (genuine) ie that it is what it purports to be
41
Standard for Authentication
Conditional relevancy standard: document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine
42
Methods of Authentication
Witness's personal knowledge
Proof of handwriting
- Lay opinion
- Expert comparison opinion
- Jury comparison
Ancient document rule
Solicited reply doctrine
43
Witness's Personal Knowledge
Witness observed X sign the document
44
Proof of Handwriting: Lay Opinion
Lay witness testifies to opinion that X wrote document on basis of familiarity with X's handwriting as a result of experience in normal course of affairs
Cannot become familiar with X's handwriting for the sole purpose of testifying
45
Proof of Handwriting: Expert Comparison Opinion
Handwriting expert testifies to opinion that X wrote document on basis of comparison btwn document and genuine sample (exemplar) of X's handwriting
46
Proof of Handwriting: Jury Comparison
Jury compares document with exemplar of X's handwriting
47
Ancient Document Rule
Authenticity may be inferred if document is
- at lest 20 years old
- facially free of suspicion
- found in a place of natural custody
48
Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
49
Authentication of Photographs
Witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed
50
Self Authenticating Documents
Presumed authentic- no need for foundation
- Official publications
- Certified copies of public or private recorder on file in a public office
- Newspapers or periodicals
- Trade inscriptions or labels
- Acknowledged documents
- Commercial paper
- Certified business records
(with reasonable written notice to adverse party)
51
Best Evidence Rule
"Original Writings Rule"
In order to prove the contents of a writing, recording, or photograph, the original must be produced.
A party who seeks to prove the contents of a writing (incl. sound recording, x ray films) must either produce original or have acceptable excuse-- secondary and acceptable)
52
When Does the Best Evidence Rule Apply?
(1) the writing is legally operative document (ie the writing itself creates rights and obligations)
Patent, deed, mortgage, divorce decree, written contract
(2) Witness is testifying to facts that she learned solely from reading about them in a writing
53
When Does the Best Evidence Rule NOT Apply?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records that fact
54
What Qualifies as the "Original Writing"?
The writing itself, any counterpart intended to have the same effect effect, any negative of film or print from the negative, computer print-out
55
Duplicate
Any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carbon copy)
Handwritten copy NOT okay
56
Rule on Duplicates
Duplicate is admissible to same extent as original UNLESS it would be unfair (e.g. photocopy of a fuzzy fax) or a genuine question is raised as to authenticity of original
57
Excuses for Non-Production of Original
Lost or cannot be found with due diligence
Destroyed without bad faith
Cannot be obtained with legal process
Court must be persuaded by preponderance of evidence that excuse has been established; secondary evidence is then admissible
58
Escapes
Voluminous records: can be presented through a summary or chart, provided that the original records would be admissible and they are available for review
Certified copies of public records
Collateral documents
59
Two Basic Requirements for Competency of Witnesses in General
(1) personal knowledge
| (2) oath or affirmation
60
Dead Man Statute
In general, W is not ordinarily incompetent merely because she has an interest- a direct legal stake- in the outcome of the case. Under FRE, no Dead Man's Rule
ONLY USE IF TOLD
Typical state Dead Man's Rule: in a civil action, an interested party is incompetent to testify in support of her own interest against estate of decedent concerning communications/transactions been interested party & decedent
61
Leading Questions
Form of question suggest the answer (e.g. isn't it a fact that...) or unevenly balanced alternatives
Generally: allowed on cross-examination
Generally NOT allowed on direct, unless
- preliminary/introductory
- youthful/forgetful witness
- hostile witness
- adverse party
62
Cross-Examination
Party has a right to cross-examine only opposing witness who testifies at trial.
Significant impairment of this right will result, at a minimum, in striking witness's testimony.
Proper subject matter:
- matters within scope of direct and
- matters that test the witness's credibility
63
Refreshing Recollection
Witness may not read from prepared memo; he must testify on the basis of current recollection.
BUT if a witness's memory fails him, he may be shown a memorandum (or any tangible item) to job his memory
64
Refreshing Recollection: Safeguards Against Abuse
If a witness's recollection is refreshed during testimony, adversary has right
- to inspect memory refresher
- to use it on cross-examination
- to introduce it into evidence
If refreshing happens before witness testifies, the adversary is not entitled to these options but the judge has discretion to allow it
65
Foundation for Admissibility of Contents of Document: Recorded Recollection (Hearsay Exception)
Showing document to witness fails to job memory
Witness had personal knowledge at former time
Document was either made by witness, or adopted by witness
Making or adoption occurred when evidence was fresh in Witness's memory
Witness can vouch for accuracy of document when made or adopted
Proponent reads it into evidence/opponent can inspect and offer it
66
Opinion Testimony: Lay Witnesses
Admissible if:
- rationally based on a witness's perceptions (personal knowledge)
- helpful to the jury in deciding a fact
Ex: drunk/sober, speed of vehicle, sane/insane/emotions, handwriting
Not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony
67
Expert Witnesses: Qualifications
Education and/or experience
68
Expert Witnesses: Proper Subject Matter
Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact
69
Expert Witness: Basis of Opinion
Expert must have opinion based on reasonable degree of probability or reasonable certainty, and 3 permissible data sources
(1) personal knowledge (e.g. treating physician)
(2) other evidence in the trial record (testimony by other witnesses, exhibits, medical reports, x, rays, hypothetical questions)
(3) facts outside the record if of a type reasonably relied upon by experts in a particular field in forming opinions
70
Reliability
To be admissible, expert opinion must be sufficiently reliable. Court serves as "gatekeeper" and will use 4 principal factors to determine reliability of principles and methodology used by experts (all types) to reach opinion (Daubert)
71
4 Factor Reliability Test (Daubert)
TRAP
Testing of principles of methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication
72
Learned Treatise in Aid of Expert Testimony (Hearsay Exception)
Treatises, periodicals, or pamphlets may be used during expert testimony:
On direct of party's own expert. Relevant portions may be read into evidence as substantive evidence to prove truth of matter asserted if established as reliable
On cross-examination of opponent's expert. Read into evidence to impeach and contradict, also comes in as substantive evidence
Read into evidence only. Learned treatise may not be introduced as an exhibit
73
Opinion Testimony and Ultimate Issue
Opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" in the case
74
Opinion Testimony and Ultimate Issue: Criminal Case Exception
Still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state (e.g. defendant's insanity prevented him from understanding he was shooting a human being)
75
Bolstering Own Witness
In general, not allowed until after witness's credibility has been attacked (and after witness's credibility has been attacked, it's rehabilitation)
76
Bolstering Exception: Prior Identification of a Person
Not barred by hearsay rule.
Labeled as "exclusion" from hearsay and comes in as substantive evidence.
Reliability factors: identification was closer int time to event, and witness on stand can be cross-examined
77
Impeaching Own Witness
Permitted without limitation
78
7 Impeachment Methods
(1) prior inconsistent statements
(2) bias, interest, motive to misrepresent
(3) sensory deficiencies
(4) contradiction
Methods showing general bad character for truthfulness:
(5) bad reputation or opinion about Witness's character for truthfulness
(6) criminal convictions
(7) bad acts (w/o convictions) that reflect adversely on witness's character for truthfulness
79
Considerations for Each Impeachment Method
Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other witness) or is party bound by witness's answers to impeaching questions?
Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence
80
Prior Inconsistent Statements
Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony
Purpose: to suggest that testimony is false or mistaken
Offered to impeach, NOT to prove the truth of the matter asserted
81
Prior Inconsistent Statements: When Admissible as Substantive Evidence
Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial or deposition may be admitted both for impeachment and as substantive evidence.
Rationale: reliable because of oath and witness is now subject to cross examination
82
Prior Inconsistent Statements: Confrontation/Extrinsic Evidence Rule
Confrontation timing is flexible. Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement, but not necessarily before proof with extrinsic evidence.
83
Prior Inconsistent Statements: Confrontation/Extrinsic Evidence Rule: EXCEPTION
No confrontation required or need to explain if target witness is opposing party.
84
Bias, Interest, or Motive to Misrepresent
Purpose: to suggest testimony is false, slanted, or mistaken in party's favor.
Ex: witness is a party, friend, relative or employee of party, expert witness is being paid by party, person with grudge against party, etc
85
Bias, Interest, or Motive to Misrepresent: Confrontation/Extrinsic Evidence Rule
Must witness be confronted with alleged bias while on the stand?
In the court's discretion.
If confrontation requirement is met, may bias be proven by extrinsic evidence?
Yes, court has discretion to permit extrinsic evidence even if witness admits bias.
86
Sensory Deficiencies
Purpose: to suggest mistake.
Anything that could effect witness's perception or memory.
Ex: bad eyesight, bad hearing, intellectual disability, consumption of alcohol/drugs at time of event or while on witness stand
87
Sensory Deficiencies: Confrontation/Extrinsic Evidence Issue
Confrontation required?
No
Extrinsic evidence allowed?
Yes
88
Contradiction
Cross-examiner, though confrontation of witness, may try to obtain admission that she made a mistake, lied about any fact she testified to on direct
If she admits mistake/lie-- impeached
If she sticks to story-- extrinsic evidence issue
89
Contradiction: Confrontation/Extrinsic Evidence Issue
Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral.
Fact is collateral if it has no significant relevant to the case or to the witness's credibility.
90
Bad Reputation or Opinion About Witness's Character for Truthfulness
Call a character witness to testify that target witness has a bad reputation for truthfulness, or that character witness has low opinion of target witness's character for truthfulness
Purpose: to suggest that target witness is not telling the truth on the stand.
No specific instances of conduct.
91
Bad Reputation or Opinion About Witness's Character for Truthfulness: Confrontation/Extrinsic Evidence Issue
Confrontation required?
No
Extrinsic evidence allowed?
Yes
92
Criminal Convictions
Purpose, Rationale, and Types of Crimes
Purpose: to suggest testimony is false
Rationale: a person who has been convicted of a crime is more likely to lie under oath
93
Types of Crimes and Court Discretion
Any crime involving false statement/dishonesty: NO DISCRETION
Felony: court has discretion to exclude (rule 403 balancing test, stricter test when defendant is a criminal defendant (probative value must outweigh unfair prejudice))
94
Criminal Convictions: Remoteness
Generally, the conviction or release from prison (whichever is later) must be within 10 years of the witness's testimony.
Court can override this if probative value substantially outweighs prejudice (rare)
95
Criminal Convictions: Method of Proof
(1) ask witness to admit prior conviction
(2) introduce record of conviction (extrinsic evidence)
Not required to confront witness prior to introduction to record of conviction
96
Criminal Conviction: Effect of Pardon
NOT admissible if conviction subject to pardon, annulment, or other equivalent procedure.
Pardon based on a finding of rehabilitation and witness has not been convicted of a subsequent felony OR
pardon based on a finding of innocence (irrespective of subsequent convictions)
97
Prior Bad Acts Involving Untruthfulness
Don't say "arrest, charge, indictment"
Confrontation on cross-examination is only permissible means
No extrinsic evidence permitted.
Cross examiner must have good faith basis and ability to inquire lies in court's discretion.
98
Impeachment of Hearsay Declarant
Proponent may use any of the impeachment methods to attack credibility of a hearsay declarant
99
Rehabilitation: Showing Witness's Good Character for Truthfulness
When allowed: opponent used methods of attacking witness's general bad character (bad reputation or opinion, convictions, bad acts)
How: character witness provides reputation or opinion testimony about witness's good character for truthfulness
100
Rehabilitation: Prior Consistent Statements
When allowed: witness is charged with fabrication based on a recent motive or an improper influence and the statement was made before the motive arose,
OR
the statement rehabilitates a witness impeached on another ground, such as prior inconsistent statement or faulty memory
Bonus: also admissible as substantive evidence!
101
Hearsay: 2 Part Definition
(1) an out of court statement of a person (written and oral)
and
(2) offered to prove the truth of the matter asserted in the statement
102
Hearsay Rule
Hearsay is inadmissible unless an exception applies
Rationale: concerns about declarant's credibility and inability to cross-examine
103
Hearsay within Hearsay
Multiple hearsay is admissible if each statement meets some hearsay exception
104
Not offered for the truth of the matter asserted?
Not hearsay!
Major non-hearsay purposes:
-verbal act (legally operative facts-- contract offer or cancellation, making gift, bribe, perjury, fraud, defamation)
- Effect on listener/reader (notice/motive)
- Circumstantial evidence of declarant's state of mind
105
Hearsay Exclusion: Prior Statements of Testifying Witnesses
A witness's prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and inadmissible unless an exception applies
106
Prior Statements of Testifying Witnesses
Follow prior stataements of a testifying witness are excluded from definition of hearsay:
(1) Witness's prior statement of identification
(2) Witness's prior inconsistent statement, if made under oath and during a formal trial, hearing, proceeding, or disposition
(3) Witness's prior consistent statement offered to rehabilitate the witness
107
Opposing Party's Statement
Any statement made by a party (plaintiff or defendant) is admissible against that party.
Traditionally called "admissions"
NONHEARSAY
Party must bear consequences of what she says
108
Opposing Party's Adoptive Statements
Party may adopt the statement of someone else (for example, by remaining silent in the face of an accusation that a reasonable person would deny)
109
Opposing Party's Statements: Vicarious Opposing Party Statements
Certain statements by some other person are admissible against a party because of the relationship between them, including
-Statement of agent/employee admissible against principal/employer if statement concerns that matter within scope of agency/employment and is made during agency/employement
Statement of co-conspirator admissible against party if during and in furtherance of conspiracy
110
Grounds of Unavailability
- Death or illness
- Absence from jurisdiction
- Privilege
- Stubborn refusal (to testify)
- Lack of memory
111
Hearsay Exception: Former Testimony
Former testimony of a now-unavailable witness, if given at a former proceeding or in deposition is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness
Issue in both proceedings must be essentially the same.
Reliability ensured by cross-examination on prior occasion
112
Hearsay Exception: Statements Against Interest
An UNAVAILABLE declarant's statement against his
- pecuniary interest ($)
- proprietary interest (property)
- penal interest (criminal liability)
Theory: won't lie when making a personally damaging statement
113
Distinguishing Statements Against Interest from Opposing Party's Statements
Must be against defendant's interest when made
Any person (not merely party) can make a statement against interest
Personal knowledge is required
Declarant must be unavailable
114
Statements Against Interest: Limitation in Criminal Cases
In criminal cases, statements against penal interest must be corroborated.
115
Dying Declarations
Statement made under belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of declarant's death
Criminal: homicide only
Civil: all types
Unavailability need not be due to death!
116
Hearsay Exception: Excited Utterance
Statement concerning a startling event and made while declarant is still under stress of excitement caused by event.
Does NOT REQUIRE UNAVAILABILITY
117
Hearsay Exception: Present Sense Impression
Description of event made while the event is occurring or immediately thereafter
118
Hearsay Exception: Then-Existing Mental or Physical Condition (Present State of Mind
Contemporaneous statement concerning declarant's own present state of mind, feeling, emotions, or physical condition
Includes declarations of intent to do something in the future, including intent to engage in conduct with another person
Includes declarations re: declarant's present physical condition
119
Hearsay Exception: Statement for Purposes of Medical Diagnosis or Treatment
Statement made to anyone (but usually involves medical personnel) concerning past or present symptoms or general cause or condition for the purpose of treatment or diagnosis
Includes diagnosis for the purpose of giving an expert opinion
120
Hearsay Exception: Business Records (Records of Regularly Conducted Activity
- Records of any type of business or organization
- Made in the regular course of business (germane to business)
- Business regularly keeps such records
- Made at or near the time of the event recorded
- Contents consist of information observed by employees of business (need business duty to record). Statement by outside only available with independent hearsay exception
121
Proving Business Records Foundation
Call sponsoring witness to testify to the elements of a business records hearsay exception; witness needs not be author of report-- can be records custodian or any other knowledgeable person within business OR
affidavit or unsworn declaration attesting to elements of business records hearsay exception
122
Hearsay Exception: Public Records
Records of a public office or agency setting forth:
- The activities of the office or agency
- Matters observed pursuant to a duty imposed by law
- Findings of fact or opinion resulting from an investigation authorized by law
Exception: police reports and investigatory findings. Inadmissible against defendant in criminal case.
123
Hearsay and Confrontation Clause
Regardless of whether hearsay exception is satisfied, 6th Amendment right of confrontation prohibits the use of "testimonial" hearsay statements against CRIMINAL defendant if declarant is unavailable and defendant has had no opportunity to cross-examine
124
"Testimonial"
Includes sworn testimony, but also includes statements to police officers (sworn or unsworn) and certain documents (i.e. forensic reports)
125
Statements to Law Enforcement: Primary Purpose Test
Nontestimonial: providing information to aid police in an ongoing emergency
Testimonial: providing information to help police gather information for eventual prosecution
126
Confrontation Clause and Forensic Analysis Reports
Report with effect of accusing a targeted person of criminal conduct (e.g. blood alcohol results) is testimonial
If analysis who drafted report is unavailable: may be a confrontation violation
127
Attorney-Client Privilege Elements
Confidential communications
Between attorney and client (or representatives)
Made during professional legal consultation
Unless privilege is waived or exception is applicable
128
"Confidential Communications"
Client must intend confidentiality (e.g. no privilege if client knows that 3rd party is listening in or if client asks attorney to disclose to third party)
129
Joint Client Rule
If 2 or more clients with common interest consult the same attorney, their communications with counsel are privileged as to 3rd parties
If joint clients later have dispute with each other re: common interest, privilege does not apply as between them
130
"Communication"
Privilege does not apply to underlying information, pre-existing documents, or physical evidence
131
"Attorney"
Member of bar or person client reasonably assumes is a member of the bar
Representative of attorney: any agent reasonably necessary to transmit provision of legal services
132
Client
Including person seeking to become a client
Privilege attaches at outset of consultation
Representative of client: agent reasonably necessary to facilitate provision of legal services
133
Professional Legal Consultation
Primary purpose of consultation is to obtain or render legal services, not business or social advice
134
Attorney-Client Privilege: Waiver
Client is holder of privilege; client alone has power to waive by disclosure to 3rd party
Continues after attorney-client relationship ends and after death of client. After death of client, client's estate representative has power to waive
135
Exceptions to Attorney-Client Privilege
Future crime or fraud
Client puts legal advice in issue
Attorney-client dispute
136
Physician-Patient Privilege
Applies to:
confidential communication/information acquired by physician from patient for purpose of diagnosis or treatment of medical condition
Also applies to psychotherapists and social workers
3rd party breaks privileges
137
Physician-Patient Privilege: Federal Distinction
In federal court actions based solely on federal law (federal question, federal criminal cases), privilege exists for psychotherapists but not for usual physician-patient confidences
138
General Exception to Physician-Patient Privilege
Does not apply if patient expressly or impliedly puts physical or mental condition in issue
139
Spousal Immunity
In criminal cases only, a spouse cannot be compelled to testify against defendant-spouse
Witness-spouse holds privilege. Witness-spouse may voluntarily testify against defendant if she chooses to.
Does not survive divorce!
140
Confidential Communications Between Spouses
In any type of case, a spouse is not required and is not allowed in the absent of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage
Privilege survives divorce
Both spouses hold privilege
141
Exceptions Applicable to Spousal Immunity and Marital Privilege
Communications or acts in furtherance of future crime or fraud
Communications or acts destructive of family unit (e.g. spousal or child abuse)
142
Preliminary Issues of Admissibility
the juge decides:
- if a witness is competent to testify
- existence of privilege
- admissibility of evidence
Judge NOT bound by rules of evidence-- except privilege!
143
Judicial Notice
Recognition of a fact as true without formal presentation of evidence
144
What Facts May Be Judicially Noticed
Fact is generally known within trial court's jurisdiction
or
Fact can be accurately and readily determined from sources whose accuracy cannot be questioned
Fact not subject to reasonable dispute.
145
Conclusiveness
In a civil case, court must instruct the jury to accept judicially noticed fact as true.
In a criminal case, court must instruct jury that it may (but is not required to) accept the judicially noticed fact as conclusive
146
Presumption
A rule that requires a particular inference is to be drawn from an ascertained set of facts
147
Destroying Presumptions in Civil Cases
A presumption is destroyed when the adversary produces evidence to rebut the presumption
148
Destroying Presumptions in Criminal Cases
A defendant in a criminal case does not need to introduce evidence to rebut a presumption (i.e. there are NO mandatory presumptions against criminal defendants)
149
Limited Admissibility
Allows court to admit evidence to be used for one purpose but not another, or against one party but not against another.
If the court admits evidence for a limited purpose, the court must, on timely request, issue a limiting instruction.
