Evidence Flashcards
DIRECT AND CIRCUMSTANTIAL EVIDENCE
direct evidence involves NO inferences, and it is testimony or real evidence that speaks directly to material issue in case; circumstantial evidence is indirect and relies on inference – evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of the material issue can be inferred
Determining Relevance
evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more or less probable then it would without the evidence
Habit
describes a person’s regular response to a specific set of circumstances [CONTRAST character – describes one’s disposition in respect to general traits evidence of a person’s habit MAY BE ADMITTED to prove that on a particular occasion the person acted in accordance with that habit
Industrial or Business Routine
evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred
Industry custom as evidence of standard of care
may be offered to show adherence to or deviance from an industry-wide standard of care; industry custom is NOT conclusive on this point
DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE
trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
Liability Insurance
evidence of insurance against liability (or lack thereof) is NOT ADMISSIBLE TO SHOW NEGLIGENCE OR ABILITY TO PAY a substantial judgment; MAY BE ADMISSIBLE TO (1) prove ownership or control; (2) to impeach; or (3) as part of an admission of liability
Subsequent Remedial Measures
evidence of repairs or other precautionary measures made following an injury is NOT ADMISSIBLE to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction; MAY BE ADMISSIBLE TO (1) prove ownership or control, (2) rebut a claim that the precaution was not feasible, or (3) prove that the opposing party has destroyed evidence
Settlement Offers and Withdrawn Guilty Pleas
evidence of compromises or offers to compromise is NOT ADMISSIBLE TO PROVE OR DISPROVE THE VALIDITY OR AMOUNT OF A DISPUTED CLAIM; withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty are admissible
Offers to Pay Medical Expenses
payment of or offers to pay medical expenses are inadmissible; admission of fact accompanying offers to pay medical expenses are admissible
Character Evidence
may be offered as substantive, rather than impeachment, evidence to: (1) prove character when it is the ultimate issue in the case, or (2) serve as circumstantial evidence of how a person probably acted
Proving Character
the purpose of the offer and the nature of the case, one or all of the following methods of proving character may be available – (1) evidence of specific acts; (2) opinion testimony of a witness who knows the person; and (3) testimony as to person’s general reputation in community
Character Evidence not admissible in civil cases, unless
Not admissible in civil cases: unless character is directly in issue (defamation), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case
Character Evidence of accused in criminal case
Accused in criminal case: generally only accused can initiate – prosecution cannot initiate evidence of bad character of D merely to show that she is more likely to have committed the crime; accused may introduce evidence of her good character to show her innocence of alleged crime
Defendant Proves Character
a witness for D may testify as to Ds good reputation for the trait in question and may give his personal opinion concerning trait of D
Prosecution Rebuts (Character Evidence)
once D opens door by introducing character evidence, prosecution may rebut by: (1) cross-examining the character witness regarding the basis for his testimony, including whether he knows or has heard of specific instances of Ds misconduct; (2) calling qualified witnesses to testify to Ds bad reputation or give their opinion on Ds character
ANY misconduct including prior arrests is OK BUT prosecutor is limited to inquiry of witness and MAY NOT introduce any extrinsic evidence of the misconduct
Victims in Criminal Case (Character Evidence)
except in rape cases, D may introduce reputation or opinion evidence of a bad character trait of alleged crime victim when it is relevant to show Ds innocence; once D has introduced evidence of victim’s bad character for a pertinent trait, prosecution may counter with reputation or opinion evidence of (1) the victim’s good character for the same trait, or (2) Ds bad character for the same trait ‘
Rape victims past behavior is generally inadmissible – in a criminal case, specific instances of victim’s sexual behavior are admissible to prove that someone other than D is the source of semen, injury, or other physical evidence and also to prove consent; in a civil case, evidence of the alleged victim’s sexual behavior is admissible if it’s not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party – only admissible if placed in controversy
Homicide Cases and Victim’s Character for Peacefulness to Rebut Self-Defense: in a homicide case in which D pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that victim had good character for peacefulness
Prior Acts of Misconduct
evidence of a person’s other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character; evidence of other crimes or misconduct is ADMISSIBLE if these acts are relevant to some issue other than Ds character or disposition to commit the crime or act charged [motive, intent, absence of mistake or accident, identity, or common place or scheme]
Requirements for Admissibility: (1) there must be sufficient evidence to support a jury finding that D committed the prior act, AND (2) its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it)
Prior acts of sexual assault or child molestation is admissible in a case where D is accused of committing an act of sexual assault or child molestation; must disclose it to D 15 days before child (or later – good cause)
Judicial Notice of Fact
recognition of a fact as true without formal presentation of evidence take judicial notice of indisputable facts that are either matters of COMMON KNOWLEDGE in the community (notorious facts) or CAPABLE OF VERIFICATION by resort to easily accessible sources of unquestionable accuracy
Judicial Notice Of Law
courts MUST take judicial notice of federal and state law and official regulations of the forum state and the federal government; courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature
Documentary Evidence
Must be relevant in order to be admissible; in the case of writings, authenticity of the document is one aspect of its relevancy
Authentication
AUTHENTICATION: a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is;
proof must be SUFFICIENT TO SUPPORT A JURY FINDING of genuineness [genuineness of a document may be admitted by pleadings or by stipulation] admissions [party against whom it is offered has either admitted its authenticity or acted upon it as authentic];
eyewitness testimony [testimony of one who sees it executed or hears it acknowledged];
handwriting verifications [evidence of genuineness of handwriting of the maker – evidence may be the opinion of a nonexpert with personal knowledge of the alleged writer’s handwriting or the opinion of an expert who has compared the writing samples of maker’s handwriting – may be determined by the trier of fact through comparison of samples];
Self-Authenticating Documents
extrinsic evidence of authenticity is NOT REQUIRED for following: (1) domestic public documents bearing a seal; (2) similar official foreign public documents; (3) certified copies of public records; (4) official publications; (5) newspapers and periodicals; (6) trade inscriptions; (7) acknowledged documents; (8) commercial paper and related documents; and (9) certified business records
BEST EVIDENCE RULE
to prove the terms of a writing (including a recording, photo, or x-ray), the original writing must be produced if the terms of the writing are MATERIAL; secondary evidence of a writing (oral testimony) is admissible only if the original is unavailable
Applicability: (1) the writing is a legally operative or dispositive instrument; or (2) the knowledge of a witness concerning a fact results from having read it in the document
Non-applicability:
● Fact to be proved exists independently of writing
● Writing is collateral to litigated issue (writing is of minor importance)
● Summaries of voluminous records
● Public records
COMPETENCY OF WITNESSES
capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully
Federal Rules: (1) witness must have personal knowledge of the matter about which he is to testify; and (2) the witness must declare he will testify truthfully [an interpreter must also take an oath]
Modern Modifications: infancy [competency of an infant depends on capacity and intelligence on the particular child as determined by trial judge]; insanity [insane person may testify, provided he understands the obligation to speak truthfully and has capacity to testify accurately]; judge and jurors [presiding judge may not
testify as a witness; jurors are incompetent to testify before the jury in which they are sitting]
Dead Man Acts
a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased; person is “interested” if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action [predecessor in interest of interested party also disqualified]
Leading Questions
generally improper on direct examination; they are permitted (1) on cross- examination; (2) to elicit preliminary or introductory matter; (3) when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (4) when the witness is hostile
Present Recollection Revived
witness may use any writing or thing for the purpose of refreshing her present recollection; she usually may not read from the writing while she actually testifies because writing is not authenticated and not in evidence
Past Recollection Recorded
where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid
● The witness at one time had personal knowledge of the facts in the writing;
● The writing was made by the witness or under her direction, or it was adopted by the witness;
● The writing was timely made when the matter was fresh in the witness’s mind;
● The writing is accurate; and
● The witness has insufficient recollection to
testify fully and accurately
Inspection and Use on Cross-Examination: whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to witness’s testimony and evidence
Opinion Testimony of Lay Witness
generally inadmissible; opinion testimony by lay witness is ADMISSIBLE when it is: (1) rationally based on the witness’ perception, (2) helpful to a clear understanding of his testimony or helpful to the determination of a face in issue, and (3) not based on scientific, technical, or other specialized knowledge
Opinion Testimony by Expert Witness
an expert may state an opinion or conclusion, provided –
- the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (an opinion will assist the trier of fact if it is relevant and reliable);
- the witness is qualified as an expert (possesses special knowledge, skill, experience, training, or education);
- the expert possesses reasonable probability regarding his opinion; and
- the opinion is supported by a proper factual basis; the expert’s opinion may be based on one or more of 3 possible sources of info (1) personal observation, (2) facts made known to the expert at trial, (3) facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field
Authoritative Texts/Treatises
may be cross- examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice; texts and treatises can be used not only to impeach experts, but also as substantive evidence, SUBJECT TO: (1) an expert must be on the stand when an excerpt is read from a treatise; and (2) the relevant portion is read into evidence but is not received as an exhibit
Cross Examination
cross of adverse witnesses is a matter of right in every trial of a disputed issue of fact, but the scope of cross is a matter of judicial discretion
Restrictions: generally limited to (1) the scope of direct, including all reasonable inferences that may be drawn from it, and (2) testing the credibility of the witness
Collateral Matters: cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters; certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important – trial court has considerable discretion
Impeachment
Accrediting/Bolstering: party may not bolster or accredit the testimony of his witness until witness has been impeached; a party may prove the witness made a timely complaint or prior statement of identification may serve as substantive evidence that the identification was correct
Any Party May Impeach: witness may be impeached by any party, including party calling him; Rule prohibits impeaching your own witness UNLESS the witness (1) is an adverse party or identified with adverse party; (2) is hostile and affirmatively uncooperative; (3) is one whom the party is required by law to call; or (4) gives surprise testimony that is affirmatively harmful to the party calling him
Prior Inconsistent Statement
party may show by cross or extrinsic evidence that the witness has, on another occasion, made statements inconsistent with his present testimony; proper foundation must be laid, and statement must be relevant to issue in case [extrinsic evidence can be introduced to prove a prior inconsistent statement only if witness is, at some point, given an opportunity to explain or deny statement]
EXCEPTION FOR HEARSAY
Inconsistent statements by hearsay declarants may be used to impeach despite lack of foundation – if statement was made UNDER OATH at a prior proceeding, it is admissible NON-HEARSAY and may be admitted as substantive evidence of facts stated
Bias or Interest (Impeachment)
evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie before witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination
Conviction of Crime (Impeachment)
witness may be impeached by proof of a CONVICTION (arrest or indictment is not sufficient) for certain crimes
Any crime involving dishonesty or false statement – may be impeached by any crime, felony or misdemeanor requiring an act of dishonesty; court has NO DISCRETION to bar impeachment by these crimes [perjury, false statement, criminal fraud, embezzlement, false pretense]
Felony not involving dishonesty or false statement
– witness may also be impeached by a felony that does not involve dishonesty or false statement, but court has DISCRETION to exclude it IF (1) witness being impeached is a criminal defendant, and the prosecution has not shown that the conviction’s probative value outweighs its prejudicial effect; or (2) in the case of all other witnesses, the court determines that the conviction’s probative value is substantially outweighed by its prejudicial effect
***If more than 10 YEARS have elapsed since date of conviction or date of release from confinement, conviction is inadmissible; juvenile convictions are inadmissible; If obtained in violation of Constitutional rights it is also inadmissible
Specific Instances of Misconduct – Bad Acts (Impeachment)
subject to discretionary role of trial judge, witness may be interrogated upon cross with respect to an act of misconduct only if act is PROBATIVE OF TRUTHFULNESS (act of deceit or lying); cross- examiner must inquire in good faith
***EXTRINSIC EVIDENCE NOT PERMITTED; cannot reference any consequences witness may have suffered as a result of bad act
Opinion or Reputation Evidence for Truthfulness (Impeachment)
Witness may be impeached by showing that he has a poor reputation for truthfulness; may include evidence of reputation in business circles as well as in community in which witness resides; impeaching witness may start his own opinion as to character of a witness for truthfulness
Sensory Deficiencies (Impeachment)
witness may be impeached by showing, either on cross or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts; also may be impeached by showing he had no knowledge of facts as to which he testified
Contradictory Facts (Impeachment)
extrinsic evidence of facts that contradict a witness’s testimony may sometimes be admitted to suggest that a witness’s mistake or lie on one point indicates erroneous or false testimony as to the whole; extrinsic evidence of contradictory facts to impeach is PERMITTED WHERE: (1) the witness’s testimony on a particular fact is a material issue in the
case; (2) testimony on a particular fact is significant on the issue of credibility, or (3) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence
***EXTRINSIC EVIDENCE NOT PERMITTED TO PROVE CONTRADICTORY FACTS THAT ARE COLLATERAL
Impeachment on Collateral Matter
where witness makes statement not directly relevant to issue in case, rule against impeachment on collateral matter applies to bar opponent from proving the statement untrue either by extrinsic evidence or prior inconsistent statement
Impeachment of Hearsay Declarant
Credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked by evidence that would be admissible if the declarant had testified as a witness
Rehabilitation
witness who has been impeached may be rehabilitated by following methods -
● Explanation of redirect
● Good reputation for truthfulness
● Prior consistent statements
Opening the Door
one who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if adversary thereafter offers evidence on same subject
Rule of Completeness
where part or all of a writing is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered
TESTIMONIAL PRIVILEGES
permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings [privilege is personal to the holder; a communication must be shown or presumed to have been made in confidence] [judge/lawyer cannot comment on privilege]
[waiver: (1) failure to claim privilege; (2) voluntary disclosure of the privileged matter by the privilege holder; or (3) a contractual provision waiving in advance the right to assert the privilege]
*Eavesdroppers: in absence of negligence by one claiming privilege, eavesdropper would be prohibited from testifying
Attorney-Client Privilege
communications between an attorney and client, made during professional consultation, are privileged from disclosure – (1) Attorney-Client Relationship; (2) Confidential Communication; (3) Client Holds Privilege; (4) Applied Indefinitely
When Attorney-Client Privilege Does NOT Apply:
(1) if attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud; (2) regarding a communication relevant to an issue between parties claiming through the same deceased client; and (3) for a communication relevant to an issue of breach of duty in a dispute between the attorney and the client
Attorney Work Product
documents prepared by an attorney for his own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity
Waiver of Attorney-Client Privilege
voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material; undisclosed privileged material is subject to the waiver only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and the material should be considered together to avoid unfairness – NO WAIVER if the disclosure was inadvertent and the holder took reasonable steps to prevent the disclosure
Physician-Patient Privilege
belongs to patient, and he may decide to claim or waive it; confidential communications between a patient and his physician are privileged, provided that (1) a professional relationship exists; (2) the information is acquired while attending the patient in the course of treatment; and (3) the information is necessary for treatment (nonmedical information is NOT privileged)
When Physician-Patient Privilege does NOT apply:
(1) patient puts his physical condition in issue (e.g., personal injury suit); (2) the physician’s assistance was sought to aid wrongdoing (commission of crime or tort); (3) the communication is relevant to an issue of breach of duty in a dispute between the physician and the patient; (4) the patient agreed by contract (e.g., insurance policy) to waive the
privilege; or (5) it is a federal case applying the federal law of privilege
Psychotherapist/Social Worker-Client Privilege
federal privilege for communications between a psychotherapist or licensed social worker and his client; federal courts and virtually all states recognize privilege – operates in same manner as attorney-client privilege
Spousal Immunity
A married person whose spouse is a DEFENDANT IN A CRIMINAL CASE may not be called as a witness by the prosecution; a married person may NOT be compelled to TESTIFY against his spouse in ANY CRIMINAL PROCEEDING, regardless of whether the spouse is the defendant – must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage [privilege belongs to the witness-spouse the witness-spouse cannot be compelled to testify, but may choose to do so
Privilege for Confidential Marital Communications
in any CIVIL OR CRIMINAL case, confidential communications between spouses during a valid marriage are privileged EITHER SPOUSE can refuse to disclose the communication or prevent any other person from doing so [the MARITAL RELATIONSHIP MUST EXIST when the communication is made – divorce will NOT terminate the privilege; but communications after divorce are not privileged – communication MUST BE MADE IN RELIANCE UPON THE INTIMACY of the marital relationship]
When Marital Privileges Do Not Apply
neither privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children
Privilege Against Self-Incrimination
witness cannot be compelled to testify against himself; any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties witness to commission of crime
Governmental Privileges
government information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government; NO PRIVILEGE EXISTS if the identity of the informer is voluntarily disclosed by a holder of the privilege
Hearsay
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 [if a statement is hearsay and no exception applies, the evidence MUST BE EXCLUDED upon appropriate objection]
Prior Statements by Witness
not hearsay IF the prior statement is inconsistent with the declarant’s in-court testimony and was given under the penalty of perjury at a prior proceeding; (a) The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a child that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on witness’s character for truthfulness), such as an inconsistency or sensory deficiency; OR (b) The prior statement is one of identification of a person as someone the witness perceived earlier
Statements by an Opposing Party (Admission by Party-Opponent)
statement made by a party and offered against that party is not hearsay statement need not have been against interest when made, and may even be in the form of an opinion; personal knowledge NOT required – admission may be predicated on hearsay
Adoptive Admissions
party may make an admission by expressly or impliedly adopting/acquiescing in the statement of another; SILENCE if a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission, and treated as an admission ONLY IF: (1) the party heard and understood
the statement; (2) the party was physically and mentally capable of denying the statement; and (3) a reasonable person would have denied the accusation
Vicarious Admissions
Co-Parties: statements of a party are not receivable against her co-parties merely because they happen to be joined as parties
Authorized Spokesperson: statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party as an admission
Principal-Agent: statements by an agent or employee concerning any matter within the scope of her agency or employment, made while the agency or employment relationship exists, are not hearsay and are admitted against the principal
Partners: after a partnership is shown to exist, an admission of one partner relating to the matters within the scope of the partnership business is binding upon her co-partners
Co-Conspirators: admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co- conspirators; the court must use the co-conspirators statement itself, together with other evidence, to determine whether the statement is admissible
Former Testimony
testimony of a now-unavailable witness, given at a trial or hearing, or in a deposition, is admissible if: (1) The party against whom the testimony is offered or (in a civil case) the party’s predecessor in interest was a party in the former action (includes grantor-grantee and other Privity relationships); (2) The former action involved the same subject matter (causes of action need not be identical); (3) The testimony was given under oath; AND (4) The party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony (i.e., by direct, cross or redirect)
***Grand jury proceedings do not provide an opportunity for cross – grand jury testimony of an unavailable declarant is NOT admissible against defendant under former testimony exception
Statements Against Interest
Statements Against Interest: a statement of a person who, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest WHEN MADE, such that a reasonable
person in declarant’s position would have made it only if she believed it to be true – declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it
Dying Declarations – Statements Under Belief of Impending Death
in a HOMICIDE PROSECUTION OR CIVIL ACTION, a statement made by a now-unavailable declarant is admissible if: (1) The declarant believed his death was imminent (he need not actually die); and (2) The statement concerned the cause or circumstances of what he believed to be his impending death
Statements Offered Against Party Procuring Declarant’s Unavailability
Statement of a person, now unavailable as a witness, is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability
Present State of Mind
statement of declarant’s then- existing state of mind, emotion, sensation, or physical condition is admissible; usually offered to establish a person’s intent or circumstantial evidence that the intent was carried out [a statement of memory or belief is NOT ADMISSIBLE to prove the truth of the fact remembered or believed]
Excited Utterance
out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (before declarant had time to reflect upon it) is admissible
Present Sense Impressions
comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible; there is little time for calculated misstatement, and the contemporaneous nature of the statement makes it reliable
Declarations of Physical Condition
spontaneous declaration of present bodily condition is admissible as an exception to hearsay rule even if not made to a physician
Statement for Medical Diagnosis and Treatment
(1) made for and reasonably pertinent to medical diagnosis or treatment; AND (2) describes medical history or symptoms
Records of Regularly Conducted Activity – Business Records
Any writing or record made as a
memo of any act or transaction is admissible in evidence as proof of that act or transaction; following elements are needed –
Business: includes every business, organization, occupation, or calling, whether or not for profit
Entry Made in Regular Course of Business: record was made in court of a regularly conducted business activity, and it was customary to make the type of entry involved [self-serving accident reports prepared primarily for litigation are NOT admissible]
Personal Knowledge: business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters to the entrant [NOTE: police report containing statements of witnesses or parties cannot qualify as a business record, although it may be admissible under another exception]
Entry Made Near Time of Event: entry must be made at or near the time of the transaction
Authentication: authenticity of record must be established; can be accomplished by the custodian (1) testifying that the record is a business record, or (2) certifying in writing that the record is a business record
Past Recollection Recorded
if witness’s memory cannot be revived, a party may introduce a memo that the witness made at or near the time of the event – writing itself is NOT admissible; must be read to jury
Judgements (Hearsay Exceptions)
certified copy of a judgment is ALWAYS admissible proof that such judgment has been entered
Prior criminal conviction – felony conviction admissible
judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment; in a criminal case the government may use the judgment for this purpose only against the accused – it may be used only for impeachment purposes against others
Ancient Documents and Documents Affecting Property Interests
statements in any authenticated document 20 YEARS OLD OR MORE are admissible, as are statements in any document affecting an interest in property, regardless of age
Learned Treatises
admissible as substantive proof IF: (a) Called to the attention of, or relied upon by, an expert witness; and (b) Established as a reliable authority by the testimony of that witness, other expert testimony, or judicial notice
Family Records
statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible
RESIDUAL “CATCH-ALL” EXCEPTION OF FEDERAL RULES
For a hearsay statement that is not covered by a specific exception to be admitted, Federal Rules provide catch-all exception which REQUIRES:
- That the hearsay statement possesses circumstantial guarantees of trustworthiness;
- That the statement be strictly necessary; and
- That notice be given to the adversary as to the nature of the statement
Confrontation Clause
under the Confrontation Clause, a hearsay statement will NOT BE ADMITTED WHEN: (1) the statement is offered against the accused in a criminal case; (2) the declarant is unavailable; (3) the statement was “testimonial” in nature; and (4) the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial [D forfeits right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying]
Testimonial Statement
Statements made in the course of police interrogation: if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency (e.g., 911 call during ongoing crime), statements made in the course of the negotiation are NONTESTIMONIAL; when primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation (e.g., statements to police describing a crime after it has concluded) are TESTIMONIAL
Burden of Proving Evidence
party who has burden of pleading usually has burden of producing or going forward with evidence sufficient to make out a prima facie case; other side produces evidence to rebut accepted evidence
Burden of Persuasion
CIVIL CASES – preponderance of evidence although at times clear and
convincing; CRIMINAL CASES – beyond a reasonable doubt
PRESUMPTIONS
a rule that requires that a particular inference be drawn from an ascertained set of facts; form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption
Shifts burden of production: presumption operates, until rebutted, to shift burden of production to the party against whom the presumption operates
***Presumption is overcome/destroyed when the adversary produces some evidence contradicting the presumed fact; once sufficient contrary evidence is admitted, the presumption is of no force or effect
Permissible Inferences: may allow the party to meet his burden of production but does not shift the burden to the adversary [inference of negligence arising from res ipsa, the inference that destroyed evidence was unfavorable to the spoliator, and the inference of undue influence when a will’s drafter is also the principal beneficiary]
***Presumption of innocence in criminal case is merely a permissible inference; burden of production NEVER shifts to the accused
***Judge cannot instruct the jury that it MUST find a presumed fact against the accused; he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact
Conflicting Presumptions: when 2 or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic
Choice of Law in Civil Actions: state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under Erie, the rule of decision is supplied by state law
Preliminary facts decided by jury
agency, authenticity of a document, credibility of a witness, and personal knowledge
Preliminary facts decided by judge
facts affecting the competency of the evidence, requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence
