Evidence for BAR Flashcards

Question

POLICY BASED EXCLUSIONS (4) Offer to pay hospital or medical expenses

Answer 1

Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSABLE to prove liability. POLICY: to encourage charity. Note: this rule does not exclude other statements made in connection with an offer to pay hospital or med expenses. only excludes payment or offer to pay. An outright admission of fact made in connection with offer to pay med bills is admissible.

Answer 2

a person's GENERAL PROPENSITY or disposition honesty, peacefulness, fairness, or violence.

Answer 3

1) person's character is an ESSENTIAL ELEMENT IN TEH CASE (rare in civil, NEVER in criminal) 2) Character evidence as CIRCUMSTANTIAL EVIDENCE OF THE PERSON'S CONDUCT ON A PARTICULAR OCCASION 3) Witness's bad character for truthfulness to IMPEACH CREDIBILITY.

Answer 4

Ds Character Rule: evidence of D's character to prove D's conduct on a particular occasion is INADMISSABLE DURING THE PROSECTIONS CASE IN CHIEF. (danger of misuse by jury) (character trait never element in criminal case, rare in civil case) however, D, during the defense, may introduce evidence of a RELEVANT CHARACTER TRAIT (via reputation or opinion testimony of a character witness) to prove his conduct, but this OPENS THE DOOR TO REBUTTAL BY THE PROSECUTION.

Answer 5

Reputation and/or Opinion testimony Can have 1 W for each or 1 W for both. W can't get evidence of specific acts, that's too time consuming. Characer W can only testify to a character trait relevant to the type of crime charged. Trait for murder is peacefulness.

Answer 6

IF D has opened the door by calling the character witness (only way to open door), the prosecution may rebut in 2 ways: 1) by cross examining the D's character witness with 'have you heard' or 'did you know' questions about specific acts of D that reflect adversely on the particular character trait that D has introduced. Used for limited purpose to impeach character witness' knowledge about the D. RULE - PROSECUTOR ALLOWED TO TEST CHARACTER W KNOWLEDGE OF D'S REPUTATION AND TEST SOUNDNESS OF CHARACTER W'S OPINION. - ----if W denies having heard or knowing, prosecution must take that answer, can't prove acts actually happened. Only inquiry allowed, ask but cannot prove. - ---- Can only ask W about bad acts or arrest relevant to type of character trait that D introduced. 2) by calling its own reputation or opinion witnesses to contradict D's witnesses.

Answer 7

In addition to direct evidence that the alleged victim of an assault was the first aggressor, the criminal D may introduce evidence of victim's violent character as CIRCUMSTANTIAL EVIDENCE that the victim was the first aggressor. Proper method: character W may testify to victim's REPUTATION FOR VIOLENCE and may give OPINION. Door opens for prosecution Prosecution rebuttal: evidence of victim's good character for peacefulness (reputation or opinion test) AND prosecution may prove D's character for violence. DOOR OPENS WIDE. In homicide case, if D offers evidence of any kind that victim was first aggressor, prosecution may intro evidence of victim's good character for peacefulness.

Answer 8

If D, at 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 D's state of mind - fear - to help prove that he acted reasonably in responding as he did to the victim's aggression.

Answer 9

Under Rape Shield Law, in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about the victim is ORDINARILY INADMISSABLE: - opinion or reputation evidence about the victim's sexual propensity - evidence of specific sexual behavior for the victim.

Answer 10

1) specific sexual behavior of victim to prove that someone other than the D was the source of semen or injury to victim. Defense is somebody else did it, show sex with other person. 2) victim's sexual activity with the D if the defense of consent is asserted - prior sex between victim and D allowed 3) where exclusion would violated D's right of due process. The LOVE TRIANGLE DEFENSE - D should be allowed to show that victim had a sexual relationship with X at time of D's alleged rape if X was aware of victim's sexual contact with the D. Purpose is to suggest the victim had to falsely claim that the sexual contact with the D was nonconsensual so X won't get jealous.

Answer 11

1) Court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Answer 12

* can't offer D's reputation for careless driving. * D can't offer W to testify that D is prudent and careful driver. D in CIVIL case CANT show character, even when the underlying conduct is criminal in nature. No liberty of D is at stake, just $.

Answer 13

1) Tort Action alleging negligent hiring or entrustment 2) Defamation (oral = libel. writing = slander) 3) Child Custody Dispute.

Answer 14

RULE: BUT, D's bad acts or other crimes may be admissible to show: SOMETHING SPECIFIC ABOUT THE CRIME CURRENTLY CHARGED (Something separate and apart from mere propensity to commit the crime). 5 most common non-character purposes are MIMIC: Motive Intent Mistake or Accident, the absence thereof Identity Common Scheme or Plan (Modus Operandi, MO, the D's signature on each crime). * If MIMIC category is satisfied, the prosecution may use other-crimes as part of its case-in-chief. MIMIC evidence is NOT dependent on D's introduction of favorable character evidence. * NONE of MIMIC categories can be used to show propensity. must be specific.

Answer 15

1) by conviction or 2) by evidence (witness, etc) that proves the crime occurs: CONDITIONAL RELEVANCY STANDARD - prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime. *Easy burden to satisfy

Answer 16

In all cases, court must also weigh probative value v. prejudice and give limiting instructions if MIMIC evidence is admitted.

Answer 17

if relevant to a non-character purpose, MIMIC evidence CAN ALSO BE USED IN CIVIL CASES, such as tort actions for fraud or assault.

Answer 18

In case of child molestation, the same rule allows prior acts of child molestation. Note: this rule allows prior acts only, not reputation or opinion. Don't have to be convictions, just prove it happened. Once a rapist always a rapist. Once a child molestor always a child molestor.

Answer 19

1) authentication 2) Best Evidence Rule 3) Hearsay

Answer 20

if relevance of writing depends on ITS SOURCE OR AUTHORSHIP, a showing must be made that the writing is authentic (genuine) that it is what is purports to be. This is process of authentication. in the absence of stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.

Answer 21

1) Witnesses personal knowledge (W observed X sign doc) 2) Proof of Handwriting (3 ways): a) a Lay Person's Opinion (based on familiarity with X's handwriting as a result of experience in normal course of affairs - family, co-worker, classmate) b) Expert Comparison Opinion (Handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X's handwriting) c) Jury Comparison (Jury compares document with exemplar of X's handwriting) 3) Proof by Circumstantial Evidence (not handwritten: e-mail, text, type written). Anything relevant that connects alleged author with doc - appearance, contents, substance, internal patterns or other distinctive characteristics. Includes having inside knowledge. 4) ANCIENT DOCUMENT RULE - authenticity may be inferred IF doc is: a) At least 20 years old b) facially free of suspicion, and c) found in a place of natural custody 5) Solicited Reply Doctrine - Doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author. Ex: P e-mails K offer to X, and later receives an acceptance purportedly sent by X.

Answer 22

Document is ADMISSIBLE if court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine, i.e. that X is the author. - Judge doesn't have to be persuaded doc is genuine. - Judge only needs SOME evidence in Record that the jury could use to determine authenticity. Jury makes ultimate determination on authenticity.

Answer 23

Memorize this list. Presume authentic - no need for foundation testimony: 1) OFFICIAL PUBLICATIONS (published by Gov) 2) CERTIFIED COPIES OF PUBLIC OR PRIVATE RECORDS ON FILE IN PUBLIC OFFICE (real estate deed or mortgage) 3) NEWSPAPERS OR PERIODICALS 4) TRADE INSCRIPTIONS AND LABELS 5) ACKNOWLEDGED DOCUMENT (Doc that has a certification by a notary) 6) COMMERCIAL PAPER (promissory note) These docs shift the burden of proof to the other side to prove forgery or lack of genuineness. Presumed Authentic.

Answer 24

Witness may testify on basis of personal knowledge that photograph is FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed. W doesn't have to be photographer, only has to have personal knowledge of what the photo shows.

Answer 25

A party who seeks to prove the contents of a WRITING must either PRODUCE THE ORIGINAL WRITING or PROVIDE AN ACCEPTABLE EXCUSE FOR ITS ABSENCE. If the court finds the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy. Writing includes sound recordings, X-rays and films

Answer 26

1) The Writing is a legally operative document - the writing itself creates rights and obligations. Ex: patent, deed, mortgage, divorce decree, written contract. 2) Witness is testifying to facts that she learned solely from reading about them in a writing (referring to a writing).

Answer 27

Can't prove D's act solely on what witness watched in the film (writing). Show the film to the jury.

Answer 28

When a W with personal knowledge testifies to a fact that exists independently of a writing that records the fact. Ex; W saw the event and a writing corroborates the event. By seeing it = personal knowledge, so W doesn't have to produce the writing.

Answer 29

1) Whatever the parties intended as the original: any counterpart intended to have the same effect; any negative of film or print from the negative; computer print out (Ex: 2 copies of a lease, one for L one for T) 2) DUPLICATE - any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carbon copy). - -RULE ON DUPLICATES - duplicate is admissible to same extent as original UNLESS it would be UNFAIR (copy of fuzzy fax), OR Genuine Question is raised as to authenticity of original. 3) Handwritten copy is neither an original or duplicate.

Answer 30

1) Lost or Cannot Be Found with due diligence, OR 2) Destroyed without bad faith (flood; every 17 yrs company shreds docs), OR 3) Cannot be Obtained with Legal Process (beyond Subpeona power, in swiss bank) Court must be persuaded by a preponderance of the evidence that excuse has been established. Secondary evidence is then admissible (e.g. testimony based on memory, handwritten copy)

Answer 31

1) Voluminous Reports can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection. 2) Certified Copies of PUBLIC RECORDS (keep original on file) 3) Collateral Documents - not important to case. If court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence.

Answer 32

1) Personal Knowledge - testify to something saw with own eyes or heard with own ears 2) Oath or Affirmation - Witness must demonstrate willingness to tell the truth. Affirmation = solemn promise.

Answer 33

1) W is NOT ordinarily incompetent merely b/c she has an interest - a direct legal stake - in outcome of litigation.

Answer 34

Typical DEAD MAN'S ACT statute provides: i) in a CIVIL action (N/A to Criminal) ii) an INTERESTED Witness iii) is INCOMPETENT to testify iv) Against the ESTATE of a Defendant v) concerning a TRANSACTION OR COMMUNICATION between the interested W and the decedent. *Fear of perjury. One of participants in transaction has died, lips are sealed. Statute seals the testifier's lips.

Answer 35

Thus on Multistate, W ordinarily are not incompetent on this ground. BUT, if Question explicitly states that the particular jurisdiction in which the case arises has a 'dead mans statute' apply the rule. Note: bias doesn't disqualify, must be interested party to be disqualified.

Answer 36

1) GENERALLY Leading Questions are NOT ALLOWED on Direct Examination of Witness. 2) Generally LEADING Qs ARE ALLOWED on Cross-Examination of witness. 3) BUT allowed on DIRECT EXAM as follows: (Exceptions) i) Preliminary Introductory Matters (to get things started) ii) A youthful or forgetful W (jog the memory) iii) A hostile W iv) W is adverse/opposing party or someone under control of the opposing party (P in Med Mal calls treating Dr.)

Answer 37

1) Refreshing Recollection a) Basic Rule: W may not read from prepared memo, must testify on basis of current recollection/memory. b) BUT IF W's memory fails him, he may be shown a memo (or any other tangible item) to job his memory (typically a writing). - --- writing isn't entered into evidence, just offered to jog W memory. - ---- safeguard against abuse: Adversary has right to (1) inspect the memory refresher, (2) to use it on cross, (3) to introduce it into evidence. 2) Past Recollection Recorded (Hearsay Exception) * Read writing to jury for substitute of W lack of memory. Must meet all of the following: 1) showing writing to W fails to jog memory. 2) W had personal knowledge at former time. 3) writing was either MADE by W, or ADOPTED by W. 4) making or adoption occurred while the event was still fresh in the W's memory. COUPLE WEEKS MAX! 5) W can vouch for accuracy of writing when made or adopted. * ** the opposing party has option to put the writing into evidence, but it can't be introduced by the party using the evidence (party reading it to the jury)

Answer 38

1) Lay Witness a) Lay Opinion admissible if: 1) the opinion must be rationally based on W own perception (personal knowledge), AND 2) Opinion must be helpful to jury in deciding a fact Court has discretion to admit Examples include opinion on: - drunk/sober of another person - speed of vehicle - sane/insane - emotions of another person (happy sad, depressed, angry) - odors - handwriting - character (when permitted)

Answer 39

Qualifications of Expert Witness, either: 1) Education (degree), AND/OR 2) Experience Must be Proper Subject Matter - scientific, technical, or other specialized knowledge IF it will be HELPFUL to jury in deciding a fact. - --- an opinion is not helpful if the proposition is obvious.

Answer 40

Expert must have opinion based on 'reasonable degree of probability or reasonable certainty' Expert may draw upon three permissible data sources: 1) Personal Knowledge (treating physician) 2) Other evidence in the trial record (testimony by other witnesses, exhibits (med reports, x rays) made known to expert by hypothetical question 3) facts outside the record (hearsay) IF this outside material is of a type reasonably relied upon by experts in the particular field in forming opinions. * ***the contents of such out of court material should NOT be disclosed to the jury unless the Judge determines it would help the jury evaluate the expert's opinion. * **If Judge allows it, out of court material may be emitted with a warning to the jury to consider it ONLY in evaluating the quality of the expert's opinion.

Answer 41

Court Serves as GATEKEEPER and will use 4 principal factors to determine reliability or principles and methodology use by expert to reach opinion (DAUBERT): TRAP Testing of the principles or methods Rate of Error Acceptance by other experts in same discipline. General Acceptance not required. Peer review and publication *KNOW THE FACTORS THE COURT USES FOR THIS GATEKEEPING FUNCTION

Answer 42

1) on direct examination of party's own expert..... relevant portions of treatise, periodical, or pamphlet may be read into evidence as SUBSTANTIVE EVIDENCE (to prove truth of matter asserted) if the book is established as a reliable authority. (Cant use book itself, only w/ test. of expert) 2) On Cross-Examination of opponent's expert: - Read into evidence to impeach and contradict opponent's expert. Comes in as substantive evidence. 3) BUT learned treatises may not be introduced as exhibit. Jury might give it too much weight.

Answer 43

CRIMINAL CASES: "ULTIMATE ISSUE" is still proper objection if EXPERT seeks to give direct opinion that D did or did not have relevant MENTAL STATE. Expert can only testify in general terms about effects of D's mental condition w/o linking it to the particular case, such as: "D has schizo, a person with the disease cannot distinguish fact from fantasy."

Answer 44

Proper Subject Matter (things you can ask W on cross) a) matters within the scope of direct examination b) Matters that test the W's credibility.

Answer 45

1) Bolstering Own W The Rule: not allowed until after the W credibility has been attacked. Post impeachment repair of W's credibility called REHABILITATION.

Answer 46

W can't testify that "I told everyone at work the next day after accident that I saw D run red light." Improper bolstering on direct. Not allowed b/c 1) no attack on W credibility 2) Prior Consistent Statement has minimal probative value 3) hearsay

Answer 47

W's prior ID of a person. W test. that she recognizes D, sitting in court, as perpetrator. Also, "I picked D out of line up 2 weeks ago." Prior ID by trial W is not barred by hearsay rule. It is labeled as EXCLUSION from hearsay and comes in as substantive evidence. NOTE: W who made prior ID must testify at trial and must be subject to current cross-examination.

Answer 48

RULE: it is permitted w/o limitation Note: even though fed rules speak only of impeaching a W on cross, a party can impeach her OWN W during direct examination.

Answer 49

1) Prior inconsistent statements 2) bias, interest or motive to misrepresent 3) sensory deficiences 4) bad reputation or opinion about W's character for truthfulness 5) Criminal Convictions 6) Bad Acts (w/o conviction) that reflect adversely on W's character for truthfulness 7) Contradiction

Answer 50

1) The impeaching fact may be proven with extrinsic evidence as to ALL impeachment methods EXCEPT #6, BAD ACTS and Some of #7 - contradictory facts that are collateral. 2) For the impeachment methods that allow extrinsic evidence, it is NOT necessary to ask the W about the impeaching fact before the extrinsic evidence is introduced .....EXCEPT for #2, BIAS.

Answer 51

GENERAL PURPOSE: prior inconsistent statement is admissible for the purpose of IMPEACHMENT (suggest trial test. false or mistaken, not as substantive evidence that th statement is actually true). Show W Cant keep story straight, raise doubt about W credibility.

Answer 52

EXCEPTION - a prior inconsistent statement of a W may be admitted both to impeach AND as substantive evidence (to prove the truth of the matter asserted in the prior statement) IF the W is currently subject to cross-examination and the prior inconsistent statement was made: a) orally under oath, AND b) as part of a formal proceeding, hearing, trial, or deposition, including grand jury proceeding.

Answer 53

EXCEPTION - no opportunity to explain need be given if W is the opposing party. Also, the prior inconsistent statement of an opposing party can be used against that party as substantive evidence ("party admission" or "statement of an opposing party") *ALWAYS FOCUS ON STATUS OF W. IF Opposing party then no opportunity tot explain/deny prior inconsistent statement - even if statement was informally made to another person.

Answer 54

Procedural issue: 1) W MUST BE CONFRONTED with Alleged Bias while on the stand. 2) If confrontation prerequisite is met, BIAS may be proven by EXTRINSIC EVIDENCE

Answer 55

Confrontation is NOT required. Extrinsic evidence is allowed.

Answer 56

Confrontation is NOT required. Extrinsic evidence is allowed (only way for #4) Call a character W to testify that Target W has bad rep for truthfulness or that character W has low opinion of Traget W's character for truthfulness. NO EVIDENCE OF SPECIFIC ACTS, only reputation or opinion. Purpose: suggest that Target W is not telling the truth on the stand.

Answer 57

Permissible Types of Convictions (2 part rule) 1) conviction of any crime (felony or Misd) as to which the prosecution was required to prove FALSE STATEMENT AS AN ELEMENT OF HTE CRIME (automatically admitted) 2) If Conviction did not require proof of false statement, it must be a FELONY, and court has discretion to exclude if probative value on issue of W credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt). - ----*Factors that Make a Felony Convictoin Probative: seriousness of crime, relation to deception and stealth. - ----*Prejudice Factors: similarity to case being tried; inflammatory nature of prior crime. * Time Limitation applies to #1 and #2 - -Conviction or release from prison, whichever later, must be within 10 years of trial. If more than 10 yrs, conviction may not be sued for impeachment UNLESS: - --- proponent shows probative value on credibility is substantial; Ct has discretion. * Method of Proof: ask W to admit prior conviction OR Introduce record of conviction (extrinsic). * Not required to confront W prior to intro of record of conviction.

Answer 58

Cross Examiner must have good faith basis for inquiry, and permission to make the inquiry is subject to the court's DISCRETION. Inquiry is limited to the act of untruthfulness itself, not its consequences, such as job termination, civil judgment, or arrest.

Answer 59

If W admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether EXTRINSIC EVIDENCE may be introduced to prove the contradictory fact. RULE: EXTRENSIC EVIDENCE IS NOT ALLOWED for the purpose of contradiction IF the fact at issue is COLLATERAL (i.e the fact has no significant relevance to the case or the Ws credibility). *Can submit extrinsic evidence of a non-collateral contradictory fact. (significant contradiction going to merits of the case)

Answer 60

1) Showing W's good character for truthfulness | 2) Prior Consistent Statement to Rebut

Answer 61

- WHEN: allowed only when impeachment showed W was lying (bad rep, prior convictions, bad acts) as compared to merely being a mistake - How: bring out a character W to testify impeached W has good character via reputation or opinion testimony.

Answer 62

3a: To rebut a charge of recent fabrication - WHEN - if W's trial test. is charred as a recent fabrication (improper influence or bias), a prior statement by the W that is consistent with her test. will be admissible to rebut the charge IF the statement was MADE BEFORE THE MOTIVE TO FABRICATE AROSE. - Relevance: suggets bribe had no influence on test. 3b: To rebut a contention of inconsistency: Ex: cop testifies she picked D due to scar on face, but cop didn't mention scar in handwritten report. To rebut, cop can show scar mentioned in formal final report. 3c: To rebut a Contention of Sensory Defiency: Ex: W impeached b/c year after accident she underwent treatment for mental disorder. Rebut by showing that W gave same account of accident to police when the accident happened last year. Purpose: prior consistent statement that fits within any of the rebuttal rules is admissible to rehabilitate credibility AND as substantive evidence that the prior statement was true. Hearsay exclusion.

Answer 63

1) in fed court action ARISING UNDER FED SUBSTANTIVE LAW (Const or fed statute, all crim. cases) 'privileges are governed by the principles of the common law as they may be interpreted by the fed courts int eh light of reason and experience.' 2) In Fed Court based on DIVERSITY, where state substantive law applies to claims and defenses (ERIE), Fed Court MUST APPLY PRIVILEGE LAW OF THE STATE whose substantive law is applicable. NOTE: In DIVERSITY Fed courts also apply STATE LAW ON COMPETENCY (Dead Man Statute) and STATE LAW ON BURDENS OF PROOF AND PRESUMPTIONS.

Answer 64

Elements. Privilege applies to: 1) confidential communications 2) between attorney and client or a rep of either 3) made during a legal consultation 4) unless privilege waived by client 5) unless an exception applies

Answer 65

Client must have reasonable expectation of confidentiality. No priv if client knows 3P is listening. Joint Client RULE: if 2 or more clients with common interest consult, their comm. with counsel concerning the common interest are privileged as to 3P. BUT if joint clients later have dispute regarding common interest, the privilege does not apply between them.

Answer 66

it does not apply to client's knowledge of underlying info, preexisting docs, or physical evidence.

Answer 67

Primary purpose of comm. must be to obtain or render legal services (professional legal consultation), not business or social advice.

Answer 68

1) VOLUNTARY WAIVER - Only the CLIENT has power to waive the prig. After client's death, the prig continues and only the client's estate can waive it. 2) SUBJECT MATTER WAIVER - voluntary waiver of priv as to some communications will also waive the prig as to other comm IF a) the pretrial disclosure is INTENTIONAL, b) the disclosed and undisclosed communications concern THE SAME SUBJECT MATTER, and c) FAIRNESS requires that the disclosed and undisclosed communications be considered together. EX: client gives to other person 1 of 3 docs 3) INADVERTENT WAIVER inadvertent disclosure of privileged comm. will NOT waive privilege so long as the privilege holder: a) took REASONABLE STEPS TO PEVENT DISCLOSURE AND B) TAKES REASOABLE STEPS TO CORRECT THE ERROR Ex: lose 2 pages from box of papers.

Answer 69

1) Future Crime or Fruad. Client says help me disguise bribes 2) Client puts legal advice in issue. D defends on grounds that she relied on advice from attorney in committing violation. 3) Attorney Client Dispute. Unpaid fees, legal malpractice.

Answer 70

Elements: Applies to - Confidential comm. or info acquired by physician from patient for purpose of diagnosis or treatment of medical situation Also applicable to psychotherapists (MD or other professional certified for mental/emotional diagnosis) Fed law distinction: in fed court actions based solely on fed substantive law, privilege exists only for psychotherapy. NO privilege in fed court for actions based solely on fed law for comm. with physicians as regards to physical conditions. EXCEPTION - if patient puts the physical or mental condition in issue. P suing for damages for personal injury or D asserts insanity defense.

Answer 71

Spousal priveleges - Confidential Communication Between Spouses IN ANY TYPE OF CASE, a spouse is not required and is not allowed in absence of consent by other spouse, to disclose a confidential COMMUNICATION (statement or acts) made by one to the other during the marriage. BOTH SPOUSES hold the privilege. Either can invoke. Rationel: encourage candor between H and W during marriage.

Answer 72

- comm. or bad acts in furtherance of jointly perpetrated future crime or fraud - comm or cts destructive of family unit (spouse or child abuse) - in litigation between the spouses themselves (divorce, breach of K)

Answer 73

1) The out of court statement of a person (oral or written) (doesn't apply to machines, like a clock, or to animals) 2) offered to prove the truth of the matter asserted in the statement Hearsay Rule: hearsay is inadmissible unless an exception or exclusion applies Rationale: credibility of declarant at the time of statement was made was not tested through cross exam in the presence of the current fact finder.

Answer 74

Not hearsay if not offered to prove the truth of the matter asserted in the statement.

Answer 75

1) VERBAL ACT (Legally operative words). A situation where the substantive law attaches rights and obligations to certain words simply b/c they were spoken. (Ex: K formation) 2) TO SHOW EFFECT ON PERSON WHO HEARD OR READ THE STATEMENT. If a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or probable cause to do something w/o regard to whether the statement is true. Ex: a warning of a hazardous condition) 3) CIRCUMSTANTIAL EVIDENCE OF SPEAKER'S STATE OF MIND.

Answer 76

Rule: A W's OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSABLE unless an exception or exclusion applies.

Answer 77

1) W's prior statement of identification of a person, OR 2) W's prior inconsistent statement IF oral, under oath and made during a formal trial, hearing, proceeding, or deposition, OR 3) W's prior consistent statement to rebut charge of recent fabrication, or contention of inconsistency or sensory deficiency.

Answer 78

Terminology: Called exclusion or non-hearsay. Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self. ROUGH JUSTICE Ex: inflated $ numbers on past loan application can be brought in.

Answer 79

Adoption By Silence occurs when a party who hears another persons's statement remains silent under circumstances in which a reasonable person would protest if the statement were false.

Answer 80

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.

Answer 81

Statement of co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.

Answer 82

1. Forfeiture by wrongdoing 2. former testimony 3. statement against interest 4. dying declaration 5. excited utterance 6. present sense impression 7. present state of mind 8. declaration of intent 9. present physical condition 10. statement for purpose of medical treatment or diagnosis 11. Business records 12. Public records Also, past recollection recorded and learned treatises allowed b/c element of realibitly to them

Answer 83

Confrontation is the opportunity for CROSS EXAMINATION by the D. RULE: In the context of hearsay, the prosecution may NOT us a hearsay statement against the criminal D (even if it falls within a hearsay exception) IF: 1) the statement is testimonial 2) the declarant has become unavailable, and 3) the D has had no opportunity for Cross Examination (cross can be before or at trial)

Answer 84

1) Grand Jury Testimony is TESTIMONIAL 2) Statements in Response to Police Interrogation (depends) a) testimonial IF primary purpose of questioning is to establish or prove PAST EVENTS that are potentially relevant to a later criminal prosecution. b) NON Testimonial IF the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency. * **Ongoing emegency = crime has recently ended, the perpetrator is armed, and he still poses a threat to the victim, the police, or the public at large. EMERGENCY RULE 3) DOCUMENTS A) Business Records are non-testimonial (bank or phone company records) B) Sworn Affidavits are TESTIMONIAL. C) A forensic lab report is TESTIMONIAL... IF its primary purpose is to accuse a targeted individual of criminal conduct. BUT a DNA report is non-testimonial IF it analyzes a smile of bodily fluid collected from a crime scene for purpose of developing a DNA profile IF no particular person is suspected at the time of the analysis. Even if forensic report is testimonial, no confrontation violation occurs if prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion w/o reading the report to the jury or introducing it as an exhibit. Then the report is not used for hearsay purpose, no confrontation violation.

Answer 85

1) By a preponderance of the evidence 2) the D's wrongdoing was designed to prevent a W from testifying. D forfeits hearsay and 6th Amend. objection. Policy to discourage tampering.

Answer 86

NOTE: IF a grand jury W testified to something favorable for the D, then became unavailable, the D might be able to use the former test. against the prosecution b/c the prosecutor, at the grand jury, did have an opportunity, and usually the motive, to develop the W's testimony.

Answer 87

1) privilege invoked by W 2) W is absent from jurisdiction W cannot be found w/ due diligence or is beyond Ct subpeano power 3) Illness or death of W 4) Lack of memory by W 5) Stubborn Refusal to Testify

Answer 88

Theory: not likely to lie when making a personally damaging statement as to money, property, or criminal liability. Statement against interest differs from party admission in 4 ways. To be statement against interest: 1) must be against interest of declarant when made 2) any person (not merely a party) can make statement against interest 3) personal knowledge IS required (declarrant must know statement self damaging) 4) Declarant must be unavailable (not true for party admissions) Qualificatoin for CRIMINAL CASES: statement against penal interest must be supported by Circumstances showing trustworthiness of the statement. Ex: additional corroborating evidence connecting person to crime. Motive, or being in area of crime scene needed to use stamtetnt against interest in criminal case.

Answer 89

Theory: expectation of imminent death is a solemn occasion. Criminal Cases: Must be a charge of Homicide Civil: Any type of case.

Answer 90

Factors to consdier to determine whether statement qualifies as excited utterance: 1) Nature of the event (startling, traumatic) 2) passage of time (closer better; 10 min good; 30 min maybe; 60 min max) 3) Visual Clues a) Exlamatory phrases in hypo b) excitement oriented verb (shouted, screamed, exlaimed) c) Look for an exclamation point!

Answer 91

Description of an event made while the event is occurring or immediately thereafter (FEW SECONDS) Theory: declranat has no time to fabricate

Answer 92

Contemporaneous statement concerning declarants present state of mind, feelings, emotions Theory: contemporanesous staetment about matter as to which declarant has unique knowledge

Answer 93

Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person Theory: contemporaneous statement about matter as to which declarant has unique knowledge This hearsay exception is BROAD.

Answer 94

Statement made to anyone about declarant's CURRENT physical condition (can't be statement about arm hurting 6 months ago. must be arm hurting right now) Theory: contemporaneous statement about matter as to which declarant has unique knowledge

Answer 95

Statement made to anyone (usually medical person) for purpose of obtaining medical treatment or diagnosis (including a diagnosis for expert test.) if it concerns the declarant's: 1) present symptoms OR 2) past symptoms OR 3) General Cause of Declarant's condition, but not including details of liability or ID of tortfeasor, unless domestic abuse or child abuse. Theory: patient or injured person has motive to be honest and accurate to get medical assistance This exception does not include oral statements made by a physician to the patient. Distinguish written entries made by physician in business records.

Answer 96

Elements: 1) Records of a business of any type 2) made in the Regular Course of business 3) the business Routinely Keeps such records 4) made Contemporaneasly (at or about time event recorded) 5) Contents consist of either information observed by employees of business OR a statement that falls within an independent hearsay exception. Theory: Businesses depend on accurate ,up to date record. useful sub for testimony of employees. *statement must be by someone with business duty/icnentive. not a bystander or outsider.

Answer 97

1) call sponsoring W to testify to the 5 elements of business records hearsay exception. W need not be author of report, can be records custodian or any other knowledgable person within the business, OR 2) written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party)

Answer 98

Records of a public Governmetn office or agency setting forth any of the following: 1) activities of the office or agency (payroll records), or 2) matters observed pursuant to a duty imposed by law (weather records) or 3) findings of fact or opion resulting from an investigation authorized by law (OSHA inspection repot ton safety) EXCLUSION: Police reports prepared for PROSECUTORIAL PURPOSES are NOT ADMISSIBLE against the D in a criminal case. Nor is the prosecution allowed to introduce such reports against the D under the alternative theory of business records. (Cops can testify live to be cross examined).

Answer 99

If a hearsay statement is included within another hearsay statement, evidence is INADMISSABLE unless each statement falls within a hearsay exception.

Answer 100

if the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.