Evidence (MBE/MEE) Flashcards
Hearsay
- Out-of-court statement offered to prove the truth of the matter asserted
- Not hearsay if offered to prove something other than truth of matter asserted (legally operative facts, effect on listener, state of mind, identification, impeachment and rehabilitation)
Double Hearsay
Hearsay within hearsay may be admissible if each part of combined statement conforms to hearsay exception
Non-Hearsay: Types
- Declarant Witness’ Prior Statements: (i) Prior Inconsistent Statements, (ii) Prior Consistent statements, (iii) Prior Statement of Identification
- Opposing Party’s Statement
Prior Statements: Declarant Availability
- Declarant must testify at present trial to be admissible
- Cannot apply if witness is dead or otherwise unavailable to testify
Non-Hearsay: Prior Inconsistent Statements
- Requirements: (1) Witness is cross-examinable; (2) Testimony was made under oath by witness at a trial, hearing or deposition; (3) must be offered to demonstrate witness’ prior statements are inconsistent with current testimony
- Admissibility: Impeachment of declarant’s credibility and as substantive evidence
Non-Hearsay: Prior Consistent Statements
- Requirements: (1) Witness is cross-examinable; (2) Testimony is consistent with his previous testimony, (3) Must be offered to rebut a charge of recent fabrication or improper motive/influence, or to rehabilitate the witness if attacked on some other grounds
- Statement must be made before declarant had reason to fabricate
- Admissibility: Rehabilitation and also as substantive evidence
- Note: No oath requirement
Non-Hearsay: Prior Statement of Identification
- Requirements: Declarant witness must (1) be subject to cross examination, (2) previously have observed D (ex. sketches, IDing during a lineup, etc.) , and (3) be testifying in court.
- Admissibility: Admissible as substantive evidence
Opposing Party’s Statement
Statement is offered against an opposing party present at trial and:
(a) Individual Admission: Made by party in individual/representative capacity;
(b) Adoptive Admission: Party manifested that it adopted/believed it to be true;
(c) Authorized Statement: Made by person whom party authorized to make statement on subject;
(d) Vicarious Statement: Made by party’s agent/employee on matter within scope of relationship; and
(e) Conspirator Statement: Made by party’s co-conspirator during and in furtherance of conspiracy (must be some independent evidence to support finding of conspiracy aside from statement)
Admissibility: Admissible as substantive evidence
Opposing Party’s Statement: Silence as an Admission
Silence in response to a statement is considered an adoptive admission if:
* Person understood statement,
* Person had ability opportunity/ability to deny statement, and
* Reasonable person would have denied statement.
Declarant Unavailable as Witness
- Unavailable means dead, absent beyond subpoena power, lacks memory, refuses to testify, is exempted from testifying based on privilege.
- Does not apply when party wrongfully renders declarant unavailable for the purpose of preventing testimony
Hearsay Exceptions: Declarant Unavailable as Witness
If a declarant has been shown to be unavailable, the following hearsay exceptions are available:
* Former Testimony
* Dying Declaration
* Statement Against Interest
* Statement of Personal/Family History
* Statement Against Party That Caused Declarant’s Unavailability
Hearsay Exception: Former Testimony
- Requirements: (1) Declarant is unavailable, (2) testimony was given under oath as witness at trial, hearing, or deposition, and (3) is now offered against a party who already had an opportunity and similar motive to develop testimony (i.e. a prior chance to cross)
- Admissibility: Admissible as substantive evidence
Hearsay Exception: Dying Declaration
Admissible as substantive evidence in a homicide prosecution or civil case if:
* (1) Declarant is unavailable;
* (2) Declarant believed her death was imminent (need not actually die); and
* (3) Declarant made statement about cause or circumstance of impending death.
Hearsay Exception: Statement Against Interest
Admissible as substantive evidence if:
* (1) Declarant is unavailable;
* (2) Statement is against declarant’s pecuniary, proprietary, civil or penal interest at time made; and
* (3) Reasonable person would not have made statement unless it was true
Note: If statement would subject a declarant to criminal liability, statement must be supported by corroborating circumstances clearly indicating the trustworthiness of the statement.
Hearsay Exception: Statement of Personal/Family History
Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Statement concerns the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc.
Hearsay Exception: Statement Against Party That Caused Declarant’s Unavailability
Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Party engaged in wrongdoing for purpose of making declarant unavailable to testify, rending declarant unavailable
Note: Party cannot claim declarant is unavailable and door is open to use anything declarant said against party.
Hearsay Exceptions: Declarant’s Availability Immaterial
Whether or not a declarant is available as a witness, the following hearsay exceptions are available:
* Present Sense Impression
* Excited Utterance
* Present State of Mind
* Statement Made for Medical Diagnosis/Treatment
* Recorded Recollection
* Business Records
* Public Records
* Learned Treatises
* Judgment of Previous Conviction
Hearsay Exceptions: Present Sense Impression
A statement that describes or explains an event or condition, made while or immediately after the declarant perceives the event or condition.
Hearsay Exceptions: Excited Utterance
A statement relating to a startling event or condition, made while declarant was under the stress of excitement that it caused.
Hearsay Exceptions: Present State of Mind
- Statement of declarant’s then-existing state of mind (present intent, motive, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
- A statement of intent can be used to prove action in comformity with that intent.
Hearsay Exceptions: Statement for Medical Diagnosis/Treatment
A statement that:
* (A) is made for medical diagnosis or treatment; and
* (B) describes medical history, past or present symptoms or sensations, their inception, or their general cause; and
* (C) is not one of fault.
Note: Need not necessarily be made by patient nor be made to physicians
Hearsay Exceptions: Recorded Recollection
When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if the record:
* (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
* (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
* (C) accurately reflects the witness’s knowledge.
Note: If admitted, record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Hearsay Exceptions: Business Records
Record must be:
* Kept in course of regularly conducted business activity,
* Making of record was regular practice, and
* Record was made at or near the time by someone with knowledge and a duty to report it
Note: While medical records are often admitted under the business records exception, records prepared in anticipation of litigation are not.
Hearsay Exceptions: Public Records
Three categories of statements which may be admissible if set forth in a public record:
* Statement of public office/agency that sets out activities of office,
* Observation of person under duty to report (but not police in a criminal case), or
* Factual findings of a legal investigation: Also includes opinoins, evaluations, and conclusions contained in investitgative report that are based on these factual findings
Public Records Hearsay Exception: Police Reports
- Police reports are admissible public records in civil cases and against the government in criminal cases
- Not admissible as public records when used against criminal defendant
Hearsay Exceptions: Learned Treatises
May be used to impeach expert witnesses and as substantive evidence, but only as substantive evidence if:
* (i) publication is established as a reliable authority by a party’s expert or judicial notice and
* (ii) statements are called to attention of, or relied on, by an expert witness during examination.
Hearsay Exceptions: Judgment of Previous Conviction
Admissible if:
* Final judgment was entered after trial or guilty plea,
* Conviction was for a felony (i.e., crime punishable by death or imprisonment for over one year), and
* Evidence is being offered to prove any fact essential to sustain judgment
Note: No corrolary hearsay exception for judgments of acquittal
Hearsay Exceptions: Residual Exception
Catchall exception for statement not otherwise covered by the FRE; statement must be:
* (i) Supported by sufficient guarantees of trustworthiness, and
* (ii) More probative than any other evidence that the proponent can obtain through reasonable efforts
Sixth Amendment: Confrontation Clause
- Confontation Clause provides that testimonial statements are inadmissible when a declarant is unavailable and a criminal D had no prior opportunity to cross-examine.
- Right to confront typically means face-to-face confrontation, but can be denied if important public interest at stake
Confrontation Clause: Forfeiture by Misconduct
If D acted with a specific intent to keep declarant from testifying and rendered the decalarant unavailable to testify, D has forfeited right to confrontation and statement is admissible against him
Confrontation Clause: Testimonial Statements
- Testimonial Statements: Statements made with the primary purpose of ascertaining past criminal conduct (objective analysis)
- Emergency Exception: Statements are nontestimonial when made for primary purpose of getting police assistance to get help/meet an ongoing emergency.
Fourteenth Amendment: Due Process Clause
May prevent application of hearsay rule when rule unduly restricts D’s ability to mount defense
Privileges: Confidential Communications
A confidential communication is necessary for a privilege to apply.
If overheard, privilege is destroyed unless:
* (i) No knowledge of 3P’s presence, or
* (ii) 3P is necessary to assist in communication
Privilege is waived if privilege holder:
* (i) fails to timely assert it,
* (ii) voluntarily discloses communication,
* (iii) contractually waives it in advance
Spousal Immunity
- Married spouse cannot be compelled to testify against spouse in any criminal proceeding, regardless of who D is
- Majority view: Witness-spouse holds privilege
- Scope: Testimony about events before/during marriage
- Expiration: Expires upon divorce or annulment
- Exception: One spouse is charged with a crime against the other spouse or the children of the spouse
Confidential Marital Communications
- Spousal communications during marriage are privileged
- Majority view: Both spouses hold privilege in civil and criminal cases; either spouse may assert or prevent other spouse from testifying
- Scope: Any communication between spouses
- Expiration: Begins with marriage and continues indefinitely
Attorney-Client Privilege
- Confidential communication between client (who holds privilege) and attorney for the purpose of obtaining or providing legal advice or representation (attorney doesn’t need to give advice or agree to representation)
- Expiration: Privilege exists until waived by client; can survive termination of A-C relationship and client’s death
Attorney-Client Privilege: Corporate Clients
Some courts have held the A-C privilege only applies to “control group” of corporation (e.g., CEO, BOD).
Federal courts extend the privilege to communications by a non-control-group employee:
* (i) about matters within employee’s corporate duties
* (ii) made for purpose of securing legal advice for corporation client
Attorney-Client Privilege: Exceptions
- Made to enable/aid commission of what client knew or should have known was crime/fraud
- Relevant to dispute between attorney and client or former client
- Relevant to dispute between parties who claim through the same deceased client
- Between former co-clients who are now adverse to each other
Attorney-Client Privilege: Work-Product Doctrine
Documents prepared or compiled in anticipation of litigation protected unless party seeking disclosure:
* (i) demonstrates substantial need, and
* (ii) cannot obtain the information by any other means without undue hardship
Physician-Patient Privilege
Statement by a patient to a doctor privileged so long as made for purpose of obtaining medical treatment. Does not exist if:
* Patient’s physical condition is at issue;
* Statement is part of crime
* Dispute exists between physician and patient
* Patient contractually waives privilege; or
* Federal question case
Psychotherapist-Patient Privilege
Applies to confidential communications between a patient and a psychiatrist, psychologist, or
licensed social worker for purpose of treatment. Privilege does not exist if:
* Patient’s mental condition is at issue;
* Statement was result of state ordered exam; or
* Case is commitment proceeding against patient
Privilege against Self-Incrimination
Fifth Amendment protection allows witness to refuse to give testimony that may tend to incriminate him. Privilege does not apply to:
* Non-current statements,
* Physical characteristics or mannerisms, or
* Corporations and other organizations
Miscellaneous Privileges
- Clergy-Penitent
- Accountant-Client
- Professional Journalist: No federal privilege regarding source
- Government Privilege: Government privileged against disclosing informant’s identity in a crimal case and communication of official information by or to public officials
Categorical Exclusions: Subsequent Remedial Measures
When measures are taken by D that would have made an earlier injury or harm less likely to occur, evidence of subsequent remedial measures is:
Not admissible to prove:
* Negligence;
* Culpable conduct;
* Defective product/design; or
* Need for a warning or instruction.
Admissable to prove:
* Impeachment
* Ownership/control
* Feasibility of precautionary measures
