PA Evidence Distinctions Flashcards
Is alcohol consumption always relevant to the standard of care?
No, it is only admissible in PA to the extent it reasonably establishes intoxication
How do juries handle judicial notice in PA?
Civil cases: conclusive
Criminal: may or may not accept
PA: May, but may not, accept judicially noticed facts in either criminal or civil cases
What is the rule for the exclusion of relevant evidence in PA and under the FRE?
FRE: Probative value substantially outweighed by danger of unfair prejudice.
PA: Probative value outweighed by danger of unfair prejudice
How can character be proved?
- Reputation or opinion testimony (PA: only reputation)
- When relevant to an essential element of a claim or defense in a civil case, by specific instances of a person’s conduct.
When can jurors testify?
- During trial, on matters that occurred during trial, such as bribery or failing to follow instructions. Notice to opposing party outside presence of jury.
- Extraneous prejudicial information
- Outside influence
- Mistake on verdict form (not PA -> can just poll)
When can juvenile adjudications be used to impeach a defendant?
Evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:
i) It is offered in a criminal case; and
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility.
Unlike the federal rule, the Pennsylvania rule permits impeachment of a witness who is a criminal defendant as well as other witnesses.
When are ancient documents authentic?
- at least 20 years old (PA: 30)
- unlikely to create suspicion
- found where it would likely be if authentic
What does spousal immunity protect?
- Prosecution may not call spouse against accused
- Married person cannot be compelled to testify against spouse in any criminal proceeding unless adverse
Who holds spousal privilege?
Witness spouse (federal/majority/PA) holds it and may choose to testify.
Party spouse (minority) holds it and may prevent witness spouse from testifying.
Who holds the privilege of confidential marital communications?
Both spouses (federal/majority/PA); either may assert the privilege. Waiver by one spouse does not affect the other’s claim of privilege.
Only the communicating spouse (minority)
When does the physician-patient privilege not apply?
- Not for medical purposes
- Physical condition at issue
- Communication part of crime or tort
- Physician-patient dispute
- Contractual waiver
- federal court where state law doesn’t apply
PA: not criminal proceedings
When are prior consistent statements admissible as substantive evidence in PA and under the FRE?
In PA, never; prior consistent statements can only be used for rehabilitative purposes.
Under the FRE, they may be admitted when rebutting a charge of fabrication.
When does a statement fall outside the hearsay rule as a dying declaration?
Not hearsay if
- Belief that death is imminent
- statement relates to cause or circumstances of death
ONLY in homicide and civil cases; PA: all cases
When are judgments of prior convictions exempt from hearsay?
- Entered after trial or guilty plea (NOT nolo contendre)
- >1 year punishment
- Offered to prove fact essential to sustain the judgement
Prosecution may only offer for non-impeachment purposes if the judgment was against the defendant.
Appeal does not affect admissibility but can be shown
PA: For felonies and other major crimes, cannot deny or contest any fact essential to sustain conviction (not lesser misdemeanors).
Where do the PA rules not apply?
- Grand jury proceedings
- Some criminal proceedings: (1) preliminary hearing; (2) extradition or rendition; (3) bail or other release; (4) sentencing; (5) parole and probation
When must hearings on preliminary matters be conducted outside the presence of a jury?
FRE: when involves confessions
PA: when involves violation of defendant’s rights
Does PA have a plain error rule?
No. Objections must be raised to preserve on appeal
When can a party object to a judge calling or questioning a witness?
FRE: Next available opportunity when jury not present
PA: Object when court gives notice of intention, or when objectionable question asked.
What is the scope of cross?
FRE: subject matter of direct
PA: same, unless a party witness, in which case any relevant matter
What is PA’s “missing witness” rule?
May instruct jury that a witness would would support allegations, but is not called, permits inference that it would testify adversely.
Only if uncalled witness is peculiarly within the reach and knowledge of parties
Under PA law, when may prosecution cross a criminal defendant about a conviction?
Any of:
- Defendant asked questions of a witness for the prosecution with a view to establish his own good reputation or character;
- Opened door; or
- testified in a joint trial against a co-defendant charged with same offense
Who is not competent to testify in PA?
- Mental condition or immaturity;
- Convicted of perjury;
- Spouse against another spouse, except in certain family proceedings
When is a child competent to testify in PA?
- Capacity to observe or perceive occurrence with substantial degree of accuracy
- Ability to remember event
- Ability to understand and to answer Qs
- Conscious of ability to tell the truth
Can be rendered incompetent due to unduly suggestive or coercive techniques
What does PA’s Dead Man’s Statute do?
A surviving person with adverse interest to deceased cannot testify about matters before death of deceased
What exceptions are there to the PA Dead Man’s statute?
- Distribution of property by will or intestate
- Testimony against W’s own interest
- Rebuttal testimony
What standard does PA apply for qualifying an expert, and what are its elements?
PA still applies the Frye test. Under this rule, before an expert witness may testify in the form of an opinion or otherwise, the court must first determine that:
i) The expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
ii) This knowledge will help the trier of fact understand the evidence or determine a fact in issue; and
iii) The expert’s methodology is generally accepted in the relevant field.
In PA, must an expert disclose the facts on which his opinion relies?
Unlike the federal rule, Pennsylvania requires an expert who states an opinion to state the facts or data on which the opinion is based.
Does Pennsylvania recognize a penitent-clergy privilege?
Yes, any statements made as follows are privileged:
- To a member of clergy of a regularly established church;
- In her role as spiritual counselor
Applies in civil and criminal, even child abuse proceedings
Privilege held by the penitent
What is protected by PA’s accountant-client privilege?
The accountant-client privilege protects information derived from or as a result of professional services by a licensed public accountant for a client.
What is protected by PA’s statutory privilege for news gatherers?
Prevents disclosure of confidential source.
Held by news gatherer.
No inferences can be drawn from invocation of privilege.
Does PA have specific rules for the admissibility of evidence of a defenfant’s prior commission of sexual assault or child molestation?
No
How does PA Rule 408 differ from the FRE with respect to compromise offers and negotiations?
The Pennsylvania rule does not provide for the introduction of evidence of a person’s conduct or statements made during compromise negotiations with a governmental agency during the exercise of its regulatory, investigative, or enforcement authority in a subsequent criminal case against the person.
How does PA’s “rape shield” statute differ from the FRE?
The Pennsylvania rule applies only to criminal proceedingsfor specific offenses, including assault, kidnapping, and sexual offenses, among others.
Does PA permit expert testimony on the unreliability of eyewitness identifications?
Yes
Does PA allow expert psychological or psychiatric testimony on the subject of false confessions?
No
In PA, can a lay witness testify as to whether the defendant had a requisite mental state?
Yes, unlike FRE 704(b), which was not adopted in PA
Does PA recognize a physician-patient privilege?
Yes, but only in civil matters, excluding:
- Actions for physical injuries to a patient;
- child abuse proceedings; and
- extended involuntary commitments
Does PA recognize a psychotherapist-patient privilege?
Yes, for both civil and criminal proceedings, but not child abuse proceedings
