PA Evidence Distinctions

Question 1

Is alcohol consumption always relevant to the standard of care?

Answer 1

No, it is only admissible in PA to the extent it reasonably establishes intoxication

Question 2

How do juries handle judicial notice in PA?

Answer 2

Civil cases: conclusive
Criminal: may or may not accept

PA: May, but may not, accept judicially noticed facts in either criminal or civil cases

Question 3

What is the rule for the exclusion of relevant evidence in PA and under the FRE?

Answer 3

FRE: Probative value substantially outweighed by danger of unfair prejudice.

PA: Probative value outweighed by danger of unfair prejudice

Question 4

How can character be proved?

Answer 4

1. Reputation or opinion testimony (PA: only reputation)
2. When relevant to an essential element of a claim or defense in a civil case, by specific instances of a person’s conduct.

Question 5

When can jurors testify?

Answer 5

1. During trial, on matters that occurred during trial, such as bribery or failing to follow instructions. Notice to opposing party outside presence of jury.
2. Extraneous prejudicial information
3. Outside influence
4. Mistake on verdict form (not PA -> can just poll)

Question 6

When can juvenile adjudications be used to impeach a defendant?

Answer 6

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.

Question 7

When are ancient documents authentic?

Answer 7

1. at least 20 years old (PA: 30)
2. unlikely to create suspicion
3. found where it would likely be if authentic

Question 8

What does spousal immunity protect?

Answer 8

1. Prosecution may not call spouse against accused
2. Married person cannot be compelled to testify against spouse in any criminal proceeding unless adverse

Question 9

Who holds spousal privilege?

Answer 9

Witness spouse (federal/majority/PA) holds it and may choose to testify.

Party spouse (minority) holds it and may prevent witness spouse from testifying.

Question 10

Who holds the privilege of confidential marital communications?

Answer 10

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)

Question 11

When does the physician-patient privilege not apply?

Answer 11

1. Not for medical purposes
2. Physical condition at issue
3. Communication part of crime or tort
4. Physician-patient dispute
5. Contractual waiver
6. federal court where state law doesn’t apply

PA: not criminal proceedings

Question 12

When are prior consistent statements admissible as substantive evidence in PA and under the FRE?

Answer 12

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.

Question 13

When does a statement fall outside the hearsay rule as a dying declaration?

Answer 13

Not hearsay if

1. Belief that death is imminent
2. statement relates to cause or circumstances of death

ONLY in homicide and civil cases; PA: all cases

Question 14

When are judgments of prior convictions exempt from hearsay?

Answer 14

1. Entered after trial or guilty plea (NOT nolo contendre)
2. >1 year punishment
3. 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).

Question 15

Where do the PA rules not apply?

Answer 15

1. Grand jury proceedings
2. Some criminal proceedings: (1) preliminary hearing; (2) extradition or rendition; (3) bail or other release; (4) sentencing; (5) parole and probation

Question 16

When must hearings on preliminary matters be conducted outside the presence of a jury?

Answer 16

FRE: when involves confessions

PA: when involves violation of defendant’s rights

Question 17

Does PA have a plain error rule?

Answer 17

No. Objections must be raised to preserve on appeal

Question 18

When can a party object to a judge calling or questioning a witness?

Answer 18

FRE: Next available opportunity when jury not present

PA: Object when court gives notice of intention, or when objectionable question asked.

Question 19

What is the scope of cross?

Answer 19

FRE: subject matter of direct

PA: same, unless a party witness, in which case any relevant matter

Question 20

What is PA’s “missing witness” rule?

Answer 20

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

Question 21

Under PA law, when may prosecution cross a criminal defendant about a conviction?

Answer 21

Any of:

1. Defendant asked questions of a witness for the prosecution with a view to establish his own good reputation or character;
2. Opened door; or
3. testified in a joint trial against a co-defendant charged with same offense

Question 22

Who is not competent to testify in PA?

Answer 22

1. Mental condition or immaturity;
2. Convicted of perjury;
3. Spouse against another spouse, except in certain family proceedings

Question 23

When is a child competent to testify in PA?

Answer 23

1. Capacity to observe or perceive occurrence with substantial degree of accuracy
2. Ability to remember event
3. Ability to understand and to answer Qs
4. Conscious of ability to tell the truth

Can be rendered incompetent due to unduly suggestive or coercive techniques

Question 24

What does PA’s Dead Man’s Statute do?

Answer 24

A surviving person with adverse interest to deceased cannot testify about matters before death of deceased

Question 25

What exceptions are there to the PA Dead Man’s statute?

Answer 25

1. Distribution of property by will or intestate
2. Testimony against W’s own interest
3. Rebuttal testimony

Question 26

What standard does PA apply for qualifying an expert, and what are its elements?

Answer 26

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.

Question 27

In PA, must an expert disclose the facts on which his opinion relies?

Answer 27

Unlike the federal rule, Pennsylvania requires an expert who states an opinion to state the facts or data on which the opinion is based.

Question 28

Does Pennsylvania recognize a penitent-clergy privilege?

Answer 28

Yes, any statements made as follows are privileged:

1. To a member of clergy of a regularly established church;
2. In her role as spiritual counselor

Applies in civil and criminal, even child abuse proceedings

Privilege held by the penitent

Question 29

What is protected by PA’s accountant-client privilege?

Answer 29

The accountant-client privilege protects information derived from or as a result of professional services by a licensed public accountant for a client.

Question 30

What is protected by PA’s statutory privilege for news gatherers?

Answer 30

Prevents disclosure of confidential source.

Held by news gatherer.

No inferences can be drawn from invocation of privilege.

Question 31

Does PA have specific rules for the admissibility of evidence of a defenfant’s prior commission of sexual assault or child molestation?

Answer 31

No

Question 32

How does PA Rule 408 differ from the FRE with respect to compromise offers and negotiations?

Answer 32

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.

Question 33

How does PA’s “rape shield” statute differ from the FRE?

Answer 33

The Pennsylvania rule applies only to criminal proceedingsfor specific offenses, including assault, kidnapping, and sexual offenses, among others.

Question 34

Does PA permit expert testimony on the unreliability of eyewitness identifications?

Answer 34

Yes

Question 35

Does PA allow expert psychological or psychiatric testimony on the subject of false confessions?

Answer 35

No

Question 36

In PA, can a lay witness testify as to whether the defendant had a requisite mental state?

Answer 36

Yes, unlike FRE 704(b), which was not adopted in PA

Question 37

Does PA recognize a physician-patient privilege?

Answer 37

Yes, but only in civil matters, excluding:

1. Actions for physical injuries to a patient;
2. child abuse proceedings; and
3. extended involuntary commitments

Question 38

Does PA recognize a psychotherapist-patient privilege?

Answer 38

Yes, for both civil and criminal proceedings, but not child abuse proceedings