Pg 41

Question 1

What is a good extra points argument on an essay to make in relation to a successor in interest in a civil case for the hearsay exception of former testimony?

Answer 1

Technically a civil plaintiff is not a successor in interest to a government prosecutor’s office. Regardless, this is usually allowed, as are co-owners, trustees of an estate, and heirs. Discuss the semantics of this on an essay for extra points and say that both a civil party and a criminal prosecutor are aligned in wanting to establish the defendant committed fraud

Question 2

What are examples of classic successors in interest that apply for the former testimony exception to hearsay?

Answer 2

Subsequent property owners, companies that acquire another company’s assets.

Question 3

If after a criminal trial an important witness dies, and now the defendant’s bookkeeper is prosecuted for aiding and abetting the fraud. Would it be proper to use the previous testimony from the now dead witness in this case?

Answer 3

No, because the defendant’s prior opportunity to cross examine the witness at trial is not the same as the bookkeeper’s opportunity, and since the bookkeeper is a criminal defendant, his rights are better protected

Question 4

What is a good extra points argument to make under the former testimony exception to hearsay if the first case was civil and the second case was criminal?

Answer 4

Even though the party may have had the opportunity to cross examine and had a similar motive, it is smart to make an argument that the motivation to zealously defend would be less in a civil case where just money is at stake compared to a criminal case where liberty is at stake. This likely won’t win because you can’t say in the abstract that jail is higher stakes than money, but it is a good extra points argument

Question 5

Is it necessary that a written transcript be introduced of the prior testimony if it will be used under the hearsay exception for former testimony?

Answer 5

No, you can also have a testimony from someone that recalls what was testified to, like a court reporter. Anyone that heard and can remember the testimony that was given previously can testify about it

Question 6

What is the difference between former testimony and prior inconsistent statements?

Answer 6

You’ll never have the two together.
– Prior inconsistent statements: requires that the declarant testify in the current trial
– former testimony: requires that the declarant not be available in the current trial

Question 7

What is involved in the hearsay exception for prior judgments?

Answer 7

This is an exception for evidence of a final judgement of conviction if:
- the judgement was entered after a trial or guilty plea, but not a nolo contendere plea
- conviction was for a crime punishable by death or imprisonment for more than one year/felony
– evidence is admitted to prove any fact essential to the judgment
– when the judgement of conviction is offered by a prosecutor in a criminal case for a purpose other than impeachment, the judgement must’ve been against the defendant

This is used to show both that a conviction occurred, and that the facts underlying the conviction occurred

Question 8

Why don’t you usually see the hearsay exception of prior judgements being classified as public records?

Answer 8

Because records of conviction usually involve multiple levels of hearsay. Ie: Witness testified that the defendant committed the crime, the jury concluded he was guilty, the clerk recorded the verdict

Question 9

What are the elements for the hearsay exception of prior judgments?

Answer 9

– It only applies to convictions from guilty verdicts or pleas, not nolo contendere
– it only applies to felony convictions
– the conviction can be used to prove any fact essential to the judgment, not just the conviction itself

Question 10

What are the things that a prior judgement as a hearsay exception does not apply to?

Answer 10

Nolo contendere pleas, misdemeanors, or civil judgements

Question 11

What is the difference between California and the FRE under prior judgements for the element that it only applies to convictions from guilty verdicts or pleas?

Answer 11

California says it also includes convictions that are based on nolo contendere pleas and to misdemeanour convictions, but not if those are based on nolo contendere pleas

Question 12

If a plaintiff sues a defendant for injury from a car crash, and the plaintiff wants to show that the defendant was driving negligently, so he offers the record of the defendant’s prior conviction for misdemeanor driving under the influence. Would that be permitted as a prior judgment?

Answer 12

federally this would not be allowed because prior judgements only apply to felonies, not to misdemeanors

Question 13

The fact that in order for the hearsay exception of prior judgements to apply, it only applies to felony convictions means that you have to watch out for what?

Answer 13

That refers to the prior judgement being based on a felony conviction, not to the current case that you’re trying to bring in evidence for. Ie: if the defendant was prosecuted for violating a law that makes it a misdemeanour for a convicted felon to possess a firearm, you can use a record of judgement of conviction for felony child abuse that was entered by a guilty plea. Even though the current case is a misdemeanor, the one that you were entering evidence for is a felony

Question 14

What does it mean under the prior judgements exception to hearsay that the conviction can be used to prove any fact essential to the judgment?

Answer 14

Ie: the defendant is convicted of murdering the victim, then the victim’s family sues the defendant for damages. To prove the defendant wrongfully caused the victim’s death, they offer the record of conviction. This would be allowed to prove a fact essential to the judgement (that the defendant wrongfully caused the victim’s death). Thus the conviction can be used to prove this essential fact and also to prove that the conviction happened

Question 15

If a plaintiff sues a defendant for a car accident, In order to show the defendant was driving negligently, can the plaintiff offer into evidence a conviction for felony driving under the influence as a hearsay exception for prior judgments?

Answer 15

Yes because it is a record of a felony conviction, so it can be used to establish any fact that is necessary to support the judgement

Question 16

If you want to bring in a record of a prior judgement in a current case, but the appeal on that prior judgement is pending, does that mean you can’t bring it in under the hearsay exception of prior judgments?

Answer 16

No, it can still come in

Question 17

What is involved in the learned treatises hearsay exception?

Answer 17

This is an exception for a statement in a treatise, periodical, pamphlet, journal, textbook, or scholarly work if:
– it is called to the attention of an expert witness on cross or relied on by the expert on direct, and
– the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony or by judicial notice

Question 18

If a statement from a learned treatises is admitted, what can it be used for?

Answer 18

It can be read into the evidence, but not received as an exhibit.

Question 19

When does the hearsay exception learned treatises apply?

Answer 19

Only to the examination of expert witnesses.

Question 20

What are the elements for learned treatises?

Answer 20

– Written materials must be established as credible to be admissible for the truth
– only relevant portions of the document are read into the record
– can impeach witness’ credibility and also use for its truth

Question 21

How do you establish a written material as reliable in order for it to be admissible for its truth under the learned treatise exception to hearsay?

Answer 21

This can be done via direct examination or on cross-examination. The expert can say he relied on the materials, or that they are relied on by experts in the field. This can also happen by judicial notice where the judge deems the source to be true for purposes of the trial

Question 22

What does it mean under the learned treatise exception to hearsay that only relevant portions of the document are read into the record?

Answer 22

The jury cannot take the entire book/document/article back to the jury room.

Question 23

If a plaintiff calls a doctor as an expert witness to testify about her injuries, and on cross-examination the doctor is asked about a certain anatomy book and whether she considers it to be reliable, and she says she does. Can the attorney then read into the record the relevant parts of the book that contradict what the expert said?

Answer 23

Yes, because the information from the book can then be used for its truth and for impeachment

Question 24

If a mother is prosecuted for child endangerment, and the prosecution calls an expert who testifies that the child has burst capillaries in its eyes which is a sign of shaken baby. On direct expert says that in forming her opinion, she used the book “pediatric pathology“ and the prosecution reads into evidence part of that book that says burst capillaries are only found in shaken baby. Would this be admissible as a learned treatise?

Answer 24

Yes. It was established that the expert relied on it, so the relevant portion of the document can be read into the record and used for its truth.

Question 25

If an expert said on the stand that they didn’t rely on a text, but the text is considered authoritative in the field, would that be enough for the text to be read into the evidence based and learned treatises?

Answer 25

Yes, because the expert has to either testify that she relied on the text, or that the text is reliable.

Question 26

If an expert testifies that she did not rely on a scholarly text, and the text is not relied on in the field, can that document be read into the evidence under learned treatises?

Answer 26

No

Question 27

If a plaintiff’s expert says that she didn’t rely on a scholarly text, and that the text is not reliable, but the defendant’s expert says it is reliable, can portions of it be read into the evidence under the learned treatise exception to hearsay?

Answer 27

Yes

Question 28

What is the difference between the FRE approach and the California approach to the hearsay exception of learned treatises?

Answer 28

California says that learned treatise can be used on cross-examination to impeach, but can only admit for the truth to show facts of general notoriety or interests (same standard as judicial notice, which is super rare). This basically means that learned treatises are only used to impeach on cross-examination of an expert, and not on direct