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23 Cards in this Set

  • Front
  • Back
Former Testimony
1. the witness must be unavailable.

2. the subject matter of the testimony at the trial must be same as the subject matter of the
testimony at the preliminary hearing.

3. the defendant must have been PRESENT (or, if a civil party, invited) to at the preliminary hearing and able to cross examine the
witness if he so desired.

**a CIVIL party against whom former testimony is offered must have been present at, OR INVITED TO, the former hearing. Presence of a different party with a similar motive will not suffice.
Unavailable Witness
PRIMA

validly asserts PRIVILEGE
REFUSES despite a court order
ILL or dead
lack of MEMORY

ABSENT (and attendance unable to procure attendance by process)

-proponent cannot procure the unavailability
admissibility of a written statement given to police by a victim...
for impeachment purposes ONLY not substantive evidence because it is hearsay.
relevant evidence
Evidence is relevant is it tends to make the existence of any fact, necessary to the determination of a material issue, more or less probable than it would be without the evidence

----

must be 1. probative and 2. material

probative--evidence is probative if it is makes any fact more or less probable than it would be without the evidence.

material--whether the proffered evidence bears on a fact of consequence in regard to the particular matter before the court.
non-relevant evidence when admissible
Otherwise inadmissible evidence may sometimes be admitted
ON CROSS for the purpose of IMPEACHING the witness if the information is probative of the TRUTHFULNESS of the witness.
Taped testimony of a child be admitted in lieu of live testimony at a custody hearing.
Yes, so long as it deals with issues such as severe child abuse, as
long as the evidence is trustworthy.

Determination of the trustworthiness
of the statement is made by the trial court. These statements are admissible as substantive evidence without the need for live testimony for declarants under the age of 13.

However, this type of evidence will not admissible at a criminal trial because of constitutional restrictions.
Photocopy of a K allowed
Yes. Under the best evidence rule, the original writing of anoperative or dispositive instrument must be offered into evidence if it is
available.

Photocopies conform with the best evidence rule because they
are duplicates and duplicates are equally admissible as the original.

A photocopy of a photocopy would also probably be admissible.

UNLESS
1. a genuine issue is raised as to the authenticity of the original

or

2. it would be unfair to admit the duplicate in lieu of the original
Spousal Privilege
TN does not recognize spousal immunity. In either a civl or crim case, no spouse has a right to refuse to take the stand.
Privilege for confidential marital communication
Civil--confidential marital communications are privileged if either spouse objects to their admissibility

Criminial--confidential marital communications are privileged if either spouse objects to their admissibility AND

1. communications originated in confidence that they will not be disclosed

2. element of confidentiality is essential to maintain the relationship between the spouses

3. relationship is one which, in the opinion of the community should be fostered

AND

4. injury to the relationship by disclosure of the communications outweighs the benefit gained for correct disposal of the litigation.

--does NOT apply to:
1. proceedings between spouses
2. proceedings concerning abuse of spouse or abuse of a minor child in the custody of or under dominion or control of either spouse.
Accountant-Client Privilege
Under this privilege, a public accountant cannot be required
to divulge any information which may have been communicated to him or obtained by him by reason of the confidential nature of his employment.

However this privilege does not extend to preexisting documents that were turned over to the accountant. In addition, this privilege may not apply in criminal cases.
When can an expert testify at trial?
subject matter is one where scientific, technical other specialized knowledge would SUBSTANTIALLY assist the trier of fact (goes to relevancy)

2. qualified (i.e. possesses skill, special knowledge, expertise, training, education)

If SCIENTIFIC evidence then, court must also consider whether the acts and data underlying evidence indicate a lack of TRUSTWORTHINESS

--expert can base opinions on facts inadmissible into evidence if the facts are of the type reasonably relied upon by experts in the particular field. .
McDaniel Test to assess reliability of proffered expert testimony
The trial judge considers the 5 McDaniel factors as to whether:

(1) the scientific evidence has been tested and the METHODOLOGY of testing,

(ii) the evidence has been subjected to PEER REVIEW or publication,

(iii) a potential RATE OF ERROR is known,

(iv) the evidence is generally accepted in the scientific community,

and

(v) the expert's research in the field has been conducted independently of litigation.
Can a child witness be cross-examined outside the criminal defendant's presence?
Maybe. The federal Constitution gives the accused the right to "confront" adverse witnesses.

The Tennessee version contains a right to "meet the witnesses face to face."

An alternate procedure exists by way of statute.

The General Assembly has codified the Maryland v. Craig procedure, whereby a child can sometimes testify in a room separate from the courtroom, her testimony being simultaneously transmitted by closed circuit television to the jury and the accused.

To use this procedure, however, the judge must make detailed findings that the child will be unable to communicate while in the accused''s presence.
McDaniel Test to assess reliability of proffered expert testimony
The trial judge considers the 5 McDaniel factors as to whether:

(1) the scientific evidence has been tested and the METHODOLOGY of testing,

(ii) the evidence has been subjected to PEER REVIEW or publication,

(iii) a potential RATE OF ERROR is known,

(iv) the evidence is generally accepted in the scientific community,

and

(v) the expert's research in the field has been conducted independently of litigation.
Can a child witness be cross-examined outside the criminal defendant's presence?
Maybe. The federal Constitution gives the accused the right to "confront" adverse witnesses.

The Tennessee version contains a right to "meet the witnesses face to face."

An alternate procedure exists by way of statute.

The General Assembly has codified the Maryland v. Craig procedure, whereby a child can sometimes testify in a room separate from the courtroom, her testimony being simultaneously transmitted by closed circuit television to the jury and the accused.

To use this procedure, however, the judge must make detailed findings that the child will be unable to communicate while in the accused''s presence.
Immaterial
if a statement by a party is contrary to and outside the cope of the complaint, it is immaterial.
Admission
statement by one of the parties that amounts to a prior acknowledgment of one of the relevant facts.

In TN, treated as an exception to the hearsay rule.
Hearsay within hearsay
admissible only if both the outer hearsay and inner hearsay statements fall within an exception to the hearsay rule.
Authenticating a business record
-by having custodian or other qualified witness testify to the identity of the record
OR
by certifying in writing that the document meets the requirements of the business record exception
Basic heasay language . . .
Hearsay is an out of court statement offered for TOTMA.

Hearsay is generally inadmissible unless it falls under an exception to the hearsay rule.

[Insert hearsay exception here] is . . .
then apply the facts to the elements of the exception
Statements in biz records that are made by someone other than the preparer
admissible if:
1. declarant had a biz duty to report
OR
2. statements come under some other hearsay exception
i.e. admission
Leading Questions
-? is leading if it suggests the desired answer
-not permitted on direct except for introductory matters
Expletives wrt 403
balance whether probative value of letting expleitves in is SUBSTANTIALLY outweighed by unfair prejudice to my client.

-need brackets and "expletive deleted" designations.