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39 Cards in this Set
- Front
- Back
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AZ: Sources of Evidence Law
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Arizona Rules of Evidence--modeled almost exactly after the FRE.
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Subsequent Remedial Measures Inadmissible to Prove Negligence or Culpable Conduct |
AZ: Does NOT exclude evidence of repairs or other precautionary measure to prove a defect in a product or its design, or a need for a warning or instruction (i.e. it simply states that evidence of subsequent remedial actions is inadmissible to prove negligence or culpable conduct) However, the AZ leg. has decided that in a products liability action, the following are INADMISSIBLE as direct evidence of a defect:
1) Evidence of advancements or changes in the state of the art after the time the product was first sold by D. 2) Evidence of a change in the design or methods of manufacturing or testing the product or nay similar product after the time the product was first sold by the D. |
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Withdrawn Guilty Please and Offers to Plead Guilty |
AZ has taken NO position on the rule of U.S. v. Mezzanatto.
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Character Evidence: Vic in Criminal Case: Prosecution Rebuttal
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In AZ the prosecution may rebut the D's bad character evidence of the victim only with evidence of the V's good character for the same trait. The prosecution may not rebut with evidence of the D's bad character for the same trait.
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Character Evidence: Vic in Criminal Case: Rape Cases: V's Past Behavior Inadmissible
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Although AZ has not adopted FRE 412, AZ law does provide that opinion or reputation evidence relating to a V's reputation for chastity is inadmissible. However, evidence of specific instances of V's prior sexual conduct is admissible if the evidence:
1) Concerns the V's past sexual conduct with the D (implied consent) 2) Shows the source of semen, pregnancy, disease or trauma 3) Supports a claim that the V has a motive in accusing the D of the crime 4) Is offered for the purpose of impeachment when the prosecutor puts the V's sexual conduct in issue. 5) Concerns false allegations of sexual misconduct made by the V against others. |
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AZ: Sources of Evidence Law
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Arizona Rules of Evidence--modeled almost exactly after the FRE.
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Subsequent Remedial Measures Inadmissible to Prove Negligence or Culpable Conduct |
AZ: Does NOT exclude evidence of repairs or other precautionary measure to prove a defect in a product or its design, or a need for a warning or instruction (i.e. it simply states that evidence of subsequent remedial actions is inadmissible to prove negligence or culpable conduct) However, the AZ leg. has decided that in a products liability action, the following are INADMISSIBLE as direct evidence of a defect:
1) Evidence of advancements or changes in the state of the art after the time the product was first sold by D. 2) Evidence of a change in the design or methods of manufacturing or testing the product or nay similar product after the time the product was first sold by the D. |
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Withdrawn Guilty Please and Offers to Plead Guilty |
AZ has taken NO position on the rule of U.S. v. Mezzanatto.
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Character Evidence: Vic in Criminal Case: Prosecution Rebuttal
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In AZ the prosecution may rebut the D's bad character evidence of the victim only with evidence of the V's good character for the same trait. The prosecution may not rebut with evidence of the D's bad character for the same trait.
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Character Evidence: Vic in Criminal Case: Rape Cases: V's Past Behavior Inadmissible
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Although AZ has not adopted FRE 412, AZ law does provide that opinion or reputation evidence relating to a V's reputation for chastity is inadmissible. However, evidence of specific instances of V's prior sexual conduct is admissible if the evidence:
1) Concerns the V's past sexual conduct with the D (implied consent) 2) Shows the source of semen, pregnancy, disease or trauma 3) Supports a claim that the V has a motive in accusing the D of the crime 4) Is offered for the purpose of impeachment when the prosecutor puts the V's sexual conduct in issue. 5) Concerns false allegations of sexual misconduct made by the V against others. Before admitting the above specific information, judge must find by clear and convincing that evidence is material and relevant, and that the prejudicial nature of the evidence does not outweigh its probative value. Note also that evidence of past prostitution is admissible when the D alleges that an act of prostitution took place rather than a sexual assault, if the court determines that the evidence is relevant. |
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AZ: Sources of Evidence Law
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Arizona Rules of Evidence--modeled almost exactly after the FRE.
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Subsequent Remedial Measures Inadmissible to Prove Negligence or Culpable Conduct |
AZ: Does NOT exclude evidence of repairs or other precautionary measure to prove a defect in a product or its design, or a need for a warning or instruction (i.e. it simply states that evidence of subsequent remedial actions is inadmissible to prove negligence or culpable conduct) However, the AZ leg. has decided that in a products liability action, the following are INADMISSIBLE as direct evidence of a defect:
1) Evidence of advancements or changes in the state of the art after the time the product was first sold by D. 2) Evidence of a change in the design or methods of manufacturing or testing the product or nay similar product after the time the product was first sold by the D. |
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AZ: Relevance
Exclusions of Relevant Evidence for Public Policy Based Reasons: Withdrawn Guilty Please and Offers to Plead Guilty |
AZ has taken NO position on the rule of U.S. v. Mezzanatto.
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Character Evidence: Vic in Criminal Case: Prosecution Rebuttal
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In AZ the prosecution may rebut the D's bad character evidence of the victim only with evidence of the V's good character for the same trait. The prosecution may not rebut with evidence of the D's bad character for the same trait.
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Character Evidence: Vic in Criminal Case: Rape Cases: V's Past Behavior Inadmissible
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Although AZ has not adopted FRE 412, AZ law does provide that opinion or reputation evidence relating to a V's reputation for chastity is inadmissible. However, evidence of specific instances of V's prior sexual conduct is admissible if the evidence:
1) Concerns the V's past sexual conduct with the D (implied consent) 2) Shows the source of semen, pregnancy, disease or trauma 3) Supports a claim that the V has a motive in accusing the D of the crime 4) Is offered for the purpose of impeachment when the prosecutor puts the V's sexual conduct in issue. 5) Concerns false allegations of sexual misconduct made by the V against others. Before admitting the above specific information, judge must find by clear and convincing that evidence is material and relevant, and that the prejudicial nature of the evidence does not outweigh its probative value. Note also that evidence of past prostitution is admissible when the D alleges that an act of prostitution took place rather than a sexual assault, if the court determines that the evidence is relevant. |
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Character Evidence: Vic in Criminal Case: Rape Cases: Quantum of Proof for Independently Relevant Acts of Misconduct
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In AZ prior bad acts will not be admitted in a criminal case unless the profferer can prove that by clear and convincing evidence that the prior bad acts were committed and that the D committed the acts.
This standard is more restrictive than the "sufficient evidence' standard adopted by SCOTUS. |
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Character Evidence: Vic in Criminal Case: Rape Cases: Prior Acts of Sexual Assault or Child Molestation:
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Prior acts of sexual assault or child molestation. AZ provides by statute that if a D is charged with a sexual offense, the court may admit evidence that hte D committed past acts that woudl constitute a sexual offense,a nd may consider the bearing such evidence has on any matter to which it is relevant. This statute does nto limit the admission or consideration of evidence under any court rule. For purposes of this statute, "sexual offense means: sexual abuse, sexual conduct with a minor, sexual assault, sexual assault of a spouse, child molestation, contiuous sexual abuse of a child, sexual misconduct by a behavioral health professional, commercial sexual exploitation of a minor and sexual exploitation of a minor.
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Character Evidence: Prior Acts of Sex. Assault / Child Molestation:
Character Evidence in cases where D is charged with Sex offense and civil cases based off the same offense |
AZ rule allows admission of other crimes, wrongs or acts if they are relevant to show that the D had a character trait giving rise to an aberrant sexual propensity to commit the offense charged
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Character Evidence: Prior Acts of Sex. Assault / Child Molestation:Admission of Other Acts
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1) Evidence is sufficient to permit the trier of fact to find that the defendant committed the other act;
2) The commission of the other act provides a reasonable basis for inferring the existence of a character trait giving rise to an aberrant sexual propensity to commit the crime charged. 3) The evidentiary value of proof of the other act is not substantially outweighed by the danger of unfair prejudice or confusion of issues. This requires the court to consider, among other things, 1) The remoteness in time of the act; 2) The similarity or dissimilarity of the other act; 3) The strength of the evidence that the D committed the other act; the frequency of other acts, surrounding circumstances and relevant intervening events. |
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Character Evidence: Prior Acts of Sex. Assault / Child Molestation:Admission of Other Acts: Disclosure:
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Other acts evidence must be disclosed to D at least 45 days prior to trial (later only on good cause shown) In civil cases, disclosure must be made no later than 60 days prior to trial (later only on good cause shown)
Ct must instruct jury as to use of other acts evidence. For instance, jury must be told that such evidence does not diminish the prosecution's burden to prove guilt beyond a reasonable doubt, and that D may not be convicted solely because jury finds that he committed the OTHER act, or had a character trait that predisposed him to commit the crime charged. |
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Documentary Evidence:
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Business records are not self-authenticating documents in AZ.
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Testimonial Evidence:
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Application of statutory Dead Man act is discretionary with the court.
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Form of Examination of W's:
Leading Questions |
Party may call an adverse party or one whose interests are identified with an adverse party, and interrogate him by leading questions. The witness thus called may ALSO be interrogated by leading questions on behalf of the adverse party.
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Opinion Testimony:
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Article VII of the AZ Rules of Evidence is designed to avoid unnecessary restrictions concerning the admissibility of opinion evidence; however, an adverse atty may invoke the court's power to require that before admission of opinion, there be a showing of the traditional evidentiary pre-requisites. The court will be expected to exercise its discretion so as to prevent the admission of opinions where the underlying facts or data of the opinion are subject to later admission fi there is any serious question concerning the admissibility of the underlying facts or data.
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Opinion Testimony: Expert Witnesses
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Subject matter must be appropriate for expert testimony. AZ has rejected Daubert and continues to apply the rule that before the results of a new scientific theory are admitted into evidence, there must be a showing that the theory is generally accepted in the relevant scientific community. However, when an expert bases her testimony on her own experience, obeservations or opinions, a showing of "general acceptance" is not required. Admissibility will be governed by general rules relating to expert witness testimony.
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Cross X: Scope
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Contrary to the restrictive scope of Cross-X under FRE, in AZ, cross-X is permitted on any relevant matter and is not limited to the subject matter of the direct.
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Credibility: Impeachment
Cross-X and Extrinsic Evidence |
Effect: Prior Inconsistent Statements: Unlike FRE which admit as substantive evidence only prior inconsistent statements made under oath, AZ admits ALL prior inconsistent statements as substantive evidence.
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Testimonial Privileges:
Atty Client privilege: Corporation as Client |
In AZ, communication between atty for corporation, gov't entity, partnership or similar entity and an employee, agent or member of such entity, regarding acts or omissions of or informaiton obtained from such person, is privileged in civil cases if the communication is either for the purpose of:
1) Providing legal advice to the entity or the employee or agent 2) Obtaining information in order to provide legal advice to the entity or the employee or agent. The privilege is not to be construed to allow the employee to be relieved of a duty to disclose facts solely because they have been communicated to an atty. |
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Testimonial Privileges:
Physician Patient Privilege: Criminal Proceedings |
In AZ the physician-patient privilege applies in both civil and criminal cases. With regard to criminal cases, a physician or surgeon shall not be examined as such a witness, without the consent of her patient, as to any information acquried in attending the patient that was necessary to enable the physician to prescribe or act for the patient.
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Testimonial Privileges:
Psycho-Therapist/ Social Worker -Patient Privilege |
In AZ this is a privileged communication. Unless ct. waives the privilege in writing or in court testimony, a psychologist is not permitted to divulge information that is received by reason of the confidential nature of the psychologist's practice. The psychologist must divulge to the State Board of Psych examiners information it may require for an investigation or public hearing. The privilege does nto extend to cases in which the Psychologist has a legal duty to report.
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Testimonial Privilege:
Spousal Privilege |
In criminal cases (other than those where spouse or children are vics) D spouse may prevent other spouse from testifying to events occurring during the marriage. Also, neither spouse can be examined without the other's consent, during the marriage or afterward, as to nay communication made to one by the other during the course of the marriage.
In civil actions, spouses may not be examined for or against the other spouse as to events or communications without the other spouse's consent, except: 1) divorce actions; 2) In a criminal action as provided in the criminal code; 3) in an action brought by one spouse against a 3rd party for alienation of affection; and 4) in an action for damages against a third party for adultery. |
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Testimonial Privilege:
Professional Journalistic Privilege |
AZ: reporter or other person associated with a newspaper, radio or television station has a privilege to refuse to disclose the source of information obtained by him for publication or broadcasting.
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Hearsay Rule:
Non-Hearsay Statements under FRE Prior Inconsistent Statement |
AZ: Prior inconsistent statement will be admitted as substantive evidence regardless of whether it was made under oath (as FRE require) ANY prior inconsistent statement will be admissible as substantive evidence.
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Hearsay Rule: Admissions by Party Opponent--Vicarious Admissions:
Statement May Not be Considered in Proving Conspiracy |
In AZ, contents of a co-conspirator's statement may NOT be considered in establishing the existence of a conspiracy. Thus, AZ law requires the existence of a conspiracy to be proven by INDEPENDENT EVIDENCE.
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Hearsay Exceptions: Declarant Unavailable: Former Testimony
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In AZ, the requirement of unavailability of former testimony is limited to use in criminal proceedings. In civil proceedings former testimony is admissible even if the declarant is available as a witness.
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Hearsay Exceptions: Declarant's Availability Immaterial: Business Records--Authentication
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In AZ a custodian or other qualified witness is required to authenticate a business record--the record is not self-authenticating.
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Hearsay Exceptions: Declarant's Availability Immaterial: Business Records--Authentication: Former Testimony
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In CIVIL actions, testimony given in another proceeding or deposition is admissible even thought the declarant is available as a witness provided that the party against whom the testimony is offered (or a predecessor in interest) had a motive and opportunity to develop the testimony.
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Hearsay Exceptions: Residual Catch-All Exceptions
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FRE's catch-all exception NOT followed by AZ.
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Procedural Considerations: Presumptions
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Article III of the FRE concerning presumptions has not been adopted in AZ. Under AZ law, the law of presumptions is reflected in the common law and has not been codified in the Ariz. R. of Evidence.
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